LAND, TITLES AND DEEDS

HEIRS OF MANUEL A. ROXAS and TRINIDAD DE LEON VDA. DE ROXAS (in substitution of original petitioner) vs. COURT OF APPEALS and MAGUESUN MANAGEMENT & DEVELOPMENT CORPORATION G.R. No. 118436 March 21, 1997 ROMERO, J.: Trinidad de Leon Vda. de Roxas, substituted by her heirs, 1 instituted this petition for review of the Court of Appeals decision dated December 8, 1994 in "Trinidad de Leon Vda. de Roxas v. Maguesun Management and Development Corporation," (CA G.R. CV No. 38328), alleging reversible error committed by respondent appellate court when it affirmed the decision of the Regional Trial Court of Cavite. The issue presented before us is whether or not private respondent Maguesun Corporation committed actual fraud in obtaining a decree of registration over two unregistered parcels of land in Tagaytay City, actual fraud being the only ground to reopen or review a decree of registration. The facts of the case are narrated below: On July 2, 1990, herein private respondent Maguesun Management and Development Corporation (Maguesun Corporation) filed an Application for Registration of two parcels of unregistered land located in Barangay Sungay, Tagaytay City (Lot Nos. 7231 and 7239, Cad-355, Tagaytay Cadastre) with an area of 3,641 and 10,674 square meters respectively. The original registration case was docketed as Case No. TG-373 before the Regional Trial Court of Cavite, Branch 18, presided over by Judge Julieto Tabiolo. In support of its application for registration, Maguesun Corporation presented a Deed of Absolute Sale dated June 10, 1990, executed by Zenaida Melliza as vendor and indicating the purchase price to be P170,000.00. Zenaida Melliza in turn, bought the property from the original petitioner herein, Trinidad de Leon vda. de Roxas for P200,000.00 two and a half months earlier, as evidenced by a Deed of Sale dated March 26, 1990 and an Affidavit of Self-Adjudication dated March 24, 1990. Notices of the initial hearing were sent by the Land Registration Authority (the National Land Titles and Deeds Registration Authority or NALTDRA) to Hilario Luna, Jose Gil and Leon Luna on the basis of Maguesun Corporation's application for registration. Since Trinidad de Leon vda. de Roxas was not named as an adjoining owner, occupant or adverse claimant, she was not sent a notice of the proceedings. Publication was made in the Official Gazette and the Record Newsweekly. 2 After an Order of general default was issued, the trial court proceeded to hear the land registration case. On October 4, 1990, the Land Registration Authority reported, among other things, that the subject parcels of land had previously been applied for registration in Land Registration Case No. 500, GLRO Record No. 55072 at the Court of First Instance of Cavite by Manuel A. Roxas and Trinidad de Leon but no decision has been rendered thereon. 3 Eventually, on February 13, 1991 the Regional Trial Court granted Maguesun Corporation's application for registration (Land Registration Case No. TG-373) in a three-page decision with the following dispositive portion: 4 WHEREFORE, this Court gives imprimatur to the application for registration of said lands described in plan As-04-000108, Lot Nos. 7231 and 7239, one with an area of 3,641 and the other with an area of 10,674 square meters, as supported and shown by the corresponding technical descriptions now forming part of the records, in the name of Maguesun Management and Development Corporation, with office address at 1

521 Edsa, Quezon City, free from all liens and encumbrances and from any other adverse claims of any kind and nature. Upon finality of this Decision, the same ipso facto becomes executory, upon which eventuality the corresponding decree of registration may thus be issued. SO ORDERED. Consequently, the Regional Trial Court issued the Order for Issuance of the Decree on March 14, 1991, after the afore-mentioned Decision in LRC No. TG-373 became final 5 but not before it ordered, on February 14, 1991, Land Registration Case No. 500 (GLRO Record No. 55072) applied for by Manuel A. Roxas and Trinidad de Leon, dismissed. It was only when the caretaker of the property was being asked to vacate the land that petitioner Trinidad de Leon Vda. de Roxas learned of its sale and the registration of the lots in Maguesun Corporation's name. Hence, on April 21, 1991, petitioner filed a petition for review before the Regional Trial Court, docketed as Civil Case No. TG-1183 to set aside the decree of registration on the ground that Maguesun Corporation committed actual fraud. She alleged that the lots were among the properties she inherited from her husband, former President Manuel A. Roxas, who died on April 15, 1946 and that her family had been in open, continuous, adverse and uninterrupted possession of the subject property in the concept of owner for more than thirty years before they applied for its registration under the Torrens System of land titling. Petitioner further denied that she sold the lots to Zenaida Melliza whom she had never met before and that her signature was forged in both the Deed of Sale and the Affidavit of Self-Adjudication. In support of her claims, she also listed a number of irregularities in the documents to prove actual fraud. In addition, and perhaps more significantly, she claimed that Maguesun Corporation intentionally omitted her name as an adverse claimant, occupant or adjoining owner in the application for registration submitted to the Land Registration Authority such that the latter could not send her a Notice of Initial Hearing. As a result, an order of general default was issued and Maguesun Corporation's application for registration was granted. She charged Maguesun Corporation's with knowledge or authorship of the fraud owing to the fact that the Maguesun Corporation's president, Manolita Guevarra Sunatay after whom the corporation was named, was her niece. Manolita Suntay is the daughter of Lourdes Guevarra Suntay, a deceased cousin of petitioner Vda. de Roxas who used to help with the lather's business affairs. Manolita Suntay used to take care of the registration and insurance of the latter' s cars. 6 The sole issue of the case, as laid down by the trial court after the pre-trial, was whether or not Vda. de Roxas' signatures on the Deed of Absolute Sale and the Affidavit of Self-Adjudication in favor of Zenaida Melliza were forged. 7 Petitioner, who was then already 92 years of age, testified in open court on February 11, 1992 that she has never met Zenaida Melliza, that she did not sell the subject lots and that her signatures on the Deed of Sale and Affidavit of Self-Adjudication were forged. 8 A document examiner from the Philippine National Police (PNP) concluded that there was no forgery. 9 Upon petitioner's motion, the signatures were re-examined by another expert from National Bureau of Investigation. The latter testified that the signatures on the questioned and sample documents were not written by the same person. 10 Despite the foregoing testimonies and pronouncements, the trial court dismissed the petition for review of decree of registration April 15, 1992. 11 Placing greater weight on the findings and testimony of the PNP document examiner, it concluded that the questioned documents were not forged and if they were, it was Zenaida Melliza, and not Maguesun Corporation, who was responsible. Accordingly, Maguesun Corporation did not commit actual fraud. The court further noted that petitioner Mrs. Trinidad Roxas had not been paying taxes for several years, which fact 2

"exhibited what appeared to be unmistakeable signs of not actually owning (the lots) any more," and that her application for registration was "previously dismissed and abandoned," thus indicating that "petitioner herself is aware that she had already lost . . interest, if not actually her rights, over the property in question. 12 In a decision dated December 8, 1994, 13 respondent court denied the petition for review and affirmed the findings of the trial court. The Court of Appeals held that petitioner failed to and demonstrate that there was actual or extrinsic fraud, not merely constructive or intrinsic fraud, a prerequisite for purposes of annuling a judgment or reviewing a decree of registration. Additionally, respondent court stated that the discrepancies or irregularities in the Deed of Sale and Affidavit of SelfAdjudication pointed out by petitioner are not patent or obvious, involve matters that are too trivial, requiring knowledge of the intricacies of the law and are "not necessarily and exclusively indicia of extrinsic fraud and/or bad faith especially when considered in the light of circumstances hereinafter discussed." The records also show, according to the appellate court, that Maguesun Corporation had not concealed from the court either the existence of petitioner or any interest she may have had in the registration proceedings. Finally, the Court of Appeals ruled that publication of the initial hearing in the Official Gazette is sufficient to confer jurisdiction upon the court. 14 Hence, the instant petition for review where it is alleged that the Court of Appeals erred in ruling that Maguesun Corporation had not commit actual fraud warranting the setting aside of the registration decree and in resolving the appeal on the basis of Maguesun Corporation's good faith. Petitioners pray that the registration of the subject lots in the name of Maguesun Corporation be cancelled, that said property be adjudicated in favor of petitioners and that respondent corporation pay moral damages not less than P100,000.00, exemplary damages not less than P36,000.00 and attorney's fees of P60,000.00. We find the petition for review impressed with merit. 1. Registration of untitled land under the Torrens System is done pursuant to Presidential Decree No. 1529, the Property Registration Decree which amended and codified laws relative to registration of property. 15 Adjudication of land in a registration (or cadastral) case does not become final and incontrovertible until the expiration of one year after the entry of the final decree. Before such time, the decision remains under the control and sound discretion of the court rendering the decree, which court after hearing, may set aside the decision or decree and adjudicate the land to another party. 16 Absence, minority or other disability of any person affected, or any proceeding in court for reversing judgments, are not considered grounds to reopen or revise said decree. However, the right of a person deprived of land or of any estate or interest therein by adjudication or confirmation of title obtained by actual fraud is recognized by law (Section 32 of Presidential Decree No. 1529) as a valid and legal basis for reopening and revising a decree of registration. 17 It is further required that a petition for reopening and review of the decree of registration be filed within one year from the date of entry of said decree, that the petitioner has a real and dominical right and the property has not yet been transferred to an innocent purchaser.18 Fraud is of two kinds: actual or constructive. Actual or positive fraud proceeds from an intentional deception practiced by means of the misrepresentation or concealment of a material fact. 19 Constructive fraud is construed as a fraud because of its detrimental effect upon public interests and public or private confidence, even though the act is not done or committed with an actual design to commit positive fraud or injury upon other persons. 20 3

