G. Emergency, Checkpoints & Inspection of Buildings

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lawphil
Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G. R. Nos. 102009-10 July 6, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Nicolas R. Ruiz, II for accused-appellant.
REGALADO, J.:
The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by ultra-
rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP)
against the Government. At that time, various government establishments and military camps in Metro Manila were
being bombarded by the rightist group with their "tora-tora" planes. At around midnight of November 30, 1989, the
4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the
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Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government television
station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills
Shopping Center in San Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases
Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon
City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names
and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition
and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No.
1866, allegedly committed as follows:
That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, and without authority of law, did then and
there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the
following to wit:
Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs
without first securing the necessary license and/or permit to possess the same from the proper authorities, and
armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed
upon by them and prompted by common designs, come to an agreement and decision to commit the crime of
rebellion, by then and there participating therein and publicly taking arms against the duly constituted
authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and
jeopardizing its activities and removing from its allegiance the territory of the Philippines or parts thereof. 2
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City upon
the person of Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a
rebellion during the period from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division,
National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the
Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of
Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The
surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted
pursuant to an intelligence report received by the division that said establishment was being occupied by elements
of the RAM-SFP as a communication command post.
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar
building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance
on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp
Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked towards the car of
the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group and
immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six
meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they
sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio Babao
as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion
under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of
M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of
the rooms belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar
Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano,
holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present inside the
room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested
appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were
then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding
team. No search warrant was secured by the raiding team because, according to them, at that time there was so
much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there
was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were
consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr.
Gutierrez and that appellant is supposedly a "boy" therein.
Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he
was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on
December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on
December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him,
he was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies,
however, that he was inside the room of Col. Matillano when the raiding team barged in and that he had explosives
in his possession. He testified that when the military raided the office, he was ordered to get out of his house and
made to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers
that he does not know anything about the explosives and insists that when they were asked to stand up, the
explosives were already there.
Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated
National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987
coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told
him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the
Eurocar office, appellant worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni
Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted
homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in
furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and
pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando de
Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior.
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he
did not have either physical or constructive possession thereof considering that he had no intent to possess the
same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he
was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col.
Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is
necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar.
Presidential Decree No. 1866 provides as follows:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition

or Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The
penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of
firearms, ammunition or machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be
imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety
due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which
criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of
the country. The series of coup d' etats unleashed in the country during the first few years of the transitional
government under then President Corazon P. Aquino attest to the ever-growing importance of laws such as
Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or acts which
tend to disturb public peace and order.
I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally
possess firearms and ammunition.
The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the
law requires is merely possession which includes not only actual physical possession but also constructive
possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest
intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist
whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this
law the proprietary concept of the possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance
since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case
good faith and absence of criminal intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient
that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and
intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime;
but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to
commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the
prohibited act is done freely and consciously. 10
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still
be shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to
possess is, however, without regard to any other criminal or felonious intent which the accused may have
harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an
offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be

considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential
Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of
having intentionally possessed several firearms, explosives and ammunition without the requisite license or
authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter
the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room
and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any
knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and
in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part to
possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension of impersonal
or indifferent material possession does not and cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration
the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of
thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier,
having served with the Philippine Constabulary prior to his separation from the service for going on absence
without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable
about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military
from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous
uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession
such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is
not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, an
arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of
this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly
or indirectly, with the trade of firearms and ammunition.
On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.
II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While
the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the
parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the gravity
of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant
at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as
headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the
surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives
raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby
compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is
definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily
and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and
explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder
at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp
Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed
and, for that matter, the building and houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed.
There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the
situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the
courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was
closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.
The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs.
Malmstedt 20 and bears reiteration:
While it is true that the NARCOM officers were not armed with a search warrant when the search was
made over the personal effects of accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was then and there committing a
crime.
Probable cause has been defined as such facts and circumstances which would lead a reasonable,
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 required probable cause
that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved
according to the facts of each case.
Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused, or where the accused was acting suspiciously, and attempted to flee.
Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a
surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made. It
was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his identification papers when required to do
so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in
his possession, plus the suspicious failure of the accused to produce his passport, taken together as
a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other words,
the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one
of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the
two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to
hide his identity by refusing to present his passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the
NARCOM agents of the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
In addition, we find the principle enunciated in Umil, et al., vs. Ramos,
et al., 21 applicable, by analogy, to the present case:
The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting
them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence of probable
cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is
bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing
persons committing overt acts of violence against government forces, or any other milder acts but
really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the
exigencies of the situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find justification in the
exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most
assuredly so in case of invasion, merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified.
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until
December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the
firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of
rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or
executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The
court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose
active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the
act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the
lower court.
The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that
appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under
Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and
135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other
offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion.
Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of
firearms committed in the course or as part of a rebellion. 22
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is
penalized under two different statutes with different penalties, even if considered highly advantageous to the
prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in
each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is
an offense punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with
variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for
executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good
behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon
should be insulated against any tenuous importunity.
Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia
were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of
the court a quo:
2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and
100 bottles of molotov bombs indicate that the reports received by the military that the Eurocar Sales
Building was being used by the rebels was not without basis. Those items are clearly not for one's
personal defense. They are for offensive operations. De Gracia admitted that per instruction of Col.
Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there.
His manifestation of innocence of those items and what he has been guarding in that office is not credible for:
(a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 many
soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the company of his
boss, was still very much at home and constantly in touch with soldiers and the armed rebellion of November
30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he is the only person tasked
with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col.
Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car of
the AFP intelligence agents. 25
Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition
is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the
governance of that law, the imposition of the death penalty was proscribed by the Constitution. Consequently,
appellant De Gracia could only be sentenced to serve the penalty of reclusion perpetua which was correctly meted
out by the trial court, albeit with an erroneous recommendation in connection therewith.
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for
executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.
#Footnotes
1 TSN, August 28, 1990, 40-42.
2 Original Record, 1.
3 Ibid., 52.
4 Ibid., 97.
5 Penned by Judge Jaime N. Salazar; Original Record, 146.
6 People vs. Cruz, G. R. No. 76728, August 30, 1988, 165 SCRA 135; People vs. Fajardo, et al., 123
Phil. 1348 (1966).
7 People vs. Estoista, 93 Phil. 647 (1953).

8 Veroy, et al. vs. Layague, etc., et al., G. R. No. 95630, June 18, 1992, 210 SCRA 97.
9 People vs. Neri, G. R. No. L-37762, December 19, 1985, 140 SCRA 406.
10 Reyes, The Revised Penal Code, Book One, 1981, 12th ed., 53.
11 People vs. Soyang, et al., 110 Phil. 565 (1960); People vs. Lubo, et al., 101 Phil. 179 (1957); U.S.
vs. Samson, 16 Phil. 323 (1910).
12 People vs. Estoista, supra, Fn. 7.
13 TSN, November 22, 1990, 12.
14 Ibid., December 6, 1990, 36.
15 Ibid., November 22, 1990, 33.
16 Ibid., October 2, 1990, 21-22.
17 Ibid., id., November 22, 1990, 8.
18 Ibid., id., October 2, 1990, 16-17.
19 Ibid., November 29, 1990, 58.
20 G. R. No. 91107, June 19, 1991, 198 SCRA 401.
21 G. R. No. 81567, July 9, 1990, 187 SCRA 311.
22 Baylosis, et al. vs. Chavez, Jr., et al., G. R. No. 95136, October 3, 1991, 202 SCRA 405.
23 Misolas vs. Pangas, etc. et al., G. R. No. 83341, January 30, 1990, 181 SCRA 648.
24 Cf. People vs. Tiozon, G. R. No. 89823, June 19, 1991, 198 SCRA 368.
25 Original Record, 149-150.
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SUPREME COURT
Manila
EN BANC
G.R. No. 83988 May 24, 1990
RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S RIGHTS (ULAP),
petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.
Ricardo C. Valmonte for and in his own behalf and co-petitioners.
PADILLA, J.:
In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the declaration of the
checkpoints as unconstitutional and their dismantling and/or banning, was dismissed.
Petitioners have filed the instant motion and supplemental motion for reconsideration of said decision. Before
submission of the incident for resolution, the Solicitor General, for the respondents, filed his comment, to which
petitioners filed a reply.
It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all checkpoints,
i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are not illegal per se.
Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or
where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the
government. Implicit in this proposition is, that when the situation clears and such grave perils are removed,
checkpoints will have absolutely no reason to remain.
Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by either
military or police forces. The sixth (6th) attempted coup d' etat (stronger than all previous ones) was staged only
last 1 December 1989. Another attempt at a coup d' etat is taken almost for granted. The NPA, through its sparrow
units, has not relented but instead accelerated its liquidation of armed forces and police personnel. Murders, sex
crimes, hold-ups and drug abuse have become daily occurrences. Unlicensed firearms and ammunition have
become favorite objects of trade. Smuggling is at an all time high. Whether or not effective as expected,
checkpoints have been regarded by the authorities as a security measure designed to entrap criminals and
insurgents and to constitute a dragnet for all types of articles in illegal trade.
