Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC.,petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784
Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan
Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books and other
written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publishereditor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for
the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City,
their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined
from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other
accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea
for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset
to July 7, 1983, on motion of the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of
preliminary mandatory injunction, manifested that respondents "will not use the aforementioned
articles as evidence in the aforementioned case until final resolution of the legality of the seizure of
the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction
was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come to
this Court without having previously sought the quashal of the search warrants before respondent
judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should
have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the
constitutional issues raised not to mention the public interest generated by the search of the "We Forum"
offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence
of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the
words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is
always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from
its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid
on the fact that while said search warrants were issued on December 7, 1982, the instant petition
impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six
[6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that which,
by exercising due diligence, could or should have been done earlier. It is negligence or omission to
assert a right within a reasonable time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition
thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation]
with the fact that the Petition was filed on June 16, 1983, more than half a year after
the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited this
long to bring their case to court, it was because they tried at first to exhaust other
remedies. The events of the past eleven fill years had taught them that everything in
this country, from release of public funds to release of detained persons from
custody, has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronet asking the return at least of the printing equipment and vehicles.
And after such a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security Command, they were
further encouraged to hope that the latter would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court.
[pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts
exerted by petitioners quite evidently negate the presumption that they had abandoned their right to
the possession of the seized property, thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as
evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from
challenging the validity of the search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with
them, within legal bounds. The fact that he has used them as evidence does not and cannot in any
way affect the validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or
affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during the hearing on August 9,
1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19,
Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City,
respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one place where petitioner Jose
Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3,
Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments and means of committing
the crime of subversion penalized under P.D. 885 as amended and he is keeping and
concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It would
be quite absurd and illogical for respondent judge to have issued two warrants intended for one and
the same place. Besides, the addresses of the places sought to be searched were specifically set
forth in the application, and since it was Col. Abadilla himself who headed the team which executed
the search warrants, the ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was
applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address

appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that
respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place
intended in the warrant is relevant. This would seem to be especially true where the executing officer
is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who
issued the warrant intended the building described in the affidavit, And it has also been said that the
executing officer may look to the affidavit in the official court file to resolve an ambiguity in the
warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos,
Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant may be issued for the
search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of committing
an offense.
The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in
relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed
warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables,
instruments or implements intended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land and which tend directly to meet the needs of the
said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where
this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes
immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a

tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the
agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the
machineries were placed. This being the case, the machineries in question, while in fact bolted to
the ground remain movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by
the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security
Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue
in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with the offense are in the
place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the
case at bar, the application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner
"is in possession or has in his control printing equipment and other paraphernalia, news publications
and other documents which were used and are all continuously being used as a means of
committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is
a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in
the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive activities in conspiracy
with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he may
produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the

issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "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."
As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this
Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is
that they are in the nature of general warrants. The search warrants describe the articles sought to
be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters,
cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents communication, letters and facsimile of prints related to
the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the
U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703
or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be
characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the
era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown
were given roving commissions to search where they pleased in order to suppress and destroy the
literature of dissent both Catholic and Puritan Reference herein to such historical episode would not
be relevant for it is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and publication of
said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they
have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense." It
is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration of
the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in the
premises.
Cendaa said that because of the denial the newspaper and its equipment remain at
the disposal of the owners, subject to the discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is further confirmed by the
reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM
" case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment and
materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent
judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The
prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all
articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez,
Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.

Jose Burgos vs. Chief of Staff

G.R. No L-64261
December 26, 1984
Facts:
Two warrants were issued against petitioners for the search on the premises of Metropolitan
Mail and We Forum newspapers and the seizure of items alleged to have been used in
subversive activities. Petitioners prayed that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that respondents be enjoined from
using the articles thus seized as evidence against petitioner.
Petitioners questioned the warrants for the lack of probable cause and that the two warrants
issued indicated only one and the same address. In addition, the items seized subject to the
warrant were real properties.
Issue:
Whether or not the two warrants were valid to justify seizure of the items.
Held:
The defect in the indication of the same address in the two warrants was held by the court as a
typographical error and immaterial in view of the correct determination of the place sought to be
searched set forth in the application. The purpose and intent to search two distinct premises was
evident in the issuance of the two warrant.
As to the issue that the items seized were real properties, the court applied the principle in the case of Davao Sawmill Co. v.
Castillo, ruling that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement,
property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless
such person acted as the agent of the owner. In the case at bar, petitioners did not claim to be the owners of the land and/or
building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the
ground remain movable property susceptible to seizure under a search warrant.

However, the Court declared the two warrants null and void.
Probable cause for a search is defined as such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place sought to be searched.
The Court ruled that the affidavits submitted for the application of the warrant did not satisfy the
requirement of probable cause, the statements of the witnesses having been mere generalizations.
Furthermore, jurisprudence tells of the prohibition on the issuance of general warrants. (Stanford
vs. State of Texas). The description and enumeration in the warrant of the items to be searched
and seized did not indicate with specification the subversive nature of the said items.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,
vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.
G.R. Nos. 94266-69 February 19, 1991
JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR
NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.
Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.
Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for
petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:p

May a Judge without ascertaining the facts through his own personal determination and relying
solely on the certification or recommendation of a prosecutor that a probable cause exists issue a
warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the
Masbate Domestic Airport, located at the municipality of Masbate province of Masbate,
Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio
Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante
Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot,
although, he himself suffered a gunshot wound.
An investigation of the incident then followed.
Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O.
Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an
amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim,

Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio
T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in
G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the
airport incident. The case was docketed as Criminal Case No. 9211.
After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating
therein that:
. . . after weighing the affidavits and answers given by the witnesses for the
prosecution during the preliminary examination in searching questions and answers,
concludes that a probable cause has been established for the issuance of a warrant
of arrest of named accused in the amended complaint, namely, Jimmy Cabarles,
Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr.,
Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy
Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)
xxx xxx xxx
In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was
granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except
for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages
were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C.
Alfane was designated to review the case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima
facie case against the petitioners but differed in the designation of the crime in that the ruled that
". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but
for a case of MURDER for each of the killing of the four victims and a physical injuries case for
inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane,
p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente
Lim, Sr. and Mayor Susana Lim was denied.
On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate
informations of murder against the twelve (12) accused with a recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition
for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)
On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the
Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of
justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811,
5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the
Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT
the aforesaid petition for transfer of venue in order to avoid miscarriage of justice
(Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of
Court, Regional Trial Court, Masbate, Masbate to transmit the records of the
aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling
among the other branches of the court; and (c) ORDER the Regional Trial Court of
Masbate, Masbate to desist from further taking cognizance of the said cases until
such time that the petition is finally resolved.
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and
manifestations which in substance prayed for the following:
1. An order be issued requiring the transmittal of the initial records of the preliminary
inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the
best enlightenment of this Honorable Court in its personal determination of the
existence of a probable cause or prima facieevidence as well as its determination of
the existence of guilt, pursuant to the mandatory mandate of the constitution that no
warrant shall issue unless the issuing magistrate shall have himself been personally
convinced of such probable cause.
2. Movants be given ample opportunity to file their motion for preliminary
investigation as a matter of right; and
3. In the event that this court may later be convinced of the existence of a probable
cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p.
17, Rollo, G.R. Nos. 94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there
really exists aprima facie case against them in the light of documents which are recantations of
some witnesses in the preliminary investigation. The motions and manifestations were opposed by
the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and
manifestations and issued warrants of arrest against the accused including the petitioners herein.
The respondent Judge said:
In the instant cases, the preliminary investigation was conducted by the Municipal
Trial Court of Masbate, Masbate which found the existence of probable cause that
the offense of multiple murder was committed and that all the accused are probably
guilty thereof, which was affirmed upon review by the Provincial Prosecutor who
properly filed with the Regional Trial Court four separate informations for murder.
Considering that both the two competent officers to whom such duty was entrusted