Fraud may also be either extrinsic or intrinsic. Fraud is regarded as intrinsic where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were or could have been litigated therein, and is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured, so that there is not a fair submission of the controversy. 21 Extrinsic fraud is also actual fraud, but collateral to the transaction sued upon. 22 The distinctions are significant because only actual fraud or extrinsic fraud has been accepted as grounds for a judgment to be annulled or, as in this case, a decree of registration reopened and reviewed. 23 In the oft-citedMacabingkil v. People's Homesite Housing Corporation case, the Court drew from American jurisprudence stating that "relief has been granted on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, (and) that party has been prevented from presenting all of his case to the court."24 The "fraud" contemplated by the law in this case (Section 32, P.D. No 1529) is actual and extrinsic, which includes an intentional omission of fact required by law. 25 For fraud to justify a review of a decree, it must be extrinsic or collateral, and the facts upon which it is based have not been controverted or resolved in the case where the judgment sought to be annulled was rendered. 26 Persons who were fraudulently deprived of their opportunity to be heard in the original registration case are entitled to a review of a decree of registration. In Ramirez v. CA, 27 this Court adopted the Court of Appeals' ruling that the suppression of the fact that the applicant spouses possessed the subject ricefield merely as antichretic creditors and the fraudulent concealment and misrepresentation in the application that no other persons had any claim or interest in the said land, constitute specific allegations of extrinsic fraud supported by competent proof. Failure and intentional omission of applicants to disclose the facts of actual physical possession by another person constitutes an allegation of actual fraud. 28Likewise, it is fraud to knowingly omit or conceal a fact, upon which benefit is obtained to the prejudice of a third person. 29 The Court here finds that respondent Maguesun Corporation committed actual fraud in obtaining the decree of registration sought to be reviewed by petitioner. Petitioner Vda. de Roxas contended that Maguesun Corporation intentionally omitted their name, or that of the Roxas family, as having a claim to or as an occupant of the subject property. In the corporation's application for registration filed with the trial court in LRC No. TG-373, the following declaration appears: 6. That the names in full and addresses, as far as known to the undersigned, of the owners of all adjoining properties; of the persons mentioned in paragraphs 3 and 5 (mortgagors, encumbrancers, and occupants) and of the person shown on the plan as claimants are as follows: Hilario Luna, Jose Gil, Leon Luna, Provincial Road all at Tagaytay City (no house No.) 30 The highlighted words are typed in with a different typewriter, with the first five letters of the word "provincial" typed over correction fluid. Maguesun Corporation, however, annexed a differently-worded application for the petition to review case (Civil Case No. TG-1183, "Trinidad de Leon Vda. de Roxas v. Maguesun Management and Development Corporation, et al."). In the copy submitted to the trial court, the answer to the same number is as follows: Hilario Luna, Jose Gil, Leon Luna, Roxas. 31 The discrepancy which is unexplained appears intentional. If the word "Roxas" were indeed erased and replaced with "Provincial Road all at Tagaytay City (no house No.)" 4

in the original application submitted in LRC No. TG-373 but the copy with the word "Roxas" was submitted to the trial court in Civil Case No. TG-1183, it is reasonable to assume that the reason is to mislead the court into thinking that "Roxas" was placed in the original application as an adjoining owner, encumbrancer, occupant or claimant, the same application which formed the basis for the Land Registration Authority in sending out notices of initial hearing. Section 15 of Presidential Decree No. 1529 also requires the applicant for registration to state the full names and addresses of all occupants of the land and those of adjoining owners, if known and if not known, the extent of the search made to find them. Respondent corporation likewise failed to comply with this requirement of law. The truth is that the Roxas family had been in possession of the property uninterruptedly through their caretaker, Jose Ramirez. 32 Respondent Maguesun Corporation also declared in number 5 of the same application that the subject land was unoccupied when in truth and in fact, the Roxas family caretaker resided in the subject property. Respondent corporation is likewise charged with the knowledge of such possession and occupancy, for its President, who signed the Deed of Sale over the property, knew fully well that her grandaunt Trinidad de Leon vda. de Roxas owned the property. It is reasonable to expect her as a buyer to have inspected the property prior to the sale such that the ascertainment of the current possessors or occupants could have been made facilely. Respondent corporation's intentional concealment and representation of petitioner's interest in the subject lots as possessor, occupant and claimant constitutes actual fraud justifying the reopening and review of the decree of registration. Through such misfeasance, the Roxas family was kept ignorant of the registration proceedings involving their property, thus effectively depriving them of their day in court. 2. Respondent Court of Appeals held that Maguesun Corporation had not concealed from the court either the existence of Trinidad de Leon Vda. de Roxas or any interest she may have in the registration proceedings for the records are replete with references by Maguesun Corporation itself to petitioner. 33 Mention of the late President's name as well as that of petitioner was made principally in the Formal Offer of Exhibits for respondent corporation, in a Copy of Plan of Lots 7231 and 7239, tax declarations and as predecessor-in-interest. However, this is not sufficient compliance with what the law requires to be stated in the application for registration. Disclosure of petitioner's adverse interest, occupation and possession should be made at the appropriate time, i.e., at the time of the application for registration, otherwise, the persons concerned will not be sent notices of the initial hearing and will, therefore, miss the opportunity to present their opposition or claims. 3. Publication of the Notice of Initial Hearing was made in the Official Gazette and in the Record Newsweekly, admittedly not a newspaper of general circulation. The Court of Appeals held that pursuant to Section 23 of Presidential Decree No. 1529, publication in the Official Gazette is sufficient to confer jurisdiction. Said provision of law expressly states that "the Commissioner of Land Registration shall cause a notice of initial hearing to be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines. Provided, however, that the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. . . ." While publication of the notice in the Official Gazette is sufficient to confer jurisdiction upon the court, publication in a newspaper of general circulation remains an indispensable procedural requirement. Couched in mandatory terms, it is a component of procedural due process and aimed at giving "as wide publicity as possible" so that all persons having an adverse interest in the land subject of the registration proceedings may be notified thereof. 34Although jurisdiction of the court is not affected, the fact that publication was not made in a newspaper of general 5