No one can be compelled, under our libertarian system, to share with the present government its ideological
beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one
must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of
government intended for public welfare; and in the pursuit of those objectives, the government has the equal right,
under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is
evidently one of such means it has selected.
Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage
without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during
which the vehicle's occupants are required to answer a brief question or two. 1 For as long as the vehicle is
neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable
search.
These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme
Court:
Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with
legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may
obtain knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second, checkpoint
operations both appear to and actually involve less discretionary enforcement activity. The regularized manner
in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the
stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not
chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective
allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a
checkpoint where it bears arbitrarily or oppressively on motorists as a class, and since field officers may stop
only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than
there was in the case of roving-patrol stops. Moreover, a claim that a particular exercise of discretion in
locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. 2
The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and, therefore,
violative of the Constitution. 3
As already stated, vehicles are generally allowed to pass these checkpoints after a routine inspection and a few
questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies a
reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the
vehicle are or have been instruments of some offense. Again, as held by the U.S. Supreme Court
Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a
warrantless search of a residence or office. Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct
1302 (1949); Carroll v. United States, 267 US 132, 69 L Ed 543,45 S Ct 280, 39 ALR 790 (1925). The cases so
holding have, however, always insisted that the officers conducting the search have 'reasonable or probable
cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they
begin their warrantless search. ... 4
Besides these warrantless searches and seizures at the checkpoints are quite similar to searches and seizures
accompanying warrantless arrests during the commission of a crime, or immediately thereafter. In People vs. Kagui
Malasuqui it was held
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. 5
By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure areas
of an international airport, is a practice not constitutionally objectionable because it is founded on public interest,
safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses committed by the
military manning the checkpoints. The Court's decision was concerned with power, i.e. whether the government
employing the military has the power to install said checkpoints. Once that power is acknowledged, the Court's
inquiry ceases. True, power implies the possibility of its abuse. But whether there is abuse in a particular situation
is a different "ball game" to be resolved in the constitutional arena.
The Court, like all other concerned members of the community, has become aware of how some checkpoints have
been used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of
foodstuffs coming from the provinces, entering the Metro Manila area and other urban centers, are largely blamed
on the checkpoints, because the men manning them have reportedly become "experts" in mulcting travelling
traders. This, of course, is a national tragedy .
But the Court could not a priori regard in its now assailed decision that the men in uniform are rascals or thieves.
The Court had to assume that the men in uniform live and act by the code of honor and they are assigned to the
checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a military "concoction." It behooves the
military to improve the QUALITY of their men assigned to these checkpoints. For no system or institution will
succeed unless the men behind it are honest, noble and dedicated.
In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not
above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who
man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable
criminally and civilly for their abusive acts; 7 This tenet should be ingrained in the soldiery in the clearest of terms
by higher military authorities.
ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial is FINAL.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado,
JJ., concur.
Gancayco, J., is on leave.
Separate Opinions
GUTIERREZ, JR., J., concurring:
The problem we face in the resolution of this petition arises from our knowledge that law enforcement officers use
checkpoints as opportunities for mulcting oppression, and other forms of abuse. However, to completely ban
checkpoints as unconstitutional is to lose sight of the fact that the real objective behind their use is laudable and
necessary, If we say that ALL checkpoints are unconstitutional, we are banning a law enforcement measure not
because it is per se illegal but because it is being used for evil purposes by the soldiers or police who man it.
This is another instance where the Supreme Court is urged to solve a problem of discipline facing the executive
and the military. My reluctant concurrence with the majority opinion is premised on the hope that our top military
and police officials will devise effective measures which would insure that checkpoints are used only where
absolutely needed and that the officers who are assigned to these checkpoints discharge their duties as
professional soldiers or peace officers in the best traditions of the military and the police. I repeat that this is a
problem of enforcement and not legality.
CRUZ, J., dissenting:
I reiterate my original dissent and add the following observations.
The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup, the "sparrow"
killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the failure of the authorities to
suppress crime was an excuse to suspend the Bill of Rights. It has always been my impression that even criminals,
and more so the innocent, are entitled to the right against unreasonable searches and seizures.
The protection of the security of the State is a convenient pretext of the police state to suppress individual rights.
Constitutional shortcuts should not be allowed in a free regime where the highest function of authority is precisely
to exalt liberty.
The ponencia says that the Constitution is not violated because "the inspection of the vehicle is limited to a visual
search." Assuming that this is all the search entails, it suffers from the additional defect of inefficaciousness,
making it virtually useless. It did not prevent the staging of the December 1 coup, where the rebels used all kinds
of high-powered weapons that were not detected by "a visual search."
Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the judge," not by a
soldier or a policeman. It is not for the peace officer to decide when a warrantless search and seizure may be
made save in the exceptional instances allowed, as where a crime is being committed or before or after its
commission. I can hardly believe that the majority is seriously offering this exception as a continuing situation to
justify the regular warrantless searches at the checkpoints.
It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless." Let us at least
be realistic. This Court would be the first to dismiss the complaint if not supported by hard evidence, which we
know is not easily come by. The remedy, in my view. is to remove the source of the evil instead of leaving it
unchecked and then simply suggesting a cure, which is not even effective. It is like inoculating a patient after
exposing him to contagion.
SARMIENTO, J., dissenting:
The majority states that checkpoints are justified by "grave peril." The question, however, is whether or not the
existence of such grave perils has the effect of suspending the Bill of Rights, specifically, the right against
unreasonable searches and seizures.
Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution." (CONST., art.
VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see how a mere executive act can.
That the State has the right to defend itself is a proposition difficult to argue against. The query, again, is whether
or not it may defend itself against its enemies at the expense of liberty. After fourteen years of authoritarian rule, I
think by now we should have learned our lesson ' and known better.
Although "routine inspections" are another matter, I can not think that the checkpoints in question have been
meant to undertake routine inspections alone. As it is, no ground rules have been given our law enforcers, which
is to say that they have the carte blanche to search vehicles and even persons without the benefit of a valid
judicial warrant. I do not believe that this can be done in a constitutional regime.
I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that case, there was
a waiver of the right against unreasonable search and secondly, there existed a clear probable cause for search
and arrest. Certainly, there was reason for excepting the case from the rule. Malasugui, however, is an exception.
And obviously, the majority would make a general rule out of it.
Certainly, it is different where the authority has probable cause to believe that a crime has been committed by a
suspect, in which case, it may place him under arrest or search his person (Malasugui, supra). But I do not think
that it may claim the existence of probable cause for every vehicle or person stopped and searched at a
checkpoint. And precisely, check-points are intended to allow the authorities to fish for probable cause even if in
the beginning there was none. This makes, to my mind, the setting up of checkpoints unconstitutional.
Separate Opinions
GUTIERREZ, JR., J., concurring:
The problem we face in the resolution of this petition arises from our knowledge that law enforcement officers use
checkpoints as opportunities for mulcting oppression, and other forms of abuse. However, to completely ban
checkpoints as unconstitutional is to lose sight of the fact that the real objective behind their use is laudable and
necessary, If we say that ALL checkpoints are unconstitutional, we are banning a law enforcement measure not
because it is per se illegal but because it is being used for evil purposes by the soldiers or police who man it.
This is another instance where the Supreme Court is urged to solve a problem of discipline facing the executive
and the military. My reluctant concurrence with the majority opinion is premised on the hope that our top military
and police officials will devise effective measures which would insure that checkpoints are used only where
absolutely needed and that the officers who are assigned to these checkpoints discharge their duties as
professional soldiers or peace officers in the best traditions of the military and the police. I repeat that this is a
problem of enforcement and not legality.
CRUZ, J., dissenting:
I reiterate my original dissent and add the following observations.
The majority would justify the checkpoints on the ground of rampant criminality, e.g., the failed coup, the "sparrow"
killings, murders, sex crimes, drug abuse, smuggling, etc. I was not aware that the failure of the authorities to
suppress crime was an excuse to suspend the Bill of Rights. It has always been my impression that even criminals,
and more so the innocent, are entitled to the right against unreasonable searches and seizures.
The protection of the security of the State is a convenient pretext of the police state to suppress individual rights.
Constitutional shortcuts should not be allowed in a free regime where the highest function of authority is precisely
to exalt liberty.
The ponencia says that the Constitution is not violated because "the inspection of the vehicle is limited to a visual
search." Assuming that this is all the search entails, it suffers from the additional defect of inefficaciousness,
making it virtually useless. It did not prevent the staging of the December 1 coup, where the rebels used all kinds
of high-powered weapons that were not detected by "a visual search."
Under Article 111, Section 2 of the Constitution, probable cause is determined "personally by the judge," not by a
soldier or a policeman. It is not for the peace officer to decide when a warrantless search and seizure may be
made save in the exceptional instances allowed, as where a crime is being committed or before or after its
commission. I can hardly believe that the majority is seriously offering this exception as a continuing situation to
justify the regular warrantless searches at the checkpoints.
It is easy to say that "where abuse marks the operation of a checkpoint, the citizen is not helpless." Let us at least
be realistic. This Court would be the first to dismiss the complaint if not supported by hard evidence, which we
know is not easily come by. The remedy, in my view. is to remove the source of the evil instead of leaving it
unchecked and then simply suggesting a cure, which is not even effective. It is like inoculating a patient after
exposing him to contagion.