by law have declared the existence of probable cause, each information is complete
in form and substance, and there is no visible defect on its face, this Court finds it
just and proper to rely on the prosecutor's certification in each information which
reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)
xxx xxx xxx
The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY
RESTRAINING ORDER, effective immediately and continuing until further orders from this Court,
ordering the respondent judge or his duly authorized representatives or agents to CEASE and
DESIST from enforcing or implementing the warrant of arrest without bail issued against the
petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.
In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:
xxx xxx xxx
. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and
directing the respondent judge to recall/set aside and/or annul the legal effects of the
warrants of arrest without bail issued against and served upon herein petitioners Jolly
T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them
from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2)
TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized
representatives or agents, to CEASE AND DESIST from enforcing or implementing
the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim
and Antonio T. Kho.
The primary issue in these consolidated petitions centers on whether or not a judge may issue a
warrant of arrest without bail by simply relying on the prosecution's certification and recommendation
that a probable cause exists.
This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled
that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the
basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come
out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the
1973 Constitution which provides:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the
witnesses he may produce . . .
We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the
exercise of judicial discretion on the part of the issuing magistrate. This is clear from
the following provisions of Section 6, Rule 112 of the Rules of Court.
Warrant of arrest, when issued. If the judge be satisfied from the preliminary
examination conducted by him or by the investigating officer that the offense
complained of has been committed and that there is reasonable ground to believe
that the accused has committed it, he must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause
before issuing a warrant or order of arrest. If on the face of the information the judge
finds no probable cause, he may disregard the fiscal's certification and require the
submission of the affidavits of witnesses to aid him in arriving at a conclusion as to
the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18
Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the
issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and
July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence
which, as a matter of long-standing practice had been attached to the information
filed in his sala, respondent found the informations inadequate bases for the
determination of probable cause. For as the ensuing events would show, after
petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the case where he was satisfied that probable cause
existed.
The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987
Constitution. We stated:
The second issue, raised by petitioner Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination 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 respondent
officers as may be authorized by law", has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for the issuance of arrest.
This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedures, 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 examinations and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.
The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990),
reiterated the above interpretation of "personal" determination by the Judge:
We emphasize important features of the constitutional mandate that ". . . no search
warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge . . ." (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the
Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It
merely assists him to make the determination of probable cause. The Judge does not
have to follow what the Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to make his
determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry
which determines probable cause for the issuance of a warrant of arrest from the
preliminary investigation proper which ascertains whether the offender should be
held for trial or released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the objectives. The
determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper whether or not there is reasonable ground to
believe that the accused is guilty of the offense charged and, therefore, whether or
not he should be subjected to the expense, rigors and embarrassment of trial is
the function of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no

longer have authority to conduct preliminary investigations. That
authority, at one time reposed in them under Sections 13, 14 and 16,
Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules
of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran,
Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed
from them by the 1985 Rules on Criminal Procedure, effective on
January 1, 1985, (Promulgated on November 11, 1984) which deleted
all provisions granting that power to said Judges. We had occasion to
point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to
stress as well certain other basic propositions, namely: (1) that the
conduct of a preliminary investigation is "not a judicial function . . .
(but) part of the prosecution's job, a function of the executive," (2) that
whenever "there are enough his or prosecutors to conduct
preliminary investigations, courts are counseled to leave this job
which is essentially executive to them," and the fact "that a certain
power is granted does not necessary mean that it should be
indiscriminately exercised.
The 1988 Amendments to the 1985 Rules on Criminal Procedure,
declared effective on October 1, 1988, (The 1988 Amendments were
published in the issue of Bulletin Today of October 29, 1988) did not
restore that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or courts
having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC
Judges also lost the power to make a preliminary examination for the
purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power
indeed, it is as much a duty as it is a power has been and remains
vested in every judge by the provisions in the Bill of Rights in the
1935, the 1973 and the present [1987] Constitutions securing the
people against unreasonable searches and seizures, thereby placing
it beyond the competence of mere Court Rule or Statute to revoke.
The distinction must, therefore, be made clear while an RTC Judge
may no longer conduct preliminary investigations to ascertain
whether there is sufficient ground for the filing of a criminal complaint
or information, he retains the authority, when such a pleading is filed
with his court, to determine whether there is probable cause justifying
the issuance of a warrant of arrest. It might be added that this
distinction accords, rather than conflicts, with the rationale of Salta
because both law and rule, in restricting to judges the authority to
order arrest, recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is

an investigation for the determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a probable cause for the
issuance of a warrant of arrest. The first kind of preliminary investigation is executive
in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in
nature and is lodged with the Judge. . . .
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990)
there is a statement that the judge may rely on the resolution of COMELEC to file the information by
the same token that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that
". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy
itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2,
Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the
Judge and he relies on the certification or resolution because the records of the investigation sustain
the recommendation. The warrant issues not on the strength of the certification standing alone but
because of the records which sustain it.
It is obvious from the present petition that notwithstanding the above decisions, some Judges are
still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are
sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore,
restate the rule in greater detail and hopefully clearer terms.
There is no problem with search warrants which are relatively fewer and far between and where
there is no duplication of work between the Judge and the Prosecutor. The problem lies with
warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally
question each complainant and witness or go over the records of the Prosecutor's investigation page
by page and word for word before he acts on each of a big pile of applications for arrest warrants on
his desk, he or she may have no more time for his or her more important judicial functions.
At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ".
. . probable cause to be personally determined by the judge . . .", not by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of
the investigation are in Masbate, he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.
The records of the preliminary investigation conducted by the Municipal Court of Masbate and
reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the
warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his
own personal determination regarding the existence of a probable cause for the issuance of a
warrant of arrest as mandated by the Constitution. He could not possibly have known what
transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge

denied the petitioners' motion for the transmittal of the records on the ground that the mere
certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient
for him to issue a warrant of arrest.
We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine
the complainant and his witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the
Judge's examination should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as
the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case
so require.
It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent
Judge documents of recantation of witnesses whose testimonies were used to establish a prima
facie case against them. Although, the general rule is that recantations are not given much weight in
the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al.
G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the
respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over
the records of the preliminary examination conducted earlier in the light of the evidence now
presented by the concerned witnesses in view of the "political undertones" prevailing in the cases.
Even the Solicitor General recognized the significance of the recantations of some witnesses when
he recommends a reinvestigation of the cases, to wit:
It must be pointed out, however, that among the documents attached to this Petition
are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo
Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's
witnesses, Renato and Romeo Sanano. It was precisely on the strength of these
earlier written statements of these witnesses that the Municipal Trial Court of
Masbate found the existence of a prima facie case against petitioners and
accordingly recommended the filing of a Criminal Information. Evidently, the same
written statements were also the very basis of the "Fiscal's Certification", since the
attached affidavits of recantation were not yet then available. Since the credibility of
the prosecution witnesses is now assailed and put in issue and, since the petitioners
have not yet been arraigned, it would be to the broader interest of justice and fair
play if a reinvestigation of this case be had to secure the petitioners against hasty
prosecution and to protect them from an open and public accusation of crime, from
the trouble, expense and anxiety of a public trial, and also to protect the State from
useless and expensive trials (Salonga v. Pao G.R. No. 59524, February 18,1985).
(Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from
relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends
on the circumstances of each case and is subject to the Judge's sound discretion. However, the
Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.
Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated July 5, 1990 without having before him any other
basis for his personal determination of the existence of a probable cause.
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent
Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared
NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory
Injunction issued in the instant Petitions are made PERMANENT.
SO ORDERED.

THIRD DIVISION
[G.R. No. 109287. April 18, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTOLIN

CUIZON y ORTEGA, STEVE PUA y CLOFAS alias STEPHEN P0
y UY or TOMMY SY and PAUL LEE y WONG alias PAUL
LEUNG, accused-appellants.
SYLLABUS
1.

REMEDIAL LAW; CRIMINAL PROCEDURE; LAWFUL ARRESTS

WITHOUT WARRANT; REQUIREMENTS; NOT PRESENT IN CASE AT
BAR. - Re-assessing the factual backdrop of the case at bench, this Court
cannot agree with and accept the conclusion of the trial court that the
appellants were caught in flagrante delicto which would justify the search
without a warrant. The shaky reasoning of the court a quo gives away the
baselessness of its findings and conclusion: x x x the search conducted
on their bags in the hotel room could still be regarded as valid for being
incidental to a lawful arrest. x x x The arrest of accused Pua and Lee
without a warrant of arrest was lawful, as they could be considered to have
committed the crime of transporting shabu in the presence of the
arresting officers from the time they received the bags containing the
regulated drug in the airport up to the time they brought the bags to the
hotel. Or their arrest without a warrant was legal as falling under the
situation where an offense had in fact just been committed, and the
arresting officers had personal knowledge of facts indicating that the said
accused were the ones who committed it. x x x Scrutinizing the provisions
of Sec. 5 of Rule 113 of the Rules of Court on lawful arrests without
warrant, we note that par. (c) of said section is obviously inapplicable, the
appellants not being escapees from a penal institution at the time of arrest.
Par. (a) on the other hand requires that the person be arrested (1) after he
has committed or while he is actually committing or is at least attempting
to commit an offense, (ii) in the presence of the arresting officer(s). These
requirements are not present in the case at bench, for at the time of their
arrest, appellants Pua and Lee were merely resting in their hotel room,

and appellant Cuizon for his part was in bed resting with his wife and child
inside his home. No offense had just been committed, or was being
actually committed or being attempted by any of the accused in the
presence of the lawmen.
2.