circulation is material and relevant in assessing the applicant's right or title to the land. 4. The allegations of forgery and the discrepancies in the documentary, as well as in the testimonial evidence regarding this issue which are all crucial to this case, compelled the Court to undertake a careful review of the facts of the case. 35 A close scrutiny of the evidence on record leads the Court to the irresistible conclusion that forgery was indeed attendant in the case at bar. Although there is no proof of respondent Maguesun Corporation's direct participation in the execution and preparation of the forged instruments, there are sufficient indicia which proves that Maguesun Corporation is not the "innocent purchaser for value" who merits the protection of the law. In response to the questions fielded by the trial court and by counsel for petitioner, PNP Document Examiner Zacarias Semacio sought to explain all the differences pointed out in the questioned signatures and in the sample signatures as having been caused merely by "natural variation." 36 He concluded that the questioned signatures were not forged. In contrast, Chief of the Questioned Documents Division of the National Bureau of Investigation, Arcadio Ramos, testified with more specificity as befits an expert that the questioned and sample signatures were not written by one and the same person because of "(t)he manner of execution of strokes; the personalized proportional characteristics of letters; the linking/connecting between letters; the structural pattern of letters and other minute details . . . 37 Moreover, petitioner Trinidad de Leon vda. de Roxas categorically declared that she has never met Zenaida Melliza and did not sell the subject property. 38 Petitioner, then over ninety years old, has no motive to attest to a falsehood. Petitioner and her family also own several other pieces of property, some of which are leased out as restaurants, e.g. Leo's Restaurant and Ma Mon Luk Restaurant. 39 This is an indication that petitioner is not unaware of the value of her properties. Hence, it is unlikely that indication that she would sell over thirteen thousand square meters of prime property in Tagaytay City to a stranger for a measly P200,000.00 Finally, even to a layman's eye, the documents, as well as the enlarged photographic exhibit of the signatures, reveal forgery. The questioned signatures taken from the Deed of Sale and Affidavit of Self-Adjudication are starkly different from the sample signatures in several documents executed by petitioner. The questioned signatures are smooth and rounded and have none of the jagged and shaky character of petitioner's signatures characteristic of the penmanship of elderly persons. There are also added considerations reflective of the dubious character of the Affidavit of Self-Adjudication purportedly executed by petitioner. 40 In it she declares that she is a resident of 22 8th Street, New Manila, Quezon City, when she actually lives in 2 Park Road, North Forbes Park, Makati. She also states that she is the "sole heir of the late Manuel De Roxas who died sometime on the year 1944 at Manila." Petitioner's husband is President Manuel A. Roxas and she refers to herself as Trinidad de Leon vda. de Roxas. President Roxas was survived by petitioner and their two children, Ma. Rosario Roxas and Gerardo Roxas (who predeceased petitioner). The fact that petitioner was not the sole heir was known to the general public, as well as the demise of the late President on April 15, 1946 while delivering a speech at Clark Field, Pampanga. The aforementioned irregularities are too glaring to have been ignored. If petitioner did in fact execute said Affidavit, there is no reason why she should state facts other than the unadulterated truth concerning herself and her family. Additionally, Zenaida Melliza's non-appearance raises doubt as to her existence. Her given address was Matina, Davao City. How was she related to petitioner and what led her to purchase the subject? Respondent corporation could very well have 6

presented her to prove the legitimacy of their transaction. If petitioner were selling said property, would she not have offered them first to interested relatives such as Manolita G. Suntay? Would an ordinary person sell more than thirteen thousand square meters of prime property for P170,000.00 when it was earlier purchased for P200,000.00? These questions highlight several implausibilities in the alleged sale of the subject property by herein petitioner. As Maguesun Corporation's President who is related to petitioner, Manolita G. Suntay should have verified the sale of the subject property by Zenaida Melliza. Manolita G. Suntay's closeness to petitioner Vda. de Roxas, as one who even registered the latter's car, suggests acquaintance with the late petitioner's properties as well as the possibility that she took advantage of such knowledge. From the foregoing, it is quite clear that respondent corporation cannot tack its possession to that of petitioner as predecessor-in-interest. Zenaida Melliza conveyed not title over the subject parcels of land to Maguesun Corporation as she was not the owner thereof. 41 Maguesun Corporation is thus not entitled to the registration decree which the trial court granted in its decision. Palpably, petitioner has not been interrupted in her more than thirty years of open, uninterrupted, exclusive and notorious possession in the concept of an owner over the subject lots by the irregular transaction to Zenaida Melliza. She therefore retains title proper and sufficient for original registration over the two parcels of land in question pursuant to Section 14 of Presidential Decree No. 1529. 42 WHEREFORE, the instant petition is hereby GRANTED. The Decision of the Court of Appeals in C.A. G.R. CV No. 38328 ("Trinidad de Leon Vda. de Roxas v. Maguesun Management & Development Corporation, et al.") promulgated on December 8, 1994 is hereby REVERSED AND SET ASIDE. Accordingly, registration of title over the subject parcels of land, described in Plan AS-04-000108, Lot Nos. 7231 and 7239, with an area of 3,461 and 10,674 square meters, respectively, as shown and supported by the corresponding technical descriptions now forming part of the Records of LRC No. TG-373, is awarded to herein petitioner Trinidad de Leon vda. de Roxas and her heirs, herein substituted as petitioners. Upon finality of this Decision, the Land Registration Authority is hereby directed to ISSUE with reasonable dispatch the corresponding decree of registration and certificate of title pursuant to Section 39 of Presidential Decree No. 1529. SO ORDERED.

CRIMINAL PROCEDURE People v. Aruta People v. Gatdula

THE PEOPLE OF THE PHILIPPINES, vs. ROSA ARUTA y MENGUIN G.R. No. 120915 April 3, 1998 7

ROMERO, J.: With the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of failing to observe well-entrenched constitutional guarantees against illegal searches and arrests. Consequently, drug offenders manage to evade the clutches of the law on mere technicalities. Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads: That on or about the fourteenth (14th) day of December, 1988, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, without being lawfully authorized, did then and there willfully, unlawfully and knowingly engage in transporting approximately eight (8) kilos and five hundred (500) grams of dried marijuana packed in plastic bag marked "Cash Katutak" placed in a traveling bag, which are prohibited drugs. Upon arraignment, she pleaded "not guilty." After trial on the merits, the Regional Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos. 1 The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officerin-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on their testimonies, the court a quofound the following: On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a certain "Aling Rosa" would be arriving from Baguio City the following day, December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin. Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB building while the other group waited near the Caltex gasoline station. While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of the same day from where two females and a male got off. It was at this stage that the informant pointed out to the team "Aling Rosa" who was then carrying a traveling bag. Having ascertained that accused-appellant was "Aling Rosa," the team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked "Aling Rosa" about the contents of her bag, the latter handed it to the former. Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag marked "Cash Katutak." The team confiscated the bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM office for investigation where a Receipt of Property Seized was prepared for the confiscated marijuana leaves. Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that said specimen yielded positive results for marijuana, a prohibited drug. After the presentation of the testimonies of the arresting officers and of the above technical report, the prosecution rested its case. 8

Instead of presenting its evidence, the defense filed a "Demurrer to Evidence" alleging the illegality of the search and seizure of the items thereby violating accused-appellant's constitutional right against unreasonable search and seizure as well as their inadmissibility in evidence. The said "Demurrer to Evidence" was, however, denied without the trial court ruling on the alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized to avoid pre-judgment. Instead, the trial court continued to hear the case. In view of said denial, accused-appellant testified on her behalf. As expected, her version of the incident differed from that of the prosecution. She claimed that immediately prior to her arrest, she had just come from Choice Theater where she watched the movie "Balweg." While about to cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office. During investigation at said office, she disclaimed any knowledge as to the identity of the woman and averred that the old woman was nowhere to be found after she was arrested. Moreover, she added that no search warrant was shown to her by the arresting officers. After the prosecution made a formal offer of evidence, the defense filed a "Comment and/or Objection to Prosecution's Formal Offer of Evidence" contesting the admissibility of the items seized as they were allegedly a product of an unreasonable search and seizure. Not convinced with her version of the incident, the Regional Trial Court of Olongapo City convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency. 2 In this appeal, accused-appellant submits the following: 1. The trial court erred in holding that the NARCOM agents could not apply for a warrant for the search of a bus or a passenger who boarded a bus because one of the requirements for applying a search warrant is that the place to be searched must be specifically designated and described. 2. The trial court erred in holding or assuming that if a search warrant was applied for by the NARCOM agents, still no court would issue a search warrant for the reason that the same would be considered a general search warrant which may be quashed. 3. The trial court erred in not finding that the warrantless search resulting to the arrest of accused-appellant violated the latter's constitutional rights. 4. The trial court erred in not holding that although the defense of denial is weak yet the evidence of the prosecution is even weaker. These submissions are impressed with merit. In People v. Ramos, 3 this Court held that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the Constitution which provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 9

This constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. The plain import of the language of the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. 4 Further, articles which are the product of unreasonable searches and seizures are inadmissible as evidence pursuant to the doctrine pronounced in Stonehill v. Diokno. 5 This exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution, thus: Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding. From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the person of an individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint. 6 Therewithal, the right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated. 7 The following cases are specifically provided or allowed by law: 1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 8 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 (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; 9 6. Stop and Frisk; 10 and 7. Exigent and Emergency Circumstances. 11 The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in 10

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. 12 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. 13 In searches and seizures effected without a warrant, it is necessary for probable cause to be present. Absent any probable cause, the article(s) seized could not be admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. In our jurisprudence, there are instances where information has become a sufficient probable cause to effect a warrantless search and seizure. In People v. Tangliben, 14 acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red traveling 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 instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously. In People v. Malmstedt, 15 the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally 11

accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street. In People v. Bagista, 16 the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accusedappellant's belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accusedappellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant. In Manalili v. Court of Appeals and People, 17 the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts. In all the abovecited cases, there was information received which became the bases for conducting the warrantless search. Furthermore, additional factors and circumstances were present which, when taken together with the information, constituted probable causes which justified the warrantless searches and seizures in each of the cases. In the instant case, the determination of the absence or existence of probable cause necessitates a reexamination of the facts. The following have been established: (1) In the morning of December 13, 1988, the law enforcement officers received information from an informant named "Benjie" that a certain "Aling Rosa" would be leaving for Baguio City on December 14, 1988 and would be back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a traveling bag even as the informant pointed her out to the law enforcement officers; (3) The law enforcement officers approached her and introduced themselves as NARCOM agents; (4) When asked by Lt. Abello about the contents of her traveling bag, she gave the same to him; (5) When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office for investigation. This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him. Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet 12

Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right. In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the warrantless search and seizure of accused-appellant's bag, accused-appellant must have been validly arrested under Section 5 of Rule 113 which provides inter alia: 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; xxx xxx xxx Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag, there being no probable cause and the accusedappellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution. Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a search is first undertaken, and an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law. 18 As previously discussed, the case in point is People v. Aminnudin 19 where, this Court observed that: . . . 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 13

pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. In the absence of probable cause to effect a valid and legal warrantless arrest, the search and seizure of accused-appellant's bag would also not be justified as seizure of evidence in "plain view" under the second exception. The marijuana was obviously not immediately apparent as shown by the fact that the NARCOM agents still had to request accused-appellant to open the bag to ascertain its contents. Neither would the search and seizure of accused-appellant's bag be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was accosted in the middle of the street and not while inside the vehicle. People v. Solayao, 20 applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. 21 In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate, accusedappellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime. The warrantless search and seizure could not likewise be categorized under exigent and emergency circumstances, as applied in People v. De Gracia. 22 In said case, there were intelligence reports that the building was being used as headquarters by the RAM during a coup d' etat. A surveillance team was fired at by a group of armed men coming out of the building and the occupants of said building refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being committed. In short, there was probable cause to effect a warrantless search of the building. The same could not be said in the instant case. The only other exception that could possibly legitimize the warrantless search and seizure would be consent given by the accused-appellant to the warrantless search as to amount to a waiver of her constitutional right. The Solicitor General argues that accused-appellant voluntarily submitted herself to search and inspection citing People v. Malasugui 23 where this Court ruled: When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus: Q When this informant by the name of alias Benjie pointed to Aling Rosa, what happened after that?

14

A We followed her and introduced ourselves as NARCOM agents and confronted her with our informant and asked her what she was carrying and if we can see the bag she was carrying. Q What was her reaction? A She gave her bag to me. Q So what happened after she gave the bag to you? A I opened it and found out plastic bags of marijuana inside. 24 This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. 25 On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her. Aside from the inapplicability of the abovecited case, the act of herein accusedappellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada, 26 where this Court held: [T]he Republic's counsel avers that appellant voluntarily handed the chairs containing the package of marijuana to the arresting officer and thus effectively waived his right against the warrantless search. This he gleaned from Bolonia's testimony. Q: After Roel Encinada alighted from the motor tricycle, what happened next? A: I requested to him to see his chairs that he carried. Q: Are you referring to the two plastic chairs? A: Yes, sir. Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs that he carried, what did you do next? A: I examined the chairs and I noticed that something inside in between the two chairs. We are not convinced. While in principle we agree that consent will validate an otherwise illegal search, we believe that appellant based on the transcript quoted above did not voluntarily consent to Bolonia's search of his belongings. Appellant's silence should not be lightly taken as consent to such search. The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty." (Emphasis supplied) Thus, accused-appellant's lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. As this Court held in People v. Barros: 27 . . . [T]he accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest "simply because he failed to object" . . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein 15

(Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra): xxx xxx xxx . . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (Citation omitted). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." 28 (Emphasis supplied) To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As clearly illustrated in People v.Omaweng, 29 where prosecution witness Joseph Layong testified thus: PROSECUTOR AYOCHOK: Q When you and David Fomocod saw the travelling bag, what did you do? A When we saw that traveling bag, we asked the driver if we could see the contents. Q And what did or what was the reply of the driver, if there was any? A He said "you can see the contents but those are only clothings" (sic). Q When he said that, what did you do? A We asked him if we could open and see it. Q When you said that, what did he tell you? A He said "you can see it". Q And when he said "you can see and open it," what did you do? A When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag. Q And when you saw that it was not clothings (sic), what did you do? A When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana. (Emphasis supplied) In the above-mentioned case, accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and traveling bag, which is not the case with Aruta. In an attempt to further justify the warrantless search, the Solicitor General next argues that the police officers would have encountered difficulty in securing a search warrant as it could be secured only if accused-appellant's name was known, the vehicle identified and the date of its arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within which to act. This argument is untenable. Article IV, Section 3 of the Constitution provides: . . . [N]o search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. (Emphasis supplied) 16

Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. The purpose of this rule is to limit the things to be seized to those and only those, particularly described in the warrant so as to leave the officers of the law with no discretion regarding what articles they shall seize to the end that unreasonable searches and seizures may not be made. 30 Had the NARCOM agents only applied for a search warrant, they could have secured one without too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained to be in the afternoon of December 14, 1988. "Aling Rosa" turned out to be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents failed to particularize the vehicle, this would not in any way hinder them from securing a search warrant. The above particulars would have already sufficed. In any case, this Court has held that the police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. 31 (Emphasis supplied) While it may be argued that by entering a plea during arraignment and by actively participating in the trial, accused-appellant may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply in the instant case for the following reasons: 1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of "not guilty" and participation in the trial are indications of her voluntary submission to the court's jurisdiction. 32 The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far. 2. Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accusedappellant filed a Demurrer to Evidence and objected and opposed the prosecution's Formal Offer of Evidence. It is apropos to quote the case of People v. Barros, 33 which stated: It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop an accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter necessarily constitutes, or carries with it, waiver of the former an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people. In the case at bar, defense counsel had expressly objected on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. We consider that appellant's objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during the trial. (Emphasis supplied). 17

In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than twenty-four hours to do so. Obviously, this is again an instance of seizure of the "fruit of the poisonous tree," hence illegal and inadmissible subsequently in evidence. The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The nonexclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. 34 While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, theStonehill case observed that most jurisdictions have realized that the exclusionary rule is "the only practical means of enforcing the constitutional injunction" against abuse. This approach is based on the justification made by Judge Learned Hand that "only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed." 35 Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 36 Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 37 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED and ordered RELEASED from confinement unless she is being held for some other legal grounds. No costs. PEOPLE OF THE PHILIPPINES, vs. RUBEN MONTILLA y GATDULA. G.R. No. 123872 January 30, 1998 REGALADO, J.: Accused-Appellant Ruben Montilla y Gatdula alias "Joy," was charged on August 22, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of 1972, Republic Act No. 6425, as amended by Republic Act No. 7659, before the Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information which alleges: That on or about the 20th day of June 1994, at Barangay Salitran, Municipality of Dasmarias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there, willfully, unlawfully and feloniously, administer, transport, and deliver twenty-eight (28) kilos of dried marijuana leaves, which are considered prohibited drugs, in violation of the provisions of R.A. 6425 thereby causing damage and prejudice to the public interest. 1 The consequent arraignment conducted on September 14, 1994 elicited a plea of not guilty from appellant who was assisted therein by his counsel de parte. 2 Trial was 18

held on scheduled dates thereafter, which culminated in a verdict of guilty in a decision of the trial court dated June 8, 1995 and which imposed the extreme penalty of death on appellant. He was further ordered to pay a fine in the amount of P500,000.00 and to pay the costs of the proceedings. 3 It appears from the evidence of the prosecution that appellant was apprehended at around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and SPO1 Armando Clarin, both members of the Cavite Philippine National Police Command based in Dasmarias. Appellant, according to the two officers, was caught transporting 28 marijuana bricks contained in a traveling bag and a carton box, which marijuana bricks had a total weight of 28 kilos. These two officers later asserted in court that they were aided by an informer in the arrest of appellant. That informer, according to Talingting and Clarin, had informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug courier, whom said informer could recognize, would be arriving somewhere in Barangay Salitran, Dasmarias from Baguio City with an undetermined amount of marijuana. It was the same informer who pinpointed to the arresting officers the appellant when the latter alighted from a passenger jeepney on the aforestated day, hour, and place. 4 Upon the other hand, appellant disavowed ownership of the prohibited drugs. He claimed during the trial that while he indeed came all the way from Baguio City, he traveled to Dasmarias, Cavite with only some pocket money and without any luggage. His sole purpose in going there was to look up his cousin who had earlier offered a prospective job at a garment factory in said locality, after which he would return to Baguio City. He never got around to doing so as he was accosted by SPO1 Talingting and SPO1 Clarin at Barangay Salitran. He further averred that when he was interrogated at a house in Dasmarias, Cavite, he was never informed of his constitutional rights and was in fact even robbed of the P500.00 which he had with him. Melita Adaci, the cousin, corroborated appellant's testimony about the job offer in the garment factory where she reportedly worked as a supervisor, 5 although, as the trial court observed, she never presented any document to prove her alleged employment. In the present appellate review, appellant disputes the trial court's finding that he was legally caught in flagrantetransporting the prohibited drugs. This Court, after an objective and exhaustive review of the evidence on record, discerns no reversible error in the factual findings of the trial court. It finds unassailable the reliance of the lower court on the positive testimonies of the police officers to whom no ill motives can be attributed, and its rejection of appellant's fragile defense of denial which is evidently self-serving in nature. 1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on the basis of insufficient evidence as no proof was proffered showing that he willfully, unlawfully, and feloniously administered, transported, and delivered 28 kilos of dried marijuana leaves, since the police officers "testified only on the alleged transporting of Marijuana from Baguio City to Cavite." Further, the failure of the prosecution to present in court the civilian informant is supposedly corrosive of the People's cause since, aside from impinging upon appellant's fundamental right to confront the witnesses against him, that informant was a vital personality in the operation who would have contradicted the hearsay and conflicting testimonies of the arresting officers on how appellant was collared by them. The pertinent provision of the penal law here involved, in Section 4 of Article II thereof, as amended, is as follows: 19