SARMIENTO, J., dissenting:
The majority states that checkpoints are justified by "grave peril." The question, however, is whether or not the
existence of such grave perils has the effect of suspending the Bill of Rights, specifically, the right against
unreasonable searches and seizures.
Under the Constitution, "[a] state of martial law does not suspend the operation of the Constitution." (CONST., art.
VII, sec. 18). If not even martial law can suspend the fundamental law, I do not see how a mere executive act can.
That the State has the right to defend itself is a proposition difficult to argue against. The query, again, is whether
or not it may defend itself against its enemies at the expense of liberty. After fourteen years of authoritarian rule, I
think by now we should have learned our lesson ' and known better.
Although "routine inspections" are another matter, I can not think that the checkpoints in question have been
meant to undertake routine inspections alone. As it is, no ground rules have been given our law enforcers, which
is to say that they have the carte blanche to search vehicles and even persons without the benefit of a valid
judicial warrant. I do not believe that this can be done in a constitutional regime.
I find references to the case of People v. Kagui Malasugui [63 Phil. 221 (1936)] to be inapt In that case, there was
a waiver of the right against unreasonable search and secondly, there existed a clear probable cause for search
and arrest. Certainly, there was reason for excepting the case from the rule. Malasugui, however, is an exception.
And obviously, the majority would make a general rule out of it.
Certainly, it is different where the authority has probable cause to believe that a crime has been committed by a
suspect, in which case, it may place him under arrest or search his person (Malasugui, supra). But I do not think
that it may claim the existence of probable cause for every vehicle or person stopped and searched at a
checkpoint. And precisely, check-points are intended to allow the authorities to fish for probable cause even if in
the beginning there was none. This makes, to my mind, the setting up of checkpoints unconstitutional.
Footnotes
1 U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L Ed. 2d 1116 (1976).
2 Ibid.
3 Section 2, Article III, 1987 Constitution.
4 Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472.
5 63 Phil. 221.
6 Section 3, Article II of the 1987 Constitution provides:
SEC. 3. Civilian authority is, at all times, supreme over the military. The Aimed Forces of the
Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the
State and the integrity of the national territory.
7 Aberca v. Ver, G.R. No. 69866, 15 April 1988, 160 SCRA 590.
Search
lawphil

SUPREME COURT
Manila
EN BANC
G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.
Ronolfo S. Pasamba for petitioner.
BELLOSILLO, JR., J.:
PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the
Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and
Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and
factual bases.
The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992,
the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to
as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other
deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or
police organizations, and organization or maintenance of reaction forces during the election period. 1
Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary
disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike
forces, and establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of
Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return
of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13
January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms
from petitioner's house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by
Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters
away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven
by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their
gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained
that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad
of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not
include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor
ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4
On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in
Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's
statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not
violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to
Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5
On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended
that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6
Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-
0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg.
881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to
show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC
Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and
Sec. 52, par. (c), of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as
well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for
reconsideration. 10 Hence, this recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an
administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the
disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either
been declared by competent authority as insane or incompetent or has been sentenced by final judgment for
subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar
weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code;
that the resolution did away with the requirement of final conviction before the commission of certain offenses; that
instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the
criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has
already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or
holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner
concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner from running in the

11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the
elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his
qualification to run for public office.
However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for
instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to
him on the basis of the evidence gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without
a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms
were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases
and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the
prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11
Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation
before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent
in the criminal information would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office
during the election period from employing or availing himself or engaging the services of security personnel or
bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to
him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to
return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the
"Gun Ban," thus, no law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its own comment on the

petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed
instead to be excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg.
881 which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall
be criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought
the firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he
was invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms.
Petitioner also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15
Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this
petition may be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority.
However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been
upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the search conducted at
police or military checkpoints which we declared are not illegal per se, and stressed that the warrantless search is
not violative of the Constitution for as long as the vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they
were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not
rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to
suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or
unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying
on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without
violating the constitutional injunction.
An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable
or probable cause to believe before the search that either the motorist was a law offender or that they would find
the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The
existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we
upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior
confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential
report that a sizeable volume of marijuana would be transported along the route where the search was conducted
and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from
the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were
bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada
bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious
failure to produce his passport and other identification papers; 24 where the physical appearance of the accused
fitted the description given in the confidential information about a woman transporting marijuana; 25 where the
accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its
contents; 26 or where the identity of the drug courier was already established by police authorities who received
confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete
City. 27
In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan
Complex to enforce Resolution
No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential
report leading them to reasonably believe that certain motorists matching the description furnished by their
informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as
adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered
the suspicion of the policemen. Absent such justifying circumstances specifically pointing to the culpability of
petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded
into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution.
Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted
for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of
petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms.
While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be
made to ensure that no infringement of civil and political rights results from the implementation of this authority,"
and that "the places and manner of setting up of checkpoints shall be determined in consultation with the
Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts
show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was
made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without
necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the
citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its
operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind
the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have
any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise
suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of
his vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by
COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed
policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not
have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In
such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on
Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent
within the purview of the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause
of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the
Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such
offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary
investigation is violative of due process which requires that the procedure established by law should be obeyed. 30
COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City
Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a
sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the
essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support
of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever
the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of
Appeals, 33 we held
that
While the right to preliminary investigation is statutory rather than constitutional in its fundament,
since it has in fact been established by statute, it is a component part of due process in criminal
justice. The right to have a preliminary investigation conducted before being bound over to trial for a
criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal
or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful
to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a
preliminary investigation would be to deprive him of the full measure of his right to due process.
Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's
explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written
explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be
seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was
not apprised that he was himself a respondent when he appeared before the City Prosecutor.
Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be
considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses
petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion
in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is
understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less
than one (1) year nor more than six (6) years without probation and with disqualification from holding public office,
and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a
preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National
Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be
used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6
April 1992 being violative of the Constitution is SET ASIDE.
The temporary restraining order we issued on 5 May 1992 is made permanent.
SO ORDERED.
Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.
Feliciano, Padilla and Bidin, JJ., are on leave.
Separate Opinions
CRUZ, J., concurring:
I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case of
Valmonte v. De Villa, 178 SCRA 217, where I said:
The sweeping statements in the majority opinion are as dangerous as the checkpoints it would
sustain and fraught with serious threats to individual liberty. The bland declaration that individual
rights must yield to the demands of national security ignores the fact that the Bill of Rights was
intended precisely to limit the authority of the State even if asserted on the ground of national
security. What is worse is that the searches and seizures are peremptorily pronounced to be
reasonable even without proof of probable cause and much less the required warrant. The
improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may be stopped
and searched at random and at any time simply because he excites the suspicion, caprice, hostility or
malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death,
if he resists.
xxx xxx xxx
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and
the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of
liberty.
I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and
finally dismantle them altogether as an affront to individual liberty.
VITUG, J., concurring:
The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and
subordinate themselves to authority.
When our people gave their consent to the fundamental law of the land, they did not renounce but, to the
contrary, reserved for themselves certain rights that they held sacred and inviolable.
One such right is the privilege to be so secured "in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this
rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions,
predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is
in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving
its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the
time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not
have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining.
The question has been asked: Between the security of the State and its due preservation, on the one hand, and
the constitutionally-guaranteed right of an individual, on the other hand, which should be held to prevail? There is
no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a
choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved;
indeed, the vitality of one is the strength of the other.
There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional
mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of
Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the
dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at
the death-bed of liberty."
It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has
expressed:
This guaranty is one of the greatest of individual liberties and was already recognized even during the
days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe
surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage
against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives.
The provision protects not only those who appear to be innocent but also those who appear to be
guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in
the private respondent's view the crime involved is "heinous" and the victim was "a man of
consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders"
condone the omission for they could not in any case be superior to the Constitution.
While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his
ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition
could rightly be granted.
REGALADO, J., concurring and dissenting:
I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner
Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional
warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary
investigation of the case.
With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the
present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him and redounds to his
benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City
Prosecutor dismissing the charge against Arellano, I concur in that result.
However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted
therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by
the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car
then under his control, particularly of its baggage compartment where the firearms were discovered. As held in
People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs.
Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched
consented thereto.
I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in
obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his
employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of
respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives.
The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given
suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code.
There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any
legal impossibility for such suppletory application whether by express provision or by necessary implication. And
even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under
a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.
It being evident from the very records and the factual findings adopted in the majority opinion that no error was
committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of
sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably
guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion
and directing his prosecution in its Resolution No. 92-0829.
DAVIDE, JR., J., concurring and dissenting:
I regret that I can concur only in the result, viz., the granting of the petition.
Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion,
are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC
Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases,
I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the
Philippine National Police (PNP) on 13 January 1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c)
unconstitutional COMELEC Resolution
No. 92-0829.
1. Having declined to rule on the constitutionality of Resolution

No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page
10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be
established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it
being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact
whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness,
resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a confidential report leading
them to reasonably believe that certain motorists matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier,
was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the
policemen." Nothing more could be expected at this stage since the records of the proceedings conducted by the
Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the
warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature.
