THIRD DIVISION [G.R. No. 143944. July 11, 2002.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BASHER BONGCARAWAN y MACARAMBON, accused-appellant. DECISION PUNO, J p: This is an appeal from the Decision 1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425 2 as amended, and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency. cDAITS Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus: cEaSHC "That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription. Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659." 3 During the arraignment, the accused pleaded not guilty. Trial ensued. Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section. 4 The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be " shabu," the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance. 5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs of white crystalline substance. 7 When asked about the contraband articles, the accused explained that he was just requested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City. 8 The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters, 9 while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as "shabu," weighing 399.3266 grams. 10 The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or "maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi. 11 He stayed at cabin no. 106. At about 4:00 a.m. of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he

met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF. 12 On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads: "WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency. Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence. The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition. SO ORDERED." 13 Hence, this appeal where the accused raises the following assignment of errors: "I. THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT. II. THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM." 14 On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that People v. Marti 15 is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman. The contentions are devoid of merit. The right against unreasonable search and seizure is a fundamental right protected by the Constitution. 16 Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding. 17 Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti, 18 "[i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State." 19 The constitutional proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed. 20 In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out

without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply. There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked. On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained " shabu." He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged. 21

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED. Costs against the accused-appellant. IaHCAD SO ORDERED. Panganiban, Sandoval-Gutierrez and Carpio, JJ., concur.

We are not persuaded. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. 22 The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third. As early as 1910 in the case of United States v. Tan Misa, 23 this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles. 24 It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession. 25 Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi. 26 In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility of witnesses will not be disturbed on appeal. 27 Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected. 28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small "maleta" for inspection for fear that its contents consisting of expensive sunglasses and brushes would be confiscated, 29 but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches. 30 The things in possession of a person are presumed by law to be owned by him. 31 To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican "Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge: "First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused." 32 Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same.

SECOND DIVISION [G.R. Nos. 133254-55. April 19, 2001.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO SALANGUIT y KO, accused-appellant. DECISION MENDOZA, J p: This is an appeal from the decision, 1 dated January 27, 1998, of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of violation of 16 of Republic Act No. 6425, as amended, and sentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, and of 8 of the same law and sentencing him for such violation to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00. Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged: That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and knowingly possess and/or use 11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug, without the necessary license and/or prescription therefor, in violation of said law. CONTRARY TO LAW. 2 In Criminal Case No. Q-95-64358, the information charged: That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did, then and there willfully, unlawfully and knowingly have in his possession and under his custody and control 1,254 grams of Marijuana, a prohibited drug. aSECAD CONTRARY TO LAW. 3 When arraigned on May 21, 1996, accused-appellant pleaded not guilty, 4 whereupon he was tried. Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief of the Physical Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence established the following: On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseurbuyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accusedappellant's room, and Badua saw that the shabu was taken by accused-appellant from a cabinet inside his room. The application was granted, and a search warrant was later issued by Presiding Judge Dolores L. Espaol. At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian informer, went to the residence of accused-appellant to serve the warrant. 6 The police operatives knocked on accused-appellant's door, but nobody opened it. They heard people inside the house, apparently panicking. The police operatives then forced the door open and entered the house. 7 After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searching the house. 8 They found 12 small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped in newsprint 9 having a total weight of approximately 1,255 grams. 10 A receipt of the items seized was prepared, but the accused-appellant refused to sign it. 11 After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning, Quezon City, along with the items they had seized. 12

PO3 Duazo requested a laboratory examination of the confiscated evidence. 13 The white crystalline substance with a total weight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana. 14 For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by his mother-in-law, Soledad Arcano. Accused-appellant testified that on the night of December 26, 1995, as they were about to leave their house, they heard a commotion at the gate and on the roof of their house. Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed over the gate and descended through an opening in the roof. 15 When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder was waved in front of him. As accused-appellant fumbled for his glasses, however, the paper was withdrawn and he had no chance to read it. 16 Accused-appellant claimed that he was ordered to stay in one place of the house while the policemen conducted a search, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliber firearm, jewelry, and canned goods. 17 The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accusedappellant, took him with them to the NARCOM on EDSA, Quezon City, where accused-appellant was detained. 18 Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that the policemen ransacked their house, ate their food, and took away canned goods and other valuables. 19 After hearing, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered: 1.In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer an indeterminate sentence with a minimum of six (6) months of arresto mayor and a maximum of four (4) years and two (2) months of prision correccional; and, 2.In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer reclusion perpetua and to pay a fine of P700,000.00. The accused shall further pay the costs of suit. The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana bricks are hereby confiscated and condemned for disposition according to law. The evidence custodian of this Court is hereby directed to turn such substances over to the National Bureau of Investigation pursuant to law. SO ORDERED. 20 Hence this appeal. Accused-appellant contends that THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALID THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGAL POSSESSION OF METHAMPHETAMINE HYDRO-CHLORIDE (SHABU) THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT FOR VIOLATION 8, R.A. NO. 6425 THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OF MARIJUANA

THE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT. Accused-appellant is contesting his conviction on three grounds. First, the admissibility of the shabu allegedly recovered from his residence as evidence against him on the ground that the warrant used in obtaining it was invalid. Second, the admissibility in evidence of the marijuana allegedly seized from accused-appellant pursuant to the "plain view" doctrine. Third, the employment of unnecessary force by the police in the execution of the warrant. First. Rule 126, 4 of the Revised Rules on Criminal Procedure 21 provides that a search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. In issuing a search warrant, judges must comply strictly with the requirements of the Constitution and the Rules of Criminal Procedure. No presumption of regularity can be invoked in aid of the process when an officer undertakes to justify its issuance. 22 Nothing can justify the issuance of the search warrant unless all the legal requisites are fulfilled. In this case, the search warrant issued against accused-appellant reads: SEARCH WARRANT NO. 160 For: Violation of RA 6425 SEARCH WARRANT TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe that ROBERT SALANGUIT has in his possession and control in his premises Binhagan St., San Jose, Quezon City as shown in Annex "A", the properties to wit: TcIAHS UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA which should be seized and brought to the undersigned. You are hereby commanded to make an immediate search anytime of the day/night of the premises above-described and forthwith seize and take possession of the above-stated properties and bring said properties to the undersigned to be dealt with as the law directs. GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite, Philippines. (SGD.) DOLORES L. ESPAOL Judge Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search for drug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to be searched was not described with sufficient particularity.

The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about drug paraphernalia. He stated: QBeing a member of the Intelligence and Operation Section, NMDU, NARCOM, do you remember if you were assigned into a monitoring or surveillance work? AYes, sir. QOf what particular assignment or area were you assigned for monitoring or surveillance? AIts within the Quezon City area particularly a house without a number located at Binhagan St., San Jose, Quezon City, sir. QDo you know the person who occupies the specific place? AYes, sir, he is ROBERT SALANGUIT @ Robert. QAre you familiar with that place? AYes, sir, as part of my surveillance, I was able to penetrate inside the area and established contract with ROBERT SALANGUIT alias Robert through my friend who introduced me to the former. QIn what particular occasion did you meet ROBERT SALANGUIT alias Robert? AWhen I was introduced by my friend as a good buyer and drug pusher of shabu, sir. QWere you able to buy at that time? AYes, sir. QHow much if you can still remember the amount involved? AI was able to buy two point twelve (2.12) grams of shabu in the amount of Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir. QHaving established contact with ROBERT SALANGUIT @ Robert, do you know where the stuff (shabu) were being kept? AYes, sir, inside a cabinet inside his room. QHow were you able to know the place where he kept the stuff? AWhen I first bought the 2.12 grams of shabu from him, it was done inside his room and I saw that the shabu was taken by him inside his cabinet. QDo you know who is in control of the premises? AYes, sir, it was ROBERT SALANGUIT @ Robert. QHow sure are you, that the shabu that you bought from ROBERT SALANGUIT @ Robert is genuine shabu? AAfter I left the house of ROBERT SALANGUIT @ Robert, I proceeded back to our office and reported the progress of my mission to our Chief and presented to him the 2.12 grams of shabu I bought from the subject. Then afterwards, our Chief formally requested the Chief PNP Central Crime Laboratory Services, NPDC, for Technical Analysis which yielded positive result for shabu, a regulated drug as shown in the attached certification of PNP CLS result No. D-414-95 dated 19 Dec. 95. QDo you have anything more to add or retract from your statement?

Existence of Probable Cause The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence was presented showing probable cause of the existence of methamphetamine hydrochloride or shabu. Accused-appellant contends, however, that the search warrant issued is void because no evidence was presented showing the existence of drug paraphernalia and the same should not have been ordered to be seized by the trial court. 23

AYes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wish to buy bigger quantity of shabu, he is willing to transact to me on cash basis at his price of One Thousand Seven Hundred Fifty (P1,750.00) pesos per gram. QAre you willing to sign your statement freely and voluntarily? AYes, sir. 24 However, the fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Thus, in Aday v. Superior Court, 25 the warrant properly described two obscene books but improperly described other articles. It was held: Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles . . . In so holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated. It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence. 26 Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellant's house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not. Specificity of the Offense Charged Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use of methamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions of R.A. No. 6425. 27 It will suffice to quote what this Court said in a similar case to dispose of this contention: While it is true that the caption of the search warrant states that it is in connection with "Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of 1972," it is clearly recited in the text thereof that "There is probable cause to believe that Adolfo Olaes alias 'Debie' and alias 'Baby' of No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their session and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above." Although the specific section of the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause. The search warrant also satisfies the requirement in the Bill of Rights of the particularity of the description to be made of the "place to be searched and the persons or things to be seized." 28 Indeed, in People v. Dichoso 29 the search warrant was also for "Violation of R.A. 6425," without specifying what provisions of the law were violated, and it authorized the search and seizure of "dried marijuana leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however, upheld the validity of the warrant:

Appellant's contention that the search warrant in question was issued for more than (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. 30 Similarly, in another case, 31 the search warrant was captioned: "For Violation of P.D. No. 1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant was questioned on the ground that it was issued without reference to any particular provision in P.D. No. 1866, which punished several offenses. We held, however, that while illegal possession of firearms is penalized under 1 of P.D. No. 1866 and illegal possession of explosives is penalized under 3 thereof, the decree is a codification of the various laws on illegal possession of firearms, ammunitions, and explosives which offenses are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. Thus, only one warrant was necessary to cover the violations under the various provisions of the said law. Particularity of the Place Accused-appellant contends that the search warrant failed to indicate the place to be searched with sufficient particularity. This contention is without merit. As the Solicitor General states: . . . While the address stated in the warrant is merely "Binhagan St., San Jose, Quezon City," the trial court took note of the fact that the records of Search Warrant Case No. 160 contained several documents which identified the premises to be searched, to wit: 1) the application for search warrant which stated that the premises to be searched was located in between No. 7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of witness which described the premises as "a house without a number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location of the premises to be searched. In fact, the police officers who raided appellant's house under the leadership of Police Senior Inspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides in the same neighborhood in Binhagan where appellant lives and in fact Aguilar's place is at the end of appellant's place in Binhagan. Moreover, the house raided by Aguilar's team is undeniably appellant's house and it was really appellant who was the target. The raiding team even first ascertained through their informant that appellant was inside his residence before they actually started their operation. 32

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. 33 For example, a search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the warrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." 34 In this case, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity.

In sum, we hold that with respect to the seizure of shabu from accused-appellant's residence, Search Warrant No. 160 was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized. Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not marijuana. However, seizure of the latter drug is being justified on the ground that the drug was seized within the "plain view" of the searching party. This is contested by accused-appellant. Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented in evidence. 35 For this doctrine to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence before the police. 36 The question is whether these requisites were complied with by the authorities in seizing the marijuana in this case. Prior Justification and Discovery by Inadvertence Because the location of the shabu was indicated in the warrant and thus known to the police operatives, it is reasonable to assume that the police found the packets of the shabu first. Once the valid portion of the search warrant has been executed, the "plain view doctrine" can no longer provide any basis for admitting the other items subsequently found. As has been explained: What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 37 The only other possible justification for an intrusion by the police is the conduct of a search pursuant to accused-appellant's lawful arrest for possession of shabu. However, a search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control. 38 The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it. AHDcCT The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accusedappellant's person or in an area within his immediate control. Its recovery, therefore, presumably during the search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in his deposition, was invalid. Apparent Illegality of the Evidence The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure. This case is similar to People v. Musa 39 in which we declared inadmissible the marijuana recovered by NARCOM agents because the said drugs were contained in a plastic bag which gave no indication of its contents. We explained: Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately

apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive configuration, is transparency, or otherwise, that its contents are obvious to an observer. 40 No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution. 41 In this case, the marijuana allegedly found in the possession of accused-appellant was in the form of two bricks wrapped in newsprint. Not being in a transparent container, the contents wrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or manner these items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without a warrant was conducted in accordance with the "plain view doctrine," we hold that the marijuana is inadmissible in evidence against accused-appellant. However, the confiscation of the drug must be upheld. Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party in effecting the raid. Rule 126, 7 of the Revised Rules on Criminal Procedure 42 provides: Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. Accused-appellant's claim that the policemen had clambered up the roof of his house to gain entry and had broken doors and windows in the process is unsupported by reliable and competent proof. No affidavit or sworn statement of disinterested persons, like the barangay officials or neighbors, has been presented by accused-appellant to attest to the truth of his claim. In contrast, Aguilar and Duano's claim that they had to use some force in order to gain entry cannot be doubted. The occupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching party knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the house. These circumstances justified the searching party's forcible entry into the house, founded as it is on the apprehension that the execution of their mission would be frustrated unless they do so. WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under 16 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a prison term ranging from six (6) months of arresto mayor, as minimum, and four (4) years and two (2) months of prision correccional, as maximum, and ordering the confiscation of 11.14 grams of methamphetamine hydrochloride is AFFIRMED. In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under 8 of R.A. No. 6425, as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00 is hereby REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime charged. However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetamine hydrochloride, and its disposition as ordered by the trial court is AFFIRMED. SO ORDERED. TaCDIc Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

EN BANC [G.R. No. 82585. November 14, 1988.] MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND PRESIDENT CORAZON C. AQUINO, respondents. [G.R. No. 82827. November 14, 1988.] LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, AND THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. [G.R. No. 83979. November 14, 1988.] LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V . Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. No. 82827 and 83979. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW; RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTER-AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED COMPLETED. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. 2.ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST; PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT. This case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. 3.ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL PROSECUTION; SUPREME COURT SHOULD DRAW THE DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL DIFFICULTIES ENCOUNTERED BY ANY ACCUSED. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. 4.CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH; WHILE DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE EXPECTED AND SHOULD BE BORNE FOR THE COMMON GOOD. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. 5.REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT OFFICIAL; THE SUPREME

COURT SHOULD DRAW A FINE LINE INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. 6.ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL CASE. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. GUTIERREZ, JR., J., concurring: 1.REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; COURT SHOULD NOT HESITATE TO QUASH A CRIMINAL PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND SUBSTANTIAL JUSTICE. Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. 2.ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE PROSECUTION THEREFOR WHERE COMPLAINANT IS THE PRESIDENT; JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT AND HIS WITNESSES. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 3.ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT; RATIONALE. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. 4.ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF THE OFFICE AND MAY BE INVOKED ONLY BY HOLDER OF OFFICE. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. 5.ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE PRESIDENT'S PREROGATIVE. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. RESOLUTION PER CURIAM p: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of

Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioner's contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter-affidavits, he filed a "Motion to Declare Proceeding Closed", in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Executive of the Government is a job that, aside from requiring all of the office-holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point.

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit". He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief

The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Separate Opinions GUTIERREZ, JR., J ., concurring: I concur with the majority opinion insofar as it revolves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pao (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in s seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely

criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ". . . No longer is there a Minister of the Crown or a person in authority of such exalted position that the citizen must speak of him only with bated breath. 'In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious.

"Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. . . " (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to deter the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers stand in the way of public duty. But why should we subject them to this problem? And why should we allow possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult is involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said. "If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression." In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit: "In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet 'libel' than we have to other 'mere labels' of state law. N.A.A.C.P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx "Those who won our independence believed .. that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form. . . .

FIRST DIVISION [G.R. No. 140946. September 13, 2004.] MICROSOFT CORPORATION and LOTUS DEVELOPMENT CORPORATION, petitioners, vs. MAXICORP, INC., respondent. DECISION CARPIO, J p: The Case This petition for review on certiorari 1 seeks to reverse the Court of Appeals' Decision 2 dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777. The Court of Appeals reversed the Order 3 of the Regional Trial Court, Branch 23, Manila ("RTC"), denying respondent Maxicorp, Inc.'s ("Maxicorp") motion to quash the search warrant that the RTC issued against Maxicorp. Petitioners are the private complainants against Maxicorp for copyright infringement under Section 29 of Presidential Decree No. 49 ("Section 29 of PD 49") 4 and for unfair competition under Article 189 of the Revised Penal Code ("RPC"). 5 Antecedent Facts On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador Samiano, Jr. ("NBI Agent Samiano") filed several applications for search warrants in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189 of the RPC. After conducting a preliminary examination of the applicant and his witnesses, Judge William M. Bayhon issued Search Warrants Nos. 96-451, 96-452, 96-453 and 96454, all dated 25 July 1996, against Maxicorp. Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of Maxicorp's premises and seized property fitting the description stated in the search warrants. On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging that there was no probable cause for their issuance and that the warrants are in the form of "general warrants." The RTC denied Maxicorp's motion on 22 January 1997. The RTC also denied Maxicorp's motion for reconsideration. The RTC found probable cause to issue the search warrants after examining NBI Agent Samiano, John Benedict Sacriz ("Sacriz"), and computer technician Felixberto Pante ("Pante"). The three testified on what they discovered during their respective visits to Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they have not authorized Maxicorp to perform the witnessed activities using petitioners' products. On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals seeking to set aside the RTC's order. On 23 December 1998, the Court of Appeals reversed the RTC's order denying Maxicorp's motion to quash the search warrants. Petitioners moved for reconsideration. The Court of Appeals denied petitioners' motion on 29 November 1999. The Court of Appeals held that NBI Agent Samiano failed to present during the preliminary examination conclusive evidence that Maxicorp produced or sold the counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent Samiano presented as evidence that he bought the products from Maxicorp was in the name of a certain "Joel Diaz." Hence, this petition. The Issues Petitioners seek a reversal and raise the following issues for resolution: 1.WHETHER THE PETITION RAISES QUESTIONS OF LAW; 2.WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE THE PETITION; 3.WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH WARRANTS; 4.WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS." IaECcH The petition has merit.

