CONSTITUTIONALITY OF THE SEARCH INCIDENTAL TO LAWFUL ARREST MADE BY

THE POLICE OFFICERS IN THE CASE OF PEOPLE VS. MILADO (G.R. No. 147677)

SUBMITTED BY:
MARK JOSEPH T. BORJA

A. Introduction
1

Zones of privacy are recognized and protected by our laws. Within these zones,
any form of intrusion is impermissible unless spared by law and in accordance with
customary legal process. The meticulous regard this Court accord to these zones
arises not only from the conviction that the right to privacy is a constitutional right
2
and the right most valued by civilized men, but also from our adherence to the
Universal Declaration of Human Rights which mandates that no one shall be
subjected to arbitrary interference with his privacy and everyone has the right to the
3
protection of the law against such interference or attacks. To sanction disrespect and
disregard for the Constitution in the name of protecting the society from lawbreakers is
to make the government itself lawless and to subvert those values upon which our
4
ultimate freedom and liberty depend.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which provides: The right of the people to be
secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be
5
searched and the persons or things to be seized. In Sales v. Sandiganbayan, et al.
6
quoting Allado v. Diokno
, the Court ruled that the Bill of Rights guarantees the
preservation of our natural rights, viz: The purpose of the Bill of Rights is to protect the
people against arbitrary and discriminatory use of political power. This bundle of rights
guarantees the preservation of our natural rights which include personal liberty and
security against invasion by the government or any of its branches or instrumentalities.
The sacred right against an arrest, search or seizure without valid warrant is not
only ancient. It is also zealously safeguarded. The Constitution guarantees the right of
the people to be secure in their persons, houses, papers and effects against
7
unreasonable searches and seizures. Any evidence obtained in violation of said right
shall be inadmissible for any purpose in any proceeding. Indeed, while the power to
search and seize may at times be necessary to the public welfare, still it must be
exercised and the law implemented without contravening the constitutional rights of
1

Marquez vs Desierto, 359 SCRA 782, 772 June 27, 2001

Morfe vs Mutuc, , 22 SCRA 444, 424 January 31, 1968,
3
Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant
on Civil and Political Rights
4
Dissenting opinion of Justice Brennan in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 1105 [1976]
5
369 SCRA 293, November 15, 2001
6
232 SCRA 192 (1994)
7
1987 CONST., Art. III, Sec. 2
2

the citizens, for the enforcement of no statute is of sufficient importance to justify

8
indifference to the basic principles of government. Among deprivation of rights, none
is so effective cowing a population, crushing the spirit of the individual and putting
terror in every heart. Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government. And one need only
briefly to have dwelt and worked among a people possessed of many admirable
qualities but deprived of these rights to know that the human personality deteriorates
and dignity and self-reliance disappear where homes, persons and possessions are
9
subject at any hour to unheralded search and seizure by the police.

B. EXISTING LAWS
1. Article III, Section 2 of the Philippine Constitution
provides:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
2. Article III, Section 3(2) of the Philippine Constitution
states:
Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
3. Rule 113, Section 5 of the Rules of Court
provides:
Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
8
9

People v. Aruta, 288 SCRA 653, 626 April 3, 1998

Dissenting Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 (1949)

temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
4. Rule 126, Section 13 of the Rules of Court
provides:
Search incident to lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may have been used or constitute
proof in the commission of an offense without a search warrant.

C. RELATED JURISPRUDENCES
1. Ong vs. People of the Philippines (G. R. No. 197788)
laid down the
circumstances where a warrantless search may be allowed, to wit:
(i)

a warrantless search incidental to a lawful arrest

;

(ii)

search of evidence in plain view;

(iii)

search of a moving vehicle;

(iv)

consented warrantless search;

(v)

customs search;

(vi)

a stop and frisk search; and

(vii)

exigent and emergency circumstances.

2. Tibagong vs. People of the Philippines (G. R. No. 182178)

held that in searches
incident to a lawful arrest, the arrest must precede the search; generally, the
process cannot be reversed. Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. Although
probable cause eludes exact and concrete definition, it ordinarily signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong
in themselves to warrant a cautious man to believe that the person accused is
guilty of the offense with which he is charged.
3. Romines vs. People of the Philippines (G. R. No. 182010)
stated that reliable
information alone, absent any overt act indicative of a felonious enterprise in the
presence and within the view of the arresting officers, is not sufficient to
constitute probable cause that would justify an
in flagrante delicto arrest
.
D. ISSUE
Whether the warrantless search incidental to lawful arrest made by the arresting
officers was valid.