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty ofreclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed. Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act, some of the various modes of commission 6 being the sale, administration, delivery, distribution, and transportation of prohibited drugs as set forth in the epigraph of Section 4, Article II of said law. The text of Section 4 expands and extends its punitive scope to other acts besides those mentioned in its headnote by including these who shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions," Section 4 could thus be violated by the commission of any of the acts specified therein, or a combination thereof, such as selling, administering, delivering, giving away, distributing, dispatching in transit or transporting, and the like. As already stated, appellant was charged with a violation of Section 4, the transgressive acts alleged therein and attributed to appellant being that he administered, delivered, and transported marijuana. The governing rule with respect to an offense which may be committed in any of the different modes provided by law is that an indictment would suffice if the offense is alleged to have been committed in one, two or more modes specified therein. This is so as allegations in the information of the various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. 7 In appellant's case, the prosecution adduced evidence clearly establishing that he transported marijuana from Baguio City to Cavite. By that act alone of transporting the illicit drugs, appellant had already run afoul of that particular section of the statute, hence, appellant's asseverations must fail. The Court also disagrees with the contention of appellant that the civilian informer should have been produced in court considering that his testimony was "vital" and his presence in court was essential in order to give effect to or recognition of appellant's constitutional right to confront the witnesses arrayed by the State against him These assertions are, however, much too strained. Far from compromising the primacy of appellant's right to confrontation, the non-presentation of the informer in this instance was justified and cannot be faulted as error. For one the testimony of said informer would have been, at best, merely corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the trial court, which testimonies are not hearsay as both testified upon matters in which they had personally taken part. As such, the testimony of the informer could be dispensed with by the prosecution, 8 more so where what he would have corroborated are the narrations of law enforcers on whose performance of duties regularity is the prevailing legal presumption. Besides, informants are generally not presented in court because of the need to hide their identities and preserve their invaluable services to the police.9 Moreover, it is up to the prosecution whom to present in court as its witnesses, and not for the defense to dictate that course. 10 Finally, appellant could very well have resorted to the coercive process of subpoena to compel that eyewitness to appear before the court below, 11 but which remedy was not availed of by him. 20

2. Appellant contends that the marijuana bricks were confiscated in the course of an unlawful warrantless search and seizure. He calls the attention of the Court to the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police authorities had already been apprised by their so-called informer of appellant's impending arrival from Baguio City, hence those law enforcers had the opportunity to procure the requisite warrant. Their misfeasance should therefore invalidate the search for and seizure of the marijuana, as well as the arrest of appellant on the following dawn. Once again, the Court is not persuaded. Section 2, Article III of the Constitution lays down the general rule that a search and seizure must be carried out through or on the strength of a judicial warrant, absent which such search and seizure becomes "unreasonable" within the meaning of said constitutional provision. 12 Evidence secured on the occasion of such an unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any purpose in any proceeding. This exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1) customs searches; 13 (2) searches of moving vehicles, 14 (3) seizure of evidence in plain view; 15 (4) consented searches; 16 (5) searches incidental to a lawful arrest; 17 and (6) "stop and frisk" measures 18 have been invariably recognized as the traditional exceptions. In appellant's case, it should be noted that the information relayed by the civilian informant to the law enforcers was that there would be delivery of marijuana at Barangay Salitran by a courier coming from Baguio City in the "early morning" of June 20, 1994. Even assuming that the policemen were not pressed for time, this would be beside the point for, under these circumstances, the information relayed was too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is an indication that the informant knew the courier, the records do not reveal that he knew him by name. While it is not required that the authorities should know the exact name of the subject of the warrant applied for, there is the additional problem that the informant did not know to whom the drugs would be delivered and at which particular part of the barangay there would be such delivery. Neither did this asset know the precise time of the suspect's arrival, or his means of transportation, the container or contrivance wherein the drugs were concealed and whether the same were arriving together with, or were begin brought by someone separately from, the courier. On such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or a court that was still open by the time they could make preparations for applying therefor, and on which there is no evidence presented by the defense. In determining the opportunity for obtaining warrants, not only the intervening time is controlling but all the coincident and ambient circumstances should be considered, especially in rural areas. In fact, the police had to form a surveillance team and to lay down a dragnet at the possible entry points to Barangay Salitran at midnight of that day notwithstanding the tip regarding the "early morning" arrival of the courier. Their leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup, unsure as they were of the time when and the place in Barangay Salitran, where their suspect would show up, and how he would do so. On the other hand, that they nonetheless believed the informant is not surprising for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a reliable source in past operations. Moreover, experience shows that although information gathered and passed on by these assets to law enforcers are vague and piecemeal, and not as neatly and completely packaged as one would expect from a professional 21

spymaster, such tip-offs are sometimes successful as it proved to be in the apprehension of appellant. If the courts of justice are to be of understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical environment of judicial chambers. 3. On the defense argument that the warrantless search conducted on appellant invalidates the evidence obtained from him, still the search on his belongings and the consequent confiscation of the illegal drugs as a result thereof was justified as a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court. Under the provision, a peace officers or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A legitimate warrantless arrest, as above contemplated, necessarily cloaks the arresting police officer with authority to validly search and seize from the offender (1) dangerous weapons, and (2) those that may be used as proof of the commission of an offense. 19 On the other hand, the apprehending officer must have been spurred by probable cause in effecting an arrest which could be classified as one in cadence with the instances of permissible arrests set out in Section 5(a). 20 These instances have been applied to arrests carried out on persons caught in flagrante delicto. The conventional view is that probable cause, while largely a relative term the determination of which must be resolved according to the facts of each case, is understood as having reference to such facts and circumstances which could lead a reasonable, discreet, and prudent man to believe and conclude as to the commission of an offense, and that the objects sought in connection with the offense are in the place sought to be searched. 21 Parenthetically, if we may digress, it is time to observe that the evidentiary measure for the propriety of filing criminal charges and, correlatively, for effecting a warrantless arrest, has been reduced and liberalized. In the past, our statutory rules and jurisprudence required prima facie evidence, which was of a higher degree or quantum, 22 and was even used with dubiety as equivalent to "probable cause." Yet, even in the American jurisdiction from which we derived the term and its concept, probable cause is understood to merely mean a reasonable ground for belief in the existence of facts warranting the proceedings complained of, 23 or an apparent state of facts found to exist upon reasonable inquiry which would induce a reasonably intelligent and prudent man to believe that the accused person had committed the crime. 24 Felicitously, those problems and confusing concepts were clarified and set aright, at least on the issue under discussion, by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that the quantum of evidence required in preliminary investigation is such evidence as suffices to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. 25 It has the same meaning as the related phraseology used in other parts of the same Rule, that is, the investigating fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists." 26 It should, therefore, be in that sense, wherein the right to effect a warrantless arrest should be considered as legally authorized. In the case at bar, as soon as appellant had alighted from the passenger jeepney the informer at once indicated to the officers that their suspect was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that the informer told them that the marijuana was likely hidden inside the traveling bag and carton box which appellant was carrying at the time. The officers thus realized that he was their man even if he was simply carrying a seemingly innocent looking pair of luggage for 22