It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of
firearms, which would have been factually and legally baseless since the firearms involved were licensed and were
duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly
decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations
relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987
Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52,
Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the
provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer
(Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election
Code which prohibits the carrying of firearms outside the residence or place of business during the election period
unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from
bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street,
park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during
the election period, unless authorized in writing by the COMELEC.
In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of
the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed
his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them
to the House of Representatives. That day was already within the election period, which commenced the day
earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in
Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November
1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q),
Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his
aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale
of a ruling on the admissibility in evidence of the firearms.
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of
unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and
directed the petitioner to show cause why he should not be disqualified from running for an elective position,
pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and
paragraph (c), Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a petitioner in
this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the
Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of
due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an
accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan
sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA
92 [1992]).
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the
fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial'
charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or
excess of jurisdiction.
I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion
in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the
Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.
Melo, J., concurs.

# Separate Opinions
CRUZ, J., concurring:
I concur, and reiterate my objections to checkpoints in general as originally expressed in my dissent in the case of
Valmonte v. De Villa, 178 SCRA 217, where I said:
The sweeping statements in the majority opinion are as dangerous as the checkpoints it would
sustain and fraught with serious threats to individual liberty. The bland declaration that individual
rights must yield to the demands of national security ignores the fact that the Bill of Rights was
intended precisely to limit the authority of the State even if asserted on the ground of national
security. What is worse is that the searches and seizures are peremptorily pronounced to be
reasonable even without proof of probable cause and much less the required warrant. The
improbable excuse is that they are aimed at "establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual may be stopped
and searched at random and at any time simply because he excites the suspicion, caprice, hostility or
malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death,
if he resists.
xxx xxx xxx
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and
the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of
liberty.
I hope the colleagues I have behind on my retirement will reconsider the stand of the Court on checkpoints and
finally dismantle them altogether as an affront to individual liberty.
VITUG, J., concurring:
The ultimate hypothesis of sound governance is not might but the willingness of the governed to accept and
subordinate themselves to authority.
When our people gave their consent to the fundamental law of the land, they did not renounce but, to the
contrary, reserved for themselves certain rights that they held sacred and inviolable.
One such right is the privilege to be so secured "in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose." Their sole conceded proviso to this
rule is when a search warrant or a warrant of arrest is lawfully issued. There are, to be sure, known exceptions,
predicated on necessity and justified by good reasons, when warrantless searches and seizures are allowed. It is
in this context that I appreciate the ratio decidendi of the Court in Valmonte vs. De Villa (178 SCRA 211). In giving
its imprimatur to the installation of checkpoints, the Court clearly has based its decision on the existence at the
time of what has been so described as an "abnormal" situation that then prevailed. Evidently, the Court did not
have the intention to have its ruling continue to apply to less aberrant circumstances than previously obtaining.
The question has been asked: Between the security of the State and its due preservation, on the one hand, and
the constitutionally-guaranteed right of an individual, on the other hand, which should be held to prevail? There is
no choice to my mind not for any other reason than because there is, in the first place, utterly no need to make a
choice. The two are not incompatible; neither are they necessarily opposed to each other. Both can be preserved;
indeed, the vitality of one is the strength of the other.
There should be ways to curb the ills of society so severe as they might seem. A disregard of constitutional
mandates or an abuse on the citizenry, I am most certain, is not the answer. It might pay to listen to the words of
Mr. Justice Isagani A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the
dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at
the death-bed of liberty."
It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198 SCRA 614), the Court has
expressed:
This guaranty is one of the greatest of individual liberties and was already recognized even during the
days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe
surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage
against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives.
The provision protects not only those who appear to be innocent but also those who appear to be
guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in
the private respondent's view the crime involved is "heinous" and the victim was "a man of
consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders"
condone the omission for they could not in any case be superior to the Constitution.
While it gives me great comfort to concur with my esteemed colleague, Mr. Justice Josue N. Bellosillo, in his
ponencia, I would express, nonetheless, the humble view that even on the above constitutional aspect, the petition
could rightly be granted.
REGALADO, J., concurring and dissenting:
I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling that with respect to petitioner
Aniag, Resolution No. 92-0829 of respondent commission should be set aside, not because of an unconstitutional
warrantless search but by reason of the fact that he was not actually charged as a respondent in the preliminary
investigation of the case.
With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as a co-petitioner in the
present recourse, the nullification of said Resolution No. 92-0829 necessarily applies to him and redounds to his
benefit. To the extent, therefore, that the majority opinion thereby reinstate the resolution of the Office of the City
Prosecutor dismissing the charge against Arellano, I concur in that result.
However, even as a simple matter of consistency but more in point of law, I dissent from the rationale submitted
therefor, that is, that Arellano was the victim of an unlawful search without a warrant. The pertinent facts stated by
the majority readily yield the conclusion that there was consent on the part of Arellano to the search of the car
then under his control, particularly of its baggage compartment where the firearms were discovered. As held in
People vs. Excela, et al., 1 consent to a search may be given expressly or impliedly, and as early as People vs.
Malasugui, 2 the settled rule is that a search may be validly conducted without a warrant if the person searched
consented thereto.
I would prefer to sustain the exoneration of Ernesto Arellano on the justifying circumstance that he was acting in
obedience to what he innocently believed to be a lawful order of a superior, that is, the instructions of his
employer, petitioner Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of
respondent commission which was implemented by the Sergeant-at-Arms of the House of Representatives.
The said justifying circumstance provided in paragraph 6, Article 11 of the Revised Penal Code can be given
suppletory effect to special laws like B.P. Blg. 881 and R.A. No. 7166 by force of Article 10 of the same Code.
There is no prohibition therefor in the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any
legal impossibility for such suppletory application whether by express provision or by necessary implication. And
even if the order of petitioner Aniag may be considered as illegal, Arellano acted thereon in good faith 3 and under
a mistake of fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.
It being evident from the very records and the factual findings adopted in the majority opinion that no error was
committed by the Office of the City Prosecutor in dismissing the charge against Ernesto Arellano for lack of
sufficient grounds to engender a well founded belief that a crime had been committed and that he was probably
guilty thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a contrary conclusion
and directing his prosecution in its Resolution No. 92-0829.
DAVIDE, JR., J., concurring and dissenting:
I regret that I can concur only in the result, viz., the granting of the petition.
Considering the specific issues raised by the petitioner which, as stated in the exordium of the majority opinion,
are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is unconstitutional, and (b) COMELEC
Resolutions No. 92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and factual bases,
I am unable to agree with the specific disposition declaring (a) illegal the warrantless search conducted by the
Philippine National Police (PNP) on 13 January 1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such warrantless search, and (c)
unconstitutional COMELEC Resolution
No. 92-0829.
1. Having declined to rule on the constitutionality of Resolution

No. 2327 because "this petition may be resolved without passing upon this particular issue" (first paragraph, page
10, Ponencia), this Court may no longer inquire into the constitutionality of the spot checkpoints authorized to be
established thereunder. And whether the warrantless search conducted by the PNP at the checkpoint was valid, it
being assumed that it would have been, provided there existed a probable cause therefor, is a question of fact
whose presentation in this case is either procedurally premature, or one which this Court cannot, with definiteness,
resolve considering the obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a confidential report leading
them to reasonably believe that certain motorists matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier,
was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the
policemen." Nothing more could be expected at this stage since the records of the proceedings conducted by the
Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of invalidity of the
warrantless search and of the inadmissibility in evidence of the firearms seized would thus be premature.
It may additionally be relevant to state that the search was not in connection with the crime of illegal possession of
firearms, which would have been factually and legally baseless since the firearms involved were licensed and were
duly issued to the petitioner by the House of Representatives, but for the violation of the gun ban which was validly
decreed by the COMELEC pursuant to its constitutional power to enforce and administer all laws and regulations
relative to the conduct of elections, plebiscite, initiative, referendum; and recall (Section 2(1), Article IX-C, 1987
Constitution), its statutory authority to have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly, and honest elections (Section 52,
Omnibus Election Code), and its statutory authority to promulgate rules and regulations implementing the
provisions of the Omnibus Election Code or other laws which the COMELEC is required to enforce and administer
(Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q), Section 261 of the Omnibus Election
Code which prohibits the carrying of firearms outside the residence or place of business during the election period
unless authorized in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any person from
bearing, carrying, or transporting firearms or other deadly weapons in public places, including any building, street,
park, private vehicle, or public conveyance, even if such person is licensed to possess or carry the same during
the election period, unless authorized in writing by the COMELEC.
In this case, the petitioner himself admits that on 10 January 1992 he was requested by the Sergeant-at-Arms of
the House of Representatives to return the two firearms issued to him, and that on 13 January 1992, he instructed
his driver, Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde and to return them
to the House of Representatives. That day was already within the election period, which commenced the day
earlier pursuant to COMELEC Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in
Connection With the Elections of National and Local Officials on May 11, 1992), promulgated on 20 November
1991. Considering then that the offense for which he was to be charged was for the violation of paragraph (q),
Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of his
aforesaid admissions, renders unnecessary the offer in evidence of the seized firearms, I fail to grasp the rationale
of a ruling on the admissibility in evidence of the firearms.