The Ruling of the Court

On Whether the Petition Raises Questions of Law Maxicorp assails this petition as defective since it failed to raise questions of law. Maxicorp insists that the arguments petitioners presented are questions of fact, which this Court should not consider in a Rule 45 petition for review. Petitioners counter that all the issues they presented in this petition involve questions of law. Petitioners point out that the facts are not in dispute. A petition for review under Rule 45 of the Rules of Court should cover questions of law. 6 Questions of fact are not reviewable. As a rule, the findings of fact of the Court of Appeals are final and conclusive and this Court will not review them on appeal, 7 subject to exceptions as when the findings of the appellate court conflict with the findings of the trial court. 8 The distinction between questions of law and questions of fact is settled. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts. A question of fact exists if the doubt centers on the truth or falsity of the alleged facts. Though this delineation seems simple, determining the true nature and extent of the distinction is sometimes problematic. For example, it is incorrect to presume that all cases where the facts are not in dispute automatically involve purely questions of law. There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence. 9 The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. 10 If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation to each other, the issue in that query is factual. 11 Our ruling in Paterno v. Paterno 12 is illustrative on this point: Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as feeble or spurious, or whether or not the proofs on one side or the other are clear and convincing and adequate to establish a proposition in issue, are without doubt questions of fact. Whether or not the body of proofs presented by a party, weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong, clear and convincing; whether or not certain documents presented by one side should be accorded full faith and credit in the face of protests as to their spurious character by the other side; whether or not inconsistencies in the body of proofs of a party are of such gravity as to justify refusing to give said proofs weight all these are issues of fact. It is true that Maxicorp did not contest the facts alleged by petitioners. But this situation does not automatically transform all issues raised in the petition into questions of law. The issues must meet the tests outlined in Paterno. Of the three main issues raised in this petition the legal personality of the petitioners, the nature of the warrants issued and the presence of probable cause only the first two qualify as questions of law. The pivotal issue of whether there was probable cause to issue the search warrants is a question of fact. At first glance, this issue appears to involve a question of law since it does not concern itself with the truth or falsity of certain facts. Still, the resolution of this issue would require this Court to inquire into the probative value of the evidence presented before the RTC. For a question to be one of law, it must not involve an examination of the probative value of the evidence presented by the litigants or any of them. 13 Yet, this is precisely what the petitioners ask us to do by raising arguments requiring an examination of the TSNs and the documentary evidence presented during the search warrant proceedings. In short, petitioners would have us substitute our own judgment to that of the RTC and the Court of Appeals by conducting our own evaluation of the evidence. This is exactly the situation which Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise only questions of law. This Court is not a trier of facts. It is not the function of this court to analyze or weigh evidence. 14 When we give due course to such situations, it is solely by way of exception. Such exceptions apply only in the presence of extremely meritorious circumstances. 15

Indeed, this case falls under one of the exceptions because the findings of the Court of Appeals conflict with the findings of the RTC. 16 Since petitioners properly raised the conflicting findings of the lower courts, it is proper for this Court to resolve such contradiction. On Whether Petitioners have the Legal Personality to File this Petition Maxicorp argues that petitioners have no legal personality to file this petition since the proper party to do so in a criminal case is the Office of the Solicitor General as representative of the People of the Philippines. Maxicorp states the general rule but the exception governs this case. 17 We ruled in Columbia Pictures Entertainment, Inc. v. Court of Appeals 18 that the petitioner-complainant in a petition for review under Rule 45 could argue its case before this Court in lieu of the Solicitor General if there is grave error committed by the lower court or lack of due process. This avoids a situation where a complainant who actively participated in the prosecution of a case would suddenly find itself powerless to pursue a remedy due to circumstances beyond its control. The circumstances in Columbia Pictures Entertainment are sufficiently similar to the present case to warrant the application of this doctrine. On Whether there was Probable Cause to Issue the Search Warrants Petitioners argue that the Court of Appeals erred in reversing the RTC based on the fact that the sales receipt was not in the name of NBI Agent Samiano. Petitioners point out that the Court of Appeals disregarded the overwhelming evidence that the RTC considered in determining the existence of probable cause. Maxicorp counters that the Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the entire preliminary examination that the RTC conducted was defective. The Court of Appeals based its reversal on two factual findings of the RTC. First, the fact that the sales receipt presented by NBI Agent Samiano as proof that he bought counterfeit goods from Maxicorp was in the name of a certain "Joel Diaz." Second, the fact that petitioners' other witness, John Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp.

counterfeit because Maxicorp sold them to its customers without giving the accompanying ownership manuals, license agreements and certificates of authenticity. Sacriz testified that during his visits to Maxicorp, he witnessed several instances when Maxicorp installed petitioners' software into computers it had assembled. Sacriz also testified that he saw the sale of petitioners' software within Maxicorp's premises. Petitioners never authorized Maxicorp to install or sell their software. The testimonies of these two witnesses, coupled with the object and documentary evidence they presented, are sufficient to establish the existence of probable cause. From what they have witnessed, there is reason to believe that Maxicorp engaged in copyright infringement and unfair competition to the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit software were not only displayed and sold within Maxicorp's premises, they were also produced, packaged and in some cases, installed there. The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man, 24 not the exacting calibrations of a judge after a full-blown trial. No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists. 25 Probable cause is determined in the light of conditions obtaining in a given situation. 26 Thus, it was improper for the Court of Appeals to reverse the RTC's findings simply because the sales receipt evidencing NBI Agent Samiano's purchase of counterfeit goods is not in his name. For purposes of determining probable cause, the sales receipt is not the only proof that the sale of petitioners' software occurred. During the search warrant application proceedings, NBI Agent Samiano presented to the judge the computer unit that he purchased from Maxicorp, in which computer unit Maxicorp had pre-installed petitioners' software. 27 Sacriz, who was present when NBI Agent Samiano purchased the computer unit, affirmed that NBI Agent Samiano purchased the computer unit. 28 Pante, the computer technician, demonstrated to the judge the presence of petitioners' software on the same computer unit. 29 There was a comparison between petitioners' genuine software and Maxicorp's software pre-installed in the computer unit that NBI Agent Sambiano purchased. 30 Even if we disregard the sales receipt issued in the name of "Joel Diaz," which petitioners explained was the alias NBI Agent Samiano used in the operation, there still remains more than sufficient evidence to establish probable cause for the issuance of the search warrants. This also applies to the Court of Appeals' ruling on Sacriz's testimony. The fact that Sacriz did not actually purchase counterfeit software from Maxicorp does not eliminate the existence of probable cause. Copyright infringement and unfair competition are not limited to the act of selling counterfeit goods. They cover a whole range of acts, from copying, assembling, packaging to marketing, including the mere offering for sale of the counterfeit goods. The clear and firm testimonies of petitioners' witnesses on such other acts stand untarnished. The Constitution and the Rules of Court only require that the judge examine personally and thoroughly the applicant for the warrant and his witnesses to determine probable cause. The RTC complied adequately with the requirement of the Constitution and the Rules of Court. LibLex Probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity to question the applicant and his witnesses. 31 For this reason, the findings of the judge deserve great weight. The reviewing court should overturn such findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason. 32 Nothing in the records of the preliminary examination proceedings reveal any impropriety on the part of the judge in this case. As one can readily see, here the judge examined thoroughly the applicant and his witnesses. To demand a higher degree of proof is unnecessary and untimely. The prosecution would be placed in a compromising situation if it were required to present all its evidence at such preliminary stage. Proof beyond reasonable doubt is best left for trial. On Whether the Search Warrants are in the Nature of General Warrants A search warrant must state particularly the place to be searched and the objects to be seized. The evident purpose for this requirement is to limit the articles to be seized only to those particularly described in the search warrant. This is a protection against potential abuse. It is necessary to leave the officers of the law

We rule that the Court of Appeals erred in reversing the RTC's findings. Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper." 19 Thus, probable cause for a search warrant requires such facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched. 20 The judge determining probable cause must do so only after personally examining under oath the complainant and his witnesses. The oath required must refer to "the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." 21 The applicant must have personal knowledge of the circumstances. "Reliable information" is insufficient. 22 Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses. 23 The Court of Appeals' reversal of the findings of the RTC centers on the fact that the two witnesses for petitioners during the preliminary examination failed to prove conclusively that they bought counterfeit software from Maxicorp. The Court of Appeals ruled that this amounted to a failure to prove the existence of a connection between the offense charged and the place searched. The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and unfair competition under Article 189 of the RPC. To support these charges, petitioners presented the testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. The offenses that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is but one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how they personally saw Maxicorp commit acts of infringement and unfair competition. During the preliminary examination, the RTC subjected the testimonies of the witnesses to the requisite examination. NBI Agent Samiano testified that he saw Maxicorp display and offer for sale counterfeit software in its premises. He also saw how the counterfeit software were produced and packaged within Maxicorp's premises. NBI Agent Samiano categorically stated that he was certain the products were

with no discretion regarding what articles they shall seize, to the end that no unreasonable searches and seizures be committed. 33 In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search warrant shall issue "in connection with one specific offense." The articles described must bear a direct relation to the offense for which the warrant is issued. 34 Thus, this rule requires that the warrant must state that the articles subject of the search and seizure are used or intended for use in the commission of a specific offense. Maxicorp argues that the warrants issued against it are too broad in scope and lack the specificity required with respect to the objects to be seized. After examining the wording of the warrants issued, the Court of Appeals ruled in favor of Maxicorp and reversed the RTC's Order thus: Under the foregoing language, almost any item in the petitioner's store can be seized on the ground that it is "used or intended to be used" in the illegal or unauthorized copying or reproduction of the private respondents' software and their manuals. 35 The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of the search warrants the RTC issued. The appellate court found that similarly worded warrants, all of which noticeably employ the phrase "used or intended to be used," were previously held void by this Court. 36 The disputed text of the search warrants in this case states: a)Complete or partially complete reproductions or copies of Microsoft software bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION contained in CD-ROMs, diskettes and hard disks; b)Complete or partially complete reproductions or copies of Microsoft instruction manuals and/or literature bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION; c)Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; d)Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in the recording of the reproduction and/or assembly, distribution and sales, and other transactions in connection with fake or counterfeit products bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION;

The cases cited by the Court of Appeals are inapplicable. In those cases, the Court found the warrants too broad because of particular circumstances, not because of the mere use of the phrase "used or intended to be used." In Columbia Pictures, Inc. v. Flores, the warrants ordering the seizure of "television sets, video cassette recorders, rewinders and tape cleaners . . ." were found too broad since the defendant there was a licensed distributor of video tapes. 41 The mere presence of counterfeit video tapes in the defendant's store does not mean that the machines were used to produce the counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided the warrants because they authorized the seizure of records pertaining to "all business transactions" of the defendant. 42 And in 20th Century Fox Film Corp. v. Court of Appeals, the Court quashed the warrant because it merely gave a list of articles to be seized, aggravated by the fact that such appliances are "generally connected with the legitimate business of renting out betamax tapes." 43 However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states: c)Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION; The scope of this description is all-embracing since it covers property used for personal or other purposes not related to copyright infringement or unfair competition. Moreover, the description covers property that Maxicorp may have bought legitimately from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether legitimately possessed or not. Neither does it limit the seizure to products used in copyright infringement or unfair competition. Still, no provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole. A partially defective warrant remains valid as to the items specifically described in the warrant. 44 A search warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant. 45 The exclusionary rule found in Section 3(2) of Article III of the Constitution renders inadmissible in any proceeding all evidence obtained through unreasonable searches and seizure. Thus, all items seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp. WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the Court of Appeals dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with respect to articles seized under paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc. immediately. SO ORDERED. SAHIaD Davide, Jr., C .J ., Ynares-Santiago and Azcuna, JJ ., concur.

e)Computer hardware, including central processing units including hard disks, CDROM drives, keyboards, monitor screens and diskettes, photocopying machines and other equipment or paraphernalia used or intended to be used in the illegal and unauthorized copying or reproduction of Microsoft software and their manuals, or which contain, display or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all Microsoft trademarks and copyrights; and f)Documents relating to any passwords or protocols in order to access all computer hard drives, data bases and other information storage devices containing unauthorized Microsoft software. 37 (Emphasis supplied) It is only required that a search warrant be specific as far as the circumstances will ordinarily allow. 38 The description of the property to be seized need not be technically accurate or precise. The nature of the description should vary according to whether the identity of the property or its character is a matter of concern. 39 Measured against this standard we find that paragraph (e) is not a general warrant. The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers to those articles used or intended for use in the illegal and unauthorized copying of petitioners' software. This language meets the test of specificity. 40

Quisumbing, J ., took no part. Close relation to Counsel.

THIRD DIVISION [G.R. No. 126379. June 26, 1998.] PEOPLE OF THE PHILIPPINES, represented by Provincial Prosecutor FAUSTINO T. CHIONG, petitioner, vs. COURT OF APPEALS, JUDGE CAESAR CASANOVA, Presiding Judge, Regional Trial Court, Branch 80, Malolos, Bulacan, AZFAR HUSSAIN, MOHAMMAD SAGED, MUJAHID KHAN, MOHAMMAD ASLAM and MEHMOOD ALI, respondents. The Solicitor General for petitioner. Manuel V. Mendoza for private respondents. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT; OFFICER EXECUTING WARRANT COULD CONSULT THE RECORDS IN THE OFFICIAL COURT FILE TO CLEAR UP EXTRINSIC AMBIGUITY. The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff, AFP, allegedly to the effect that the executing officer's prior knowledge as to the place intended in the warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file. Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed an obvious typographical error. The application in said case was for seizure of subversive material allegedly concealed in two places: one at "No. 19, Road 3, Project 6, Quezon City," and the other at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" because both search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the application for the search warrants specified two (2) distinct addresses, and that in fact the address, "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" appeared in the opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this was the address the judge intended to be searched when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the "obviously typographical error," the officer executing the warrant could consult the records in the official court file. 2.ID.; ID.; ID.; CASE AT BAR; IT IS NEITHER FAIR NOR LICIT FOR POLICE OFFICERS TO SEARCH A PLACE DIFFERENT FROM THAT STATED IN THE WARRANT. The case at bar, however, does not deal with the correction of an "obvious typographical error" involving ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediately perceptible on the face of the warrants in question. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officer's own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may

properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. 3.ID.; ID.; ID.; IT DOES NOT SUFFICE FOR A SEARCH WARRANT TO BE DEEMED VALID; IT IS ESSENTIAL TOO THAT IT PARTICULARLY DESCRIBE THE PLACE TO BE SEARCHED. The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in the search warrant which, of course, is the only place that may be legitimately searched in virtue thereof was not that which the police officers who applied for the warrant had in mind, with the result that what they actually subjected to search-and-seizure operations was a place other than that stated in the warrant. In fine, while there was a search warrant more or less properly issued as regards Abigail's Variety Store, there was none for Apartment No. 1 the first of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondents were then residing. It does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge after examination under oath, or affirmation of the complainant and the witnesses he may produce; it is essential, too, that it particularly described the place to be searched, the manifest intention being that the search be confined strictly to the place so described. 4.ID.; ID.; ID.; CONFLICTS OF JURISDICTION; POLICY GUIDELINES. Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash the warrant (or to retrieve things thereunder seized) may be filed only with the issuing Court. Such a motion may be filed for the first time in either the issuing Court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, and the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. This is clearly stated in the third policy guideline which indeed is what properly applies to the case at bar, to wit: "3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum-shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court."

5.ID.; ID.; ID.; ID.; CASE AT BAR. In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at Quezon City, and the return was made to said court. On the other hand, the criminal action in connection with the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this situation, a motion to quash the search warrant, or for the return of the personal property seized (not otherwise contraband) could have properly been presented in the QC RTC. No such motion was ever filed. It was only after the criminal action had been commenced in the Bulacan RTC that the motion to quash and to suppress evidence was submitted to the latter. The case thus falls within guideline No. 3 abovequoted in accordance with which the latter court must be deemed to have acted within its competence. DECISION NARVASA, C .J p: In behalf of the People, the Solicitor General has perfected the appeal at bar under Rule 45 of the Rules of Court from the Decision promulgated on September 11, 1996 of the Fourteenth Division of the Court of Appeals. 1 Said judgment dismissed the People's petition for certiorari to invalidate (i) the Order of Judge Caesar A. Casanova of Branch 80 of the Regional Trial Court dated February 9, 1996, 2 as well as (ii) that dated May 28, 1996 denying the People's motion for reconsideration. 3 Those orders were handed down in Criminal Case No. 43-M-96, a case of illegal possession of explosives, after the accused had been arraigned and entered a plea of not guilty to the charge. More particularly, the Order of February 9, 1996: LexLib 1)quashed a search warrant (No. 1068 [95]) issued by Judge Marciano I. Bacalla of Branch 216 of the Regional Trial Court at Quezon City on December 15, 1995, 4

2)declared inadmissible for any purpose the items seized under the warrant, and 3)directed the turnover of the amount of U.S. $5,750.00 to the Court within five (5) days "to be released thereafter in favor of the lawful owner considering that said amount was not mentioned in the Search Warrant." The antecedents, "culled from the records" by the Appellate Court, are hereunder set out. 1."On December 14, 1995, S/Insp PNP James Brillantes applied for search warrant before Branch 261, RTC of Quezon City against Mr. Azfar Hussain, who had allegedly in his possession firearms and explosives at Abigail Variety Store, Apt. 1207 Area F, Bagong Buhay Avenue, Sapang Palay, San Jose del Monte, Bulacan." 2."The following day, December 15, 1995, Search Warrant No. 1068 (95) against Mr. Hussain was issued not at Abigail Variety Store but at Apt. No. 1, immediately adjacent (to) Abigail Variety Store resulting in the arrest of four (4) Pakistani nationals and in the seizure of their personal belongings, papers and effects such as wallet, wrist watches, pair of shoes, jackets, t-shirts, belts, sunglasses and travelling bags including cash amounting to $3,550.00 and P1,500.00 aside from US$5,175.00 (receipted) which were never mentioned in the warrant. The sum of $5,175.00 was however returned to the respondents upon order of the court on respondents' motion or request. Included allegedly are one piece of dynamite stick; two pieces of plastic explosives C-4 type and one (1) fragmentation grenade. But without the items described in the search warrant are: (a) three (3) Ingram machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d) fuse; (e) assorted chemical ingredients for explosives; and (f) assorted magazine assg and ammunitions." 3."On December 19, 1995, three days after the warrant was served, a return was made without mentioning the personal belongings, papers and effects including cash belonging to the private respondents. There was no showing that lawful occupants were made to witness the search." 4."On January 22, 1996, private respondents upon arraignment, pleaded not guilty to the offense charged; . . ." and on the same date, submitted their " Extremely Urgent Motion (To Quash Search Warrant and to Declare Evidence Obtained Inadmissible)," dated January 15, 1996; 5.". . . According to the private respondents in their pleading (consolidated comment on petition for certiorari . . .): 'On January 29, 1996, an ocular inspection of the premises searched was conducted by respondent Judge and the following facts had been established as contained in the order dated January 30, 1996 . . . to wit: "1)That the residence of all the accused is at Apartment No. 1 which is adjacent to the Abigail's Variety Store; 2)That there is no such number as '1207' found in the building as it is correspondingly called only as 'Apartment No. 1, 2, 3 and 4;' 3)That Apartment No. 1 is separate from the Abigail's Variety Store; 4)That there are no connecting doors that can pass from Abigail's Variety Store to Apartment No. 1; 5)That Abigail's Variety Store and Apartment No. 1 have its own respective doors used for ingress and egress. There being no objection on the said observation of the Court, let the same be reduced on the records. SO ORDERED." " 6."On February 9, 1996, respondent Judge . . . issued its order duly granting the motion to quash search warrant . . .;" 5

7."On February 12, 1996, private respondents filed the concomitant motion to dismiss . . .;" 8."On February 19, 1996, Asst. Provincial Prosecutor Rolando Bulan filed a motion for reconsideration and supplemental motion on the order quashing the search warrant . . . ;" 9."On February 27, 1996 and March 12, 1996, private respondents filed opposition/comment and supplemental opposition/comment on the motion for reconsideration . . . ;" 10."On May 28, 1996, respondent Judge . . . issued its order denying the motion for reconsideration . . .; (and on) June 11, 1996, private respondents filed extremely urgent reiterated motion to dismiss . . . ." Chiefly to nullify Judge Casanova's quashal Order of February 9, 1996 above referred to, the Solicitor General forthwith commenced a special civil action of certiorari in the Court of Appeals. The action did not prosper, however. As earlier mentioned, the Fourteenth Division of the Appellate Tribunal promulgated judgment on September 11, 1996, dismissing the case for lack of merit. The judgment was grounded on the following propositions, to wit: 6 1.The place actually searched was different and distinct from the place described in the search warrant. This fact was ascertained by the Trial Judge through an ocular inspection, the findings wherein, not objected to by the People, were embodied in an order dated January 30, 1996. The place searched, in which the accused (herein petitioners) were then residing was Apartment No. 1. It is a place other than and separate from, and in no way connected with, albeit adjacent to, Abigail's Variety Store, the place stated in the search warrant. 2.The public prosecutor's claim that the sketch submitted to Judge Bacalla relative to the application for a search warrant, actually depicted the particular place to be searched was effectively confuted by Judge Casanova who pointed out that said "SKETCH was not dated, not signed by the person who made it and not even mentioned in the Search Warrant by the Honorable Judge (Bacalla, who) instead . . . directed them to search Abigail Variety Store Apartment 1207 . . . in the Order . . . dated December 15, 1995" this, too, being the address given "in the Application for Search Warrant dated December 14, 1995, requested by P/SR INSP. Roger James Brillantes, the Team Leader." The untenability of the claim is made more patent by the People's admission, during the hearing of its petition for certiorari in the Court of Appeals, that said sketch was in truth "not attached to the application for search warrant . . . (but) merely attached to the motion for reconsideration." 7 Quoted with approval by the Appellate Court were the following observations of Judge Casanova contained in his Order of May 28, 1996, viz.: 8 "(d). . . it is very clear that the place searched is different from the place mentioned in the Search Warrant, that is the reason why even P/SR. INSP. Roger James Brillantes, SPO1 Prisco Bella and SPO4 Cesar D. Santiago, who were all EDUCATED, CULTURED and ADEPT to their tasks of being RAIDERS and who were all STATIONED IN BULACAN were not even able to OPEN THEIR MOUTH to say in TAGALOG with Honorable Judge who issued the Search Warrant the words 'KATABI', or "KADIKIT" or 'KASUNOD NG ABIGAIL VARIETY STORE ang papasukin namin" or if they happen to be an ENGLISH speaking POLICEMEN, they were not able to open their mouth even to WHISPER the ENGLISH WORDS 'RESIDE' or 'ADJACENT' or 'BEHIND' or 'NEXT' to ABIGAIL VARIETY STORE, the place they are going to raid.' . . ." 3.The search was not accomplished in the presence of the lawful occupants of the place (herein private respondents) or any member of the family, said occupants

being handcuffed and immobilized in the living room at the time. The search was thus done in violation of the law. 9 4.The articles seized were not brought to the court within 48 hours as required by the warrant itself; "(i)n fact the return was done after 3 days or 77 hours from service, in violation of Section 11, Rule 126 of the Rules of Court." 10 5.Judge Casanova "correctly took cognizance of the motion to quash search warrant, pursuant to the doctrinal tenets laid down in Nolasco vs. Pao (139 SCRA 152) which overhauled the previous ruling of the Supreme Court in Templo vs. de la Cruz (60 SCRA 295). It is now the prevailing rule that whenever a search warrant has been issued by one court or branch thereof and a criminal case is initiated in another court or branch thereof as a result of the search of the warrant, that search warrant is deemed consolidated with the criminal case for orderly procedure. The criminal case is more substantial than the search warrant proceedings, and the presiding Judge in the criminal case has the right to rule on the search warrant and to exclude evidence unlawfully obtained (Nolasco & Sans cases)."