personal effects. Accordingly, they approached appellant, introduced themselves as policemen, and requested him to open and show them the contents of the traveling bag, which appellant voluntarily and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so, without bothering to further search the box, they brought appellant and his luggage to their headquarter for questioning. Appellant insists that the mere fact of seeing a person carrying a traveling bag and a carton box should not elicit the slightest suspicion of the commission of any crime since that is normal. But, precisely, it is in the ordinary nature of things that drugs being illegally transported are necessarily hidden in containers and concealed from view. Thus, the officers could reasonably assume, and not merely on a hollow suspicion since the informant was by their side and had so informed them, that the drugs were in appellant's luggage. It would obviously have been irresponsible, if not downright absurd under the circumstances, to require the constable to adopt a "wait and see" attitude at the risk of eventually losing the quarry. Here, there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well grounded and reasonable belief that appellant was in the act of violating the law. The search yielded affirmance both of that probable cause and the actuality that appellant was then actually committing a crime by illegally transporting prohibited drugs. With these attendant facts, it is ineluctable that appellant was caught in flagrante delicto, hence his arrest and the search of his belongings without the requisite warrant were both justified. Furthermore, that appellant also consented to the search is borne out by the evidence. To repeat, when the officers approached appellant and introduced themselves as policemen, they asked him about the contents of his luggage, and after he replied that they contained personal effects, the officers asked him to open the traveling bag. Appellant readily acceded, presumably or in all likelihood resigned to the fact that the law had caught up with his criminal activities. When an individual voluntarily submits to a search or consents to have the same conducted upon his person or premises, he is precluded from later complaining thereof. After all, the right to be secure from unreasonable search may, like other rights, be waived either expressly or impliedly. 27 Thus, while it has been held that the silence of the accused during a warrantless search should not be taken to mean consent to the search but as a demonstration of that person's regard for the supremacy of the law, 28 the case of herein appellant is evidently different for, here, he spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. 29 4. Appellant likewise harps on the alleged failure of the prosecution to "legally, properly and adequately establish that the 28 bricks of marijuana allegedly confiscated from (him) were the same marijuana examined by the forensic chemist and presented in court." Indeed, the arresting officers did not identify in court the marijuana bricks seized from appellant since, in fact they did not have to do so. It should be noted that the prosecution presented in the court below and formally offered in evidence those 28 bricks of marijuana together with the traveling bag and the carton box in which the same were contained. The articles were properly marked as confiscated evidence and proper safeguards were taken to ensure that the marijuana turned over to the chemist for examination, and which subsequently proved positive as such, were the same drugs taken from appellant. The trial court, therefore, correctly admitted them in evidence, satisfied that the articles were indubitably no other than those taken from appellant. 23

Complementarily, the corpus delicti was firmly established by SPO1 Clarin and SPO1 Talingting who categorically related that when they had ascertained that the contents of the traveling bag of appellant appeared to be marijuana, they forthwith asked him where he had come from, and the latter readily answered "Baguio City," thus confirming the veracity of the report of the informer. No other conclusion can therefore be derived than that appellant had transported the illicit drugs all the way to Cavite from Baguio City. Coupled with the presentation in court of the subject matter of the crime, the marijuana bricks which had tested positive as being indian hemp, the guilt of appellant for transporting the prohibited drugs in violation of the law is beyond doubt. Appellant questions the interrogation conducted by the police authorities, claiming that he was not allowed to communicate with anybody, and that he was not duly informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. Indeed, appellant has a point. The police authorities here could possibly have violated the provision of Republic Act No. 7438 30 which defines certain rights of persons arrested, detained, or under custodial investigation, as well as the duties of the arresting, detaining, and investigating officers, and providing corresponding penalties for violations thereof. Assuming the existence of such irregularities, however, the proceedings in the lower court will not necessarily be struck down. Firstly, appellant never admitted or confessed anything during his custodial investigation. Thus, no incriminatory evidence in the nature of a compelled or involuntary confession or admission was elicited from him which would otherwise have been inadmissible in evidence. Secondly and more importantly, the guilt of appellant was clearly established by other evidence adduced by the prosecution, particularly the testimonies of the arresting officers together with the documentary and object evidence which were formally offered and admitted in evidence in the court below. 5. The reversible error of the trial court lies in its imposition of the penalty of death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall be applied if the dangerous drugs involved is, in the case of indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting of prohibited drugs carries with it the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a penalty composed of two indivisible penalties, reclusion perpetua and death. In the present case, Article 63 of the Revised Penal Code consequently provides the rules to be observed in the application of said penalties. As found by the trial court, there were neither mitigating nor aggravating circumstances attending appellant's violation of the law, hence the second paragraph of Article 63 must necessarily apply, in which case the lesser penalty of reclusion perpetua is the proper imposable penalty. Contrary to the pronouncement of the court a quo, it was never intended by the legislature that where the quantity of the dangerous drugs involved exceeds those stated in Section 20, the maximum penalty of death shall be imposed. Nowhere in the amendatory law is there a provision from which such a conclusion may be gleaned or deduced. On the contrary, this Court has already concluded that Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code, 31 the rules wherein were observed although the cocaine subject of that case was also in excess of the quantity provided in Section 20. It is worth mentioning at this juncture that the law itself provides a specific penalty where the violation thereof is in its aggravated form as laid down in the second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if the victim is a minor, or should a prohibited drug involved in any offense in said section be the 24

proximate cause of the death of a victim thereof, the maximum penalty shall be imposed. 32 While the minority or the death of the victim will increase the liability of the offender, these two facts do not constitute generic aggravating circumstances, as the law simply provides for the imposition of the single indivisible penalty of death if the offense is attended by either of such factual features. In that situation, obviously the rules on the graduation of penalties in Article 63 cannot apply. In herein appellant's case, there was neither a minor victim nor a consequent death of any victim. Hence, the basic rules in Article 63 of the Code govern. WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of the Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the sense that accusedappellant Ruben Montilla y Gatdula shall suffer the penalty of reclusion perpetua. In all other respects, the judgment of the trial court is hereby AFFIRMED, with costs against accused-appellant. SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Kapunan, Mendoza, Francisco and Martinez, JJ., concur.

Separate Opinions PANGANIBAN, J., separate opinion: I agree with the respected Mr. Justice Florenz D. Regalado that the imposition of the death penalty by the trial court upon Appellant Montilla was erroneous. For want of any aggravating circumstance attending the commission of the crime, the proper penalty is reclusion perpetua. However, I beg to disagree with his conclusion that the warrantless search conducted upon the person of appellant was valid for being "a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court." Under the cited provisions, an arrest may be lawfully effected upon a person caught in flagrante delicto, i.e. in the very act of committing a crime. 1 I do not see how Appellant Montilla who was apprehended while merely alighting from a passenger jeepney carrying a traveling bag and a carton could have been perceived by the police as committing a crime at the very moment of his arrest. Lawful Arrest Must Precede Warrantless Search In the very recent en banc case of Malacat vs. Court of Appeals, 2 the Court through Mr. Justice Hilario G. Davide Jr., clearly and unanimously explained the concept of a search incidental to a lawful arrest, and I quote: 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 be first a lawful arrest before a search can be made the 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. 3 [Emphasis supplied.] In that case, a police surveillance team, dispatched on reports of a possible bombing in Quiapo, arrested Appellant Malacat after he attempted to flee. He was priorly 25

observed standing with a group of men at the corner of Plaza Miranda and Quezon Boulevard with eyes moving very fast and looking at every approaching person. He was searched, and allegedly recovered from his body was a bomb. The trial court justified his arrest and search on the finding that he was "attempting to commit a crime." But we reversed and ruled that there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of the arresting officer or an overt physical act on the part of Malacat indicating that a crime had just been committed, was being committed, or was going to be committed. The warrantless arrest being invalid, the search conducted upon the petitioner could not have been a valid incident to a lawful arrest. In also ruling our a valid "stop and frisk," the Court remarked that "there was nothing in [Malacat's] behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were 'moving very fast' . . ." There was no ground at all to suspect that Malacat was armed with a deadly weapon. 4 Neither did this Court find a valid search and arrest under in flagrante delicto rule in People vs. Mengote, 5 even though the appellant was accosted by the police because he allegedly appeared suspicious. The lawmen were at the time conducting a surveillance in response to a telephone call from an informer that there were suspicious-looking persons at the particular place. What offense Mengote was suspected of doing could not even be ascertained by the police. We said that "there was nothing to support the arresting officer's suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence." 6 The Court further exhorted: It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 7 Personal Knowledge Required in in Flagrante Delicto Arrests Jurisprudence is settled that under the in flagrante delicto rule, "the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view." 8 The circumstances of the case at bar is patently wanting in fulfillment of the above standard. For one, the arresting officers had no personal knowledge that Montilla either had just committed or was committing or attempting to commit an offense. Secondly, even if we equate the possession of an intelligence report with personal knowledge of the commission of a crime, still, the alleged felonious act was not performed in the presence or within the view of the arresting officers. The lawmen did not see appellant exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise. Neither was there any mention at all by the police of any outward indication, such as bulkiness on his body that could have suggested that he was carrying a firearm, or any peculiar smell emanating from his baggage that could have hinted that he was carrying marijuana. In short, there was no valid ground for the warrantless arrest. "Hot Pursuit" Doctrine Not Applicable 26