ID.; ID.; RULE 113, SECTION 5; PARAGRAPH (b) THEREOF; NOT

APPLICABLE IN CASE AT BAR. - Par. (b) of Rule 113, Section 5 is
likewise inapplicable since its equally exacting requirements have also not
been met. The prosecution failed to establish that at the time of the
arrest, an offense had in fact just been committed and the arresting
officers had personal knowledge of facts indicating that the accusedappellants had committed it. Appellant Cuizon could not, by the mere act
of handing over four pieces of luggage to the other two appellants, be
considered to have committed the offense of carrying and transporting
prohibited drugs. Under the circumstances of the case, there was no
sufficient probable cause for the arresting officers to believe that the
accused were then and there committing a crime. The act per se of
handing over the baggage, assuming the prosecutions version to be true,
cannot in any way be considered a criminal act. It was not even an act
performed under suspicious circumstances as indeed, it took place in
broad daylight, practically at high noon, and out in the open, in full view of
the public. Furthermore, it can hardly be considered unusual, in an airport
setting, for travellers and/or their welcomers to be passing, handing over
and delivering pieces of baggage, especially considering the somewhat
obsessive penchant of our fellow countrymen for sending along
(pakikipadala) things and gifts through friends and relatives. Moreover,
one cannot determine from the external appearance of the luggage that
they contained shabu hidden beneath some secret panel or false bottom.
The only reason why such act of parting with luggage took on the color
and dimensions of a felonious deed, at least as far as the lawmen were
concerned, was the alleged tip that the NBI agents purportedly received
that morning, to the effect that appellant Cuizon would be arriving that
same day with a shipment of shabu. To quote from another decision of like
import, (A)ll they had was hearsay information (from the telephone caller),
and about a crime that had yet to be committed.

3.

ID.; ID.; ID.; PROBABLE CAUSE; NOT ESTABLISHED IN CASE AT

BAR. - We therefore hold that under the circumstances obtaining, the
prosecution failed to establish that there was sufficient and reasonable
ground for the NBI agents to believe that appellants had committed a
crime at the point when the search and arrest of Pua and Lee were
made; hence, said search and arrest do not come under the exception in
par. (b) of Sec. 5 of Rule 113, and therefore should be deemed illegal.

4.

CRIMINAL LAW; CIRCUMSTANCES WHICH AFFECT CRIMINAL

LIABILITY; CONSPIRACY; NOT ESTABLISHED IN CASE AT BAR.
- Because of the way the operation actually turned out, there is no
sufficient proof of conspiracy between Pua and Lee on the one hand, and
Cuizon on the other, inasmuch as there is no clear and convincing
evidence that the four (4) bags handed by Cuizon to Pua and Lee at the
airport were the very same ones found in the possession of the latter in
Room 340 of the Peninsula Hotel. Not one of the NBI agents when
testifying could definitely and positively state that the bags seized from
Room 340 were the very same ones passed by Cuizon at the airport; at
best, they could only say that they looked like the ones they saw at the
airport. And even assuming them to be the same bags, there remains
doubt and uncertainty as to the actual ownership of the said bags at the
alleged turnover vis-a-vis the time they were seized by the agents. For
these reasons, we cannot sustain the finding of conspiracy as between
Cuizon on the one hand and Pua and Lee on the other. Well-settled is the
rule that conspiracy must be proved independently and beyond
reasonable doubt.

5.

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST

UNLAWFUL SEARCHES AND SEIZURES; DEEMED WAIVED BY
FAILURE TO CHALLENGE ITS VALIDITY; CASE AT BAR. - What has
been said for Cuizon cannot, alas, be said for appellant Pua. While the
search and arrest carried out on him and Lee may have been illegal for not
being incident to a lawful warrantless arrest, the unfortunate fact is that
appellantPua failed to challenge the validity of his arrest and search, as
well as the admission of the evidence obtained thereby; he did not raise
the issue or assign the same as an error before this Court. Accordingly,

any possible challenge thereto based on constitutional grounds is deemed

waived. This Court has upheld and recognized waivers of constitutional
rights, including, particularly, the right against unreasonable searches and
seizures, in cases such as People vs. Malasugui (63 Phil. 221 [1936])
and De Garcia vs. Locsin (65 Phil. 689 [1938]).
6.

ID.; ID.; THE JUDICIARY WHOSE MAIN FUNCTION IS 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. - It is evident and clear to
us that the NBI agents gravely mishandled the drug bust operation and in
the process violated the constitutional guarantees against unlawful arrests
and illegal searches and seizures. Because of the large haul of illegal
drugs that the government officers claimed to have recovered, this Court
agonized over the case before us and struggled to apply the law with an
even hand. 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.

7.

ID.; ID.; LAW ENFORCERS MUST ACT WITH DELIBERATE CARE

AND WITHIN THE PARAMETERS SET BY CONSTITUTION AND THE
LAW. Some lawmen, prosecutors and judges may still tend to gloss over
an illegal search and seizures 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.
APPEARANCES OF COUNSEL
The Solicitor General for plaintiff-appellee.

Public Attorneys Office and The Law Firm of Ross B. Bautista for Antolin
Cuizon.
Marcial P. Pe Benito for Steve Pua and Paul Lee.

DECISION
PANGANIBAN, J.:

In deciding the case at bench, the Court reiterates doctrines on illegal

searches and seizures, and the requirements for a valid warrantless search
incident to a valid warrantless arrest. While the Court appreciates and
encourages pro-active law enforcement, it nonetheless upholds the
sacredness of constitutional rights and repeats the familiar maxim, the end
never justifies the means.
This is an appeal from the Decision dated January 5, 1993 Criminal Case
No. 92-0230) of the Regional Trial Court, Branch 116, Pasay City finding
appellants guilty of violating Section 15 of R.A. 6425, otherwise known as the
Dangerous rugs Act of 1972.
1

On March 10, 1992, an Information was filed against the appellants

charging them as follows:
3

That on or about February 21, 1992 in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did then and there, willfully,
unlawfully and feloniously carry and transport into the country, without lawful
authority, 16 kilograms, more or less, of METHAMPHETAMINE
HYDROCHLORIDE, also popularly known as SHABU, a regulated drug.
CONTRARY TO LAW.
Upon arraignment, appellant Antolin Cuizon, assisted by counsel de
parte, pleaded not guilty. During the arraignment of appellants Paul Lee and
Steve Pua, the latter translated the Information into Chinese-Cantonese for
the understanding of appellant Lee, who does not speak nor understand
English, Pilipino or any other Philippine dialect. Both of them, duly assisted by

their counsel, also pleaded not guilty. Trial ensued and onJanuary 5, 1993,
the court a quo found appellants guilty as charged and rendered the following
disposition:
4

WHEREFORE, accused Antolin Cuizon y Ortega, Steve Pua y Clofas alias Stephen
Po y Uy or Tommy Sy, and Paul Lee y Wong, alias Paul Leung, are found guilty
beyond reasonable doubt of transporting, without legal authority, methamphetamine
hydrochloride, or shabu, a regulated drug, as charged in the aforequoted
Information; and they are each sentenced to suffer the penalty of life imprisonment
and to pay a fine of P20,000.00.
The methamphetamine hydrochloride or shabu involved in this case is declared
forfeited in favor of the government and is ordered turned over to the Dangerous Drug
Board for proper disposal.
The Facts
According to the Prosecution
The facts as summarized by the trial court and adopted by the Solicitor
General, who added the page references to the transcript of stenographic
notes as indicated in brackets, are as follows:
6

In January 1992, the Reaction Group of the National Bureau of Investigation (NBI)
gathered an information regarding the drug activities of accused Antolin Cuizon y
Ortega and his wife, Susan Cuizon. A surveillance was conducted on them. The
residence of the spouses was traced to Caloocan City (tsn, May 19, 1992, pp. 17-18,
21).
In the morning of February 21, 1992, the Reaction Group received a report from its
informant in Hong Kong that accused Cuizon, together with his wife, was arriving on
the same day at the Ninoy Aquino International Airport (NAIA) in PasayCity, Metro
Manila, from the British crown colony, carrying with him a big quantity of shabu. A
team was organized to intercept the suspects. Heading the team was Jose Yap, with
Ernesto Dio, Marcelino Amurao, Jose Bataller and Alfredo Jacinto, as members.
Some belonged to the Narcotics Division and the others to the Reaction Group of the
NBI (tsn, May 19, 1992, pp. 4, 18).