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the ground of
unconstitutionality. It simply directed the filing of an information against the petitioner and Arellano for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and
directed the petitioner to show cause why he should not be disqualified from running for an elective position,
pursuant to COMELEC Resolution No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and
this case. Moreover, as to him, the resolution was nothing more than a disapproval of the recommendation of the
Office of the City Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial of
due process because the petitioner was later heard on his motion for reconsideration. Moreover, the right of an
accused to a preliminary investigation is not a creation of the Constitution; its origin is statutory (Kilusang Bayan
sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA
92 [1992]).
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the petitioner despite the
fact that he was never formally charged before the Office of the City Prosecutor. There was only an "'unofficial'
charge imputed against" him. The COMELEC then acted with grave abuse of discretion amounting to want or
excess of jurisdiction.
I vote then to grant the petition, but solely on the ground that the COMELEC acted with grave abuse of discretion
in directing the filing of an information against the petitioner for the violation of paragraph (q), Section 261 of the
Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.
Melo, J., concurs.
# Footnotes
1 Rollo, p. 56.
2 Id., p. 35.
3 One (1) 9 mm SN U164076 P-226 and one (1) Beretta 9 mm Para F-39721 SMG; Rollo, p. 79.
4 Rollo, pp. 74-75.
5 Id., pp. 77-78.
6 Id., pp. 91-94.
7 Sec. 261. Prohibited Acts. The following shall be guilty of an

election offense: . . . (q) Carrying firearms outside residence or place of business. Any person
who, although possessing a permit to carry firearms, carries any firearms outside his residence or
place of business during the election period, unless authorized in writing by the Commission:
Provided, That a motor vehicle, water or aircraft shall not be considered a residence or place of
business or extension hereof . . . . (B.P. Blg. 881).
Sec. 32. Who May Bear Firearms. During the election period, no person shall bear, carry or
transport firearms or other deadly weapons in public places, including any building, street, park,
private vehicle or public conveyance, even if licensed to possess or carry the same, unless
authorized in writing by the Commission. The issuance of firearm licenses shall be suspended during
the election period . . . . (R.A. No. 7166).
Sec. 33. Security Personnel and Bodyguards. During the election period, no candidate for public
office, including incumbent public officers seeking election to any public office, shall employ, avail
himself of or engage the services of security personnel or bodyguards, whether or not such
bodyguards are regular members or officers of the Philippine National Police, the Armed Forces of
the Philippines or other law enforcement agency of the Government . . . . (ibid.).
Sec. 35. Rules and Regulations. The Commission shall issue rules and regulations to implement
this Act. Said rules shall be published in at least two (2) national newspapers of general circulation
(ibid.).
Sec. 52. Powers and functions of the Commission on Elections. In addition to the powers and
functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections for the purpose of
ensuring free, orderly and honest elections, and shall . . . . (c) Promulgate rules and regulations
implementing the provision of this Code or other laws which the Commission is required to enforce
and administer, and require the payment of legal fees and collect the same in payment of any
business done in the Commission, at rates that it may provide and fix in its rules and regulations . . . .
(B.P. Blg. 881).
8 Rollo, pp. 38-89.
9 Id., p. 42.
10 Id., p. 40.
11 Art. 111, Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.
Sec. 3, par. (2). Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
12 Id., pp. 18-30.
13 Id., p. 110.
14 Id., p. 128.
15 Id., pp. 121-125.
16 See Alger Electric, Inc. v. Court of Appeals, L-34298, 28 February 1985, 135 SCRA 37, 45;
Arrastre Security Association-TUPAS v. Ople, L-45344,
20 February 1984, 127 SCRA 580, 595.
17 People v. Bagista, G.R. No. 86218, 18 September 1992, 214 SCRA 63, 68-69.
18 Valmonte v. de Villa, G.R. No. 83988, 24 May 1990, 185 SCRA 665, 669, see also concurring
opinion of Justice Gutierrez, Jr., pp. 672-673, and dissenting opinions of Justice Cruz, pp. 173-174,
and Justice Sarmiento, pp. 174-175.
19 Id., p. 670; People v. Bagista, supra.
20 See Valmonte v. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211, 216.
21 People v. Malmstedt, G.R. No. 91107, 19 June 1991, 198 SCRA 401, 408, citing People v. Claudio,
G.R. No. 72564, 15 April 1988, 160 SCRA 646, People v. Tangliben, G.R. No. 63630, 6 April 1990,
184 SCRA 220, and Posadas v. Court of Appeals, G.R. No. 83139, 2 August 1990, 188 SCRA 288,
see also dissenting opinion of Justice Cruz, pp. 410-412, and concurring and dissenting opinion of
Justice Narvasa, now Chief Justice, pp. 412-424.
22 People v. Maspil, Jr., G.R. No. 85177, 20 August 1990, 188 SCRA 751.
23 People v. Lo Ho Wing, G.R. No. 88017, 21 January 1991, 193 SCRA 122.
24 People v. Malmstedt, ibid.
25 People v. Bagista, supra, p. 10.
26 People v. Exala, G.R. No. 76005, 23 April 1993, 221 SCRA 494, see also dissenting opinion of
Justice Cruz, pp. 502-503.
27 People v. Saycon, G.R. No. 110995, 5 September 1994.
28 Rollo, p. 36.
29 Rollo, p. 69.
30 United States v. Ocampo, 18 Phil. 1, 41 (1910).
31 See Mutuc v. Court of Appeals, No. L-48108, 26 September 1990, 190 SCRA 43, 49.
32 See Tupas v. Court of Appeals, G.R. No. 89571, 6 February 1991; 193 SCRA 597.
33 G.R. No. 101837, 11 February 1992, 206 SCRA 138, 153, emphasis ours.
REGALADO, J., concurring and dissenting opinion:
1 G.R. No. 76005 April 23, 1993, 221 SCRA 494.
2 63 Phil. 221 (1936).
3 People vs. Beronilla, et al., 96 Phil. 566 (1955).
4 Sec. 1, Rule 112, 1985 Rules of Criminal Procedure, as amended.
Search
lawphil

SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 129756-58 January 28, 2000
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIAN DEEN ESCAO, VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused,
VIRGILIO TOME USANA and JERRY CASABAAN LOPEZ, accused-appellants.
DAVIDE, JR., C.J.:
Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together with Julian D. Escao, were charged before the
Regional Trial Court of Makati City, Branch 64, in Criminal Case No. 95-936 with violation of Section 4, Article II of
Republic Act No. 6425,1 as amended. Escao and Usana were also charged in Criminal Case No. 95-937 and No.
95-938 with illegal possession of firearms and ammunition in violation of Presidential Decree No. 1866.
The accusatory portion of the Information in Criminal Case No. 95-936 reads as follows:
That on or about the 5th day of April, 1995, in the City of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and
all of them mutually helping and aiding one another, without being authorized by law, did then and there
willfully, unlawfully and feloniously sell, distribute and transport 3.3143 kilograms of "HASHISH", a prohibited
drug, in violation of the above-cited law.2
The charge against accused Julian D. Escao in Criminal Case No. 95-937 reads as follows:
jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and
feloniously have in his possession, direct custody and control one (1) pc. of cal. .45 pistol, government
model with Serial No. 990255, with magazine containing 7 live ammos and two (2) more magazines for cal.
.45 pistol containing 7 live ammos each, without first securing the necessary license or permit from the
proper government authorities and which firearm and ammunitions he carried outside of his residence.3
The accusatory portion of the information against Virgilio Usana in Criminal Case No. 95-938 reads:
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, direct custody and control One (1) pc. of rifle carbine with Serial No.
7176644 with a banana type magazine loaded with 28 live ammunitions without first securing the necessary
license or permit from the proper government authorities and which firearms and ammunitions he carried
outside of his residence.4
The cases were consolidated and jointly tried.
In its Decision of 30 May 1997,5 which was promulgated on 17 June 1997, the trial court convicted Escao and
herein appellants in Criminal Case No. 95-936, Escao in Criminal Case No. 95-937, and appellant Usana in
Criminal Case No. 95-938.
Escao filed on 19 June 1997 a Notice of Appeal, but on 16 July 1997, he filed a Manifestation and Withdrawal of
Appeal,6 which was granted by the trial court in its Order of 1 7 July 1997.7
Usana and Lopez filed a Notice of Appeal on 30 June 1997,8 manifesting therein that they were appealing to this
Court and to the Court of Appeals. Considering the penalties imposed, the decision in Criminal Case No. 95-936
was appealed to this Court, while the Court of Appeals took cognizance of the appeal from Criminal Case No. 95-
938. In its Order of 30 June 1997,9 the trial court gave due course to the appeal and ordered the transmittal of the
record in Criminal Case No. 95-936 to this Court and the record of Criminal Case No. 95-938 to the Court of
Appeals.
Accordingly, it is only the appeal from the judgment in Criminal Case No. 95-936 that is now before this Court.
Due to the differing versions of the parties, there is a need to narrate each of the testimonies of the key players in
this case.