Parenthetically, neither could Appellant Montilla's arrest be justified under the "hot pursuit" rule. In People vs. Burgos, 9 we said: In arrests without a warrant under Section 6(b) [of Rule 113, Rules of Court], however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. The instant case is very similar to People vs. Aminnudin, 10 Therein, the police arrested Aminnudin and seized the bag he was carrying on account of a "tip they had earlier received from a reliable and regular informer" that the accused-appellant was "arriving in Iloilo by boat with marijuana." This information was received at least two days earlier, thus "[e]ven expediency could not be invoked to dispense with the obtention of the warrant . . ." In invalidating his arrest, this Court reasoned: . . . the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the by the officers (not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. 11 Aminnudin's arrest being illegal, so was the warrantless search subsequent thereto, the Court ruled. Hence, the marijuana allegedly seized from him was not admitted as evidence for being a fruit of the poisonous tree. Another parallel case is People vs. Encinada, 12 where the appellant was searched without a warrant while also disembarking from a ship, on the strength of a tip from an informant received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. Encinada's arrest and search were validated by the trial court under the in flagrante delicto rule. In reversing the trial court, this Court stressed that when he disembarked from the ship or while he rode themotorela, Encinada did not manifest any suspicious behavior that would reasonably invite the attention of the police. Under such bare circumstances, no act or fact demonstrating a felonious enterprise could be ascribed to the accused. In short, he was not committing a crime in the presence of the police; neither did the latter have personal knowledge of facts indicating that he just committed an offense. Where the search was illegal, there could be no valid incidental arrest: . . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 13 Raw Intelligence Information Cannot Justify Warrantless Arrest The Court further said that raw intelligence information was not a sufficient ground for a warrantless arrest. 14Having known the identity of their suspect the previous day, the law enforcers could have secured a judicial warrant even within such limited period. 27

Under the circumstances of the instant case, there was sufficient time for the police to have applied for a search warrant. The information that appellant would be arriving in the early morning of June 20, 1994 at Barangay Salitran, Dasmarias, Cavite, was received by the police at 2:00 p.m. of the preceding day. The fact that it was a Sunday did not prevent the police from securing a warrant. Administrative Circulars 13 and 19, s. 1987 allow applications for search warrants even "after office hours, or during Saturdays, Sundays and legal holidays" where there is an urgency and prompt action is needed. Surely, with the attendant circumstances, the arresting officers could have easily justified the urgency of the issuance of a search warrant. But the majority believes that the law enforcers had no sufficient information upon which the warrant could have been validly issued, simply because the name of the suspect and the exact time and place where he could be found were not known. I cannot in clear conscience agree with the reasoning of the majority that "[on] such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or court . . . ," yet ruling that "there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law." Be it remembered that appellant was merely alighting from a jeepney carrying a traveling bag and a carton when he was searched and arrested. How can that be "in the act of violating the law?" Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefor. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. If, as the majority believes, the police did not have on hand what the law requires for the issuance of a warrant, then much less did they have any justification for a warrantless arrest. In other words, what ground did the police have to arrest Appellant Montilla? I submit that if the police doubts the exact identity or name of the person to be arrested or the exact place to be searched, with more reason should they seek a judge's independent determination of the existence of probable cause. The police, in such instances, cannot take the law into their own hands, or by themselves conclude that probable cause exists. I must reiterate that the actual discovery of prohibited drugs in the possession of the accused does not cure the illegality of his arrest or search. To say that "reliable tips" constitute probable cause for a warrantless arrest or search is, in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches, and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilisduring the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for 28

they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed, the majority's ruling would open loopholes that would allow unreasonable arrests, searches and seizures. The majority's reasoning effectively abrogates, through an obiter, doctrinal rules on warrantless arrests and searches. I believe this should not be allowed. We have endlessly castigated law enforcers for their nonchalant violation of the people's constitutional right against unreasonable searches and seizures. We have also invariably admonished them that basic rights should not be lightly disregarded in the name of crime prevention or law enforcement. The Court should never be less vigilant in protecting the rights guaranteed by the fundamental law to all persons, be they innocent or guilty. Appellant Waived his Constitutional Right In any event, notwithstanding the illegality with which the search and arrest of Appellant Montilla was effected, I have to concur with the majority in affirming his conviction, only for the reason that appellant waived his right to object to such illegality. It appears that he did not protest when the police, after identifying themselves, asked him to open his baggage for inspection. The fact that he voluntarily submitted to the search, without any force or intimidation on the part of the police, signifies his consent thereto. Voluntary consent is a valid waiver of one's right against unreasonable searches. 15 Furthermore, upon arraignment, Appellant Montilla pleaded not the guilty and proceeded to participate in the trial. Established jurisprudence holds that a plea is tantamount to foregoing an objection to the irregularity of one's arrest. 16 The right to question the legality of appellant's arrest may therefore be deemed to have been waived by him. Summation IN SUM, the arrest of Appellant Montilla was not lawful, because it was effected without a judicial warrant. It was not made in accordance with Sec. 5(a) of Rule 113, because there was no evidence that Montilla had just committed an offense, or was committing or attempting one in the presence or within the view of the arresting officers at the time he was apprehended. Neither can his arrest be valid under Sec. 5(b) of the same rule, since the police officers did not actually know that a crime had in fact been committed, nor did they have personal knowledge of any fact logically pointing to appellant as the perpetrator thereof. Much less could there have been a valid stop-and-frisk, since appellant did not manifest any dubious act or show any indication that could reasonably invite suspicion of a criminal undertaking. However, appellant waived his right to object to the illegality of his search and arrest by consenting to the search of his belongings and also by entering his plea during his arraignment. Had he raised a timely objection against the violation of his constitutional right, he would, in my view, deserve no less than an acquittal. WHEREFORE, I conclude that the warrantless arrest and search of Appellant Montilla was illegal. However, such illegality was effectively waived by him. Hence, I vote to AFFIRM his conviction with the modification that he shall serve the penalty of reclusion perpetua only. Melo and Puno, JJ., concur. VITUG, J., concurring: I concur but I reserve my vote on the discussion on the warrantless search upon appellant as being incidental to a lawful arrest. Separate Opinions 29

PANGANIBAN, J., separate opinion: I agree with the respected Mr. Justice Florenz D. Regalado that the imposition of the death penalty by the trial court upon Appellant Montilla was erroneous. For want of any aggravating circumstance attending the commission of the crime, the proper penalty is reclusion perpetua. However, I beg to disagree with his conclusion that the warrantless search conducted upon the person of appellant was valid for being "a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of Court." Under the cited provisions, an arrest may be lawfully effected upon a person caught in flagrante delicto, i.e. in the very act of committing a crime. 1 I do not see how Appellant Montilla who was apprehended while merely alighting from a passenger jeepney carrying a traveling bag and a carton could have been perceived by the police as committing a crime at the very moment of his arrest. Lawful Arrest Must Precede Warrantless Search In the very recent en banc case of Malacat vs. Court of Appeals, 2 the Court through Mr. Justice Hilario G. Davide Jr., clearly and unanimously explained the concept of a search incidental to a lawful arrest, and I quote: 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 be first a lawful arrest before a search can be made the 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. 3 [Emphasis supplied.] In that case, a police surveillance team, dispatched on reports of a possible bombing in Quiapo, arrested Appellant Malacat after he attempted to flee. He was priorly observed standing with a group of men at the corner of Plaza Miranda and Quezon Boulevard with eyes moving very fast and looking at every approaching person. He was searched, and allegedly recovered from his body was a bomb. The trial court justified his arrest and search on the finding that he was "attempting to commit a crime." But we reversed and ruled that there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of the arresting officer or an overt physical act on the part of Malacat indicating that a crime had just been committed, was being committed, or was going to be committed. The warrantless arrest being invalid, the search conducted upon the petitioner could not have been a valid incident to a lawful arrest. In also ruling our a valid "stop and frisk," the Court remarked that "there was nothing in [Malacat's] behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were 'moving very fast' . . ." There was no ground at all to suspect that Malacat was armed with a deadly weapon. 4 Neither did this Court find a valid search and arrest under in flagrante delicto rule in People vs. Mengote, 5 even though the appellant was accosted by the police because he allegedly appeared suspicious. The lawmen were at the time conducting a surveillance in response to a telephone call from an informer that there were suspicious-looking persons at the particular place. What offense Mengote was suspected of doing could not even be ascertained by the police. We said that "there was nothing to support the arresting officer's suspicion other than Mengote's darting 30

eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence." 6 The Court further exhorted: It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 7 Personal Knowledge Required in in Flagrante Delicto Arrests Jurisprudence is settled that under the in flagrante delicto rule, "the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view." 8 The circumstances of the case at bar is patently wanting in fulfillment of the above standard. For one, the arresting officers had no personal knowledge that Montilla either had just committed or was committing or attempting to commit an offense. Secondly, even if we equate the possession of an intelligence report with personal knowledge of the commission of a crime, still, the alleged felonious act was not performed in the presence or within the view of the arresting officers. The lawmen did not see appellant exhibit any overt act or strange conduct that would reasonably arouse in their minds suspicion that he was embarking on some felonious enterprise. Neither was there any mention at all by the police of any outward indication, such as bulkiness on his body that could have suggested that he was carrying a firearm, or any peculiar smell emanating from his baggage that could have hinted that he was carrying marijuana. In short, there was no valid ground for the warrantless arrest. "Hot Pursuit" Doctrine Not Applicable Parenthetically, neither could Appellant Montilla's arrest be justified under the "hot pursuit" rule. In People vs. Burgos, 9 we said: In arrests without a warrant under Section 6(b) [of Rule 113, Rules of Court], however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. The instant case is very similar to People vs. Aminnudin, 10 Therein, the police arrested Aminnudin and seized the bag he was carrying on account of a "tip they had earlier received from a reliable and regular informer" that the accused-appellant was "arriving in Iloilo by boat with marijuana." This information was received at least two days earlier, thus "[e]ven expediency could not be invoked to dispense with the obtention of the warrant . . ." In invalidating his arrest, this Court reasoned: . . . 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 31

so subject to apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the probable cause as determined by the by the officers (not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. 11 Aminnudin's arrest being illegal, so was the warrantless search subsequent thereto, the Court ruled. Hence, the marijuana allegedly seized from him was not admitted as evidence for being a fruit of the poisonous tree. Another parallel case is People vs. Encinada, 12 where the appellant was searched without a warrant while also disembarking from a ship, on the strength of a tip from an informant received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. Encinada's arrest and search were validated by the trial court under the in flagrante delicto rule. In reversing the trial court, this Court stressed that when he disembarked from the ship or while he rode themotorela, Encinada did not manifest any suspicious behavior that would reasonably invite the attention of the police. Under such bare circumstances, no act or fact demonstrating a felonious enterprise could be ascribed to the accused. In short, he was not committing a crime in the presence of the police; neither did the latter have personal knowledge of facts indicating that he just committed an offense. Where the search was illegal, there could be no valid incidental arrest: . . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 13 Raw Intelligence Information Cannot Justify Warrantless Arrest The Court further said that raw intelligence information was not a sufficient ground for a warrantless arrest. 14Having known the identity of their suspect the previous day, the law enforcers could have secured a judicial warrant even within such limited period. Under the circumstances of the instant case, there was sufficient time for the police to have applied for a search warrant. The information that appellant would be arriving in the early morning of June 20, 1994 at Barangay Salitran, Dasmarias, Cavite, was received by the police at 2:00 p.m. of the preceding day. The fact that it was a Sunday did not prevent the police from securing a warrant. Administrative Circulars 13 and 19, s. 1987 allow applications for search warrants even "after office hours, or during Saturdays, Sundays and legal holidays" where there is an urgency and prompt action is needed. Surely, with the attendant circumstances, the arresting officers could have easily justified the urgency of the issuance of a search warrant. But the majority believes that the law enforcers had no sufficient information upon which the warrant could have been validly issued, simply because the name of the suspect and the exact time and place where he could be found were not known. I cannot in clear conscience agree with the reasoning of the majority that "[on] such bare information, the police authorities could not have properly applied for a warrant, assuming that they could readily have access to a judge or court . . . ," yet ruling that "there were sufficient facts antecedent to the search and seizure that, at the point prior to the search, were already constitutive of probable cause, and which by themselves could properly create in the minds of the officers a well-grounded and reasonable belief that appellant was in the act of violating the law." Be it remembered that appellant was merely alighting from a jeepney carrying a traveling bag and a carton when he was searched and arrested. How can that be "in the act of violating the law?" 32

Law and jurisprudence in fact require stricter grounds for valid arrests and searches without warrant than for the issuance of warrants therefor. In the former, the arresting person must have actually witnessed the crime being committed or attempted by the person sought to be arrested; or he must have personal knowledge of facts indicating that the person to be arrested perpetrated the crime that had just occurred. In the latter case, the judge simply determines personally from testimonies of witnesses that there exists reasonable grounds to believe that a crime was committed by the accused. If, as the majority believes, the police did not have on hand what the law requires for the issuance of a warrant, then much less did they have any justification for a warrantless arrest. In other words, what ground did the police have to arrest Appellant Montilla? I submit that if the police doubts the exact identity or name of the person to be arrested or the exact place to be searched, with more reason should they seek a judge's independent determination of the existence of probable cause. The police, in such instances, cannot take the law into their own hands, or by themselves conclude that probable cause exists. I must reiterate that the actual discovery of prohibited drugs in the possession of the accused does not cure the illegality of his arrest or search. To say that "reliable tips" constitute probable cause for a warrantless arrest or search is, in my opinion, a dangerous precedent and places in great jeopardy the doctrines laid down in many decisions made by this Court, in its effort to zealously guard and protect the sacred constitutional right against unreasonable arrests, searches, and seizures. Everyone would be practically at the mercy of so-called informants, reminiscent of the makapilisduring the Japanese occupation. Any one whom they point out to a police officer as a possible violator of the law could then be subject to search and possible arrest. This is placing limitless power upon informants who will no longer be required to affirm under oath their accusations, for they can always delay their giving of tips in order to justify warrantless arrests and searches. Even law enforcers can use this as an oppressive tool to conduct searches without warrants, for they can always claim that they received raw intelligence information only on the day or afternoon before. This would clearly be a circumvention of the legal requisites for validly effecting an arrest or conducting a search and seizure. Indeed, the majority's ruling would open loopholes that would allow unreasonable arrests, searches and seizures. The majority's reasoning effectively abrogates, through an obiter, doctrinal rules on warrantless arrests and searches. I believe this should not be allowed. We have endlessly castigated law enforcers for their nonchalant violation of the people's constitutional right against unreasonable searches and seizures. We have also invariably admonished them that basic rights should not be lightly disregarded in the name of crime prevention or law enforcement. The Court should never be less vigilant in protecting the rights guaranteed by the fundamental law to all persons, be they innocent or guilty. Appellant Waived his Constitutional Right In any event, notwithstanding the illegality with which the search and arrest of Appellant Montilla was effected, I have to concur with the majority in affirming his conviction, only for the reason that appellant waived his right to object to such illegality. It appears that he did not protest when the police, after identifying themselves, asked him to open his baggage for inspection. The fact that he voluntarily submitted to the search, without any force or intimidation on the part of 33

the police, signifies his consent thereto. Voluntary consent is a valid waiver of one's right against unreasonable searches. 15 Furthermore, upon arraignment, Appellant Montilla pleaded not the guilty and proceeded to participate in the trial. Established jurisprudence holds that a plea is tantamount to foregoing an objection to the irregularity of one's arrest. 16 The right to question the legality of appellant's arrest may therefore be deemed to have been waived by him. Summation IN SUM, the arrest of Appellant Montilla was not lawful, because it was effected without a judicial warrant. It was not made in accordance with Sec. 5(a) of Rule 113, because there was no evidence that Montilla had just committed an offense, or was committing or attempting one in the presence or within the view of the arresting officers at the time he was apprehended. Neither can his arrest be valid under Sec. 5(b) of the same rule, since the police officers did not actually know that a crime had in fact been committed, nor did they have personal knowledge of any fact logically pointing to appellant as the perpetrator thereof. Much less could there have been a valid stop-and-frisk, since appellant did not manifest any dubious act or show any indication that could reasonably invite suspicion of a criminal undertaking. However, appellant waived his right to object to the illegality of his search and arrest by consenting to the search of his belongings and also by entering his plea during his arraignment. Had he raised a timely objection against the violation of his constitutional right, he would, in my view, deserve no less than an acquittal. WHEREFORE, I conclude that the warrantless arrest and search of Appellant Montilla was illegal. However, such illegality was effectively waived by him. Hence, I vote to AFFIRM his conviction with the modification that he shall serve the penalty of reclusion perpetua only. Melo and Puno, JJ., concur. VITUG, J., concurring: I concur but I reserve my vote on the discussion on the warrantless search upon appellant as being incidental to a lawful arrest.

34