The discrepancy appears to have resulted from the officers' own faulty depiction of the premises to be searched. For in their application and in the affidavit thereto appended, they wrote down a description of the place to be searched, which is exactly what the Judge reproduced in the search warrant: " premises located at Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang Palay, San Jose Del Monte, Bulacan." And the scope of the search was made more particular and more restrictive by the Judge's admonition in the warrant that the search be "limited only to the premises herein described." Now, at the time of the application for a search warrant, there were at least five (5) distinct places in the area involved: the store known as "Abigail's Variety Store," and four (4) separate and independent residential apartment units. These are housed in a single structure and are contiguous to each other although there are no connecting doors through which a person could pass from the interior of one to any of the others. Each of the five (5) places is independent of the others, and may be entered only through its individual front door. Admittedly, the police officers did not intend a search of all five (5) places, but of only one of the residential units at the rear of Abigail's Variety Store: that immediately next to the store (Number 1). LibLex However, despite having personal and direct knowledge of the physical configuration of the store and the apartments behind the store, the police officers failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 in the warrant. Even after having received the warrant which directs that the search be "limited only to the premises herein described," "Abigail Variety Store Apt 1207" thus literally excluding the apartment units at the rear of the store they did not ask the Judge to correct said description. They seem to have simply assumed that their own definite idea of the place to be searched clearly indicated, according to them, in the sketch they claim to have submitted to Judge Bacalla in support of their application was sufficient particularization of the general identification of the place in the search warrant. The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v. Chief of Staff , AFP, 11 allegedly to the effect that the executing officer's prior knowledge as to the place intended in the warrant is relevant, and he may, in case of any ambiguity in the warrant as to the place to be searched, look to the affidavit in the official court file. Burgos is inapplicable. That case concerned two (2) search warrants which, upon perusal, immediately disclosed an obvious typographical error. The application in said case was for seizure of subversive material allegedly concealed in two places: one at "No. 19, Road 3, Project 6, Quezon City," and the other, at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant No. 20-82 (b) at "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" because both search warrants apparently indicated the same address (No. 19, Road 3, Project 6, Quezon City) as the place where the supposedly subversive material was hidden. This was error, of course but, as this Court there ruled, the error was obviously typographical, for it was absurd to suppose that the Judge had issued two warrants for the search of only one place. Adverting to the fact that the application for the search warrants specified two (2) distinct addresses, and that in fact the address, "784 Units C & D, RMS Building, Quezon Avenue, Quezon City" appeared in the opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this was the address the judge intended to be searched when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the "obviously typographical error," the officer executing the warrant could consult the records in the official court file. 12 The case at bar, however, does not deal with the correction of an "obvious typographical error" involving ambiguous descriptions of the place to be searched, as in Burgos, but the search of a place different from that clearly and without ambiguity identified in the search warrant. In Burgos, the inconsistency calling for clarification was immediately perceptible on the face of the warrants in question. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It is neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the

6.Grave abuse of discretion cannot be imputed to the respondent Judge, in light of "Article III, Section 2 of the Constitution and Rule 126 of the Rules of Court." 7.The proper remedy against the challenged Order is an appeal, not the special civil action of certiorari. The Solicitor General now seeks reversal of the foregoing verdict, ascribing to the Court of Appeals the following errors, to wit: 1)sanctioning "the lower Court's precipitate act of disregarding the proceedings before the issuing Court and overturning the latter's determination of probable cause and particularity of the place to be searched;" 2)sanctioning "the lower Court's conclusion that the sketch was not attached to the application for warrant despite the clear evidence . . . to the contrary;" 3)ignoring "the very issues raised in the petition before it;" 4)"holding that the validity of an otherwise valid warrant could be diminished by the tardiness by which the return is made;" 5)hastily applying "the general rule that certiorari cannot be made a substitute for appeal although the circumstances attending the case at bar clearly fall within the exceptions to that rule;" and 6)depriving petitioner of "the opportunity to present evidence to prove the validity of the warrant when the petition before it was abruptly resolved without informing petitioner thereof." The whole case actually hinges on the question of whether or not a search warrant was validly issued as regards the apartment in which private respondents were then actually residing, or more explicitly, whether or not that particular apartment had been specifically described in the warrant. The Government insists that the police officers who applied to the Quezon City RTC for the search warrant had direct, personal knowledge of the place to be searched and the things to be seized. It claims that one of said officers, in fact, had been able to surreptitiously enter the place to be searched prior to the searched: this being the first of four (4) separate apartments behind the Abigail Variety Store; and they were also the same police officers who eventually effected the search and seizure. They thus had personal knowledge of the place to be searched and had the competence to make a sketch thereof; they knew exactly what objects should be taken therefrom; and they had presented evidence sufficient to establish probable cause. That may be so; but unfortunately, the place they had in mind the first of four (4) separate apartment units (No. 1) at the rear of "Abigail Variety Store" was not what the Judge who issued the warrant himself had in mind, and was not what was ultimately described in the search warrant.

warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search. The Government faults Judge Casanova for having undertaken a review of Judge Bacalla's finding of probable cause, "as if he were an appellate court." A perusal of the record however shows that all that Judge Casanova did was merely to point out inconsistencies between Judge Bacalla's Order of December 15, 1995 and the warrant itself, as regards the identities of the police officers examined by Judge Bacalla. 13 In Judge Casanova's view, said inconsistencies, being quite apparent in the record, put in doubt the sufficiency of the determination of the facts on which the search warrant was founded. The Government alleges that the officers had satisfactorily established probable cause before Judge Bacalla for the issuance of a search warrant. While this may be conceded, the trouble is, to repeat, that the place described in the search warrant which, of course, is the only place that may be legitimately searched in virtue thereof was not that which the police officers who applied for the warrant had in mind, with the result that what they actually subjected to search-and-seizure operations was a place other than that stated in the warrant. In fine, while there was a search warrant more or less properly issued as regards Abigail's Variety Store, there was none for Apartment No. 1 the first of the four (4) apartment units at the rear of said store, and precisely the place in which the private respondents were then residing.

the officers actually searched, or the speciousness of their argument that anyway, the premises searched were precisely what they had described to the Judge, and originally and at all times had in mind. Only one other matter merits treatment. The Solicitor General's Office opines that where a search warrant has been "issued by a court other than the one trying the main criminal case," the "proper recourse" of persons wishing to quash the warrant is to assail it before the issuing court and not before that in which the criminal case involving the subject of the warrant is afterwards filed. 17 In support, it cites the second of five (5) "policy guidelines" laid down by this Court in Malaloan v. Court of Appeals 18 concerning "possible conflicts of jurisdiction (or, more accurately, in the exercise of jurisdiction) where the criminal case is pending in one court and the search warrant is issued by another court for the seizure of personal property intended to be used as evidence in said criminal case." Said second guideline reads: 19 "2.When the latter court (referring to the court which does not try the main criminal case) issues the search warrant, a motion to quash the same may be filed in and shall be resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall be deemed waived." The guidelines have been misconstrued. Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash the warrant (or to retrieve things thereunder seized) may be filed only with the issuing Court. Such a motion may be filed for the first time in either the issuing Court or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. The Court first taking cognizance of the motion does so to the exclusion of the other, and the proceedings thereon are subject to the Omnibus Motion Rule and the rule against forum-shopping. This is clearly stated in the third policy guideline which indeed is what properly applies to the case at bar, to wit: "3.Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression as evidence of the personal property seized under the warrant if the same is offered therein for said purpose. Since two separate courts with different participations are involved in this situation, a motion to quash a search warrant and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided, however, that objections not available, existent or known during the proceedings for the quashal of the warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to suppress shall likewise be subject to any proper remedy in the appropriate higher court." In this case, the search warrant was applied for in, and issued by, Branch 216 of the Regional Trial Court at Quezon City, and the return was made to said court. On the other hand, the criminal action in connection with the explosives subject of the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this situation, a motion to quash the search warrant, or for the return of the personal property seized (not otherwise contraband) could have properly been presented in the QC RTC. No such motion was ever filed. It was only after the criminal action had been commenced in the Bulacan RTC that the motion to quash and to suppress evidence was submitted to the latter. The case thus falls within guideline No. 3 above quoted in accordance with which the latter court must be deemed to have acted within its competence. WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals of September 11, 1996 which dismissed the People's petition for certiorari seeking nullification of the Orders of Branch 80 of the Regional Trial Court dated February 9, 1996 and May 28, 1996 in Criminal Case No. 43-M-96 is, for the reasons set out in the foregoing opinion, hereby AFFIRMED without pronouncement as to costs. SO ORDERED. LLphil Romero, Kapunan and Purisima, JJ ., concur.

It bears stressing that under Section 2, Article III of the Constitution, providing that: 14 "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 things to be seized." it does not suffice, for a search warrant to be deemed valid, that it be based on probable cause, personally determined by the judge after examination under oath, or affirmation of the complainant. and the witnesses he may produce; it is essential, too, that it particularly describe the place to be searched, 15 the manifest intention being that the search be confined strictly to the place so described. There was therefore in this case an infringement of the constitutional requirement that a search warrant particularly describe the place to be searched; and that infringement necessarily brought into operation the concomitant provision that "(a)ny evidence obtained in violation . . . (inter alia of the search-and-seizure provision) shall be inadmissible for any purpose in any proceeding." 16 In light of what has just been discussed, it is needless to discuss such other points sought to be made by the Office of the Solicitor General as whether or not (1) the sketch of the building housing the store and the residential apartment units the place to be searched being plainly marked was in fact attached to the application for the search warrant; or (2) the search had been conducted in the presence of the occupants of the place (herein petitioners), among others; or (3) the validity of the search warrant was diminished by the tardiness by which the return was made, or (4) the Court of Appeals had improperly refused to receive "evidence which . . . (the People) had earlier been denied opportunity to present before the trial court;" or (5) the remedy of the special civil action of certiorari in the Court of Appeals had been erroneously availed of. The resolution of these issues would not affect the correctness of the conclusion that the search and seizure proceedings are void because the place set forth in the search warrant is different from that which

THIRD DIVISION [G.R. No. 149878. July 1, 2003.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TIU WON CHUA a.k.a. "Timothy Tiu" and QUI YALING y CHUA a.k.a. "Sun Tee Sy y Chua", accusedappellant. The Solicitor General for plaintiff-appellee. Grajo T. Albano and Teresita Dizon Capulong for accused-appellants. SYNOPSIS Appellants were convicted for violation of the Dangerous Drugs Act of 1972, as amended by RA No. 7659. On appeal, they assailed the legality of the search warrant and the search and arrest conducted pursuant thereto, and the correctness of the judgment of conviction. The Supreme Court held that even if the search warrant used by the police did not contain the correct name of appellants Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be searched was described properly and the test buy operation conducted before obtaining the search warrant showed that they have personal knowledge of the identity of the persons and the place to be searched. The search conducted on the car parked away from the building, however, was illegal because it was not part of the place described to be searched and it was not incidental to a lawful arrest. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT; REQUISITES FOR VALIDITY. There are only four requisites for a valid warrant, i.e.: (1) it must be issued upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant must particularly describe the place to be searched and the persons or things to be seized. 2.ID.; ID.; ID.; ID.; MISTAKE IN THE NAME OF THE ACCUSED DOES NOT INVALIDATE THE SEARCH WARRANT IF THE PLACE TO BE SEARCHED WAS PROPERLY DESCRIBED; CASE AT BAR. As correctly argued by the Solicitor General, a mistake in the name of the person to be searched does not invalidate the warrant, especially since in this case, the authorities had personal knowledge of the drug-related activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused. We have also held that a mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described. Thus, even if the search warrant used by the police authorities did not contain the correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be searched was described properly. IATSHE 3.ID.; ID.; ID.; SEARCH ON THE CAR THAT WAS NOT PART OF THE PLACE DESCRIBED IN THE WARRANT TO BE SEARCHED WAS ILLEGAL; CASE AT BAR. We affirm, however, the illegality of the search conducted on the car, on the ground that it was not part of the description of the place to be searched mentioned in the warrant. It is mandatory that for the search to be valid, it must be directed at the place particularly described in the warrant. Moreover, the search of the car was not incidental to a lawful arrest. To be valid, such warrantless search must be limited to that point within the reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In this case, appellants were arrested inside the apartment, whereas the car was parked a few meters away from the building. DECISION PUNO, J p: This is an appeal from the decision of the Regional Trial Court (RTC) of Manila, Branch 27, convicting appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won) and Qui Paling y Chua a.k.a. Sun Tee Sy y Chua (Qui Yaling) for violation of Section 16, Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. Appellants were charged with the crime of illegal possession of a regulated drug, i.e., methamphetamine hydrochloride, otherwise known as "shabu," in an information which reads:

The undersigned accuses TIU WON CHUA aka "Timothy Tiu" and QUI YALING Y CHUA aka "Sun Tee Sy Y Chua" of violation of Section 16, Article III in relation to Section 2(e-2), Article I of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 and as further amended by Republic Act No. 7659, committed as follows: That on or about the 3rd day of October 1998, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there wilfully, unlawfully, knowingly and jointly have in their possession and under their custody and control the following, to wit: A sealed plastic bag containing two three four point five (234.5) grams of white crystalline substance; Four (4) separate sealed plastic bags containing six point two two four three (6.2243) grams of white crystalline substance; Sixteen (16) separate sealed plastic bags containing twenty point three six seven three (20.3673) grams of white crystalline substance; or a total of 261.0916 grams, and; An improvised tooter with traces of crystalline substance known as "SHABU" containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof. Contrary to law. 1 During arraignment, a plea of not guilty was entered. Appellants, with the assistance of counsel, and the prosecution stipulated on the following facts: 1.The authenticity of the following documents: a.The letter of Police Senior Inspector Angelo Martin of WPD, District Intelligence Division, United Nations Avenue, Ermita, Manila, dated October 12, 1998, to the Director of the NBI requesting the latter to conduct a laboratory examination of the specimen mentioned therein; b.The Certification issued by Forensic Chemist Loreto Bravo of the NBI, dated October 13, 1998, to the effect that the specimen mentioned and enumerated therein gave positive results for methamphetamine hydrochloride, Exhibit "B"; and c.Dangerous Drug Report No. 98-1200 issued by Forensic Chemist Bravo, dated October 13, 1998, to the effect that the specimen mentioned therein gave positive results for methamphetamine hydrochloride; 2.The existence of one plastic bag containing 234.5 grams of methamphetamine hydrochloride, Exhibit "D"; four (4) plastic sachets also containing methamphetamine hydrochloride with a total net weight of 6.2243 grams, Exhibits "E", "E-1", "E-2" and "E-3"; additional 16 plastic sachets containing methamphetamine hydrochloride with a total net weight of 20.3673 grams, Exhibits "F", "F-1" to "F-15", and one improvised tooter with a length of 8 inches more or less and with a red plastic band, Exhibit "G"; 3.Forensic Chemist Loreto Bravo has no personal knowledge as to the source of the regulated drug in question; and 4.Tiu Won Chua and Qui Yaling y Chua as stated in the information are the true and correct names of the two accused. 2

The witnesses presented by the prosecution were SPO1 Anthony de Leon, PO2 Artemio Santillan and PO3 Albert Amurao. Their testimonies show that the police authorities, acting on an information that drugrelated activities were going on at the HCL Building, 1025 Masangkay St., Binondo, Manila, surveyed the place on October 2, 3, 4 and 5, 1998. At about 10 p.m. of October 6, they conducted a test-buy operation, together with a Chinese-speaking asset. They were able to buy P2,000.00 worth of substance from appellants, which, upon examination by the PNP crime laboratory, proved positive for methamphetamine hydrochloride. 3 Nonetheless, they did not immediately arrest the suspects but applied for a warrant to search Unit 4-B of HCL Building, 1025 Masangkay St., Binondo, Manila. Their application to search the unit supposedly owned by "Timothy Tiu" was granted by Judge Ramon Makasiar of Branch 35 of the RTC of Manila on October 9. 4 Armed with the warrant, they proceeded to the place and learned that Tiu Won was not inside the building. They waited outside but Tiu Won did not come. After several stakeouts, they were able to implement the warrant on October 12. Failing to get the cooperation of the barangay officials, they requested the presence of the building coordinator, Noel Olarte, and his wife, Joji, who acted as witnesses. During the enforcement of the warrant, there were three (3) persons inside the apartment, namely, appellants Tiu Won and Qui Yaling, and a housemaid. The search was conducted on the sala and in the three (3) bedrooms of Unit 4-B. On top of a table inside the master's bedroom, one (1) big pack, containing 234.5 grams of shabu, was found inside a black leather man's handbag supposedly owned by Tiu Won, while sixteen (16) small packs of shabu weighing 20.3673 grams were found inside a lady's handbag allegedly owned by Qui Yaling. Also contained in the inventory were the following items: an improvised tooter, a weighing scale, an improvised burner and one rolled tissue paper. 5 The authorities also searched a Honda Civic car bearing Plate No. WCP 157, parked along Masangkay Street, registered in the name of the wife of Tiu Won and found four (4) plastic bags containing 6.2243 grams of shabu, which were likewise confiscated. A gun in the possession of Tiu Won was also seized and made subject of a separate criminal case. The defense presented appellants Tiu Won and Qui Yaling. They denied that Timothy Tiu and Tiu Won Chua are one and the same person. They presented papers and documents to prove that appellant is Tiu Won Chua and not Timothy Tiu, as stated in the search warrant. Tiu Won also claimed that he does not live in the apartment subject of the search warrant, alleging that he is married to a certain Emily Tan and is a resident of No. 864 Alvarado St., Binondo, Manila. Nonetheless, he admitted that his co-appellant, Qui Yaling, is his mistress with whom he has two children. Qui Yaling admitted being the occupant of the apartment, but alleged that she only occupied one room, while two other persons, a certain Lim and a certain Uy, occupied the other rooms. Both appellants denied that they were engaged in the sale or possession of shabu. They asserted that they are in the jewelry business and that at the time the search and arrest were made, the third person, whom the prosecution identified as a housemaid, was actually a certain Chin, who was there to look at some of the pieces of jewelry sold by Tiu Won. They also denied that a gun was found in the possession of Tiu Won.

THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION EVIDENCES (sic) WHICH SHOULD HAVE BEEN EXCLUDED AND DISREGARDED WHICH RESULTED IN THE ERRONEOUS CONVICTION OF BOTH ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. IV THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THE CONSTITUTIONAL RIGHTS OF BOTH ACCUSED WERE SERIOUSLY VIOLATED BY THE POLICE OPERATIVES. 7 These issues can be trimmed down to two i.e., the legality of the search warrant and the search and arrest conducted pursuant thereto, and the correctness of the judgment of conviction imposed by the RTC. As regards the propriety of the search warrant issued in the name of Timothy Tiu, which did not include appellant Qui Yaling, appellants contend that because of this defect, the search conducted and consequently, the arrest, are illegal. Being fruits of an illegal search, the evidence presented cannot serve as basis for their conviction. We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it must be issued upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant must particularly describe the place to be searched and the persons or things to be seized. 8 As correctly argued by the Solicitor General, a mistake in the name of the person to be searched does not invalidate the warrant, 9 especially since in this case, the authorities had personal knowledge of the drug-related activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused. 10 We have also held that a mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described. 11 Thus, even if the search warrant used by the police authorities did not contain the correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be searched was described properly. Besides, the authorities conducted surveillance and a test-buy operation before obtaining the search warrant and subsequently implementing it. They can therefore be presumed to have personal knowledge of the identity of the persons and the place to be searched although they may not have specifically known the names of the accused. Armed with the warrant, a valid search of Unit 4-B was conducted. We affirm, however, the illegality of the search conducted on the car, on the ground that it was not part of the description of the place to be searched mentioned in the warrant. It is mandatory that for the search to be valid, it must be directed at the place particularly described in the warrant. 12 Moreover, the search of the car was not incidental to a lawful arrest. To be valid, such warrantless search must be limited to that point within the reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. 13 In this case, appellants were arrested inside the apartment, whereas the car was parked a few meters away from the building. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) appellants were in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the appellants were freely and consciously aware of being in possession of the drug. 14 We also note that the crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act. 15 In the case at bar, the prosecution has sufficiently proved that the packs of shabu were found inside Unit 4B, HCL Building, 1025 Masangkay St., Binondo, Manila. Surveillance was previously conducted. Though no arrest was made after the successful test-buy operation, this does not destroy the fact that in a subsequent search, appellants were found in possession of shabu. The testimonies of the prosecution witnesses are consistent in that after the test-buy operation, they obtained a search warrant from Judge Makasiar, pursuant to which, they were able to confiscate, among others, several packs of shabu from a man's

Qui Yaling recalled that upon asking who was it knocking at the door of her apartment on October 12, the police authorities represented that they were electric bill collectors. She let them in. She was surprised when upon opening the door, around ten (10) policemen barged inside her unit. She, together with Tiu Won and Chin, was asked to remain seated in the sofa while the men searched each room. Tiu Won alleged that after a fruitless search, some of the policemen went out, but came back a few minutes later with another person. Afterwards, he was made to sign a piece of paper. Appellants also claimed that the policemen took their bags which contained money, the pieces of jewelry they were selling and even Qui Yaling's cell phone. They both denied that shabu was discovered in the apartment during the search. Appellants were arrested and brought to the police station. In a decision, dated August 15, 2001, the RTC found proof beyond reasonable doubt of the guilt of the appellants and sentenced them to suffer the penalty of reclusion perpetua and a fine of P500,000.00 each. 6 Thus, appellants interpose this appeal raising the following assignment of errors: EaICAD I THE TRIAL COURT ERRED IN DISREGARDING THE LEGAL DEFECTS OF THE SEARCH WARRANT USED BY THE POLICE OPERATIVES AGAINST BOTH ACCUSED. II

handbag and a ladies' handbag inside a room in the unit subject of the warrant. Furthermore, the seizure of the regulated drug from Unit 4-B is proven by the "Receipt for Property Seized" 16 signed by SPO1 de Leon, the seizing officer, Noel, the building administrator, and Joji Olarte, his wife, who were also present. De Leon attested to the truth and genuineness of the receipt which was not contradicted by the defense. Be that as it may, we cannot sustain the trial court's decision attributing to both appellants the illegal possession of the same amount of shabu. We note that nowhere in the information is conspiracy alleged. Neither had it been proven during the trial. As such, we need to look at the individual amounts possessed by each appellant. In his testimony, Tiu Won admitted ownership of the man's handbag where 234.5 grams of shabu were found, viz: Q:During those ten to 20 minutes, what were those policemen doing inside that unit? A:They went inside the rooms and started ransacking the drawers and everything. As a matter of fact, even handbags were searched by them. Q:Whose handbags were searched? A:My bag, the one I was carrying that day, with jewelry and checks and others were taken by them. 17 (italics supplied) Qui Yaling, in her appellant's brief, denied owning the handbag where 20.3673 grams of shabu were discovered. However, during her testimony, she admitted its ownership, viz: Q:Now, the police testified before this court that you has (sic) a bag and when they searched this bag, it yielded some sachets of shabu(.) (W)hat can you say about that? A:That is an absolute lie, sir. What they saw in my bag were my cosmetics. 18 (italics supplied) An admission is an act or declaration of a party as to the existence of a relevant fact which may be used in evidence against him. 19 These admissions, provided they are voluntary, can be used against appellants because it is fair to presume that they correspond with the truth, and it is their fault if they do not. 20 Qui Yaling likewise argues that the lower court erred in attributing ownership of the handbag to her considering that there was another girl present at the apartment during the search. She contends that since the prosecution was not able to establish the ownership of the bag, then such could have also been owned by Chin. We do not subscribe to this argument. The defense failed to bring Chin to court, although during the course of the presentation of their evidence, they manifested their intention to present her testimony. Furthermore, a visitor does not normally leave her bag lying anywhere, much more in the master's bedroom. Being the occupant of the apartment, it is more logical to presume that the handbag belongs to Qui Yaling. The failure of the prosecution to present the bags and proofs that the bags belong to the appellants is immaterial because the bags, the license of Tiu Won found inside the man's handbag and the passport of Qui Yaling found inside the ladies' handbag are not illegal. Having no relation to the use or possession of shabu, the authorities could not confiscate them for they did not have the authority to do so since the warrant authorized them to seize only articles in relation to the illegal possession of shabu. 21 Not within their control, they could not have been presented in court. We now come to the penalties of the appellants. R.A. No. 6425, as amended by R.A. No. 7659, applies. Thus, since 234.5 grams of shabu were found inside the man's handbag, deemed to be owned by Tiu Won, he is guilty of violating Section 16, Article III of R.A. No. 6425, while Qui Yaling, whose handbag contained only 20.3673 grams of shabu is guilty of violating Section 20 thereof. Section 16, in connection with Section 20 (1st paragraph), provides the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos where the amount of shabu involved is 200 grams or more. Where the amount is less than 200 grams, Section 20 punishes the offender with the penalty ranging from prision correctional to reclusion perpetua. IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty of appellant Tiu Won is affirmed, while that of appellant Qui Yaling is modified. Tiu Won Chua is sentenced to a penalty of reclusion perpetua,

and a fine of five hundred thousand pesos (P500,000.00) in accordance with Section 16 and Section 20 (1st paragraph) of R.A. No. 6425, as amended by R.A. No. 7659. Qui Yaling y Chua is sentenced to an indeterminate sentence of prision correccional as minimum to prision mayor as maximum, there being no mitigating or aggravating circumstances.

SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona and Carpio Morales, JJ., concur. Footnotes

SECOND DIVISION [G.R. No. 149462. March 31, 2004.] PEOPLE OF THE PHILIPPINES, appellee, vs. PRISCILLA DEL NORTE, appellant. DECISION PUNO, J p: Before us is an appeal from the decision of the Regional Trial Court of Caloocan City, Branch 28, finding appellant Priscilla del Norte guilty of the crime of illegal possession of drugs, viz: WHEREFORE, in view of all the foregoing, this Court finds the accused Pricilla (sic) Del Norte (g)uilty beyond reasonable doubt of the crime for (sic) Violation of Sec. 8, Art. II, R.A. 6425, and hereby sentences her to suffer imprisonment of Reclusion (P)erpetua and a fine of P1,000,000.00, without subsidiary imprisonment in case of insolvency. The marijuana subject matter of this case is confiscated and forfeited in favor of the Government. The Branch Clerk of Court is directed to turn-over the subject marijuana to the Dangerous Drugs Board for proper disposal/destruction. The City Jail Warden of Caloocan City is hereby ordered to transfer the accused Priscilla del Norte to the Correccion (sic) Institution for Women, Mandaluyong City for the service of her sentence. SO ORDERED. 1 A search warrant was served on a certain Ising Gutierrez Diwa, on August 1, 1997, by SPO1 Angel Lumabas, SPO3 Celso de Leon, Maj. Dionisio Borromeo, Capt. Jose, SPO3 Malapitan, PO2 Buddy Perez and PO2 Eugene Perida. As a result of the search, an information against appellant Priscilla del Norte was filed with the trial court, viz: INFORMATION The undersigned Assistant City Prosecutor accuses PRISCILLA DEL NORTE Y DIWA AND JANE DOE, true name, real identity and present whereabouts of the last accused still unknown(,) of the crime of VIOLATION OF SEC. 8, ART. II, R.A. (No.) 6425, committed as follows: That on or about the 1st day of August 1997(,) in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with (sic) one another, without authority of law, did then and there willfully, unlawfully and feloniously have in their possession, custody and control(,) MARIJUANA weighing 6748.37 gms. knowing the same to be a prohibited drug under the provisions of the above-entitled law. CONTRARY TO LAW. 2 SPO1 Lumabas testified that on August 1, 1997, their group was tasked to serve a search warrant 3 against a certain Ising Gutierrez Diwa residing at No. 275 North Service Road corner Cruzada St., Bagong Barrio, Caloocan City, for alleged violation of Republic Act No. 6425. They were ordered to "forthwith seize and take possession of an undetermined quantity of shabu and marijuana leaves." They coordinated with the barangay officials and proceeded to the house pointed out to them by the local officials. Upon reaching the house, its door was opened by a woman. SPO3 De Leon introduced themselves as policemen to the woman who opened the door, whom they later identified in court as the appellant. 4 They informed her they had a search warrant, but appellant suddenly closed and locked the door. It was only after some prodding by the barangay officials that she reopened the door. The authorities then conducted the search. They found a bundle of marijuana wrapped in Manila paper under the bed and inside the room. 5 They asked appellant who owned the marijuana. She cried and said she had no means of livelihood. 6 Appellant was brought to the police headquarters for further investigation. Both SPO1 Lumabas and SPO3 De Leon identified the confiscated five (5) bundles of marijuana 7 in court.

Mrs. Grace Eustaquio, a forensic chemist testified that pursuant to a letter request 8 from the Chief of the Caloocan City Police, she conducted an examination on a specimen consisting of five bundles of suspected marijuana. She found that each of the bundles was positive for marijuana. This finding was reduced to a Laboratory Report. 9 The report also contained a finding on the supposed weight of each bundle in grams, i.e., (A) 973.45, (B) 1,840.31, (C) 472.99, (D) 1,678.8, and (E) 1,782.82. 10 SPO2 Florencio Ramirez, a police officer in the Intelligence Branch of the Caloocan Police Station, testified that on August 1, 1997, the appellant was brought before him by SPO3 De Leon and SPO1 Lumabas. They also submitted two weighing scales, five bricks of marijuana leaves, and two bunches of marijuana leaves wrapped in an old newspaper. 11 He apprised appellant of her constitutional rights before investigating her. After the laboratory test showed that the evidence yielded was marijuana, he sent a referral slip 12 to Prosecutor Zaldy Quimpo for inquest. cEaDTA Appellant assailed the validity of the search warrant against her. She contended that she lived at 376 Dama de Noche, Barangay Baesa, Caloocan City, 13 and that on August 1, 1997, she was merely visiting a friend, Marlyn, who lived at 275 North Service Road corner Cruzada St., Bagong Barrio, Caloocan City. She went to Marlyn's house to borrow money. Marlyn was out and she waited. While appellant was seated near the door, several people introduced themselves as policemen, made her sign a white paper and entered the house. She heard them say "we already got Ising," and was surprised why they suddenly arrested her. She saw Ising, her sister, at a house two steps away from the house where she was arrested. Despite her claim that she was not Ising, the policemen brought her to the police station. 14 Appellant's daughter, Christine also took the witness stand. She testified that she is one of the eight children of the appellant. Since June 1997, she recalled that they had lived at 376 Dama de Noche St., Caloocan City, as proved by the address stated in her school identification card, 15 and a receipt evidencing payment for the rental of their house at Dama de Noche St. from July 18 to August 18, 1997. 16 The trial court convicted appellant. In this appeal, she raises the lone error that "the lower court erred in convicting the accused-appellant of the crime charged, when her guilt has not been proved beyond reasonable doubt." 17 Appellant contends that the prosecution failed to establish who owned the house where the search was conducted, and avers that her mere presence therein did not automatically make her the owner of the marijuana found therein. She likewise argues that the search warrant specified the name of Ising Gutierrez as the owner of the house to be searched, and that since she is not Ising Gutierrez, the lower court erred in admitting the confiscated drugs as evidence against her. 18 The Solicitor General contends that "the totality of the evidence demonstrates appellant's guilt beyond reasonable doubt." 19 He cites the case of United States vs. Gan Lian Po, 20 that when illegal drugs are found in the premises occupied by a certain person, such person is presumed to be in possession of the prohibited articles. It then becomes the accused's burden to prove the absence of animus possidendi. 21 We reverse the trial court's decision. The prosecution failed to establish the guilt of appellant beyond reasonable doubt. In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as a prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. 22 We first rule on the validity of the search warrant. Article III, Section 2 of the 1987 Philippine Constitution 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. (emphases supplied) Appellant argues that the marijuana seized as a result of the search is inadmissible due to the irregularity of the search warrant which contained the name Ising Gutierrez Diwa and not Priscilla del Norte. She alleges

that Ising is her sister. During her arrest, she claimed she saw Ising nearby and pointed her to the authorities, but her efforts were futile the authorities arrested her. The Constitution requires search warrants to particularly describe not only the place to be searched, but also the persons to be arrested. We have ruled in rare instances that mistakes in the name of the person subject of the search warrant do not invalidate the warrant, provided the place to be searched is properly described. In People v. Tiu Won Chua, 23 we upheld the validity of the search warrant despite the mistake in the name of the persons to be searched. In the cited case, the authorities conducted surveillance and a testbuy operation before obtaining the search warrant and subsequently implementing it. They had personal knowledge of the identity of the persons and the place to be searched although they did not specifically know the names of the accused. The case at bar is different. We cannot countenance the irregularity of the search warrant. The authorities did not have personal knowledge of the circumstances surrounding the search. They did not conduct surveillance before obtaining the warrant. It was only when they implemented the warrant that they coordinated with the barangay officials. One of the barangay officials informed SPO3 De Leon that Ising Gutierrez Diwa and Priscilla Del Norte are one and the same person, but said barangay official was not presented in court. The authorities based their knowledge on pure hearsay.

Atty. Yap to witness Q:You made mention about the bricks found? A:Yes, Sir. Q:And you said further that it was inside the room? A:Yes, Sir. Q:Now, when you entered the room, was it locked? A:No, Sir. Q:As a matter of fact, there was no padlock of that room, is it correct? A:I did not notice, sir, but it was open. Q:And this alleged marijuana was protruding under the bed? A:No, sir but it was under the bed, "dulong-dulo." Q:Was it also the same plastic bag?

On the merits, we believe the prosecution failed to discharge its burden of proving appellant's guilt beyond reasonable doubt. The prosecution's witnesses failed to establish appellant's ownership of the house where the prohibited drugs were discovered. Except for their bare testimonies, no other proof was presented. This is in contrast to appellant's proof of her residence. The prosecution did not contest the punong barangay's certification, 24 Christina's school ID 25 and the rental receipt, 26 all of which show that appellant and her family live at 376 Dama de Noche St. There being no substantial contrary evidence offered, we conclude that appellant does not own the house subject of the search. The prosecution likewise failed to prove that appellant was in actual possession of the prohibited articles at the time of her arrest. This is shown by the testimony of the prosecution's witness: Fiscal Lomadilla to Witness Q:What did you find in that house at No. 275? A:We found marijuana. Q:What is the quantity of the marijuana you found? A:Five bunch (sic) or bricks of marijuana and two weighing scale(s), sir Q:Mr. Lumabas, you mentioned a search warrant issued by Judge Rivera. What was the result of the execution of that search warrant? A:We were able to find marijuana inside the house of Priscilla del Norte. Q:What is the quantity? A:More or less six kilos. Q:Was it arranged? How was it placed? A:It was wrapped inside the plastic tape and it looks (sic) like in bricks form. 27 xxx xxx xxx Q:What part of the house did you discover these five bricks of marijuana? A:Inside the room, sir, under the bed. Q:You said you found the accused Priscilla del Norte, where was she when you found her? A:Inside the sala, sir. 28 In fact, it seems that the authorities had difficulty looking for the drugs which were not in plain view, viz:

A:No, Sir. Q:Was it also already wrapped in newspaper? A:No, sir, only plastic tape. We were not able to notice that it was marijuana because it is (sic) wrapped in a plastic tape. Q:How long did you search? A:Half an hour, sir. 29 The prosecution's weak evidence likewise shows from the following testimony: Atty. Yap to witness Q:Were you able to search the personal effects? A:"Yung iba." Q:Did you find any I.D. (of the persons) who occupy this room? A:No, sir. Q:In other words, your assumption is because Priscilla del Norte was around so (sic) it follows that she was the possessor of that illegal drugs? A:Yes, sir because it is their house. Q:Was there a picture or photograph taken inside the room of that particular person? A:None, sir. Q:So a family lived thereat? A:None, sir. Q:Was there a separate picture of Ising Gutierrez? A:I did not see any. Q:There was no incriminating evidence except this (sic) drugs taken by Police Officer de Leon and the barangay tanod, no other incriminating evidence? A:None, sir. (emphases supplied) In all criminal cases, it is appellant's constitutional right to be presumed innocent until the contrary is proved beyond reasonable doubt. 30 In the case at bar, we hold that the prosecution's evidence treads on

shaky ground. We detest drug addiction in our society. However, we have the duty to protect appellant where the evidence presented show "insufficient factual nexus" of her participation in the commission of the offense charged. 31 In People vs. Laxa, 32 we held: The government's drive against illegal drugs deserves everybody's support. But it cannot be pursued by ignoble means which are violative of constitutional rights. It is precisely when the government's purposes are beneficent that we should be most on our guard to protect these rights. As Justice Brandeis warned long ago, "the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning without understanding." IN VIEW WHEREOF, the decision of Branch 28 of the Regional Trial Court of Caloocan City is reversed. Appellant is acquitted based on reasonable doubt. SCHcaT SO ORDERED. Quisumbing, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

SECOND DIVISION [G.R. No. 170233. February 22, 2007.] THE PEOPLE OF THE PHILIPPINES, appellee, vs. JESUS NUEVAS y GARCIA, REYNALDO DIN y GONZAGA, and FERNANDO INOCENCIO y ABADEOS, appellants. DECISION TINGA, J p: Jesus Nuevas y Garcia (Nuevas) was charged 1 before the Regional Trial Court (RTC) of Olongapo City, Branch 75, with illegal possession of marijuana in violation of Section 8, Article II of Republic Act No. 6425 2 as amended. Reynaldo Din y Gonzaga (Din) and Fernando Inocencio y Abadeos (Inocencio) were likewise charged 3 with the same crime, before the same court. Upon arraignment, Nuevas, Din and Inocencio pleaded not guilty to the charges. 4 As the evidence in the cases was common and the prosecution would utilize the same witnesses, the cases were consolidated. After a joint trial on the merits, the RTC rendered a Decision 5 dated 4 April 2002, disposing as follows: WHEREFORE, finding all accused in the above-entitled cases guilty beyond reasonable doubt, this Court hereby sentences them to suffer the penalty of Reclusion Perpetua and each to pay [a] fine of P500,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. The bricks of marijuana are hereby confiscated and disposed in accordance with existing regulations. SO ORDERED. 6 To put in appropriate context the operative facts on which adjudication of this case hinges, there is need to recall the factual assertions of the witnesses for both the prosecution and the defense. PO3 Teofilo B. Fami (Fami) testified that in the morning of 27 September 1997, he and SPO3 Cesar B. Cabling (Cabling) conducted a stationary surveillance and monitoring of illegal drug trafficking along Perimeter Street, Barangay Pag-asa, Olongapo City. They had received information that a certain male person, more or less 5'4" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana dried leaves. While stationed thereat, they saw a male person who fit the description, carrying a plastic bag, later identified as Nuevas, alight from a motor vehicle. They accosted Nuevas and informed him that they are police officers. Fami asked Nuevas where he was going. Nuevas answered arrogantly but afterwards, calmed down. Nuevas and Fami conversed in the Waray dialect. Nuevas informed him that there were other stuff in the possession of a certain Vangie, an associate, and two other male persons. Later on, Nuevas voluntarily pointed to the police officers a plastic bag which, when opened, contained marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to escape charges, Nuevas disclosed where the two (2) other male persons would make the delivery of marijuana weighing more or less five (5) kilos. 7 Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old Cabalan, Olongapo City, which according to Nuevas was where his two (2) companions, Din and Inocencio, could be located. From there, they saw and approached two (2) persons along the National Highway, introducing themselves as police officers. Din was carrying a light blue plastic bag. When asked, Din disclosed that the bag belonged to Nuevas. Fami then took the bag and upon inspection found inside it "marijuana packed in newspaper and wrapped therein." 8 After confiscating the items, Fami and Cabling brought Nuevas, Din and Inocencio to the police office at Purok III for proper documentation. 9 Fami further testified that a receipt for the property seized was issued by Cabling and that a field test was duly conducted on the confiscated items. All three accused were likewise physically examined on the basis of which corresponding medical certificates were issued. The corresponding booking sheets and arrest report were also accomplished. Fami stated that he and Cabling executed a joint affidavit in connection with the arrest of all the accused and the confiscation of the items. 10 On cross-examination, Fami revealed that when the receipt of evidence seized was prepared, all three (3) accused were not represented by counsel. He likewise disclosed that he was the one who escorted all the