E. DISCUSSION
The general rule is that a search may be conducted by law enforcers only on the
strength of a search warrant validly issued by a judge as provided in Article III, Section
2 of the 1987 Constitution, thus:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant and warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.
The constitutional guarantee is not a blanket prohibition against all searches and
seizures as it operates only against unreasonable searches and seizures. Searches
and seizures are as a rule unreasonable unless authorized by a validly issued search
warrant or warrant of arrest. Thus, the fundamental protection accorded by the search
and seizure clause is that between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants
10
and warrants of arrest.
Before I proceed with the discussion, let me first state the facts of the case.
A perusal of the evidence
adduced by the prosecution, reveals that in the morning
of March 10, 1999, Police Officers Dominic Faclangen and Glen Apangchan were on
duty at the Bontoc Police Station when they received information from their asset that
a man, coming from Talubin, was transporting marijuana onboard a passenger
jeepney. The asset described the man as sporting a pony tail, wearing a white jacket
and carrying a bag.
Acting on the information given, Faclangen and Apangchan proceeded to the edge
of Samoki Bridge at the Chico River, which separates Samoki and Bontoc, to set up a
checkpoint. Accompanying them was another police officer, Angel Komowang, whom
they picked up along the way. The policemen flagged down about four or five vehicles
before coming across a jeepney that had on board appellant, who fitted the description
given by the asset including the fact that he was carrying a black bag. Certain that
appellant was the man earlier described by their asset as the person transporting
marijuana, the policemen boarded the jeepney and invited appellant and the driver to
the police station.
Upon arriving at the police station, but while still inside the vehicle, the policemen
told appellant to open the black bag. Appellant opened his bag and the policemen
found what looked like 6 bricks individually wrapped in newspapers. After a laboratory
analysis, the bricks were confirmed to be marijuana.
10

People v. Aruta, 288 SCRA 636, 626 April 3, 1998

The Supreme Court held that Rogelio Milado was found guilty for violating Section
4, Article III of Republic Act 6425, as amended by Republic Act 7659, otherwise known
as the Dangerous Drugs Act of 1972.
Obviously, it was very clear that Rogelio Milado was not doing anything unlawful
that would provoke the police officers to arrest him and conduct a search on his bag.
Jurisprudence holds that in searches incident to a lawful arrest, the arrest must
precede the search; generally, the process cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. Thus, given the factual
milieu of the case, the question now is whether the police officers had probable cause
when they arrested the appellant. Although probable cause eludes exact and concrete
definition, it ordinarily signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man to believe
11
that the person accused is guilty of the offense with which he is charged.
The answer is in the negative. Probable cause was not present when the police
officers arrested Milado. In fact, Milado was not committing any crime in the eyes of
12
the police. In the case of People vs. Encinada
, where the appellant was searched
without a warrant while also disembarking from a ship, on the strength of a tip from an
informant received by the police the previous afternoon that the appellant would be
transporting prohibited drugs, the search yielded a plastic package containing
marijuana. Encinada's arrest and search were validated by the trial court under the
in
flagrante delicto
rule. In reversing the trial court, this Court stressed that when he
disembarked from the ship or while he rode the motorela, Encinada did not manifest
any suspicious behavior that would reasonably invite the attention of the police. Under
such bare circumstances, no act or fact demonstrating a felonious enterprise could be
ascribed to the accused. In short, he was not committing a crime in the presence of
the police; neither did the latter have personal knowledge of facts indicating that he
just committed an offense.
13

Another parallel case is Malacat vs. Court of Appeals. In this case, a police
surveillance team, dispatched on reports of a possible bombing in Quiapo, arrested
Appellant Malacat after he attempted to flee. He was priorly observed standing with a
group of men at the corner of Plaza Miranda and Quezon Boulevard with eyes moving
very fast and looking at every approaching person. He was searched, and allegedly
recovered from his body was a bomb. The trial court justified his arrest and search on
the finding that he was "attempting to commit a crime". But the Supreme Court
reversed and ruled that there could have been no valid in
flagrante delicto
or hot
pursuit arrest preceding the search in light of the lack of personal knowledge on the
part of the arresting officer or an overt physical act on the part of Malacat indicating
that a crime had just been committed, was being committed, or was going to be

eople v. Rancho
P
, 626 SCRA 633, 641, August 3, 2010
280SCRA72,October2,1997

13
283SCRA159,December12,1997.

11
12

committed. The warrantless arrest being invalid, the search conducted upon the
petitioner could not have been a valid incident to a lawful arrest.
Personal Knowledge Required in In Flagrante Delicto Arrests
Jurisprudence is settled that under in
flagrante delicto
rule, "the officer arresting a
person who has just committed, is committing, or is about to commit an offense must
have personal knowledge of that fact. The offense must also be committed in his
14
presence or within his view." The circumstances of the case at bar is patently wanting
in fulfillment of the above standard. To reiterate, the arresting officers had no personal
knowledge that Milado either had just committed or was committing or attempting to
commit an offense.
F. CONCLUSION
The cases I cited are surely enough to support my position that the arrest made
by the police officers in this case were illegal. Obviously, this is an instance of seizure
of the fruit of the poisonous tree, hence, the confiscated item is inadmissible in
evidence consonant with Article III, Section 3(2) of the 1987 Constitution.
In sum, the arrest of Rogelio Milado was not lawful, because it was effected
without a warrant. It was not also made in accordance with Sec. 5(a) of Rule 113 of the
Rules of Court because there was no evidence that Milado had just committed an
offense, or was committing or attempting one in the presence or within the view of the
arresting officers at the time he was apprehended. Moreover, Appellant was not acting
in any suspicious manner that would show a reasonable ground for the police officers
to suspect and conclude that he was committing or intending to commit a crime. Were
it not for the information given by the informant, appellant would not have been
apprehended and no search would have been made, and consequently, the sachet
of
shabu
would not have been confiscated. Therefore, the decision of the Supreme
Court in this case should be reversed and appellant Rogelio Milado should be
acquitted.

14

People

vs.
Burgos,144SCRA1,14,September4,1986