Arriving at the NAIA shortly before 12:00 noon of February 21, 1992, Dio
positioned himself at the Arrival Area, while Yap and the other members of the team
posted themselves at the parking area of the airport. At about 12:45 in the afternoon of
the same date, accused Cuizon and his wife, who had just returned from Hong Kong,
after passing through the Immigration and Customs Areas at the NAIA, proceeded to
the Arrival Area of the airport preparatory to their boarding a car. While there, accused
Cuizon, together with his wife, handed four (4) travelling bags to accused Steve Pua y
Clofas and accused Paul Lee y Wong, who were at the vicinity of the Arrival Area.
Accused Pua and Lee loaded the bags in a taxicab which they boarded in leaving the
airport. Accused Cuizon and his wife took another vehicle (tsn, May 19, 1992, pp. 45, 8-9).
At this juncture, Dio, who was observing the activities of the accused, radioed the
group of Yap at the parking area, describing the vehicle boarded by accused Pua and
Lee so that Yap and his companions could apprehend the two. However, the message
of Dio was not completely received by his teammates as the radio he was using ran
short of battery power (tsn, May 19, 1992, pp. 25-26).
Immediately after the vehicle boarded by Pua and Lee had left, Dio proceeded to
the place where his companions were stationed for the purpose of giving assistance to
them, believing that they were already in the process of apprehending accused Pua
and Lee. When he realized that the two accused were not apprehended, Dio told the
group of Yap to follow him as he was following the vehicle taken by Pua and Lee
which, according to an earlier tip he learned, was proceeding to the Manila Peninsula
Hotel in Makati, Metro Manila (tsn, May 19, 1992 pp. 25-26; tsn, May 21, 1992 pp.
6, 15).
Upon arriving at about 2:00 p.m. of the same date of February 21, 1992, in the
Manila Peninsula Hotel, in whose premises the taxicab boarded by accused Pua and
Lee entered, Dio and the other members of the team coordinated with Cot. Regino
Arellano, Chief Security Officer of the hotel, for the purpose of apprehending the two
accused. A verification made by the Chief Security Officer showed that accused Pua
and Lee occupied Room 340 of the hotel. The two accused allowed Dio and Yap,
together with Col. Arellano, to enter their room. Found inside Room 340 were four (4)
travelling bags, which were similar to the ones handed by accused Cuizon to accused
Pua and Lee at the Arrival Area of the NAIA. After having introduced themselves as
NBI agents, Dio and Yap were permitted by accused Pua and Lee to search their

bags in the presence of Col. Arellano. The permission was made in writing.(Exh. I).
Three (3) of the four (4) bags each yielded a plastic package containing a considerable
quantity of white crystalline substance suspected to be methamphetamine
hydrochloride or shabu. Each package was sandwiched between two (2) pieces of
board which appear to be lawanit placed at the bottom of each of the three (3) bags.
The suspected shabu contained in one bag weighed 2.571 kilos, that found in the
other had a weight of 2.768 kilos, and the suspected shabu retrieved from the third
bag weighed 2.970 kilos. Pua and Lee were then apprehended by Dio and his
companions (tsn, May 20, 1992, pp. 9-13; tsn, May 7, 1992, p. 9, Exh. F-2,
p. 75, Records).
Immediately thereafter, Dio and the other members of the team proceeded to the
house of accused Cuizon in Caloocan City, taking with them accused Pua and Lee and
the bags with their contents of suspected dangerous drugs. They reached the place at
about 5:50 in the afternoon of the same date of February 21, 1992. Retrieved from
accused Cuizon in his residence was another bag also containing a white crystalline
substance weighing 2.695 kilos, likewise believed to be methamphetamine
hydrochloride or shabu. In addition, a .38 Cal. firearm was taken from accused
Cuizon (tsn, May 19, 1992, pp. 10-11).
Pua, Lee, Cuizon and his wife were then brought by the arresting officers to the NBI
headquarters at Taft Avenue, Manila, for further investigation. They were
subsequently referred to the Prosecution Division of the Department of Justice for
inquest. However, only the present three accused were charged in court (tsn, May 19,
1992, pp. 12-13, 16-17).
In the meantime, at about 5:30 p.m. of the same date of February 21, 1992, Joselito
Soriano, roomboy of the Manila Peninsula Hotel, while cleaning Room 340, observed
that a portion of the ceiling was misaligned. While fixing it, he discovered in the
ceiling a laundry bag containing suspected shabu of more than five (5) kilos (Exh.
X, p. 110). Informed of the discovery while they were already in their office in the
NBI, Yap and some companions returned to the hotel. The suspected shabu was
turned over to them (tsn, May 20, 1992, pp. 19-22).
When examined in the Forensic Chemistry Section of the NBI, the white crystalline
substance taken from the three (3) travelling bags found in the room of accused Pua
and Lee in the Manila Peninsula Hotel, the white crystalline substance retrieved from

the bag confiscated from accused Cuizon in his house in Caloocan City, and the white
crystalline substance hidden in the ceiling of Room 340 of the hotel were confirmed to
be methamphetamine hydrochloride or shabu, a regulated drug. (Board Regulation
No. 6, dated December 11, 1972, of the Dangerous Drugs Board) (tsn, May 7, 1992, p.
12).
The Defenses Version(s)
Appellant Pua, on his part, interposed the defense of alibi. On direct
examination, he testified that at the time of the alleged commission of the
offense, he and his co-appellant Lee were in their room at the Manila
Peninsula Hotel. His version of what happened on February 21, 1992 can be
summarized as follows:
7

At around 9:30 in the morning, he accompanied appellant Paul Lee to

check-in at the Manila Peninsula Hotel for and in behalf of the latters personal
friend named Leong Chong Chong or Paul Leung, who was expected to arrive
that evening because of a delayed flight. Appellant Pua was engaged by
appellant Lee to act as interpreter as Lee does not know how to speak English
and the local language.
8

While in Room 340, past 1:00 in the afternoon, they received a call from
the lobby informing them of the arrival of Paul Leungs luggage. At Puas
instructions, the said luggage were brought to the room by a bellboy.
Thereafter, two persons knocked on their door, accompanied by a tomboy
and a thin man with curly hair. The two men identified themselves as NBI
agents and asked appellant Pua to let them in. He declined since he did not
know who they were. However, when Col. Arellano, the Chief Security Officer
of the hotel, arrived and identified the two NBI agents, he and Lee relented
and permitted them to enter. Thereafter, he and Lee were told by the agents to
sign a piece of paper. Made to understand that they were merely giving their
consent for the agents to enter their room, Pua and Lee signed the same.
Whereupon, the agents told them that they will open Paul Leungs bags. Again
appellant Pua refused, saying that the bags did not belong to them. Just the
same, the agents, without appellants Pua and Lees consent, opened the
bags and found the shabu. Pua and Lee were then apprehended and brought
to the NBI headquarters.
9

Appellant Cuizon, on the other hand, flatly rejected the prosecutions

version of the incident. While admitting that on February 21, 1992, he and his
wife Susan did arrive from Hong Kong with several pieces of luggage, he
denied that he met Pua and Lee at the arrival area of the airport, much less
passed to them the four pieces of luggage. According to him, only his two-year
old son, accompanied by his cousin, Ronald Allan Ong, met them outside the
airport. Ong fetched them from the airport and brought them to their home
in Caloocan City. They arrived at their house around 3:00 in the afternoon.
10

About two hours later, while he was resting together with his wife and son
on his bed, two NBI agents suddenly barged in and poked a gun at him. They
manhandled him in front of his wife and son. His hands were tied with a
necktie and he was forcibly brought out of their house while the NBI agents
ransacked the place without any warrant. He, his wife Susan, and his cousin
Ronald Allan Ong, were afterwards brought to the NBI Headquarters
in Manila and there the NBI agents continued mauling him.
11

Appellant Cuizons wife Susan, his cousin Ronald Allan Ong, and his
nephew Nestor Dalde, testified in his favor basically reiterating or confirming
his testimony.
12

Unfortunately, appellant Paul Lee, who does not speak or understand a

word of English or Pilipino and only knows Chinese-Cantonese, was not able
to take the witness stand for lack of an interpreter who would translate his
testimony to English. In the hearing set on October 28, 1992, the last trial date
allotted to the defense for the reception of Lees testimony, his counsel,
although notified of the proceedings, did not appear. Thus, the trial court
deemed him and Pua to have waived their right to present additional
evidence, and the case was considered submitted for decision after the filing
of memoranda. The counsel for Pua and Lee did not ask for the
reconsideration of such ruling; neither did he submit any memorandum. Only
accused Cuizon, who was assisted by another counsel, was able to submit his
memorandum.
13