accused during their physical examination. He also escorted all three to the Fiscal's office where the latter were informed of the charges against them. 11 Cabling corroborated Fami's testimony. He, however, testified that after he and Fami had introduced themselves as police officers, Din and Inocencio voluntarily handed to Fami the marijuana dried leaves. 12 On cross-examination, Cabling testified that the arrest of Nuevas was the result of a tip from Fami's informant, conceding though that the name of Nuevas was not included in the list of persons under surveillance. Fami then relayed the tip to Cabling. 13 Cabling restated that Nuevas had voluntarily submitted the plastic bag he was holding and that after Nuevas had been informed of the violation of law attributed to him, he admitted his willingness to cooperate and point to his other cohorts. 14 When Fami and Cabling proceeded to the identified location of Nuevas's cohorts, they chanced upon Din and Inocencio along the road. Din was holding a bag while Inocencio was looking into its contents. 15 Cabling averred that Din voluntarily handed the plastic bag he was holding to the police officers. 16 For his defense, Nuevas testified that in the morning of 27 September 1997, he was walking along Perimeter Street, on his way home from the Barangay Hall, when Fami called him. Nuevas approached Fami, who was then in front of his house, and asked why Fami had called him. Fami poked his gun at Nuevas and asked him to go inside the room where Fami handcuffed Nuevas's hands, got Nuevas's wallet, took out P1,500.00 and put it in his (Fami's) wallet. Fami then confronted Nuevas with shabu use but the latter denied the charge. Before leaving the house with Nuevas, Fami brought out a plastic bag and told Nuevas to carry it. Subsequently, they boarded a red owner type jeep and proceeded to Station B where Nuevas was put in jail. Nuevas further stated that he did not know Din or Inocencio. 17 Din, on the other hand, stated that at about 10 o'clock in the morning of 27 September 1997, while his 'compare' Inocencio was visiting, two (2) men entered his house looking for a woman. The two (2) introduced themselves as police officers. Then, Din and Inocencio were immediately handcuffed. They were not informed of the reason for their arrest and were told that the reason will be explained to them in court. Next, they were brought to the Cabalan precinct where the investigator asked for their names, and subsequently to Station B where they were ordered to stand up and be photographed with Nuevas, who Din first met in jail. Inside the room where they had their fingerprints taken, he saw marijuana placed on top of the table. 18 Inocencio testified that he went to his 'compadre' Din's house in the morning of 27 September 1997 to sell his fighting cocks as he needed money to redeem his driver's license. While there, he and Din were arrested by two persons, one of whom pointed a gun at them while the other searched the house for a lady named Vangie. Afterwards, he and Din were brought to the Cabalan Police Precinct and then to Station B where he first came to know Nuevas. He denied that a plastic bag containing marijuana was recovered from them and claimed that he only saw such evidence on the day he gave his testimony. He also stated that when a photograph was taken of the three of them, he and Din were ordered to point to a "wrapped thing." When the photograph was taken, they were not assisted by counsel. He also does not recall having signed a receipt of property seized. Afterwards, they were brought to a detention cell. And when they asked the police what they did wrong, the police replied that they will just explain it in court. 19 All three were found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. However, on 14 July 2003, Nuevas filed a manifestation and motion to withdraw appeal. 20 The Court granted Nuevas's withdrawal of appeal and considered the case closed and terminated as to him, in a Resolution 21 dated 25 August 2003. In a Resolution 22 dated 22 September 2004 of the Court in G.R. Nos. 153641-42, 23 the cases were transferred to the Court of Appeals pursuant to the Court's ruling in People v. Efren Mateo. 24 Before the Court of Appeals, Din and Inocencio (appellants) argued that the trial court erred: (1) in finding them guilty of the crime charged on the basis of the testimonies of the arresting officers; and (2) in not finding that their constitutional rights have been violated. 25 The Court of Appeals in a Decision 26 dated 27 May 2005, in CA-G.R. CR No. 00341, affirmed the decision of the trial court. The dispositive portion of the decision reads: WHEREFORE, all the foregoing considered, the instant appeal is DENIED. The Decision of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Case No. 459-97, is AFFIRMED.

SO ORDERED. 27 The Court of Appeals restated the rule that when the issue involves the credibility of a witness, the trial court's assessment is entitled to great weight, even finality, unless it is shown that it was tainted with arbitrariness or there was an oversight of some fact or circumstance of weight or influence. The appellate court found Fami and Cabling's version of how appellants were apprehended to be categorical and clear. Din, at the time of his apprehension, was seen holding a plastic bag containing marijuana leaves. On the other hand, Inocencio's possession of the marijuana leaves was established by the fact that he was seen in the act of looking into the plastic bag carried by Din. 28

2.Search of evidence in "plain view." The elements 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 have the right to be where they are; (c) the evidence must be immediately apparent; (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; HSATIC 4.Consented warrantless search; 5.Customs search; 6.Stop and Frisk; and 7.Exigent and emergency circumstances. 36 In the instances where a warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 37 The courts below anchor appellants' conviction on the ground that the searches and seizure conducted in the instant case based on a tip from an informant fall under one of the exceptions as Nuevas, Din and Inocencio all allegedly voluntarily surrendered the plastic bags containing marijuana to the police officers. 38 We differ. First, the Court holds that the searches and seizures conducted do not fall under the first exception, warrantless searches incidental to lawful arrests. A search incidental to a lawful arrest is sanctioned by the Rules of Court. 39 Recent jurisprudence holds that the arrest must precede the search; the process cannot be reversed as in this case where the search preceded the arrest. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. 40 In this case, Nuevas, Din and Inocencio were not committing a crime in the presence of the police officers. Moreover, police officers Fami and Cabling did not have personal knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches conducted on the plastic bag then cannot be said to be merely incidental to a lawful arrest. Reliable information alone is not sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he "has committed, is actually committing, or is attempting to commit an offense." 41 Secondly, neither could the searches be justified under the plain view doctrine. An object is in plain view if it is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. 42 Records show that the dried marijuana leaves were inside the plastic bags that Nuevas and Din were carrying and were not readily apparent or transparent to the police officers. In Nuevas's case, the dried marijuana leaves found inside the plastic bag were wrapped inside a blue cloth. 43 In Din's case, the marijuana found upon inspection of the plastic bag was "packed in newspaper and wrapped therein." 44 It

With respect to appellants' claim that their constitutional rights have been violated, the appellate court stated that the search in the instant case is exempted from the requirement of a judicial warrant as appellants themselves waived their right against unreasonable searches and seizures. According to the appellate court, both Cabling and Fami testified that Din voluntarily surrendered the bag. Appellants never presented evidence to rebut the same. Thus, in the instant case, the exclusionary rule does not apply. 29 Din and Inocencio are now before the Court submitting for resolution the same matters argued before the Court of Appeals. Through their Manifestation (In Lieu of Supplementary Brief) 30 dated 22 March 2006, appellants stated that all the arguments necessary to support their acquittal have already been discussed in the brief they had submitted before the appellate court; thus, the filing of a supplemental brief would be a mere reiteration of the arguments discussed in said brief. 31 The Office of the Solicitor General manifested that it is no longer filing a supplemental brief. 32 The conviction or acquittal of appellants rests on the validity of the warrantless searches and seizure made by the police officers and the admissibility of the evidence obtained by virtue thereof. TAScID In holding that the warrantless searches and seizure are valid, the trial court ruled as follows: While the confiscation of the bricks of marijuana from the accused Jesus Nuevas was without a search warrant, it was not bereft of a probable cause. The police team received informations [sic] from an asset that on that day, a male person whom he sufficiently described will deliver marijuana at the vicinity of Perimeter and Bonifacio S[t]., Pag-asa, Olongapo City, a known drop point of illegal drugs. They went to the said area upon that information. Their waiting was fruitful because not long afterwards they saw the accused Jesus Nuevas alighting from a tricycle carrying a bag and after confronting him, he voluntarily gave the bag containing bricks of dried marijuana leaves. With respect to the confiscation of 2 1/2 kilos of marijuana and the apprehension of accused Reynaldo Din and Fernando Inocencio, it was a result of a continued operation by the team which this time was led by accused Nuevas to get some concession from the team for his own earlier apprehension. As the apprehension of Nuevas was upon a probable cause, in the same vein was the apprehension of Reynaldo Din and Fernando Inocencio and the recovery from them [of] 2 1/2 kilos of dried marijuana leaves. The propriety of this conclusion is necessity [sic] because of the impossibility of getting first a warrant in so short a time with such cumbersome requirements before one can be issued. Before getting a warrant, the culprits shall have already gone into hiding. These situations are not distant to the case of People v[.] Jean Balingan (G.R. No. 105834, 13 Feb. 1995) where we learned that expediency and practicality are some of the justification[s] in the warrantless arrest. 33 [Emphasis supplied] Appellants maintain that there was no basis for their questioning and the subsequent inspection of the plastic bags of Nuevas and Din, as they were not doing anything illegal at the time. 34 Our Constitution states that a search and seizure must be carried through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" and any evidence obtained therefrom is inadmissible for any purpose in any proceeding. 35 The constitutional proscription, however, is not absolute but admits of exceptions, namely: 1.Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the Rules of Court and prevailing jurisprudence);

cannot be therefore said the items were in plain view which could have justified mere seizure of the articles without further search. 45 On the other hand, the Court finds that the search conducted in Nuevas's case was made with his consent. In Din's case, there was none. Indeed, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. However, it must be seen that the consent to the search was voluntary in order to validate an otherwise illegal detention and search, i.e., the consent was unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. The consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. 46 In Nuevas's case, the Court is convinced that he indeed voluntarily surrendered the incriminating bag to the police officers. Fami testified in this wise: FISCAL BELTRAN: QNow, when you saw this accused carrying this Exhibit "D," 47 for your part, what did you do?

AThe subject voluntarily submitted the same, sir. QUpon the order of Fami to open it? ANobody ordered it, sir. 50 There is reason to believe that Nuevas indeed willingly submitted the plastic bag with the incriminating contents to the police officers. It can be seen that in his desperate attempt to exculpate himself from any criminal liability, Nuevas cooperated with the police, gave them the plastic bag and even revealed his 'associates,' offering himself as an informant. His actuations were consistent with the lamentable human inclination to find excuses, blame others and save oneself even at the cost of others' lives. Thus, the Court would have affirmed Nuevas's conviction had he not withdrawn his appeal. SIaHTD However, with respect to the search conducted in the case of Din, the Court finds that no such consent had actually been given. Fami testified as follows: FISCAL BELTRAN QNow, what did you do when you saw Din with that Exhibit "C," the plastic bag? ADin said that "Oo, Sir, that is owned by Nuevas" [sic] and I took the said plastic bag. QWhen you took this plastic bag from Din. . . . Was the accused Jesus Nueva [sic] present when Din told you that? AYes, sir. Nuevas alighted also [from] the vehicle with Cabling. QAnd what was the reaction of Nuevas when Din told you that the bag belongs to him? AI did not react, sir.

AI just talked to him and asked him where he was going and according to him, he acted arrogantly, sir. QThis arrogant action of the accused Jesus Nuevas, when you confronted him did he resist? AHow did he show his elements, [sic] he said, "So what if you are policeman[?]" QAnd being confronted with that arrogance, what did you do next? ALater on he kept calm by saying [sic] in Waray dialect, sir. xxx xxx xxx QWhat, exactly, did he tell you in Waray dialect? A"Sir Fami[sic], don't charge me, sir[.] I am planning to go home to Leyte. I was just earning enough money for my fare, sir." xxx xxx xxx QSo when the accused speak [sic] to you in Waray, what else did you do if you did anything? AI pretended that I agree in his [sic] offer but I also asked him where are the other staffs[sic] sir. 48 xxx xxx xxx QWith respect to the bag that you confiscated from him, what did you do? AHe voluntarily pointed it to me and I checked it, the bag, for verification, sir. 49 Cabling likewise testified as follows: QWhen Fami got this from the accused, he opened this thing that he got?

QAfter getting that plastic bag from Reynaldo Din, what did you do with it? AI inspected the bag and I found out that there is still marijuana packed in newspaper and wrapped therein, sir. 51 [Emphasis supplied.] Cabling, however, gave a different testimony, viz.: FISCAL BELTRAN QAnd upon siting [sic] the two subject persons you have just indicated in your earlier testimony, what did you do? AWe approached them and introduced ourselves as police officers, and pinpointed by Nuevas as the ones who kept suspected prohibited drugs, sir. QAfter you approached these two people, what happened? AThese two people, upon introducing ourselves, [sic] voluntarily surrendered to Fami those marijuana dry leaves, sir. 52 The police officers gave inconsistent, dissimilar testimonies regarding the manner by which they got hold of the bag. This already raises serious doubts on the voluntariness of Din's submission of the plastic bag. Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. 53 The prosecution failed to clearly show that Din intentionally surrendered his right against unreasonable searches. While it may not be contrary to human nature for one to be jolted into surrendering something incriminating to authorities, Fami's and Cabling's testimonies do not show that Din was in such a state of mind or condition. Fami and Cabling did not testify on Din's composure whether he felt surprised or frightened at the time which fact we find necessary to provide basis for the surrender of the bag. There was no mention of any permission made by the police officers to get or search the bag or of any consent given by Din for the officers to search it. It is worthy to note that in cases where the Court upheld the

validity of consented search, the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. Neither can Din's silence at the time be construed as an implied acquiescence to the warrantless search. In People v. Burgos, 54 the Court aptly ruled: . . . 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. 55 Without the dried marijuana leaves as evidence, Din's conviction cannot be sustained based on the remaining evidence. The Court has repeatedly declared that the conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution. 56 As such, Din deserves an acquittal. In this case, an acquittal is warranted despite the prosecution's insistence that the appellants have effectively waived any defect in their arrest by entering their plea and by their active participation in the trial of the case. Be it stressed that the legality of an arrest affects only the jurisdiction of the court over the person of the accused. Inspite of any alleged waiver, the dried marijuana leaves cannot be admitted in evidence against the appellants, Din more specifically, as they were seized during a warrantless search which was not lawful. A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. 57 Turning to Inocencio's case, the Court likewise finds that he was wrongly convicted of the crime charged. Inocencio's supposed possession of the dried marijuana leaves was sought to be shown through his act of looking into the plastic bag that Din was carrying. 58 Taking a look at an object, more so in this case peeping into a bag while held by another, is not the same as taking possession thereof. To behold is not to hold. Indeed, the act attributed to Inocencio is insufficient to establish illegal possession of the drugs or even conspiracy to illegally possess the same. The prosecution failed to show by convincing proof that Inocencio knew of the contents of the bag and that he conspired with Din to possess the illegal items. Inocencio was firm and unshakeable in his testimony that he had no part in any delivery of marijuana dried leaves. Finally, the law enforcers should be reminded of the Court's dated but nevertheless current exhortation: . . . In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means. 59 WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of Olongapo City, Branch 75, in Criminal Cases No. 458-97 and No. 459-97 is reversed and modified. Appellants Reynaldo Din y Gonzaga and Fernando Inocencio y Abadeos are hereby ACQUITTED. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellants from confinement, unless they are being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. ISTCHE SO ORDERED. Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.

EN BANC [G.R. No. 127755. April 14, 1999.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSELITO DEL ROSARIO Y PASCUAL, accused-appellant. The Solicitor General for plaintiff-appellee. Leovillo C. Agustin Law Offices for accused-appellant. SYLLABUS 1.CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; WHERE PERSON ACTS UNDER COMPULSION OF IRRESISTIBLE FORCE; ELUCIDATED. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat. TcHCDE 2.ID.; ID.; ID.; PRESENT IN CASE AT BAR. As a rule, it is natural for people to be seized by fear when threatened with weapons, even those less powerful than a gun, such as knives and clubs. People will normally, usually and probably do what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a stranger. A person under the same circumstances would be more concerned with his personal welfare and security rather than the safety of a person whom he only saw for the first time that day. There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos, making him for the moment an automaton without a will of his own. In other words, in effect, he could not be any more than a mere instrument acting involuntarily and against his will. He is therefore exempt from criminal liability since by reason of fear of bodily harm he was compelled against his will to transport his co-accused away from the crime scene. 3.ID.; CONSPIRACY; ELUCIDATED. A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The objective of the conspirators is to perform an act or omission punishable by law. That must be their intent. There is need for "concurrence of wills" or "unity of action and purpose" or for "common and joint purpose and design." Its manifestation could be shown by "united and concerted action." 4.ID.; ID.; IMPLIED CONSPIRACY; HOW ESTABLISHED. Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy. Nevertheless, mere knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. In fact, the same degree of proof necessary to establish the crime is required to support a finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt. 5.ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. To convict the accused, the presence of an implied conspiracy is required to be proved beyond reasonable doubt. However, the fact that del Rosario was with the other accused when the crime was committed is insufficient proof to show cabal. Mere companionship does not establish conspiracy. The only incriminating evidence against del Rosario is that he was at the

scene of the crime but he has amply explained the reason for his presence and the same has not been successfully refuted by the prosecution. No complicity can be deduced where there is absolutely no showing that the accused directly participated in the overt act of robbing and shooting although he was with the person who robbed and killed the victim. 6.REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; NOT AFFECTED BY FAILURE TO DISCLOSE INCIDENT TO AUTHORITIES. That del Rosario did not disclose what he knew about the incident to the authorities, to his employer or to the Barangay captain does not affect his credibility. The natural hesitance of most people to get involved in a criminal case is of judicial notice. Del Rosario was merely a tricycle driver with a family to look after. Understandably he did not want to get involved in the case so he chose to keep his silence. Besides, he was threatened with physical harm should he squeal. 7.ID.; CRIMINAL PROCEDURE; CUSTODIAL INVESTIGATION; ELUCIDATED. Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-settled that it encompasses any question initiated by law enforcers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. This concept of custodial investigation has been broadened by R.A. 7438 to include " the practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed." 8.ID.; ID.; ID.; RIGHTS VIOLATED IN CASE AT BAR. Del Rosario was deprived of his rights during custodial investigation. From the time he was "invited" for questioning at the house of the barangay captain, he was already under effective custodial investigation, but he was not apprised nor made aware thereof by the investigating officers. The police already knew the name of the tricycle driver and the latter was 'already' a suspect in the robbing and senseless slaying of Virginia Bernas. Since the prosecution failed to establish that del Rosario had waived his right to remain silent his verbal admissions on his participation in the crime even before his actual arrest were inadmissible against him, as the same transgressed the safeguards provided by law and the Bill of Rights. 9.ID.; ID.; ARREST WITHOUT WARRANT; NOT LAWFUL IN CASE AT BAR. When a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day following the commission of the robbery with homicide. On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and, (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence, there must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest must have personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime. Again, the arrest of del Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after the consummation of the crime and not immediately thereafter. As such, the crime had not been "just committed" at the time the accused was arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to be arrested had committed the offense since they were not present and were not actual eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway tricycle only during the custodial investigation.