The prosecution has this version of the events: On the 5th of April 1995 and during a COMELEC gun ban, some
law enforcers of the Makati Police, namely, PO3 Eduardo P. Suba, PO3 Bernabe Nonato, SPO4 Juan de los
Santos, and Inspector Ernesto Guico,10 were manning a checkpoint at the corner of Senator Gil Puyat Ave. and
the South Luzon Expressway (SLEX).11 They were checking the cars going to Pasay City, stopping those they
found suspicious, and imposing merely a running stop on the others. At about past midnight, they stopped a Kia
Pride car with Plate No. TBH 493.12 PO3 Suba saw a long firearm on the lap of the person seated at the
passenger seat, who was later identified as Virgilio Usana. They asked the driver, identified as Escao, to open
the door. PO3 Suba seized the long firearm, an M-1 US Carbine, from Usana. When Escao, upon order of the
police, parked along Sen. Gil Puyat Ave., the other passengers were search for more weapons. Their search
yielded a .45 caliber firearm which they seized from Escao.13
The three passengers were thereafter brought to the police station Block 5 in the Kia Pride driven by PO3
Nonato.14 Upon reaching the precinct, Nonato turned over the key to the desk officer. Since SPO4 de los Santos
was suspicious of the vehicle, he requested Escao to open the trunk.15 Escao readily agreed and opened the
trunk himself using his key.16 They noticed a blue bag inside it,17 which they asked Escao to open. The bag
contained a parcel wrapped in tape,18 which, upon examination by National Bureau of Investigation Forensic
Chemist Emilia A. Rosaldos, was found positive for hashish weighing 3.3143 kilograms.19
A certification was issued by the Firearms and Explosive Office of the National Police Commission (NAPOLCOM) to
the effect that Escao was not a licensed/registered firearms holder of any kind and caliber. Usana, however,
according to the same certification is a licensed/registered holder of a pistol Colt .45 caliber with license issued on
14 October 1994 and to expire on April 1996. Usana also has an application for a pistol Uzi Cal. 9mm. Neither of
the two guns seized were licensed/registered with the NAPOLCOM.20
For his part, Escao (or Jovy) testified that on the 4th of April 1995, between 11:00 and 11:30 in the morning, he
was at the lobby of Legend Hotel, at Pioneer St., Mandaluyong City, to meet with his business partners, including
Usana and Lopez. He saw his friend and erstwhile co-employee at Philippine Airlines, Ramon Cabrera, who had
borrowed his wife's car. Since it was his wife's birthday the following day, he asked Cabrera if he could get back
the car. Cabrera readily gave him the keys of the car.21
He left the hotel at around 11:45 in the evening with Usana and Lopez. Using his wife's car, they cruised southward
along Epifanio de los Santos Avenue (EDSA) and turned right at Sen. Gil Puyat Avenue. They stopped before
crossing SLEX because the traffic light turned red. From the other side of SLEX, he could see a group of
policemen. Upon crossing SLEX, they were flagged down by one of the policemen, so he slowed down and
stopped. PO3 Nonato asked him to roll down the window and demanded to see his license. He asked if he had
committed any violation, but PO3 Nonato accused him of being drunk, which he denied. The policemen persisted
in asking for his license, but he did not budge and instead reiterated that there was no reason for him to surrender
his license for he had not committed any violation. A verbal tussle ensued resulting in the drawing of firearms by
the policemen which prompted Usana to suggest that they go to the police station because the policemen were
carrying guns and they have not done anything wrong.22
He stated further that he was the one who drove to the police station along Dian St. with his companions. He
parked the car then they were brought to the office of the Deputy Station Commander, Lieutenant Eco.23 The
policemen asked if they could search his car. He then inquired if he was not entitled to a lawyer and why they
needed to conduct a search when they had not even told him what he had violated. Apparently, he thought they
were there only for verification purposes. Lt. Eco explained that that was the reason why they were going to search
his car, to see if he had done anything illegal. Although the police were insistent in asking for the keys to his car,
he continuously refused. Lt. Eco asked his men to usher the trio into the detention cell.24
After two hours, he was brought back to Lt. Eco's office. Lt. Eco pointed to a bag, a rifle, a pistol and a package
wrapped in masking tape or packing tape on his desk, and said these items constituted evidence of illegal
possession of firearms and transporting of drugs. He was surprised that they found those items from his car
because his key had been with him all the time. He was handcuffed, brought to his car, and again was surprised to
see its trunk open.25
On the other hand, Lopez had a different story. He claimed he was the mechanic of Usana and they lived in the
same subdivision.26 On 4 April 1995, he was working on Usana's pick-up truck at the latter's house when Escao
dropped by at around 4:30 in the afternoon looking for Usana who was then working in Forbes Park.27 At around
5:30 p.m., they left Usana's house in Escao's metallic gray Kia Pride. Inside the car, he saw a .45 caliber pistol
and two spare magazines tucked in the right side and left side of Escao's waist. He also saw a carbine under the
right passenger seat. When he inquired about the guns, Escao replied that such did not pose any problem since
they were licensed. Before going to Usana, they went to Pasay City to see a certain jerry.28 They met Usana at the
Sen. Gil Puyat Station of the LRT at around 9:00 p.m. He gave his seat to Usana but was unaware if the latter
noticed the rifle beneath the seat.29
They went home via Sen. Gil Puyat Avenue but were stopped at a checkpoint after crossing SLEX. The policemen
directed their flashlights at them and one opened the front passenger door.30 The latter saw the rifle under
Usana's seat. Usana and Escao were ordered to get out of the car. PO3 Nonato immediately saw the gun tucked
in Escao's waist and asked if he was a policeman. Escao replied that everything would be explained at the
police station. He was also asked to step out. No firearm was, however, found in his possession.31
When confronted about the guns, Escao tried to intercede for his two companions and said that ". . . these two
don't know anything about it, I just took them for a drive." They subsequently went to police station Block 5. A
certain Toto, a policeman, drove the Kia Pride to Block 5.32
Upon reaching the police station, Escao was immediately brought to the office of Lt. Eco while he and Usana were
asked to sit on the bench. After a few minutes, PO3 de los Santos came out of the office of Lt. Eco to talk to him.
He told him that all he knew about Escao is that he was a wealthy flight attendant with military connections. After
returning to Lt. Eco's office, PO3 de los Santos went out of the police station with Lt. Eco and Escao. The three
came back with a blue bag which he had never seen before. The bag was opened before the three suspects.
Escao reiterated that his two companions had nothing to do with the bag.33
He and Usana stayed overnight in their cell and only saw Escao in the morning of April 5. At around 4:00 p.m.,
they were transferred to the CID and stayed in the office of a certain Inspector Sipin. Escao admitted he owned
the bag/case.34
For his part, Usana testified that he was a duly licensed architect who was gainfully employed by Rolando de Asis
and Taytay Management Corporation.35 He admitted owning a licensed .45 caliber pistol.36 In March 1995, he
hired as mechanic Lopez, who lives in Bernabe Subdivision Phase II where he also lives. Escao on the other
hand, was introduced to him by a certain Roberto Samparado, a neighbor of Lopez. Escao, an international flight
attendant of Philippine Airlines and a businessman who owns Verge Enterprises, also supplied materials to the
Philippine Army and planned to engage in a construction business.37
On 4 April 1995, at around 7:30 p.m., he paged Escao to talk about the materials for the five prototype gunship
helicopters they were supposed to supply. They talked on the phone, agreeing to meet between 8:30 and 9:00
p.m. at the Sen. Gil Puyat Ave. Station of the Light Rail Transit,38 and met at around a quarter past nine. Escao
was on board a metallic Kia Pride with Lopez on the passenger seat. Lopez vacated the seat for him. They went to
Magallanes Village to meet a certain Norman Garcia and talk about the documents39 relating to the helicopter
gunship of the Air Force. They arrived there at 11:30 p.m. While they were talking with Garcia, he noticed a gun
and magazines tucked in Escao's waist. Upon inquiry, Escao said it was not a problem and only for his
protection.40 On their way to Roxas Boulevard, they were stopped at a checkpoint along Sen. Gil Puyat Ave.
Policemen knocked on the car windows so he and Escao rolled down their windows. A person in civilian clothes
suddenly opened the right door, took something from the side of his seat and shouted, "There's a gun." He was
surprised because he did not carry anything when he bearded the car; neither did he see anything inside the car
because it was dark and he was not wearing his eyeglasses.41 The person who took the gun asked if he was a
policeman, and he said he was an architect. He was then asked to alight from the car, then frisked. Escao was
also asked to alight from a car. They saw a gun tucked in his waist, so they asked if he was a policeman, and
Escao answered in the negative. Lopez was then ordered to get out of the car by the person in civilian clothes
and was also searched. They rode the Anfra service vehicle of the police. One of the policemen asked Lopez to
handcuff him and Escao. The policeman who asked Escao to get out of the car drove the Anfra van to Block 5
where they arrived at 1:30 in the morning of 5 April.42
He and Lopez waited outside the office of Lt. Eco while Escao was inside with the arresting officers. Lt. Eco came
out of his office and urged Lopez to tell the truth. He heard Lopez say that they were both just with Escao and
that they knew nothing about the guns; neither do they own any. SPO4 de los Santos entered the office of Lt. Eco
and came out five minutes later with Escao, Lt. Eco, and the other arresting officers, Nonato, Suba and Erwin
Eco, the person in civilian clothes. All six went out to the parking area and returned after about five minutes. Lt.