The Issues

In their brief, appellants Pua and Lee made the following assignments of
errors:
14

I. The trial court erred in finding conspiracy among the accused.

II. The trial court erred in giving credence to the testimonies of prosecution witnesses
Marcelino Amurao, Jose Yap and Ernesto Dio despite contradictions made on
material points.
III. The trial court erred in not giving accused Paul Lee the opportunity to present his
evidence in his defense in violation of his constitutional right to due process.
Appellant Cuizon, in a separate brief, essentially reiterates the first two
assignments of errors above-quoted, and in addition challenges the legality
and validity of his warrantless arrest and the search and seizure incidental
thereto.
15

As this Court sees it, the resolution of this case hinges on the pivotal
question of the legality of the arrest and search of herein appellants effected
by the NBI operatives. Put differently, were the warrantless arrests and the
warrantless searches conducted by the NBI legal and constitutional?
The answer to this threshold question determines whether the judgment of
the court a quo will stand or fall. Consequently, there is a need to resolve first
this issue before endeavoring to consider the other issues raised by
appellants.
A necessary side issue to be considered is, assuming the searches and
arrests to have been illegal, whether failure by appellants Pua and Lee to
explicitly assign the same as errors before this Court amounted to a waiver of
their constitutional rights against such illegal searches and arrests.
The Courts Ruling
General Rule on Warrantless
Arrests, Searches, & Seizures

Well entrenched in this country is the rule that no arrest, search and
seizure can be made without a valid warrant issued by a competent judicial
authority. So sacred is this right that no less than the fundamental law of the
land ordains it:
16

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.
It further decrees that any evidence obtained in violation of said right shall be
inadmissible for any purpose in any proceeding.
17

However, the right against warrantless arrest and search and seizure is
not absolute. Thus, under Section 5 of Rule 113 of the Revised Rules of
Court, an arrest without a warrant may be lawfully made by a peace officer or
a private person:
a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
On the occasion of any of the aforementioned instances of legitimate
arrest without warrant, the person arrested may be subjected to a search of
his body and of his personal effects or belongings, for dangerous weapons or
anything which may be used as proof of the commission of an offense,
likewise without need of a search warrant.
18

However, where a person is searched without a warrant, and under

circumstances other than those justifying a warrantless arrest, as discussed
above, upon a mere suspicion that he has embarked on some criminal
activity, and/or for the purpose of discovering if indeed a crime has been
committed by him, then the search made of such person as well as his arrest
are deemed illegal. Consequently, any evidence which may have been
obtained during such search, even if tending to confirm or actually confirming
such initial suspicion, is absolutely inadmissible for any purpose and in any
proceeding, the same being the fruit of the poisonous tree. Emphasis is to
be laid on the fact that the law requires that the search be incident to a lawful
arrest, in order that the search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings. Were a search first undertaken, then an arrest
effected based on evidence produced by the search, both such search and
arrest would be unlawful, for being contrary to law.
19

20

21

The Instant Case Does Not Fall Under

The Exceptions for Warrantless Searches, etc.
Re-assessing the factual backdrop of the case at bench, this Court cannot
agree with and accept the conclusion of the trial court that the appellants were
caught in flagrante delicto which would justify the search without a warrant.
The shaky reasoning of the court a quo gives away the baselessness of its
findings and conclusion:
x x x the search conducted on their bags in the hotel room could still be regarded as
valid for being incidental to a lawful arrest. x x x The arrest of accused Pua and Lee
without a warrant of arrest was lawful, as they could be considered to have committed
the crime of transporting shabu in the presence of the arresting officers from the time
they received the bags containing the regulated drug in the airport up to the time
they brought the bags to the hotel. Or their arrest without a warrant was legal as
falling under the situation where an offense had in fact just been committed, and the
arresting officers had personal knowledge of facts indicating that the said accused
were the ones who committed it. x x x
22

Scrutinizing the provisions of Sec. 5 of Rule 113 of the Rules of Court on

lawful arrests without warrant, we note that par. (c) of said section is obviously
inapplicable, the appellants not being escapees from a penal institution at the
time of arrest. Par. (a) on the other hand 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(s).
These requirements are not present in the case at bench, for at the time of
their arrest, appellants Pua and Lee were merely resting in their hotel room,
and appellant Cuizon for his part was in bed resting with his wife and child
inside his home. No offense had just been committed, or was being actually
committed or being attempted by any of the accused in the presence of the
lawmen.
23

Par. (b) of the same provision is likewise inapplicable since its equally
exacting requirements have also not been met. The prosecution failed to
establish that at the time of the arrest, an offense had in fact just been
committed and the arresting officers had personal knowledge of facts
indicating that the accused-appellants had committed it. Appellant Cuizon
could not, by the mere act of handing over four pieces of luggage to the other
two appellants, be considered to have committed the offense of carrying and
transporting prohibited drugs. Under the circumstances of the case, there
was no sufficient probable cause for the arresting officers to believe that the
accused were then and there committing a crime. The act per se of handing
over the baggage, assuming the prosecutions version to be true, cannot in
any way be considered a criminal act. It was not even an act performed under
suspicious circumstances as indeed, it took place in broad daylight, practically
at high noon, and out in the open, in full view of the public. Furthermore, it
can hardly be considered unusual, in an airport setting, for travellers and/or
their welcomers to be passing, handing over and delivering pieces of
baggage, especially considering the somewhat obsessive penchant of our
fellow countrymen for sending along (pakikipadala) things and gifts through
friends and relatives. Moreover, one cannot determine from the external
appearance of the luggage that they contained shabu hidden beneath some
secret panel or false bottom. The only reason why such act of parting with
luggage took on the color and dimensions of a felonious deed, at least as far
as the lawmen were concerned, was the alleged tip that the NBI agents
24

purportedly received that morning, to the effect that appellant Cuizon would be
arriving that same day with a shipment of shabu. To quote from another
decision of like import, (A)ll they had was hearsay information (from the
telephone caller), and about a crime that had yet to be committed.
25

In the leading case of People vs. Burgos, this Court laid down clear
guidelines, as follows:
26

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).
The same decision is highly instructive as it goes on to state:
The Solicitor General is of the persuasion that the arrest may still be considered
lawful under Section 6(b) using the test of reasonableness. He submits that the
information given by Cesar Masamlok was sufficient to induce a reasonable ground
(for belief) that a crime has been committed and that the accused is probably guilty
thereof.
In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually
been committed is an essential precondition. It is not enough to suspect that a crime
may have been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of the
perpetrator.
In this case, the accused was arrested on the sole basis of Masamlok s verbal report.
Masamlok led the authorities to suspect that the accused had committed crime. They
were still fishing for evidence of a crime not yet ascertained. The subsequent recovery
of the subject firearm on the basis of information from the lips of a frightened wife
cannot make the arrest lawful. x x x
The foregoing doctrine was affirmed in the case of Alih vs. Castro, where
this Court ruled that x x x under the Revised Rule 113, Section 5(b), the
27

officer making the arrest must have personal knowledge of the ground
therefor as stressed in the recent case of People v. Burgos.
In the case at bench, not only did the NBI agents rely merely on hearsay
information (tips), but they were completely uncertain that anything was
really going down that day. That much is undisputed, from a reading of the
testimony of Agent Dio:
Q - Now, but you were informed by the personnel of the airport that the spouses
Cuizon were going to bring in or transport into the country shabu on February 21,
1992?
AQ-

A-

Yes, sir.
Now, you were not sure or your group was not sure that they indeed would bring
in shabu, is it not? That was only the information relayed to your group?
Yes, sir.

xxx
Q -

A-

xxx

xxx

But then you were jumping ahead. You were not sure is it not that they were
bringing in shabu?
Yes, sir. (TSN, May 19, 1992, pp. 37-38.)