10.ID.; ID.; ID.; ILLEGALITY WAIVED WHEN NOT OBJECTED BEFORE ARRAIGNMENT. However, the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the person arrested submits to arraignment without any objection, as in this case. EcHaAC DECISION BELLOSILLO, J p:

ON AUTOMATIC REVIEW is the decision of the court a quo finding accused Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with Homicide and sentencing him to death, and to pay the heirs of victim Virginia Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary damages. 1 Joselito del Rosario y Pascual, Ernesto Marquez alias "Jun," Virgilio Santos alias "Boy Santos" and John Doe alias "Dodong" were charged with the special complex crime of Robbery with Homicide for having robbed Virginia Bernas, a 66-year old businesswoman, of P200,000.00 in cash and jewelry and on the occasion thereof shot and killed her. 2 While accused Joselito del Rosario pleaded not guilty, 3 Virgilio "Boy" Santos and John Doe alias "Dodong" remained at large. Ernesto "Jun" Marquez was killed in a police encounter. Only Joselito del Rosario was tried. llcd These facts were established by the prosecution from the eyewitness account of tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in the evening, Alonzo stopped his tricycle by the side of Nita's Drugstore, General Luna St., Cabanatuan City, when three women flagged him. Parked at a distance of about one and a-half (1) meters in front of him was a tricycle driven by accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for possession of a bag. After taking hold of the bag one of the two men armed with a gun started chasing a man who was trying to help the woman, while the other snatcher kicked the woman sending her to the ground. Soon after, the armed man returned and while the woman was still on the ground he shot her on the head. The bag taken by the man was brought to the tricycle of accused del Rosario where someone inside received the bag. The armed man then sat behind the driver while his companion entered the sidecar. When the tricycle sped away Alonzo gave chase and was able to get the plate number of the tricycle. He also recognized the driver, after which he went to the nearest police headquarters and reported the incident. 4 Accused Joselito del Rosario gave his own version of the incident: At around 5:30 in the afternoon he was hired for P120.00 5 by a certain "Boy" Santos, 6 his co-accused. Their original agreement was that he would drive him to a cockpit at the Blas Edward Coliseum. 7 However despite their earlier arrangement Boy Santos directed him to proceed to the market place to fetch "Jun" Marquez and "Dodong" Bisaya. He (del Rosario) acceded. 8 Marquez and Bisaya boarded in front of the parking lot of Merced Drugstore at the public market. 9 Subsequently, he was asked to proceed and stop at the corner of Burgos and General Luna Sts. where Bisaya alighted on the pretext of buying a cigarette. The latter then accosted the victim Virginia Bernas and grappled with her for the possession of her bag. Jun Marquez alighted from the tricycle to help "Dodong" Bisaya. 10 Accused del Rosario tried to leave and seek help but "Boy Santos" who stayed inside the tricycle prevented him from leaving and threatened in fact to shoot him. cdtai Meanwhile, "Dodong" Bisaya succeeded in taking the victim's bag, but before boarding the tricycle "Jun" Marquez mercilessly shot the victim on the head while she was lying prone on the ground. After the shooting, "Dodong" Bisaya boarded the sidecar of the tricycle while "Jun" Marquez rode behind del Rosario and ordered him to start the engine and drive towards Dicarma. While inside his tricycle, del Rosario overheard his passengers saying that they would throw the bag at Zulueta St. where there were cogon grasses. 11 Upon arriving at Dicarma, the three (3) men alighted and warned del Rosario not to inform the police authorities about the incident otherwise he and his family would be harmed. 12 Del Rosario then went home. 13 Because of the threat, however, he did not report the matter to the owner of the tricycle nor to the barangay captain and the police. 14 As earlier stated, the court a quo found accused Joselito del Rosario guilty as charged and sentenced him to death. He now contends in this automatic review that the court a quo erred in: (1) Not finding the presence of threat and irresistible force employed upon him by his co-accused Virgilio "Boy" Santos, Ernesto "Jun" Marquez and "Dodong" Bisaya; (2) Not considering his defense that he was not part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not considering the violations on his constitutional rights as an accused; and, (4) Not considering that there was no lawful warrantless arrest within the meaning of Sec. 5, Rule 113, of the Rules of Court. 15 The conviction of del Rosario must be set aside. His claim for exemption from criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the compulsion of an irresistible force must be sustained. He was then unarmed and unable to protect himself when he was prevented at gunpoint by his co-accused from leaving the crime scene during the perpetration of the robbery and killing, and was only forced to help them escape after the commission of the crime. 16

But the trial court ruled that his fear was merely speculative, fanciful and remote, hence, could not be considered uncontrollable; and that a gun pointed at him did not constitute irresistible force because it fell short of the test required by law and jurisprudence. 17 We disagree. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invito factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending; and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat. 18 As a rule, it is natural for people to be seized by fear when threatened with weapons, even those less powerful than a gun, such as knives and clubs. People will normally, usually and probably do what an armed man asks them to do, nothing more, nothing less. In the instant case, del Rosario was threatened with a gun. He could not therefore be expected to flee nor risk his life to help a stranger. A person under the same circumstances would be more concerned with his personal welfare and security rather than the safety of a person whom he only saw for the first time that day. 19 Corollary with the defense of del Rosario, we hold that the trial court erred when it said that it was "Boy" Santos who left the tricycle to chase the companion of the victim and then shot the victim on the head, instantly killing her. 20 A careful and meticulous scrutiny of the transcripts and records of the case, particularly the testimonies of witness Alonzo and del Rosario himself, reveals that it was "Jun" Marquez who ran after the victim's helper and fired at the victim. Witness Alonzo testified on direct examination Q:What was that unusual incident that transpired in that place at that time? A:I saw two men and a lady grappling for the possession of a bag, sir . . . Q:What happened after the bag of the lady was grabbed by two men? A:One helper of the lady was chased by the other man, sir. Q:Who was that man who chased the helper of the lady? A:He was the one holding the gun, sir . . . Q:What happened when the bag of the woman was already taken by the two men who grappled the same from her? A:The man who chased the helper of the lady returned to the scene while the other man was then kicking the lady who in turn fell to the ground, sir. cdasia Q:What happened to the lady who fell to the ground? A:The man who chased the helper of the lady returned and then shot the woman who was then lying on the ground, sir . . . Q:What about the bag, what happened to the bag? A:The bag was taken to a motorcycle, sir. Q:Will you please state before the Court what you noticed from the tricycle which was at a distance of about one a half meter? A:There was a passenger inside the tricycle, sir . . . Q:What happened to that woman that was shot by the man who grappled for the possession of the bag? A:She was no longer moving and lying down, sir. Q:After the shooting by one of the two men of the woman what else happened? A:They went away, sir . . .

Q:Will you please tell the Court in what portion of the tricycle did these men sit in the tricycle? A:The man who was holding the gun sat himself behind the driver while the other man entered the sidecar, sir. 21 On the continuation of his direct examination, after an ocular inspection on the crime scene conducted by the trial court, witness Alonzo categorically stated Q:Will you please tell us where in particular did you see the accused who was then holding the gun fired at the victim? A:At the time one man was kicking the victim it was then his other companion holding a gun chased the helper of the deceased going towards Burgos Avenue, sir.

Q:When you said "they" to whom are you referring? A:Boy Santos and Jun Marquez, sir. Q:And at that time where was Boy Santos? A:He was inside the tricycle, sir. Q:And what about Jun Marquez? A:He alighted from the tricycle and helped him grabbed (sic) the bag of the victim. Q:And was the bag grabbed and by whom? A:Yes, sir, by Dodong Visaya was able to grab the bag. Q:And after that what happened? A:Both of them rode inside my tricycle, sir.

Q:What happen (sic) afterwards? A:The man with the gun returned and then while the victim was lying down in this spot the man holding a gun shot the victim, sir. 22 On cross-examination, the same witness further clarified Q:So, you saw the two other accused returned back to the tricycle? A:Yes, sir. LLphil Q:And one of their companion was already inside the tricycle? xxx xxx xxx Court: There was somebody inside the tricycle where the handbag was given. xxx xxx xxx A:Yes, sir. Q:And the one who sat at the back of the tricycle driver was the person with the gun? A:Yes, sir. 23 On the other hand, accused Del Rosario declared during the direct examination that Q: . . . . On the evening of May 13,1996 you were the driver of the tricycle as testified to by Eduardo Nalagon? A:Yes, sir. Q:Now, you also heard that there was a shoot out near the Cathedral and the Nita's Drugstore at Gen. Tinio St.? A:Yes, sir. xxx xxx xxx Court: At that time you were seated at the tricycle, which tricycle was used by the assailants? A:Yes, sir. Q:Then what did you do? A: I tried to escape, sir, but I was stopped by them.

Court: Did you not see any shooting? A:There was, sir. Q:Who was shot? A:Jun Marquez shot the woman, sir . . . Q:When the bag of the woman was being grabbed you know that what was transpiring was wrong and illegal? A:Yes, sir. Q:But you did not try to leave? A:I tried to leave but Boy Santos who was inside my tricycle prevented me. Q:During that time before you leave (sic) how many firearms did you see? A:Two firearms, sir, one in the possession of Boy (Jun?) Marquez and one in the possession of Boy Santos . . . Q:And at the time when the shooting took place where was Boy Santos? A:He was still inside my tricycle, sir. Q:And during the shooting when Boy Santos was inside the tricycle and when you tried to escape that was the time when Boy Santos threatened you if you will escape something will happen to your family? A:Yes, sir. Q:After the shooting who first boarded the tricycle, Boy (Jun?) Marquez or Dodong Visaya? A:Dodong Visaya, sir . Q:And immediately thereafter Jun Marquez boarded your tricycle sitting at your back? A:Yes, sir. 24 On cross-examination, accused further stated Q:After stopping in that place for one minute what else happened? A:I saw Dodong Bisaya grabbing the bag of the woman, sir. Q:How about your two companions, what are (sic) they doing while Dodong Bisaya was grabbing the bag of the woman?

A:Jun Marquez was helping Dodong Bisaya, sir. Q:What happened after Jun Marquez helped Dodong Bisaya? A:I heard a gunshot and I saw the woman lying down . . . Q:You could have ran away to seek the help of the police or any private persons? A:I was not able to ask for help because Boy Santos pointed his gun to me, sir. Q:Was the gun being carried by Boy Santos, is the one that is used in shooting the old woman? A:No, sir . . . Q:Where was Boy Santos when Dodong Bisaya and Jun Marquez were grappling for the possession of the handbag? A:He was then inside the tricycle, sir . . . 25 Q:Mr. Witness, you testified that the reason why you just cannot leave the area where the incident occurred is because a gun was pointed to you by Boy Santos and he was telling you that you should not do anything against their will, they will kill you and your family will be killed also, is that correct? A:Yes, sir. Q:Now, is it not a fact that at the time you stop (sic) your tricycle which was loaded by your other three co-accused in this case, all of them alighted and that Boy Santos ran after a helper of the victim going towards the public market along Burgos Street? A:He did not alight from the tricycle, sir. Court: Are you quite sure of that? A:Yes, sir. 26 Del Rosario maintains that "Boy" Santos never left the tricycle and that the latter pointed his gun at him and threatened to shoot if he tried to escape. He also asserts that it was "Jun" Marquez who shot the victim and sat behind him in the tricycle. LLjur From the narration of witness Alonzo, these events stood out: that after the bag of the victim was grabbed, her male helper was chased by a man holding a gun; that the gunwielder returned and shot the victim and then sat behind the driver of the tricycle; and, that the bag was given to a person who was inside the tricycle. Taking the testimony of witness Alonzo in juxtaposition with the testimony of del Rosario, it can be deduced that "Jun" Marquez was the person witness Alonzo was referring to when he mentioned that a helper of the lady was chased "by the other man," and that this "other man" could not be "Boy" Santos .who stayed inside the tricycle and to whom the bag was handed over. This conclusion gives credence to the claim of del Rosario that "Boy" Santos never left the tricycle, and to his allegation that "Boy" Santos stayed inside the tricycle precisely to threaten him with violence and to prevent him from fleeing; that there could have been no other plausible reason for "Boy" Santos to stay in the tricycle if the accused was indeed a conspirator; that "Boy" Santos could have just left the tricycle and helped in the commission of the crime, particularly when he saw the victim grappling with "Dodong" Bisaya and resisting the attempts to grab her bag; and, that "Boy" Santos opted to remain inside the tricycle to fulfill his preordained role of threatening del Rosario and insuring that he would not escape and leave them behind. 27 Even if the tricycle of del Rosario was only parked one meter and a half (1-) in front of the tricycle of witness Alonzo, the latter still could not have totally seen and was not privy to events that were transpiring inside the vehicle, i.e., the pointing of the gun by "Boy" Santos at del Rosario simultaneously with the robbing and shooting of the victim. From the exhibits submitted by the prosecution panel the back of the sidecar of del Rosario tricycle was not transparent. 28

There is no doubt that the fear entertained by del Rosario because of the gun directly pointed at him was real and imminent. Such fear rendered him immobile and subject to the will of Boy Santos, making him for the moment an automation without a will of his own. In other words, in effect, he could not be any more than a mere instrument acting involuntarily and against his will. He is therefore exempt from criminal liability since by reason of fear of bodily harm he was compelled against his will to transport his co-accused away from the crime scene. On the issue of conspiracy, the trial court anchored del Rosario's conviction on his participation in the orchestrated acts of "Boy" Santos, "Jun" Marquez and "Dodong" Bisaya. According to the trial court, del Rosario facilitated the escape of the other malefactors from the crime scene and conspiracy between accused and his passengers was evident because "while the grappling of the bag, the chasing of the helper of the victim and the shooting that led to the death of Virginia Bernas were happening, accused Joselito del Rosario was riding on his tricycle and the engine of the motor was running;" 29 that the "accused did not deny that the tricycle driven by him and under his control was hired and used by his co-accused in the commission of the crime; neither did he deny his failure to report to the authorities the incident of robbery, killing and fleeing away from the scene of the crime." 30 We disagree with the trial court. A conspiracy in the statutory language exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The objective of the conspirators is to perform an act or omission punishable by law. That must be their intent. There is need for "concurrence of wills" or "unity of action and purpose" or for "common and joint purpose and design." Its manifestation could be shown by "united and concerted action." 31 Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. That would be termed an implied conspiracy. 32 Nevertheless, mere knowledge, acquiescence or approval of the act, without the cooperation or agreement to cooperate, is not enough to constitute one a party to a conspiracy, but that there must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. Conspiracy must be established, not by conjectures, but by positive and conclusive evidence. In fact, the same degree of proof necessary to establish the crime is required to support a finding of the presence of a criminal conspiracy, which is, proof beyond reasonable doubt. 33

In the instant case, while del Rosario admits that he was at the locus criminis as he was the driver of the getaway vehicle, he nonetheless rebuts the imputation of guilt against him by asserting that he had no inkling of the malevolent design of his co-accused to rob and kill since he was not given any briefing thereof . He was merely hired by Boy Santos to drive to an agreed destination and he was prevented at gunpoint from leaving the scene of the crime since he was ordered to help them escape. cdlex In this case, the trial court stated that "there is no evidence that the accused came to an agreement concerning the commission of the felony and decided to commit the same." 34 Therefore, in order to convict the accused, the presence of an implied conspiracy is required to be proved beyond reasonable doubt. However, the fact that del Rosario was with the other accused when the crime was committed is insufficient proof to show cabal. Mere companionship does not establish conspiracy. 35 The only incriminating evidence against del Rosario is that he was at the scene of the crime but he has amply explained the reason for his presence and the same has not been successfully refuted by the prosecution. As stated earlier, he feared for his safety and security because of the threat made by his co-accused that he would be killed should he shout for help. No complicity can be deduced where there is absolutely no showing that the accused directly participated in the overt act of robbing and shooting although he was with the persons who robbed and killed the victim. 36 That del Rosario did not disclose what he knew about the incident to the authorities, to his employer or to the barangay captain does not affect his credibility. The natural hesitance of most people to get involved in a criminal case is of judicial notice. 37 It must be recalled that del Rosario was merely a tricycle driver with a

family to look after. Given his quite limited means, del Rosario understandably did not want to get involved in the case so he chose to keep his silence. Besides, he was threatened with physical harm should he squeal. Del Rosario further contends that there was violation of his right to remain silent, right to have competent and independent counsel preferably of his own choice, and right to be informed of these rights as enshrined and guaranteed in the Bill of Rights. 38 As testified to by SPO4 Geronimo de Leon, the prosecution witness who was the team leader of the policemen who investigated the 13 May incident, during his crossexamination Upon finding the name of the owner of the tricycle, they proceeded to Bakod Bayan in the house of the barangay captain where the owner of the tricycle was summoned and who in turn revealed the driver's name and was invited for interview. The driver was accused Joselito del Rosario who volunteered to name his passengers on May 13, 1996. On the way to the police station, accused informed them of the bag and lunch kit's location and the place where the hold-uppers may be found and they reported these findings to their officers, Capt. Biag and Capt. Cruz. After lunch, they proceeded to Brgy. Dicarma composed of 15 armed men where a shoot-out transpired that lasted from 1:00 to 4:00 o'clock in the afternoon. After a brief encounter, they went inside the house where they found Marquez dead holding a magazine and a gun. While all of these were happening, accused del Rosario was at the back of the school, after which they went back to the police station. The investigator took the statement of the accused on May 14,1996, and was only subscribed on May 22,1996. All the while, he was detained in the police station as ordered by the Fiscal. His statements were only signed on May 16, 1996. He also executed a waiver of his detention. His Sinumpaang Salaysay was done with the assistance of Ex-Judge Talavera. 39 A further perusal of the transcript reveals that during the encounter at Brgy. Dicarma, del Rosario was handcuffed by the police because allegedly they had already gathered enough evidence against him and they were afraid that he might attempt to escape. 40 Custodial investigation is the stage where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements. It is well-settled that it encompasses any question initiated by law enforcers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 41 This concept of custodial investigation has been broadened by RA 7438 42 to include "the practice of issuing an 'invitation' to a person who is investigated in connection with an offense he is suspected to have committed." Section 2 of the same Act further provides that . . . Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known and understood by him, of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. cdll From the foregoing, it is clear that del Rosario was deprived of his rights during custodial investigation. From the time he was "invited" for questioning at the house of the barangay captain, he was already under effective custodial investigation, but he was not apprised nor made aware thereof by the investigating officers. The police already knew the name of the tricycle driver and the latter was already a suspect in the robbing and senseless slaying of Virginia Bernas. Since the prosecution failed to establish that del Rosario had waived his right to remain silent, his verbal admissions on his participation in the crime even before his actual arrest were inadmissible against him, as the same transgressed the safeguards provided by law and the Bill of Rights. Del Rosario also avers that his arrest was unlawful since there was no warrant therefor. Section 5, Rule 113 of the Rules of Court provides: 43

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and, (c) When the person to be arrested is a prisoner who has escaped from penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. It must be recalled that del Rosario was arrested by SPO4 De Leon during the police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In People vs. Sucro 44 we held that when a police officer sees the offense, although at a distance, or hears the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is obviously outside the purview of the aforequoted rule since he was arrested on the day following the commission of the robbery with homicide. On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and, (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence, there must be a large measure of immediacy between the time the offense was committed and the time of the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that the person making the arrest must have personal knowledge of certain facts indicating that the person to be taken into custody has committed the crime. 45 Again, the arrest of del Rosario does not comply with these requirements since, as earlier explained, the arrest came a day after the consummation of the crime and not immediately thereafter. As such, the crime had not been "just committed'' at the time the accused was arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to be arrested had committed the offense since they were not present and were not actual eyewitnesses to the crime, and they became aware of his identity as the driver of the getaway tricycle only during the custodial investigation. cda However, the conspicuous illegality of del Rosario's arrest cannot affect the jurisdiction of the court a quo because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect and any objection thereto is waived when the person arrested submits to arraignment without any objection, as in this case. 46 A transgression of the law has occurred. Unfortunately, an innocent person lost her life and property in the process. Someone therefore must be held accountable, but it will not be accused Joselito del Rosario; we must acquit him. Like victim Virginia Bernas, he too was a hapless victim who was forcibly used by other persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense of "irresistible force" has been substantiated by clear and convincing evidence. On the other hand, conspiracy between him and his co-accused was not proved beyond a whimper of a doubt by the prosecution, thus clearing del Rosario of any complicity in the crime charged.

WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with Homicide and sentencing him to death, is REVERSED and SET ASIDE, and the accused is ACQUITTED of the crime charged. His immediate RELEASE from confinement is ordered unless held for some other lawful cause. In this regard, the Director of Prisons is directed to report to the Court his compliance herewith within five (5) days from receipt hereof. LLpr SO ORDERED. Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

THIRD DIVISION [G.R. No. 121917. March 12, 1997.] ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. Raval and Lokin, Robert A. Padilla and Philip Jurado and R.A.V. Saguisag and Gina C. Garcia for petitioner. The Solicitor General for respondents. SYLLABUS 1.REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WARRANTLESS ARREST; GROUNDS. Warrantless arrests are sanctioned in the following instances: "Sec. 5. Arrest without warrant ; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense., (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. 2.ID.; ID.; ID.; ID.; "PRESENCE OF ARRESTING OFFICER OR PRIVATE PERSON"; PRESENCE DOES NOT ONLY REQUIRE THE PERSON TO SEE THE OFFENSE BUT ALSO WHEN HE "HEARS THE DISTURBANCE CREATED AND PROCEEDS AT ONCE TO THE SCENE"; CASE AT BAR. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person. Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene." As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner. 3.ID.; ID.; ID.; ID.; RATIONALE. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. The exigent circumstances of hot pursuit, a fleeing suspect, a moving vehicle, the public place and the raining nighttime all created a situation in which speed is essential and delay improvident. The court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity. 4.ID.; ID.; ID.; ID.; WHEN CAUGHT IN FLAGRANTE DELICTO. When caught in flagrante delicto with possession of an unlicensed arm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer. Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. These formed part of the arresting police officer's personal knowledge of the facts indicating that, petitioner's Pajero was indeed the vehicle involved in the hit and run accident. Verily their, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information. 5.ID; ID.; ID.; OBJECTION, DEFECT OR IRREGULARITY MUST BE MADE BEFORE PLEA. Any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest. Likewise, by applying for bail, petitioner patently waived such irregularities and defects.

6.ID.; ID.; WARRANTLESS SEARCH AND SEIZURE OF PROPERTY; WHEN VALID. The five (5) well-settled instances when a warrantless search and seizure of property is valid, are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence. 2. Seizure of evidence in "plain view," 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, and 5. customs search. 7.ID.; ID.; ID.; "PLAINVIEW" DOCTRINE; APPLIED IN CASE AT BAR. The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat. Thus, it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti." 8.ID.; ID.; ID.; VOLUNTARY SURRENDER OF FIREARM AND ASSORTED MAGAZINE, WAIVER OF RIGHT AGAINST ILLEGAL SEARCH AND SEIZURE. With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police. This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure, and that his failure to quash the information estopped him from assailing any purported defect. 9.ID.; ID.; SEARCH INCIDENTAL TO AN ARREST. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search of the passenger compartment and containers in the vehicle which are within petitioner's grabbing distance regardless of the nature of the offense. This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control and (ii) the search was contemporaneous with the arrest. The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 10.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM; REQUISITES. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license permit to possess. 11.ID.; ID.; ID.; CASE AT BAR. The first element is beyond dispute as the subject firearms and ammunitions were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. 12.ID.; ID.; TESTIMONY OF REPRESENTATIVE OR CERTIFICATION FROM PNP-FEO THAT A PERSON IS NOT A LICENSEE OF ANY FIREARM, SUFFICIENT TO PROVE SECOND ELEMENT. In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm. In People vs. Tobias, we reiterated that such certification is sufficient to show that a person has in fact no license.