Eco was carrying a bag which he placed on top his desk. Lopez and Escao were asked about the contents of the
bag. The two replied it was the first time they saw that bag. Lt. Eco opened the bag before them. They all saw
something in brown paper. He and Lopez simultaneously exclaimed that they knew nothing about the contents of
the bag, and they implored Escao to tell the police that they had nothing to do with it.43
The trial court found the prosecution's version more credible than that of any one of the accused, and ruled that
the evidence presented by the prosecution was sufficient to convict the accused as charged. It decreed:
WHEREFORE, in view of the foregoing judgment is hereby rendered as follows:
1. In Criminal Case No. 95-936, accused JULIAN ESCAO y DEEN, VIRGILIO USANA y TOME and
JERRY LOPEZ y CASABAAN are GUILTY as charged and are sentenced to suffer imprisonment of
RECLUSION PERPETUA, and to pay a fine of P500,000.00.
The Branch Clerk of Court is directed to turn over to the Dangerous Drugs Board the 3.314 kilograms of
Hashish (marijuana) for its appropriate disposition in accordance with law; and
2. In criminal Cases Nos. 95-937 and 95-938, accused JULIAN ESCAO y DEEN and VIRGILIO
USANA y TOME are GUILTY as charged in the two separate informations respectively filed against
them and are sentenced to suffer the indeterminate prison term from TEN (10) YEARS of PRISION
MAYOR maximum, as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of
RECLUSION TEMPORAL maximum as maximum.44
The firearms and ammunitions subject matter of these cases which are still with the City Prosecutor's Office
are forfeited in favor of the Government are directed to be turned over to the Firearms and Explosive Unit,
PNP, Camp Crame, Quezon City for its appropriate disposition.
SO ORDERED.45
Accused-appellants Usana and Lopez anchor their appeal on the following arguments:
1. The trial court erred in admitting in evidence the hashish seized without search warrant when the police
officers already had the opportunity to secure a search warrant before searching the bag found at the
baggage compartment at the back of the car;
2. Assuming that the hashish is admissible in evidence, the trial court erred in finding appellants to have
conspired with Escao in transporting the hashish when the evidence clearly shows that the hashish was
owned and possessed solely by Escao;
3. The trial court erred in convicting appellants of illegal possession of hashish despite the fact that they
were neither in actual nor constructive possession of the illegal drug; and
4. The trial court erred in not considering the exculpatory testimony of Julian Escao in favor of appellants.
Before going any further, some words are in order regarding the establishment of checkpoints.
Accused-appellants assail the manner by which the checkpoint in question was conducted. They contend that the
checkpoint manned by elements of the Makati Police should have been announced. They also complain of its
having been conducted in an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC resolution46 imposing a gun ban during the election
period issued pursuant to Section 52(c) in relation to Section 26(q) of the Omnibus Election Code (Batas
Pambansa Blg. 881). The national and local elections in 1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995, was well within the election period.
This Court has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public
order and are conducted in a way least intrusive to motorists are allowed.47 For, admittedly, routine checkpoints
do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied
that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to
answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a
body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be
regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when
conducted in a fixed area, are even less intrusive.48
The checkpoint herein conducted was in pursuance of the gun ban enforced by the COMELEC. The COMELEC
would be hard put to implement the ban if its deputized agents were limited to a visual search of pedestrians. It
would also defeat the purpose for which such ban was instituted. Those who intend to bring a gun during said
period would know that they only need a car to be able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused against
illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed suspicious, such
as those whose windows are heavily tinted just to see if the passengers thereof were carrying guns. At best they
would merely direct their flashlights inside the cars they would stop, without opening the car's doors or subjecting
its passengers to a body search. There is nothing discriminatory in this as this is what the situation demands.
We see no need for checkpoints to be announced, as the accused have invoked. Not only would it be impractical,
it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still
be inferred from their fixed location and the regularized manner in which they are operated.49
Usana and Lopez also question the validity of the search. The trial court, in convicting the three accused for
violation of R.A. No. 6425, accepted as aboveboard the search done by the Makati Police of the trunk of the car.
Jurisprudence recognizes six generally accepted exceptions to the warrant requirement: (1) search incidental to an
arrest; (2) search of moving vehicles; (3) evidence in plain view; (4) customs searches; (5) consented warrantless
search;50 and (6) stop-and-frisk situations.51
Even though there was ample opportunity to obtain a search warrant, we cannot invalidate the search of the
vehicle, for there are indications that the search done on the car of Escao was consented to by him. Both Lopez
and Usana testified that Escao was with the police officers when they searched the car.52 There was no apparent
objection made by Escao as he seemed to have freely accompanied the police officers to the car. PO3 Suba, on
the other hand, testified that "Escao readily agreed to open the trunk," upon request of SPO4 de los Santos.53
But according to Escao, he refused the request of the police officers to search his car.54 We must give credence
to the testimony of PO3 Suba. Not only is it buttressed by the testimony of Usana and Lopez that Escao freely
accompanied the police officers to the car, it is also deemed admitted by Escao in failing to appeal the decision.
The findings of fact of the trial court are thus deemed final as against him.
Despite the validity of the search, we cannot affirm the conviction of Usana and Lopez for violation of R.A. No.
6425, as amended. The following facts militate against a finding of conviction: (1) the car belonged to Escao; (2)
the trunk of the car was not opened soon after it was stopped and after the accused were searched for firearms;
(3) the car was driven by a policeman from the place where it was stopped until the police station; (4) the car's
trunk was opened, with the permission of Escao, without the presence of Usana and Lopez; and (5) after arrival
at the police station and until the opening of the car's trunk, the car was in the possession and control of the police
authorities. No fact was adduced to link Usana and Lopez to the hashish found in the trunk of the car. Their having
been with Escao in the latter's car before the "finding" of the hashish sometime after the lapse of an appreciable
time and without their presence left much to be desired to implicate them to the offense of selling, distributing, or
transporting the prohibited drug. In fact, there was no showing that Usana and Lopez knew of the presence of
hashish in the trunk of the car or that they saw the same before it was seized.1wphi1.nt
IN VIEW WHEREOF, that portion of the challenged decision of 30 May 1997 of the Regional Trial Court, Makati,
Branch 64, insofar as Criminal Case No. 95-936 is concerned with regard to accused-appellants VIRGILIO T.
USANA and JERRY C. LOPEZ, holding them guilty of violation of Section 4, Article II of R.A. No. 6425, as amended,
is hereby REVERSED and SET ASIDE and another is hereby rendered ACQUITTING them therein on ground of
reasonable doubt and ORDERING their immediate release from confinement at the New Bilibid Prison, unless their
further detention is justified for any lawful ground. The Director of the Bureau of Corrections is hereby directed to
report to the Court the release of said accused-appellants within five (5) days from notice of this decision.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 Otherwise known as the Dangerous Drugs Act of 1972.
2 Original Record (OR), 2; Rollo, 11.
3 Id., 3; id., 12.
4 Id., 4, id., 13.
5 OR, Vol. II, 65-68; Rollo, 43-62. Per Judge Delia H. Panganiban.
6 Rollo, 109.
7 Id., 112.
8 OR, Vol. II, 99.
9 Id., 101.
10 TSN, 6 July 1995, 56.
11 TSN, 6 July 1995, 55.
12 Id., 63; OR, 140-142.
13 Id., 64-68.
14 TSN, 13 July 1995, 79.
15 Id., 12, 80.
16 Id., 14-15, 81-82.
17 Id., 16.
18 Id., 18.
19 TSN, 6 July 1995, 17-19; 24-25. See also Exhibit "C."
20 OR, 240; Exhibit "Q."
21 TSN, 27 August 1996, 8-12.
22 Id., 13-24.
23 TSN, 27 August 1996, 31-33.
24 TSN, 27 August 1996, 38-40.
25 Id., 41-43.
26 TSN, 24 October 1996, 4.
27 Id.
28 Id., 5-7.
29 TSN, 24 October 1996, 11-12.
30 Id., 13-16.
31 Id., 17-20.
32 Id., 20-22.
33 Id., 22-27.
34 TSN, 24 October 1996, 27-30.
35 TSN, 5 November 1996, 4, 9, 11; Exhibit 4.
36 Id., 14-15.
37 TSN, 24 October 1996, 16-20; Exhibit 6.
38 Id., 22-23.
39 Id., 33; Exhibit 7.
40 TSN, 24 October 1996, 29-31.
41 TSN, 24 October 1996, 24-28.
42 TSN, 5 November 1996, 37-45.
43 Id., 46-50.
44 Per R.A. No. 8294, amending P.D. 1866, the penalty for violation of the second paragraph of Section 1
therefor has been reduced to prison mayor in its minimum period and a fine of P30,000.
45 Rollo, 61-62.
46 Sec. 2 (a), COMELEC Resolution No. 2735.
47 Valmonte v. de Villa, 185 SCRA 665 [1990].
48 Id., 669.
49 U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L Ed. 2d 1116 [1976], as cited in Valmonte v. de Villa, supra.
50 See Mustang Lumber v. CA, 257 SCRA 430, 449-450 [1996]; 1 JOAQUIN G. BERNAS, THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY, 1987 ED., 104-105.