In his testimony, NBI Investigator Jose Justo Yap, who was with Agent Dio
during the operation, likewise admitted in substantially the same tenor their
uncertainty regarding the commission of the offense (cf. TSN, May 20, 1992,
pp. 29 & 34).
We therefore hold that under the circumstances obtaining, the prosecution
failed to establish that there was sufficient and reasonable ground for the NBI
agents to believe that appellants had committed a crime at the point when the
search and arrest of Pua and Lee were made; hence, said search and arrest
do not come under the exception in par. (b) of Sec. 5 of Rule 113, and
therefore should be deemed illegal. We might add that the search conducted
on Pua and Lee was not incident to a lawful warrantless arrest, having
preceded the same and produced the justification therefor. On the other hand,
the search on Cuizon s residence, without the benefit of a search warrant,

was clearly illegal and the shabu seized thereat cannot but be considered
inadmissible in evidence. More on these points later.
Comparison Between The Present Case
and Earlier Decisions of This Court
For claritys sake, it is imperative to compare the foregoing holding with
previous decisions by this Court in various drug cases, in which apparently
different conclusions were reached, in order to distinguish them from the
instant case and avoid any potential misunderstanding of the foregoing
holding as well as the constitutional and legal principles on which it is based.
1. In People vs. Claudio, the accused, a passenger on a bus bound
for Baguio City, was arrested by a policeman on the same bus because of the
distinctive odor of marijuana emanating from the plastic bag she was carrying.
The Court held the warrantless arrest under the circumstances to be lawful,
the search justified and the evidence thus discovered admissible in evidence.
28

2. In People vs. Tangliben, the accused, carrying a travelling bag at a bus

terminal, was noticed by lawmen to be acting suspiciously, and was also
positively fingered by an informer as carrying marijuana, and so he was
accosted by policemen who happened to be on a surveillance mission; the
lawmen asked him to open the bag, in which was found a package of
marijuana leaves. It was held that there was a valid warrantless arrest and
search incident thereto. The Court in effect considered the evidence on hand
sufficient to have enabled the law enforcers to secure a search warrant had
there been time, but as the case presented urgency, and there was actually
no time to obtain a warrant since the accused was about to board a bus, and
inasmuch as an informer had given information on the spot that the accused
was carrying marijuana, the search of his person and effects was thus
considered valid.
29

3. In Posadas vs. Court of Appeals, the accused was seen acting

suspiciously, and when accosted by two members of the Davao INP who
identified themselves as lawmen, he suddenly fled, but was pursued, subdued
and placed in custody. The buri bag he was carrying yielded an unlicensed
revolver, live ammunition and a tear gas grenade. This Court upheld his
30

conviction for illegal possession of firearms, holding that there was under the
circumstances sufficient probable cause for a warrantless search.
4. In People vs. Moises Maspil, Jr., et al., agents of the Narcotics
Command set up a checkpoint on a highway in Atok, Benguet, to screen
vehicular traffic on the way to Baguio City due to confidential reports from
informers that Maspil and a certain Bagking would be transporting a large
quantity of marijuana. At about 2 a.m. of November 1, 1986, the two suspects,
riding a jeepney, pulled up to the checkpoint and were made to stop. The
officers noticed that the vehicle was loaded with some sacks and tin cans,
which, when opened, were seen to contain marijuana leaves. The Court
upheld the search thus conducted as being incidental to a valid warrantless
arrest.
31

5. In People vs. Lo Ho Wing, et al., the Court ruled that the search of the
appellants moving vehicles and the seizure of shabu therefrom was legal, in
view of the intelligence information, including notably, clandestine reports by a
planted deep penetration agent or spy who was even participating in the drug
smuggling activities of the syndicate, to the effect that appellants were
bringing in prohibited drugs into the country. The Court also held that it is not
practicable to secure a search warrant in cases of smuggling with the use of a
moving vehicle to transport contraband, because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought.
32

6. In People vs. Malmstedt, NARCOM agents stationed at Camp

Dangwa, Mountain Province, set up a temporary checkpoint to check vehicles
coming from the Cordillera Region, due to persistent reports that vehicles from
Sagada were transporting marijuana and other drugs, and because of
particular information to the effect that a Caucasian would be travelling from
Sagada that day with prohibited drugs. The bus in which accused was riding
was stopped at the checkpoint. While conducting an inspection, one of the
NARCOM men noticed that accused, the only foreigner on board, had a bulge
at the waist area. Thinking it might be a gun, the officer sought accuseds
passport or other identification papers. When the latter failed to comply, the
lawman directed him to bring out whatever it was that was bulging at his waist.
It was a pouch bag which, when opened by the accused, was found to contain
packages of hashish, a derivative of marijuana. Invited for questioning, the
33

accused disembarked from the bus and brought along with him two pieces of
luggage; found inside were two teddy bears stuffed with more hashish. The
Court held that there was sufficient probable cause in the premises for the
lawmen to believe that the accused was then and there committing a crime
and/or trying to hide something illegal from the authorities. Said probable
cause arose not only from the persistent reports of the transport of prohibited
drugs from Sagada, and the tip received by the NARCOM that same day
that a Caucasian coming from Sagada would be bringing prohibited drugs, but
also from the failure of the accused to present his passport or other
identification papers when confronted by the lawmen, which only triggered
suspicion on the part of the law enforcers that accused was trying to hide his
identity, it being the normal thing expected of an innocent man with nothing to
hide, that he readily present identification papers when asked to do so. The
warrantless arrest and search were thus justified.
In all the cases discussed hereinabove, there were facts which were found
by the Court to provide probable cause justifying warrantless arrests and
searches, i.e., distinct odor of marijuana, reports about drug transporting or
positive identification by informers, suspicious behaviour, attempt to flee,
failure to produce identification papers, and so on. Too, urgency attended the
arrests and searches because each of the above-mentioned cases involved
the use of motor vehicles and the great likelihood that the accused would get
away long before a warrant can be procured. And, lest it be overlooked, unlike
in the case before us now, the law enforcers in the aforementioned
cases acted immediately on the information received, suspicions raised, and
probable causes established, and effected the arrests and searches without
any delay.
Unexplained Matters in the Instant Case
In the case before us, the NBI agents testified that they purportedly
decided against arresting the accused-appellants inside the airport as they
allegedly wanted to discover the identities of the airport immigration, security
or customs personnel who might be protecting the accused or otherwise
involved in the drug smuggling activities, and also in order to avoid the
possibility of an armed encounter with such protectors, which might result in
injuries to innocent bystanders. These excuses are simply unacceptable. They

are obviously after-thoughts concocted to justify their rank failure to effect the
arrest within constitutional limits. Indeed, the NBI men failed to explain how
come they did not apprehend the appellants at the moment Cuizon handed
over the baggage to Pua and Lee, or even afterwards, in relative safety. Such
arrest would have been consistent with the settled constitutional, legal and
jurisprudential precedents earlier cited.
The spouses Cuizon had already passed through the airport security
checks allegedly with their contraband cargo undetected in their luggage.
Apparently, the NBI agents did not see (as indeed they did not testify that they
saw) anyone from the airport immigration, security or customs who could have
escorted the spouses Cuizon, and therefore, there was no danger of any live
ammo encounter with such group(s). The alleged drug couriers had already
made their way outside the NAIA, had allegedly made contact with the
accused Pua and Lee, and were in the very act of handing over the luggage to
the latter. Why the NBI men did not move in and pounce on them at that very
instant has not been satisfactorily explained. Instead, one of the agents, Dio,
merely watched as Pua and Lee loaded the luggage into a cab and took off
for Makati. Furthermore, it taxes the imagination too much to think that at the
most critical and climactic moment, when agent Dio radioed his companions
for help to close in on the suspects, the most amazing and stupendous thing
actually happened: Murphys Law kicked in - whatever could go wrong, did,
and at the worst possible time - the batteries in Agent Dios hand-held radio
supposedly went dead and his message was not transmitted. Thus the
departing Pua and Lee proceeded merrily and unimpeded to the Peninsula
Hotel, while the spouses Cuizon simultaneously sped off to their residence
in Caloocan City, leaving the lawmen empty-handed and scampering madly to
catch up. Such absolutely astounding and incredible happenstance might find
a place in a fourth-rate movie script, but expecting the courts to swallow ithook, line and sinker - is infinite naivete, if not downright malevolence.
Even granting arguendo that the radio really went dead, nevertheless, the
agents were not thereby rendered helpless or without recourse. The NBI
agents, numbering five in all, not counting their so-called informant, claimed to
have piled into three cars (TSN, May 19, 1992) and tailed the suspects Pua
and Lee into Makati, keeping a safe two-car distance behind (TSN, May 20,