13.REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY ACCORDED RESPECT AND FINALITY ON APPEAL. The fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms cannot be licensed to a civilian, as in the case of petitioner. The Court entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality. 14.CRIMINAL LAW, OFFENSES, COURTS ARE BOUND TO APPLY GOVERNING LAW AT THE TIME OF COMMISSION OF OFFENSE. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. 15.POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; CRUEL AND UNUSUAL PUNISHMENT; PENALTY FOR ILLEGAL POSSESSION OF FIREARMS, NOT EMBRACED THEREIN. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive,' wholly disproportionate to the nature of the offense as to shock the moral sense of the community.'" It is wellsettled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits. 16.ID.; ID.; LAWS ON ILLEGAL POSSESSION OF FIREARMS, CONSTITUTIONAL. Every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication, as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . ." 17.REMEDIAL LAW; COURT; NOT CONCERNED WITH THE WISDOM OR MORALITY OF LAWS. Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. 18.CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; MINIMUM PENALTY. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve (12) years of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) years of reclusion temporal, as maximum. DECISION FRANCISCO, J p: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin @ Robinhood Padilla, i.e.:

"(1)One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2)One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions; "(3)One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and "(4)Six additional live double action ammunitions of .38 caliber revolver." 1 Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866 2 thru the following Information: 3 "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) 380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW." 4 The lower court then ordered the arrest of petitioner, 5 but granted his application for bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner waived in writing his right to be present in any and all stages of the case. 10 After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum". 11 Petitioner filed his notice of appeal on April 28, 1994. 12 Pending the appeal in the respondent Court of Appeals, 13 the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction, 14 the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accusedappellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED. 15 Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)" 17 but the same was denied by respondent court in its September 20, 1995 Resolution, 18 copy of which was received by, petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail 19 followed by two "supplemental petitions" filed by different counsels, 20 a "second supplemental petition" 21 and an urgent motion for the separate resolution of his application for bail. Again, the SolicitorGeneral 22 sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996. 23 The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply. 24 However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the

Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal. 25 The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows: 26 "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along Mac Arthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid.) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid.). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid.) followed by a sickening sound of the vehicle hitting something (p. 8, ibid.). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid).

catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid.). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid.). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid.). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid.) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid.). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (p. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid.). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid.). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15; TSN, February 23, 1993), its butt protruding (p. 15, ibid.). SPO2 Borja made the move to confiscate the gun but appellant held the former' s hand alleging that the gun was covered by legal papers (p. 16, ibid.). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid.). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid.). By that time, a crowd had formed at the place (p. 19, ibid.). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid.). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid.). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO2 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid.). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid.). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid.). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid.). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid.). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid.). SPO Mercado modified the arrest of appellant

"Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 910, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid.). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid.). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11, ibid.). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid.) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid.). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately boarded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid.). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid.). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid). "In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not

by including as its ground illegal possession of firearms (p. 28, ibid.). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid.) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid.) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid.) After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993) During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid.). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 1312 80, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SNA35720, were not registered in the name of Robin C. Padilla (p. 6, ibid.). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. cdtai After a careful review of the records 27 of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart. Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances: 28 "Sec. 5.Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:

the scene." 30 As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner. 31 Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at, the scene of the hit and run. 32 We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who, in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes. It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. 33 The exigent circumstances of hot pursuit, 34 a fleeing suspect, a moving vehicle, the public place and the raining nighttime all created a situation in which speed is essential and delay improvident. 35 The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity. 36 Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer. 37 Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner, 38 its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. 39 These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information. 40 Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. 41 Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest. 42 Likewise, by applying for bail, petitioner patently waived such irregularities and defects. 43 We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. The five (5) well-settled instances when a warrantless search and seizure of property is valid, 44 are as follows: 1.warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 45 and by prevailing jurisprudence; 46 2.Seizure of evidence in "plain view", the elements of which are: 47 (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;

(a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person. 29 Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to

(c).the evidence must be immediately apparent, and (d)."plain view" justified mere seizure of evidence without further search. 48 3.Search of a moving vehicle. 49 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. 50 4.consented warrantless search, and 5.customs search. In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner s firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed. 51 The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat. 52 Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti. 53 "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant." 54 With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police. 55 This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure, 56 and that his failure to quash the information estopped him from assailing any purported defect. 57 Even assuming. that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search 58 of the passenger compartment and containers in the vehicle 59 which are within petitioner's grabbing distance regardless of the nature of the offense. 60 This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control 61 and (ii) the search was contemporaneous with the arrest. 62 The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense. 63 Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order 64 and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.

warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms. "Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994" 67 The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that: cdtai "VIII. c.When a Mission Order is requested for verification by enforcement units/personnel such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d.Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation." 68 which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.

In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess. 65 The first element is beyond dispute as the subject firearms and ammunitions 66 were seized from petitioner's possession via a valid

69 His surname thereon, we note, was glaringly misspelled as "Durembes." 70 In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of Mos, MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City." 72 areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters" 73 which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that: "No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that unit's property book, and that report of such action has been reported to higher AFP authority." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel. 74 The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a special law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and-NBI, or at higher levels of command." 75 Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner. 76 Thus: "Q.In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A.I found that a certain Robin C Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina. "Q.So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A.Yes, sir. "Q.And the firearms that were the subject of this case are not listed in the names of the accused in this case?

"A.Yes, sir. 77 xxx xxx xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5November 28, 1992 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles.

"FOR THE CHIEF, FEO: (Sgd.) JOSE MARIO M. ESPINO Sr. Inspector, PNP Chief, Records Branch" 78 In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the. PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm. 79 In People vs. Tobias, 80 we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence 81 that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian, 82 as in the case of petitioner The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality. 83 Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non subversive context" and adds that respondent court should have

applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists. 84 He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution. 85 The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones. 86 Indeed, it is the duty of judicial officers to respect and apply the law as it stands. 87 And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. "It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community." 88 It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits. 89 Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication, 90 as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. 91 Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . . " 92 Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian 93 where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1 ) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon, 94 although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in

degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period. 95 WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty MODIFIED to "ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. cdtai SO ORDERED. Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur.

FIRST DIVISION [G.R. No. 136292. January 15, 2002.] RUDY CABALLES y TAIO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. De Jesus Orioste & Lim for petitioner. The Solicitor General for respondents. SYNOPSIS The Regional Trial Court of Santa Cruz, Laguna convicted petitioner Rudy Caballes of the crime of theft for stealing aluminum cable conductors worth P55,244.45 belonging to the National Power Corporation. Accordingly, it sentenced petitioner to a prison term and ordered him to indemnify private complainant. On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award of damages and modified the penalty imposed. Hence, this appeal by certiorari. Petitioner questioned the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. The searches without warrant of moving vehicles is allowed provided such searches are made at borders or 'constructive borders', like checkpoints. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. The Court held that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause'' as would justify the conduct of a search without a warrant. In addition, the police authorities did not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle, which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. Furthermore, it cannot be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. It was clear from the records that the cable wires were not exposed to sight because they were placed in sacks and covered by kakawati leaves. The police officers even have to ask petitioner what was loaded in his vehicle. Moreover, it was not established by clear and positive proof that the petitioner consented to the search or intentionally surrendered his right against unreasonable search. Thus, the articles seized from petitioner could not be used as evidence against him. For lack of evidence to establish his guilt, the Court acquitted petitioner of the crime charged. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; EXCLUSIONARY RULE; BARS ADMISSION OF EVIDENCE OBTAINED IN VIOLATION OF THE RIGHT; EXCEPTIONS. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof. The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of moving vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk situations (Terry search); and (7) exigent and emergency circumstances. 2.REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS SEARCH AND SEIZURE; REASONABLENESS OR UNREASONABLENESS OF SEARCH OR SEIZURE IS PURELY A JUDICIAL QUESTION; CASE AT BAR. In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable

cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 3.ID.; ID.; WARRANTLESS SEARCH OF MOVING VEHICLES; ALLOWED PROVIDED THE SAME WAS MADE AT CONSTRUCTIVE BORDERS. 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. Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. ACaDTH 4.ID.; ID.; ID.; REQUIRES PROBABLE CAUSE; EXISTENCE OF PROBABLE CAUSE NOT DETERMINED BY FIXED FORMULA BUT IS RESOLVED ACCORDING TO THE FACTS OF EACH CASE. The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 5.ID.; ID.; ID.; "STOP-AND-SEARCH" AT POLICE CHECKPOINTS; NOT ILLEGAL PER SE; ROUTINE INSPECTIONS; NOT VIOLATIVE OF RIGHT AGAINST UNREASONABLE SEARCHES; LIMITATIONS; CASE AT BAR. One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se, for as long as it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the car's doors; (4) where the occupants are not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to a visual search or visual inspection; and (6) where the routine check is conducted in a fixed area. None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. 6.ID.; ID.; ID.; EXTENSIVE CHECK OF VEHICLE, WHEN PERMISSIBLE. In the case of United States vs. Pierre, the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle . . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in

the vehicle to be searched. This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged that said accused were bringing prohibited drugs into the country.

passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 11.ID.; ID.; ID.; ID.; CASES UPHOLDING VALIDITY THEREOF, CITED. In Asuncion vs. Court of Appeals, the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna, the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla, it was held that the accused 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. In People vs. Omaweng, the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. ScAaHE 12.ID.; ID.; ID.; ID.; WAIVER OF CONSTITUTIONAL GUARANTEE AGAINST OBTRUSIVE SEARCHES; REQUISITES; CONSENT GIVEN UNDER COERCIVE CIRCUMSTANCES IS NO CONSENT WITHIN THE CONSTITUTIONAL GUARANTEE; CASE AT BAR. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right, and (3) the said person had an actual intention to relinquish the right. In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. 13.ID.; ID.; ID.; ID.; CONSENT OF ACCUSED TO BE SEARCHED MUST BE ESTABLISHED BY CLEAR AND POSITIVE PROOF. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search. 14.ID.; ID.; ID.; ID.; FAILURE OF ACCUSED TO OBJECT NOT CONSTRUED AS IMPLIED ACQUIESCENCE TO THE WARRANTLESS SEARCH. Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros, appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the

7.ID.; ID.; ID.; FACT THAT VEHICLE LOOKS SUSPICIOUS DOES NOT CONSTITUTE PROBABLE CAUSE. In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. 8.ID.; ID.; ID.; TIPPED INFORMATION; A SUFFICIENT CAUSE TO EFFECT WARRANTLESS SEARCH AND SEIZURE. In People vs. Chua Ho San, we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. Unfortunately, none exists in this case. 9.ID.; ID.; ID.; PLAIN VIEW DOCTRINE; OBJECT ITSELF IS PLAINLY EXPOSED TO SIGHT; CASE AT BAR. It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search. 10.ID.; ID.; ID.; CONSENTED WARRANTLESS SEARCHES AND SEIZURE; CONSENT MUST BE VOLUNTARY AND MUST BE SHOWN BY CLEAR AND CONVINCING EVIDENCE; BURDEN OF PROOF LIES ON THE STATE. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or

accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos, to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens 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."

of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan. After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week." 4 On April 27, 1993, the court a quo rendered judgment 5 the dispositive portion of which reads: "WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worth P55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55,244.45, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit: "WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs." 6 Petitioner comes before us and raises the following issues: "(a)Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction; (b)Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and (c)Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence." The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof. In holding that the warrantless search and seizure is valid, the trial court ruled that: "As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29,

DECISION PUNO, J p: This is an appeal by certiorari from the decision 1 of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution 2 dated November 9, 1998 which denied petitioner's motion for reconsideration. In an Information 3 dated October 16, 1989, petitioner was charged with the crime of theft committed as follows: "That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27,450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount. CONTRARY TO LAW." During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued. The facts are summarized by the appellate court as follows: "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did not answer; he appeared pale and nervous. With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55,244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail. In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading

1989), it was ruled that 'automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. . . . To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant." 7 Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible. Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads: "Sec. 2.The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right. The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; 8 (2) seizure of evidence in plain view; 9 (3) search of moving vehicles; 10 (4) consented warrantless search; 11 (5) customs search; (6) stop and frisk situations (Terry search); 12 and (7) exigent and emergency circumstances. 13

transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 16 Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State. 17 The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. 18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. 19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case. 20 One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se, 21 for as long as it is warranted by the exigencies of public order 22 and conducted in a way least intrusive to motorists. 23 A checkpoint may either be a mere routine inspection or it may involve an extensive search. Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds; 24 (2) simply looks into a vehicle; 25 (3) flashes a light therein without opening the car's doors; 26 (4) where the occupants are not subjected to a physical or body search; 27 (5) where the inspection of the vehicles is limited to a visual search or visual inspection; 28 and (6) where the routine check is conducted in a fixed area." 29 None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check. In the case of United States vs. Pierre, 30 the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent[s] . . . physical intrusion allowed him to see and to smell things he could not see or smell from outside the vehicle . . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home." On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched. 31 This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a

In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured. 14 It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt. I.Search of 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. 15 Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can

Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana; 32 (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belonged that said accused were bringing prohibited drugs into the country. 33 In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon. Pat. Alex de Castro recounted the incident as follows: "ATTY. SANTOS QNow on said date and time do you remember of any unusual incident while you were performing your duty? AYes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires. QYou mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious? ABecause the cargo was covered with leaves and branches, sir. QWhen you became suspicious upon seeing those leaves on top of the load what did you do next, if any? AWe stopped the jeepney and searched the contents thereof, sir." 34 The testimony of Victorino Noceja did not fare any better: "ATTY. SANTOS QWhen you saw the accused driving the said vehicle, what did you do? ABecause I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir." 35 We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant. In People vs. Chua Ho San, 36 we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus: "In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines . . ., CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. . . .." (italics supplied) In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure. 37 Unfortunately, none exists in this case. II.Plain view doctrine It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid. Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure. 38 It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks 39 and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search. 40 III.Consented search Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee. Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. 41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. 42 The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. 43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; 44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; 45 (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. 46 It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given. 47

In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise: "WITNESS QOn June 28, 1989, where were you? AWe were conducting patrol at the poblacion and some barangays, sir. xxx xxx xxx QAfter conducting the patrol operation, do you remember of any unusual incident on said date and time? AYes, sir. QWhat is that incident? AWhile I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir. xxx xxx xxx QWhen you saw the accused driving the said vehicle, what did you do? ABecause I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir. QDid the vehicle stop? AYes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires. QBefore you saw the aluminum wires, did you talk to the accused? AYes, sir, I asked him what his load was. QWhat was the answer of Caballes? AHe did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive. QAnd after you saw for yourself the aluminum wires loaded on the jeep, what did you do? AI asked him where those wires came from and he answered those came from the Cavinti area, sir." 48 This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request. 49 In Asuncion vs. Court of Appeals, 50 the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna, 51 the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, 52 the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla, 53 it was held that the accused 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. In People vs. Omaweng, 54 the police officers asked the

accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search. In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right. 55 In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search. 56

Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros, 57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos, 58 to wit: "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens 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." Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure. WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is hereby ACQUITTED of the crime charged. Cost de oficio. EDATSI SO ORDERED. Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.

THIRD DIVISION [G.R. No. 136860. January 20, 2003.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused. AGPANGA LIBNAO y KITTEN, accused-appellant. The Solicitor General for plaintiff-appellee. Molintas & Molintas Law Office for accused-appellant. SYNOPSIS This is an appeal from the decision of the Regional Trial Court of Tarlac City finding appellant and her coaccused guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972. For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua. The appellant argued that her arrest was unlawful and capitalized on the absence of a warrant for her arrest. She contended that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. She also impugned the search made on her belongings as illegal as it was not done without a valid warrant or under circumstances when warrantless search is permissible. Consequently, she claimed that the evidence obtained therein were inadmissible against her. HDITCS The Supreme Court affirmed the conviction of the appellant. According to the Court, the general rule is 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 the Constitution. However, the constitutional guarantee is not a blanket prohibition against all searches and seizures. The warrantless search in this case is not bereft of a probable cause. It was also clear that at the time she was apprehended, she was committing a criminal offense, transporting prohibited drugs. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi could not stand. SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND SEIZURES; UNREASONABLE UNLESS AUTHORIZED BY A VALIDLY ISSUED SEARCH WARRANT OR WARRANT OF ARREST, AS A RULE. The general rule is 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 1987 Constitution, thus: "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 and warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized." The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule 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 persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest. HIACEa 2.ID.; ID.; ID.; ID.; SEARCH AND SEIZURE OF MOVING VEHICLE AS AN EXCEPTION; RATIONALE. Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles. Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection. When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction. 3.ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co-

accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellant's bag was not illegal. It is also clear that at the time she was apprehended, she was committing a criminal offense. She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto. 4.REMEDIAL LAW; EVIDENCE; WHEN PRESENTATION THEREOF EVEN WITHOUT FORMAL OFFER MAY ESTABLISH THE PROSECUTION'S CASE; CASE AT BAR. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves, been incorporated in the records of the case. All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana. Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded. Furthermore, appellant's counsel had cross-examined the prosecution witnesses who testified on the exhibits. 5.ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY INCONSISTENCIES ON MINOR DETAILS; APPLICATION IN CASE AT BAR. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her coaccused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence. The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident. 6.ID.; ID.; ID.; CREDENCE MAY BE PROPERLY ACCORDED TO TESTIMONIES OF POLICE OFFICERS WHO EXHIBITED NO IMPROPER MOTIVE TO ARREST THE APPELLANT. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in attesting the appellant. ATSIED 7.ID.; ID.; DENIAL AND ALIBI, AS DEFENSE; CANNOT STAND AGAINST CREDIBLE POSITIVE TESTIMONIES OF THE PROSECUTION WITNESS. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. It has to be substantiated by clear and convincing evidence. The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. DECISION PUNO, J p: Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao and her co-accused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972. 1 For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos. Appellant and her co-accused were charged under the following Information: "That on or about October 20, 1996 at around 1:00 o'clock dawn, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping with one another, without being lawfully authorized, did then and there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic weighing approximately eight (8)

kilos, which is in violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. CONTRARY TO LAW." 2 During their arraignment, both entered a plea of Not Guilty. Trial on the merits ensued. It appears from the evidence adduced by the prosecution that in August of 1996, intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance operation on suspected drug dealers in the area. They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big bulks.

SO ORDERED." 5 Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the following errors: "1.The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right of accused against illegal and unwarranted arrest and search was violated by the police officers who arrested both accused. 2.The Honorable Court failed to appreciate the contention of the defense that the right of the accused to custodial investigation was deliberately violated by the peace officers who apprehended and investigated the accused. 3.The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of the prosecution's witnesses which inconsistencies cast doubt and make incredible the contention and version of the prosecution. 4.The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidence of the prosecution not formally offered amounting to ignorance of the law." 6 We are not persuaded by these contentions; hence, the appeal must be dismissed. In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for her arrest. She contends that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle. In the same manner, she impugns the search made on her belongings as illegal as it was done without a valid warrant or under circumstances when warrantless search is permissible. Consequently, any evidence obtained therein is inadmissible against her. These arguments fail to impress. The general rule is 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 1987 Constitution, thus: "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 and 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." 7 The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against "unreasonable" searches and seizures. Searches and seizures are as a rule 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 persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest. 8 Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute. There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles. 9 Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. 10 Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection. 11 When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction. 12 In earlier decisions, we held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; 13 (b) where an informer positively identified the accused who was observed to be acting suspiciously; 14 (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana; 15 (d) where Narcom agents

On October 19, 1996, at about 10 o'clock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office received that the two drug pushers, riding in a tricycle, would be making a delivery that night. An hour later, the Police Alert Team installed a checkpoint in Barangay Salapungan to apprehend the suspects. Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint. At about 1:00 o'clock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passing tricycle. It had two female passengers seated inside, who were later identified as the appellant Agpanga Libnao and her co-accused Rosita Nunga. 3 In front of them was a black bag. Suspicious of the black bag and the two's uneasy behavior when asked about its ownership and content, the officers invited them to Kabayan Center No. 2 located at the same barangay. They brought with them the black bag. Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of the black bag. In the meantime, the two women and the bag were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon as the barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personnel of the center. Found inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaves were suspected to be marijuana. To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they were made to sign a confiscation receipt without the assistance of any counsel, as they were not informed of their right to have one. During the course of the investigation, not even close relatives of theirs were present. The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She concluded that the articles were marijuana leaves weighing eight kilos. 4 For their part, both accused denied the accusation against them. Rosita Nunga testified that in the evening of October 19, 1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital. The child was suffering from diarrhea, occasioned by abdominal pain. To return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It was there that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputed owning the bag and knowing its contents. She also denied sitting beside the appellant in the passenger's seat inside the tricycle, although she admitted noticing a male passenger behind the driver. Remarkably, appellant did not appear in court and was only represented by her lawyer. The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac. The sworn statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded their Bus No. 983. The incident was recorded in the company's logbook. Gannod, however, was not presented in court to attest that the woman referred in his affidavit was the appellant. After trial, the court convicted appellant and her co-accused Rosita Nunga, thus: "WHEREFORE, finding both accused guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.

had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; 16 (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy one who participated in the drug smuggling activities of the syndicate to which the accused belong that said accused were bringing prohibited drugs into the country; 17 (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him; 18 (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila; 19 and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset. 20 The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the area. The surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who owned it and what its content was, both became uneasy. Under these circumstances, the warrantless search and seizure of appellant's bag was not illegal. EaSCAH

any answer given by both accused as a result of the police interrogation while in their custody. By force of necessity, therefore, the only issue to be resolved by the court is whether or not, based on the prosecution's evidence, both accused can be convicted." 22 (italics supplied). Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence of the prosecution despite the latter's failure to formally offer them. Absent any formal offer, she argues that they again must be deemed inadmissible. The contention is untenable. Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case. 23 All the documentary and object evidence in this case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana. 24 Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded. 25 Furthermore, appellant's counsel had cross-examined the prosecution witnesses who testified on the exhibits. 26 Appellant also assails the credibility of the testimonies of the prosecution witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center. She then focuses on the police officers' failure to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is improbable and contrary to human experience. Again, appellant's arguments lack merit. The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her coaccused were transporting marijuana. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence. 27 The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident. 28 Likewise, we find nothing improbable in the failure of the police officers to note and remember the name of the tricycle driver for the reason that it was unnecessary for them to do so. It was not shown that the driver was in complicity with the appellant and her co-accused in the commission of the crime. To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. 29 In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting the appellant. Against the credible positive testimonies of the prosecution witnesses, appellant's defense of denial and alibi cannot stand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. 30 It has to be substantiated by clear and convincing evidence. 31 The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant. Hence, we reject her defense. IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby AFFIRMED. EcATDH SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona and Carpio Morales, JJ., concur.

It is also clear that at the time she was apprehended, she was committing a criminal offense. She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto, thus: "Section 5.Arrest without Warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a)When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx xxx xxx." 21 (italics supplied) Appellant also takes issue of the fact that she was not assisted by a lawyer when police officers interrogated her. She claimed that she was not duly informed of her right to remain silent and to have competent counsel of her choice. Hence, she argues that the confession or admission obtained therein should be considered inadmissible in evidence against her. These contentions deserve scant attention. Appellant did not make any confession during her custodial investigation. In determining the guilt of the appellant and her co-accused, the trial court based its decision on the testimonies of prosecution witnesses and on the existence of the confiscated marijuana. We quote the relevant portion of its decision: "Earlier in the course of the proceedings, the court then presided by Judge Angel Parazo, granted bail to accused Agpanga Libnao, ruling that the confiscation receipt signed by both accused (Exhibit "C") is inadmissible because they were not assisted by a counsel. Confronted with this same issue, this court finds the postulate to rest on good authority and will therefore reiterate its inadmissibility. Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence of their guilt, the court finds it needless to discuss

FIRST DIVISION [G.R. No. 148825. December 27, 2002.] PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN CANTON, appellant. The Solicitor General for plaintiff-appellee. Perlas, De Guzman, Antonio, Venturanza, Quizon-Venturanza & Herbosa Law Firm, Sandoval & Ozamiz for accused-appellant. SYNOPSIS Appellant was charge with violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425). At the trial, the prosecution established that at the time of the commission of the crime, appellant was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam. When she passed through metal detector booth, a beeping sound was emitted. Consequently, the frisker on duty frisked and searched appellant. The frisker felt something bulging at appellant's abdominal area so she was brought to a comfort room for a thorough physical examination. It was discovered that appellant was carrying packages containing shabu. After due proceedings, the trial court found her guilty as charged. Hence, this appeal. aCITEH In affirming the conviction of appellant, the Supreme Court ruled that the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235. This constitutes another exception to the proscription against warrantless searches and seizures. In the said provision, passengers are subject to search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home, and thereby depriving them of the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. Thus, the strip search in the ladies' room was justified under the circumstances. The search conducted on appellant resulted in the discovery and recovery of three packages containing shabu. Such warrantless search and seizure was legal. Armed with the knowledge that appellant was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. Her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. SYLLABUS 1.POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES; THE CONSTITUTION BARS STATE INTRUSIONS TO A PERSON'S BODY, PERSONAL EFFECTS OR RESIDENCE EXCEPT THRU A VALID SEARCH WARRANT. What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from a consideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court. 2.ID.; ID.; ID.; ID.; ID.; EXCEPTIONS TO RULE. The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest. 3.ID.; ID.; ID.; ID.; ID.; ID.; SEARCH INCIDENTAL TO A LAWFUL ARREST; THE LAW REQUIRES THAT THERE BE FIRST A LAWFUL ARREST BEFORE A SEARCH CAN BE MADE. SUSAN's arrest did not precede the search. When the metal detector alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In the process, the latter felt a bulge on SUSAN's abdomen. The strip search that followed was for the purpose of ascertaining what were the packages concealed on SUSAN's body. If ever at the time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking of a person into custody in order that he may be bound to answer for the commission of an offense." As pointed out by the appellant, prior to the strip search in the ladies' room, the airport security personnel had no knowledge yet of what were hidden on SUSAN's body; hence, they did not know yet whether a crime was being committed. It was only after the strip search upon the discovery by the police officers of the white crystalline substances inside the packages, which they believed to be shabu, that

SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed. 4.ID.; ID.; ID.; ID.; ID.; ID.; STOP AND FRISK SITUATIONS OR TERRY SEARCH, DEFINED. The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him. 5.ID.; ID.; ID.; ID.; ID.; ID.; SEARCH MADE PURSUANT TO ROUTINE AIRPORT SECURITY PROCEDURE; SEARCH OF PROHIBITED MATERIALS OR SUBSTANCES; CASE AT BAR. In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: "SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: ' Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft,' which shall constitute a part of the contract between the passenger and the air carrier." This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the aforequoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. . . . To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society." Thus, the strip search in the ladies' room was justified under the circumstances. TAIcaD 6.STATUTORY CONSTRUCTION; STARE DECISIS ET NON QUIETA MOVERE; WHEN THE COURT HAS ONCE LAID DOWN A PRINCIPLE OF LAW AS APPLICABLE TO CERTAIN STATE OF FACTS, IT MUST ADHERE TO THAT PRINCIPLE AND APPLY IT TO ALL FUTURE CASES WHERE THE FACTS ARE SUBSTANTIALLY THE SAME. The maxim stare decisis et non quieta movere invokes adherence to precedents and mandates not to unsettle things which are established. When the court has once laid down a principle of law as applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases where the facts are substantially the same. 7.REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT, WHEN LAWFUL; CASE AT BAR. Section 5, Rule 113 of the Rules of Court, as amended, provides: "SEC. 5. Arrest without warrant;when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense"; . . . The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN resulted in the discovery and recovery of three packages containing white crystalline substances, which upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. 8.POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; CUSTODIAL INVESTIGATION, DEFINED; RIGHT TO COUNSEL AFFORDED AN ACCUSED UNDER CUSTODIAL INVESTIGATION, NOT VIOLATED IN CASE AT BAR. The rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody interrogation." Custodial investigation refers to the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him. And the right to counsel attaches upon the start of such investigation. The objective is to prohibit " incommunicado" interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights. In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigation was conducted after SUSAN's arrest. She affixed her

signature to the receipt of the articles seized from her, but before she did so, she was told that she had the option to sign or not to sign. it. In any event, her signature to the packages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from her during her detention and used in evidence against her. Hence, her claim of violation of her right to counsel has no leg to stand on.

For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness Mylene Cabunoc recalled to be presented as hostile witness. It opted not to let SUSAN take the witness stand. The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam. 2 When she passed through the metal detector booth, a beeping sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying "Excuse me ma'am, can I search you?" 3 Upon frisking SUSAN, Mylene felt something bulging at her abdominal area. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed that the package contained what felt like rice granules. 4 When Mylene passed her hand, she felt similar packages in front of SUSAN's genital area and thighs. She asked SUSAN to bring out the packages, but the latter refused and said: "Money, money only." Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her supervisor on duty. 5 SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a comfort room for a thorough physical examination. Upon further frisking in the ladies' room, Mylene touched something in front of SUSAN's sex organ. She directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered three packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed to them. 6 The first was taken from SUSAN's abdominal area; the second, from in front of her genital area; and the third, from her right thigh. 7 Mylene turned over the packages to SPO4 De los Reyes. 8 The latter forthwith informed his superior officer Police Superintendent Daniel Santos about the incident. Together with SUSAN, they brought the gray plastic packs to the customs examination table, opened the same and found that they contained white crystalline substances 9 which, when submitted for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a regulated drug. 10 For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that no investigation was ever conducted on SUSAN. 11 However, SUSAN signed a receipt of the following articles seized from her: (1) three bags of methamphetamine hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearing Number 700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077; and (4) two panty girdles. 12 He said that he informed SUSAN of her constitutional rights but admitted that she did not have a counsel when she signed the receipt. 13 Yet he told her that she had the option to sign or not to sign the receipt. 14 When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the arrest and search of SUSAN and the seizure of the prohibited items found on her person. 15 After consideration of the evidence presented, the trial court rendered a decision 16 finding SUSAN guilty beyond reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No. 6425, as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1 million. SUSAN filed a Motion for Reconsideration and/or New Trial, 17 alleging therein that the trial judge erred in (1) giving weight to the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it was not presented in court nor marked or admitted, and is therefore hearsay evidence; (2) upholding the presumption of regularity in the performance of duty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making statements which gave the impression that the burden of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of how the evidence was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the ground that the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial judge, SUSAN filed a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New Trial. 18 After conducting a hearing on 24 November 2000 to resolve appellant's Motion for Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge, the trial court issued an order 19 on 26 November 2001 denying the motions. According to the trial judge (1) he explained to SUSAN's counsel the effects of the filing of a motion for reconsideration, but the latter chose to magnify the judge's statement which was uttered in jest; (2) SUSAN's conviction was not based on the medical report which was not presented in court; (3) there was no violation of SUSAN's constitutional rights because she was never interrogated during her detention without counsel; and (4) the specimens seized from her were found after a routine frisk at the airport and were therefore acquired legitimately pursuant to airport security procedures.

9.REMEDIAL LAW; EVIDENCE; ADMISSIBILITY OF EVIDENCE; HEARSAY RULE; A MEDICAL REPORT WHICH IS NOT PROPERLY IDENTIFIED IS NOT ADMISSIBLE IN EVIDENCE. SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical and medical examination conducted upon appellant's request, . . . The admission of the questioned document was erroneous because it was not properly identified. Nevertheless, even without the medical report, appellant's conviction will stand, as the court's finding of guilt was not based on that document. TEcCHD 10.CRIMINAL LAW; REPUBLIC ACT NO. 6425 (THE DANGEROUS DRUGS ACT OF 1972); PENALTY FOR VIOLATION THEREOF. Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, provides: "SEC. 16. Possession or Use of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof . . . . SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. The penalties for offenses under Sections 3, 4, 7, 8, and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved [are] in any of the following quantities: . . . 3. 200 grams or more of shabu or methylamphetamine hydrochloride." There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code. As regards the fine, courts may fix any amount within the limits established by law. For possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial court's imposition of fine in the amount of P1 million is well within the range prescribed by law. 11.REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE; PERSONAL PROPERTY TO BE SEIZED; PROPERTIES NOT INCLUDED THEREIN SHALL BE RETURNED TO ACCUSED. Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following: "SEC. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. Clearly, the seizure of SUSAN's passport, plane tickets, and girdles exceeded the limits of the afore-quoted provision. They, therefore, have to be returned to her. SaIACT DECISION DAVIDE, JR., C.J p: Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City with the violation of Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, under an Information 1 whose accusatory portion reads as follows: That on February 12, 1998 at the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Court, the above named accused did then and there willfully, unlawfully and feloniously has in her possession NINE HUNDRED NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, a regulated drug, without the corresponding prescription or license. CONTRARY TO LAW. The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court. SUSAN entered a plea of not guilty upon her arraignment. At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene Cabunoc, and SPO4 Victorio de los Reyes.

Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial court the following errors: (1) in justifying the warrantless search against her based on the alleged existence of probable cause; (2) in holding that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was under custodial investigation without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in evidence, and using the same in determining her guilt; (6) in justifying under the rule on judicial notice its cognizance of the medical report that has not been offered in evidence; and (7) in applying the ruling in People v. Johnson. 20

may produce, and particularly describing the place to be searched and the persons or things to be seized. xxx xxx xxx Sec. 3. . . (2)Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from a consideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with the procedure outlined in the Constitution and reiterated in the Rules of Court. 24 The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest. 25 I.The search conducted on SUSAN was not incidental to a lawful arrest. We do not agree with the trial court and the OSG that the search and seizure conducted in this case were incidental to a lawful arrest. SUSAN's arrest did not precede the search. When the metal detector alarmed while SUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In the process, the latter felt a bulge on SUSAN's abdomen. The strip search that followed was for the purpose of ascertaining what were the packages concealed on SUSAN's body. If ever at the time SUSAN was deprived of her will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking of a person into custody in order that he may be bound to answer for the commission of an offense." As pointed out by the appellant, prior to the strip search in the ladies' room, the airport security personnel had no knowledge yet of what were hidden on SUSAN's body; hence, they did not know yet whether a crime was being committed. It was only after the strip search upon the discovery by the police officers of the white crystalline substances inside the packages, which they believed to be shabu, that SUSAN was arrested. The search cannot, therefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed. 26 II.The scope of a search pursuant to airport security procedure is not confined only to search for weapons under the "Terry search" doctrine. The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person who is acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest of effective crime prevention and detection. To assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefully limited search of the outer clothing of such person to discover weapons which might be used to assault him. 27 In the present case, the search was made pursuant to routine airport security procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as follows: SEC. 9.Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. This constitutes another exception to the proscription against warrantless searches and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers" located at the final security checkpoint at the departure lounge. From the said provision,

For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies' room was constitutionally infirmed because it was not "incidental to an arrest." The arrest could not be said to have been made before the search because at the time of the strip search, the arresting officers could not have known what was inside the plastic containers hidden on her body, which were wrapped and sealed with gray tape. At that point then, they could not have determined whether SUSAN was actually committing a crime. The strip search was therefore nothing but a fishing expedition. Verily, it is erroneous to say that she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest. For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v. Ohio, 21 such stop and frisk search should have been limited to the patting of her outer garments in order to determine whether she was armed or dangerous and therefore a threat to the security of the aircraft. For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her abdominal area, started inquiring about the contents thereof, detained her, and decided to submit her to a strip search in the ladies' room, she was under custodial investigation without counsel, which was violative of Section 12, Article III of the Constitution. For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report executed by Dr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in evidence. Lastly, SUSAN questions the application of People v. Johnson 22 because of its sweeping statement allowing searches and seizures of departing passengers in airports in view of the gravity of the safety interests involved. She stresses that the pertinent case should have been Katz v. United States, 23 which upholds the Fourth Amendment of the United States of America that "protects people and not places." In its Appellant's Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante delicto in possession of a regulated drug without being authorized by law. Thus, the case falls squarely within the exception, being a warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily submitted herself to the search and seizure when she allowed herself to be frisked and brought to the comfort room for further inspection by airport security personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that SUSAN's conviction was not solely based on the questioned document but also on the fact that she was caught flagrante delicto in possession of a regulated drug without being authorized by law. Consequently, it supports SUSAN's conviction but recommends the reduction of the fine from P1 million to P100,000. We affirm SUSAN's conviction. We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as the arrest of SUSAN, were violative of her constitutional rights. Sections 2 and 3(2) of Article III of the 1987 Constitution 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

it is clear that the search, unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibited materials or substances. In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery of packages on her body. It was too late in the day for her to refuse to be further searched because the discovery of the packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously false statement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials or substances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft and sending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity in law enforcement, to the detriment of society." 28 Thus, the strip search in the ladies' room was justified under the circumstances. III.The ruling in People v. Johnson is applicable to the instant case. The case of People v. Johnson, which involves similar facts and issues, finds application to the present case. That case involves accused-appellant Lelia Johnson, who was also a departing passenger bound for the United States via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose task was to frisk departing passengers, employees and crew to check for weapons, bombs, prohibited drugs, contraband goods and explosives. When Olivia frisked Leila, the former felt something hard on the latter's abdominal area. Upon inquiry, Leila explained that she needed to wear two panty girdles, as she had just undergone an operation as a result of an ectopic pregnancy. Not satisfied with the explanation, Olivia reported the matter to her superior, who then directed her to take Leila to the nearest women's room for inspection. In the comfort room, Leila was asked "to bring out the thing under her girdle." She acceded and brought out three plastic packs which contained a total of 580.2 grams of methamphetamine hydrochloride or shabu. This Court ruled that the packs of "methamphetamine hydrochloride" seized during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequent arrest, although likewise without warrant, was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. The Court held in this wise:

ruled that what a person knowingly exposes to the public, even in his own house or office, is not a subject the Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The maxim stare decisis et non quieta movere invokes adherence to precedents and mandates not to unsettle things which are established. When the court has once laid down a principle of law as applicable to a certain state of facts, it must adhere to that principle and apply it to all future cases where the facts are substantially the same. 30 There being a disparity in the factual milieu of Katz v. U.S. and the instant case, we cannot apply to this case the ruling in Katz. IV.The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant. Section 5, Rule 113 of the Rules of Court, as amended, provides: SEC. 5.Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a)When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b)When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c)When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases failing under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112. The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSAN resulted in the discovery and recovery of three packages containing white crystalline substances, which upon examination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, the airport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabu in her person flagrante delicto. V.The constitutional right to counsel afforded an accused under custodial investigation was not violated. Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked only when a person is under "custodial investigation" or is "in custody interrogation." 31 Custodial investigation refers to the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 32 This presupposes that he is suspected of having committed a crime and that the investigator is trying to elicit information or a confession from him. 33 And the right to counsel attaches upon the start of such investigation. 34 The objective is to prohibit "incommunicado" interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights. 35 In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigation was conducted after SUSAN's arrest. She affixed her signature to the receipt of the articles seized from her, but before she did so, she was told that she had the option to sign or not to sign it. In any event, her signature to the packages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from her during her detention and used in evidence against her. 36 Hence, her claim of violation of her right to counsel has no leg to stand on. AIDSTE VI.The admission of the medical report was erroneous. SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical and medical examination conducted upon appellant's request, which contained the following:

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. SUSAN's reliance on Katz v. U.S. 29 is misplaced. The facts and circumstances of that case are entirely different from the case at bar. In that case, the accused was convicted in the United States District Court for the Southern District of California of transmitting wagering information by telephone. During the trial, the government was permitted, over the accused's objection, to introduce evidence of accused's end of telephone conversations, which was overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit affirmed the conviction. On certiorari, however, the Supreme Court of the United States of America reversed the decision, ruling that antecedent judicial authorization, which was not given in the instant case, was a constitutional precondition of the kind of electronic surveillance involved. It

On subsequent examinations, she was seen behaved and cooperative. She related that she was an illegitimate daughter, married, but divorced in 1995. She verbalized, "I gamble like an addict. I gambled since I was young and I lost control of myself when I played cards. When I lost control, I want my money back. I owe other people lots of money. I lost all the cash of my husband. This is the first time I carried shabu. I need the money." She denied having any morbid thoughts and perceptual disturbances. (Italics supplied). This argument is meritorious. The admission of the questioned document was erroneous because it was not properly identified. Nevertheless, even without the medical report, appellant's conviction will stand, as the court's finding of guilt was not based on that document. VII.SUSAN's conviction and the penalty imposed on her are correct. Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate to rule that that the three packages of shabu recovered from SUSAN are admissible in evidence against her. Supported by this evidence and the testimonies of the prosecution witnesses, her conviction must inevitably be sustained. Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, provides: SEC. 16.Possession or Use of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. xxx xxx xxx SEC. 20.Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments of the Crime. The penalties for offenses under Section 3, 4, 7, 8, and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved [are] in any of the following quantities: xxx xxx xxx 3.200 grams or more of shabu or methylamphetamine hydrochloride . . . There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code. As regards the fine, courts may fix any amount within the limits established by law. For possession of regulated drugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight of methamphetamine hydrochloride found in the possession of SUSAN, the trial court's imposition of fine in the amount of P1 million is well within the range prescribed by law. VIII.The other items seized from the appellant should be returned to her. Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following: SEC. 3.Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a)Subject of the offense; (b)Stolen or embezzled and other proceeds, or fruits of the offense; or (c)Used or intended to be used as the means of committing an offense. Clearly, the seizure of SUSAN's passport, plane tickets, and girdles exceeded the limits of the afore-quoted provision. They, therefore, have to be returned to her. 37

IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in Criminal Case No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED. The appellant's passport, plane tickets, and girdles are hereby ordered to be returned to her. DaESIC Costs de oficio. SO ORDERED. Vitug, Ynares-Santiago, Carpio and Azcuna, JJ., concur.