1992). The lawmen and the prosecutors failed to explain why the agents did
not intercept the vehicle in which Pua and Lee were riding, along the way, pull
them over, arrest them and search the luggage. And since the agents were in
three (3) cars, they also could have easily arranged to have agents in one
vehicle follow, intercept and apprehend the Cuizons while the others went
after Pua and Lee. All or any of these possible moves are mere ordinary,
common-sense steps, not requiring a great deal of intelligence. The NBI men
who testified claimed to have conducted or participated in previous drug busts
or similar operations and therefore must have been familiar with contingency
planning, or at least should have known what to do in this situation where their
alleged original plan fell through. At any rate, what the lawmen opted to do,
i.e., allow Pua and Lee to freely leave the airport, allegedly bringing the drug
cache to the hotel, and Cuizon to leave unimpededly the airport and reach his
residence with one of the luggage, increased significantly the risk of the
suspects (and/or the drugs) slipping through the lawmens fingers, and puts
into question the regularity of performance of their official functions. The
agents alleged actions in this case compare poorly with the forthright and
decisive steps taken by lawmen in the cases earlier cited where this Court
held the arrests and seizures to be valid.
Had the arrests and searches been made in transitu, i.e., had the agents
intercepted and collared the suspects on the way to Makati and Caloocan, or
better yet, at the very moment of the hand-over, then there would not have
been any question at all as to the legality of their arrest and search, as they
would presumably have been caught red-handed with the evidence, and
consequently for that reason and by the very nature and manner of
commission of the offense charged, there would have been no doubt also as
to the existence of conspiracy among the appellant to transport the drugs.
However, because of the way the operation actually turned out, there is no
sufficient proof of conspiracy between Pua and Lee on the one hand, and
Cuizon on the other, inasmuch as there is no clear and convincing evidence
that the four (4) bags handed by Cuizon to Pua and Lee at the airport were
the very same ones found in the possession of the latter in Room 340 of the
Peninsula Hotel. Not one of the NBI agents when testifying could definitely
and positively state that the bags seized from Room 340 were the very same
ones passed by Cuizon at the airport; at best, they could only say that they

looked like the ones they saw at the airport. And even assuming them to be
the same bags, there remains doubt and uncertainty as to the actual
ownership of the said bags as at the alleged turnover vis-a-vis the time they
were seized by the agents. For these reasons, we cannot sustain the finding
of conspiracy as between Cuizon on the one hand and Pua and Lee on the
other. Well-settled is the rule that conspiracy must be proved independently
and beyond reasonable doubt.
34

Additionally, in light of the foregoing discussion, we find it extremely

difficult to subscribe to the trial courts finding as to the existence and
sufficiency of probable cause in this case, one major component of which
would have been the alleged information or tip purportedly received by the
agents as to the expected arrival of the spouses Cuizon that fateful day with a
large cache of shabu. The question that defies resolution in our minds is why,
if indeed the information or tip was genuine and from a highly reliable source
as claimed by the government agents, did they not act on it? Throw in the
alleged month-long surveillance supposedly conducted by some of the NBI
people on the Cuizon couple, and the mystery only deepens. Even with the
so-called tip and the results of surveillance, the government officers were still
seemingly hesitant, reluctant, uncertain, or perhaps afraid, to arrest and
search the accused appellants, so much so that the NBI agents who went
after Pua and Lee at the Peninsula Hotel, instead of outrightly cuffing and
searching them, as they were supposed to, opted instead to play it safe and
meekly beseeched the two to sign a written consent for the agents to search
their personal effects! Indeed, this is one for the books. If this is how confident
the agents were about their hot tips, reliable informers and undercover
surveillance, then we cannot be blamed for failing to appreciate the
existence/sufficiency of probable cause to justify a warrantless arrest and
search in this case. There is a whole lot more that can be said on this score,
but we shall leave it at that for now. We shall now dispose of the appeals of
the accused-appellants individually.
Re:

Appellant Antolin Cuizon

The search of the house of appellant Cuizon, having been conducted

without any warrant, and not on the occasion or as an incident of a valid
warrantless arrest, was indubitably illegal, and the shabu seized thereat could

not be admissible in evidence. That is why even the trial judge did not make
an effort to hold him liable under such seizure. He lamely argued: (A)t any
rate, accused Cuizon is not held criminally liable in this case in connection
with the bag containing shabu confiscated from his residence. His
responsibility is based on the bags containing shabu which he handed to Pua
and Lee at the NAIA. Consequently, even if the bag and its contents of shabu
taken from his house were not admitted in evidence, the remaining proofs of
the prosecution would still be sufficient to establish the charge against him.
However, contrary to the trial judges conclusion, we hold that insofar as
Cuizon is concerned, all the evidence seized are considered fruit of the
poisonous tree and are inadmissible as against him, and thus, he should be
acquitted, since, as shown hereinabove, (i) the warrantless search conducted
on Pua and Lee was clearly illegal per se, not being incident to a valid
warrantless arrest either; (ii) and even if the search on Pua and Lee were not
illegal, conspiracy as between Cuizon on the one hand and appellants Pua
and Lee on the other had not been established by sufficient proof beyond
reasonable doubt; and (iii) appellant Cuizon had timely raised before this
Court the issue of the illegality of his own arrest and the search and seizure
conducted at his residence, and questioned the admission of the seized
shabu in evidence.
Re:

Appellant Steve Pua @ Tommy Sy

What has been said for Cuizon cannot, alas, be said for appellant Pua.
While the search and arrest carried out on him and Lee may have been illegal
for not being incident to a lawful warrantless arrest, the unfortunate fact is that
appellant Pua failed to challenge the validity of his arrest and search as well
as the admission of the evidence obtained thereby; he did not raise the issue
or assign the same as an error before this Court. Accordingly, any possible
challenge thereto based on constitutional grounds is deemed waived. This
Court has upheld and recognized waivers of constitutional rights, including,
particularly, the right against unreasonable searches and seizures, in cases
such as People vs. Malasugui and De Garcia vs. Locsin.
35

36

Additionally, the prosecution had argued and the trial court agreed that by
virtue of the handwritten consent (Exhibit I) secured by the arresting officers
from appellants Pua and Lee, the latter freely gave their consent to the search

of their baggage, and thus, the drugs discovered as a result of the consented
search is admissible in evidence. The said written permission is in English,
and states plainly that they (Pua and Lee) freely consent to the search of their
luggage to be conducted by NBI agents to determine if Pua and Lee are
carrying shabu. It appears that appellant Pua understands both English and
Tagalog; he is born of a Filipino mother, had resided in Vito Cruz, Manila, and
gave his occupation as that of salesman. He admitted that he was asked to
sign the written consent, and that he did in fact sign it (TSN, May 28, 1992,
pp. 33-34). His barefaced claim made during his direct and crossexaminations to the effect that he did not really read the consent but signed it
right away, and that by signing it he only meant to give permission for the NBI
agents to enter the room (and not to search) is hardly worthy of belief,
considering that prior to the search, he seemed to have been extra careful
about who to let into the hotel room.
Thus, the full weight of the prosecutions testimonial evidence plus the
large amount of prohibited drugs found, must be given full force vis-avis Puas claim of innocent presence in the hotel room, which is weak and not
worthy of credence.
Re:

Appellant Paul Lee @ Paul Leung

Appellant Lees situation is different from that of Pua. We agree with the
Solicitor General when he noted that the trial judge did not exert sufficient
effort to make available compulsory process and to see to it that accused
appellant Lee was given his day in court. It is clear that appellant Lee was
effectively denied his right to counsel, for although he was provided with one,
he could not understand and communicate with him concerning his defense
such that, among other things, no memorandum was filed on his behalf;
further, he was denied his right to have compulsory process to guarantee the
availability of witnesses and the production of evidence on his behalf,
including the services of a qualified and competent interpreter to enable him to
present his testimony. In sum, he was denied due process. For this reason,
we hold that the case as against Lee must be remanded to the court of origin
for a re-trial.
37

Epilogue

It is evident and clear to us that the NBI agents gravely mishandled the
drug bust operation and in the process violated the constitutional guarantees
against unlawful arrests and illegal searches and seizures. Because of the
large haul of illegal drugs that the government officers claimed to have
recovered, this Court agonized over the case before us and struggled to apply
the law with an even hand. In the final analysis, we in the administration of
justice would have no right to expect ordinary people to be law-abiding if we
do not insist on the full protection of their rights. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal search and seizure as long
as the law enforcers show the alleged evidence of the crime regardless of the
methods by which they were obtained. This kind of attitude condones lawbreaking in the name of law enforcement. Ironically, it only fosters the more
rapid breakdown of our system of justice, and the eventual denigration of
society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society,
we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies
the means.
WHEREFORE, in view of the foregoing considerations, accused-appellant
Antolin Cuizon y Ortega is hereby ACQUITTED on constitutional grounds. His
immediate release is ordered unless he is detained for other valid causes.
Accused-appellant Steve Pua y Clofas is hereby found GUILTY of the crime of
Illegal Transport of Regulated Drugs, penalized under Section 15, R.A.
No. 6425, as amended, and is hereby sentenced to suffer the penalty
of reclusion perpetua; the Decision appealed from, as herein modified, is
hereby affirmed as to appellant Pua. Finally, the case as to appellant Lee is
hereby ordered REMANDED to the trial court in order that said accused may
be given his day in court. The Decision appealed from is also AFFIRMED with
respect to the disposition of the prohibited drugs involved in the case.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accusedappellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN
ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED
HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some
three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the
hospital and when they inspected the scene of the crime, they found the instruments of death: a
piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The
eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had
personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others
had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest
until they could obtain a warrant, he would have fled the law as his two companions did.
2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN
INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was
likewise lawful because it was made as an incident to a valid arrest. This is in accordance with
Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to
lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search warrant." The frisk
and search of appellant's person upon his arrest was a permissible precautionary measure of
arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found his person, or within his immediate control may be seized."
3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR.
There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one

person only. what Dr. Bernales stated was a mere possibility that only one person dropped the
concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does
not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to
commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the
eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions
conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a
hollow block and caused his death. "When there is no evidence indicating that the principal witness
for the prosecution was moved by improper motive, the presumption is that he was not so moved
and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence,
the trial court did not err in giving full credit to Edna Reyes' testimony.
4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General
correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the
death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs.
Sison, 189 SCRA 643.
DECISION
GRIO-AQUINO, J p:
This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch
172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous
Drugs Act of 1972) and sentenced him to suffer the penalty of imprisonment for a term of twelve (12)
years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of
Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive
portion of the appealed decision reads:
"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal
Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and
hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as
minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond
reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor
mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to
indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as
funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The
accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25,
Rollo.)
Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which
was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro
Manila. The Information reads:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without
justification, did then and there wilfully, unlawfully and feloniously have in his possession and control
dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are
considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged
with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the
same Assistant Provincial Prosecutor, as follows:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together
with two (2) others who are still at large and against whom the preliminary investigation has not yet
been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating
together and mutually helping one another, armed with a piece of wood and hallow (sic) block and
with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with
evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting
serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.)
Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente,
together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana
in the house of the appellant which is about six (6) meters away from the house of the prosecution
witness who was in her house on that day. She overheard the three men talking about their intention
to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin
'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August
24, 1990.)
Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m.
of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the
killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy
Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to
a place behind the house of Gerente.
At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police Detachment about a mauling incident. He went to the
Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials
that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard
and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and
Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There
they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They
were informed by the prosecution witness, Edna Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three men who killed Clarito.
The policemen proceeded to the house of the appellant who was then sleeping. They told him to
come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked
appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette
foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic
Chemist found them to be marijuana.
Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and
Totoy Echigoren, are still at large.
On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin
Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the
two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of
Violation of Section 8 of R.A. 6425 and of Murder.
In this appeal of the appellant, the following errors are ascribed to the trial court:
1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the
prosecution; and
2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite
the absence of evidence required to prove his guilt beyond reasonable doubt.
The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in
violation of his constitutional right not to be subjected to illegal search and seizure, for the dried
marijuana leaves were seized from him in the course of a warrantless arrest by the police officers.
We do not agree.
The search of appellant's person and the seizure of the marijuana leaves in his possession were
valid because they were incident to a lawful warrantless arrest.
Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:
'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without
a warrant, arrest a person:
"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;"
"(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; . . .'
The policemen arrested Gerente only some three (3) hours after Gerente and his companions had
killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime,
they found the instruments of death: a piece of wood and a concrete hollow block which the killers
had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening
to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those
circumstances, since the policemen had personal knowledge of the violent death of Blace and of
facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without
a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the
law as his two companions did.
In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1)
day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon
the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:
"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of
his crime without a warrant, would be to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many
instances."

The search conducted on Gerente's person was likewise lawful because it was made as an incident
to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which
provides:
"SECTION 12. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant."
The frisk and search of appellant's person upon his arrest was a permissible precautionary measure
of arresting officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual
being arrested may be frisked for concealed weapons that may be used against the arresting officer
and all unlawful articles found in his person, or within his immediate control may be seized."
There is no merit in appellant's allegation that the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr.
Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one
person only.
What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow
block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the
other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime,
the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony
of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace,
that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused
his death. "When there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his testimony is
entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not
err in giving full credit to Edna Reyes' testimony.
Appellant's failure to escape (because he was very drunk) is no indicium of his innocence.
The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as
civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with
our ruling in People vs. Sison, 189 SCRA 643.
WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity
awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00.
SO ORDERED.
Cruz, Bellosillo and Quiason, JJ ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas
Employment Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.

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

S. Pagkagaling ko sa Japan ipinatawag niya ako.

Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said
complaint was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE
MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR.
POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to operate
a recruitment agency, public respondent Administrator Tomas D. Achacoso issued his
challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and
Executive Order No. 1022, I hereby order the CLOSURE of your recruitment agency
being operated at No. 615 R.O. Santos St., Mandaluyong, Metro Manila and the
seizure of the documents and paraphernalia being used or intended to be used as
the means of committing illegal recruitment, it having verified that you have
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the
New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under
existing laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B.
Espiritu issued an office order designating respondents Atty. Marquez, Atty. Jovencio
Abara and Atty. Ernesto Vistro as members of a team tasked to implement Closure
and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong

policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of
News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating
Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into
the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show
credentials, she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers practicing a dance number and saw about twenty
more waiting outside, The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January
26, 1988 be immediately returned on the ground that said seizure was contrary to
law and against the will of the owner thereof. Among our reasons are the following:
1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3, 1987
violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees right of the people "to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5)
others (including 2 policemen) are the private residence of the
Salazar family, and the entry, search as well as the seizure of the
personal properties belonging to our client were without her consent
and were done with unreasonable force and intimidation, together
with grave abuse of the color of authority, and constitute robbery and
violation of domicile under Arts. 293 and 128 of the Revised Penal
Code.
Unless said personal properties worth around TEN THOUSAND
PESOS (P10,000.00) in all (and which were already due for shipment
to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to
protect our client's interests.

We trust that you will give due attention to these important matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the
instant petition; on even date, POEA filed a criminal complaint against her with the
Pasig Provincial Fiscal, docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be
barred are alreadyfait accompli, thereby making prohibition too late, we consider the petition as one
for certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment
Administration (or the Secretary of Labor) validly issue warrants of search and seizure (or arrest)
under Article 38 of the Labor Code? It is also an issue squarely raised by the petitioner for the
Court's resolution.
Under the new Constitution, which states:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that
mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the
state of the law as it was in September, 1985. The law has since been altered. No
longer does the mayor have at this time the power to conduct preliminary
investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated,
renderedfunctus officio by the 1987 Constitution which took effect on February 2,
1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the person or
things to be seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on the basis
thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the
phrase, "such other responsible officer as may be authorized by law" found in the
counterpart provision of said 1973 Constitution, who, aside from judges, might
conduct preliminary investigations and issue warrants of arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was
meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be
a neutral and detached "judge" to determine the existence of probable cause for
purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested
in the success of his case. Although his office "is to see that justice is done and not
necessarily to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search warrants and
indeed, warrants of arrest, is to make him both judge and jury in his own right, when
he is neither. That makes, to our mind and to that extent, Presidential Decree No.
1936 as amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential
Decree No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973
Constitution. Under the latter, the then Minister of Labor merely exercised recommendatory powers:
(c) The Minister of Labor or his duly authorized representative shall have the power
to recommend the arrest and detention of any person engaged in illegal
recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of
giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor
arrest and closure powers:
(b) The Minister of Labor and Employment shall have the power to cause the arrest
and detention of such non-licensee or non-holder of authority if after proper
investigation it is determined that his activities constitute a danger to national security
and public order or will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be engaged in
the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives
shall have the power to cause the arrest and detention of such non-licensee or nonholder of authority if after investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further exploitation of jobseekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and entities found
to be engaged in the recruitment of workers for overseas employment, without
having been licensed or authorized to do so. 8

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

(2) Committed/are committing acts prohibited under Article 34 of the

New Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing laws.

13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants
describe the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo equipment,
typewriters, cabinets, tables, communications/ recording equipment,
tape recorders, dictaphone and the like used and/or connected in the
printing of the "WE FORUM" newspaper and any and all
documents/communications, letters and facsimile of prints related to
the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any

evidence in connection with the violation of SDC 13-3703 or otherwise" have been
held too general, and that portion of a search warrant which authorized the seizure of
any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes (the statute dealing with the crime of conspiracy)" was held to be a
general warrant, and therefore invalid. The description of the articles sought to be
seized under the search warrants in question cannot be characterized differently.
In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in
English history; the era of disaccord between the Tudor Government and the English
Press, when "Officers of the Crown were given roving commissions to search where
they pleased in order to suppress and destroy the literature of dissent both Catholic
and Puritan." Reference herein to such historical episode would not be relevant for it
is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to
state security.14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other,
who may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom
the President or the Commissioner of Immigration may order arrested, following a
final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205.
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla,
Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.