51 See People v. Chua Ho San, G.R. No. 128222, 17 June 1999, 9.
52 TSN, 24 October 1996, p. 23; 5 November 1996, 48.
53 TSN, 13 July 1995, 14.
54 TSN, 27 August 1995, 38-40.
Search
lawphil

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 141137 January 20, 2004
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
VICTOR DIAZ VINECARIO; ARNOLD ROBLE and GERLYN WATES, Appellants.
DECISIO N
CARPIO-MORALES, J.:
From the Decision of July 20, 1999, as amended by Order of September 9, 1999, of the Regional Trial Court of
Davao City, Branch 16, finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond
reasonable doubt of violation of Article IV of Republic Act No. 6425 (Dangerous Drugs Act of 1972, as amended by
Republic Act No. 7659), and imposing upon them the penalty of reclusion perpetua, they lodged the present
appeal.
The Information dated April 25, 1995, filed against appellants reads as follows:
The undersigned accuses the above-named accused for VIOLATION OF SECTION 4, ARTICLE II IN RELATION
TO SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows:
That on or about April 10, 1995 in the City of Davao, Philippines and within the jurisdiction of this Honorable Court,
the above-mentioned accused, conspiring, confederating and helping one another, without being authorized by
law, willfully, unlawfully and feloniously transported, delivered and possessed 1.7 kilos dried marijuana leaves
which are prohibited drugs.
CONTRARY TO LAW.1
Upon arraignment on September 11, 1995, appellants, duly assisted by counsel, pleaded not guilty to the offense
charged.
The facts as established by the prosecution are as follows:
On the night of April 10, 1995, at around 10:45 p.m., as about fifteen police officers were manning a checkpoint at
Ulas, Davao City pursuant to COMELEC Resolution No. 2735, otherwise known as the COMELEC gun ban, a
Honda TMX motorcycle with three men on board sped past them.2 One of the police officers blew his whistle3 and
ordered them to return to the checkpoint.
Obliging, the three men aboard the motorcycle returned to the checkpoint. SPO1 Haydenburge Goc-ong (SPO1
Goc-ong) of the 11th Regional Mobile Force 4th Company thereupon asked them why they sped away to which
appellant Victor Vinecario (Vinecario), who was seated behind appellant Arnold Roble (Roble) and in front of
appellant Gerlyn Wates (Wates) on the motorcycle, retorted that he is a member of the army.4 When asked by the
law enforcers to produce an identification card, he could not, however, offer any. At this point, the police officers
noticed that a big military backpack was slung over the right shoulder of Vinecario who was observed, as were his
co-appellants, to be afraid and acting suspiciously.5 SPO1 Goc-ong thus asked Vinecario what the contents of the
backpack were. Vinecario answered that it merely contained a mat and proceeded to pass it to Wates, who in turn
passed it to Roble who, however, returned it to Vinecario.6
Suspecting that the backpack contained a bomb, SPO1 Goc-ong instructed his men to disperse, following which
he ordered Vinecario to open the bag. Vinecario did as ordered and as SPO1 Goc-ong noticed something
wrapped in paper, he told Vinecario to take the same out. Again Vinecario obliged, albeit reiterating that it was
only a mat.
SPO1 Goc-ong then touched the stuff wrapped in paper upon which Vinecario grabbed it,7 resulting to the tearing
off of the paper wrapper. Soon the smell of marijuana wafted in the air.
Vinecario thereafter told SPO1 Goc-ong "let us talk about this,"8 but the latter ignored Vinecario and instead
called his Commanding Officer and reported to him that marijuana was found in Vinecarios possession.
On orders of the Commanding Officer, the other police officers brought appellants along with two bundles of
marijuana, the backpack and the motorcycle to the battalion office at Camp Catitipan in Davao City and were
turned over to one PO2 Cabalon, an investigator of Regional Mobile Force 11. Before proceeding to said battalion
office, however, the incident was blottered9 by PO3 Edward Morado at the Buhangin Police Station.10
On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal (PO1 Carvajal) and PO1 Pual Padasay brought the
confiscated suspected marijuana to the camps crime laboratory for examination11 which determined it to weigh
1,700 grams12 and to be indeed positive therefor.13
As for appellants, their version of the incident follows:
Vinecario, then a member of the 25th Infantry Battalion of the 6th Infantry Division of the Philippine army stationed
at Pagakpak, Pantukan,14 approached motorcycle driver Wates at a terminal in Andile, Mawab and requested him
to bring him to his elder brother at Parang, Maguindanao for a fee of P500.00 which he paid.15 The two thus
proceeded to Carmen, Panabo where they picked up Roble to alternate with Wates as driver, and at 8:00 a.m., the
three left for Parang.16
On reaching Parang at about 1:20 p.m., Vinecario borrowed P3,000.00 from his brother Teofanis to shoulder the
medical expenses of his son. At about 4:30 p.m., after partaking of snacks at Teofanis residence, appellants left
for Davao City.
Along Parang Highway, Abdul Karim Datolarta, Vinecarios former co-employee at Emerson Plywood where he
previously worked, blocked the motorcycle.17 Vinecario thus alighted from the motorcycle and shook hands with
Datolarta18 who asked where they were headed for and requested that he ride with them. Vinecario turned
Datolarta down as there was no longer any room in the motorcycle. Datolarta then asked if he (Vinecario) could
take his bag of clothes and bring it to his cousin, one Merly, in Roxas, Tagum. Without examining its contents,
Vinecario acquiesced, took Datolartas bag and left with his co-appellants.19
On reaching Ulas in the evening of the same day, appellants, seeing that there was a checkpoint,20 sped past it.
When they were about 50 to 60 meters away from the checkpoint, they heard a whistle, prompting Wates to tap
Vinecario, telling him that the whistle came from the checkpoint. Vinecario then told Roble to go back to the
checkpoint.
While at the checkpoint, five police officers approached appellants and instructed them to alight from the
motorcycle. One of the officers asked Vinecario who he was, and Vinecario identified himself as a member of the
Philippine National Police.21 The officer asked for identification and when Vinecario could not produce any, the
former got the backpack slung on Vinecarios shoulder.
The same officer then asked Vinecario if they could open the bag, and as Vinecario acquiesced, two officers
opened the bag upon which they shouted that it contained marijuana. Vinecario then grabbed the backpack to
confirm if there was indeed marijuana. At that instant, the police officers held his hands and brought him, together
with the other appellants, to the Buhangin Police Station, and later to Camp Catitipan.
At the camp, appellants were investigated by police officials without the assistance of counsel, following which they
were made to sign some documents which they were not allowed to read.22
The trial court, by Decision of July 20, 1999, found appellants guilty as charged. The dispositive portion of the
decision reads, quoted verbatim:
WHEREFORE, finding the evidence of the prosecution, more than sufficient to prove the guilt of all three accused
beyond reasonable doubt of the offense charged, accused PFC Victor Vinecario, Arnold Roble and Gerlyn Wates,
pursuant to Sec. 4, Art. II in relation to Art. IV or (sic) Rep. Act 6425 as amended by Rep. Act 7659, Sec. 20, par. 5
thereof, are jointly sentence (sic) to suffer the supreme penalty of death by lethal injection, under Rep Act 8177 in
the manner and procedure therein provided, in relation to Sec. 24 of Rep. Act 7659, amending Art. 81 of the
Revised Penal Code.
Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of Court of RTC 16 Davao City, is ordered to elevate
the entire records of this case with the Clerk of Court, Supreme Court Manila, for the automatic review of this
Decision, after its promulgation.
SO ORDERED.23 (Underscoring supplied)
By Order of September 9, 1999, the trial court set aside its decision of July 20, 1999 and disposed as follows,
quoted verbatim:
Accordingly, all accused (sic) motion for reconsideration on this aspect, on the imposition of the penalty against all
accused, even if invoked only be accused Venecaio (sic) through his counsel de officio, will apply to all accused
since there exists conspiracy of all in the commission of the offense charged.
Judgment of this court, dated July 20, 1999, is accordingly set aside and reconsidered, only insofar as the
imposition of the supreme penalty of death through lethal injection under Republic Act No. 8177, is concerned.
All accused PFC Victor Venecario, Arnold Roble and Gerlyn Wates, are instead sentence (sic) to suffer the
penalty of reclusion perpetua, pursuant to Art. IV, Sec. 21, in relation to Art. IV of Republic Act No. 6425 as
amended by Republic Act No. 7659, Sec. 20, par. 5 thereof, in accordance with Art. 63 of the Revised Penal Code,
as decided by the Supreme Court in the recent case of Peope (sic) vs. Ruben Montilla G.R. No. 123872 dated
January 30, 1998.
However, the findings of this court for the conviction of all aaccused (sic) of the offense charged, is (sic) sustained.
The corresponding motion (sic) for reconsideration of all accused through their counsel for their acquittal of (sic)
the offense charged, is denied, for lack of merit.
SO ORDERED.24 (Emphasis and Underscoring supplied)
The prosecution then filed a Motion for Reconsideration25 dated September 14, 1995 of the above-mentioned
Order of the trial court, it arguing that the commission of the offense charged against appellants was attended by
an aggravating circumstance in that it was committed by an organized or syndicated crime group, thus warranting
the imposition of the death penalty.
In the meantime, Roble and Wates filed their Notice of Appeal26 on September 15, 1999. Vinecario followed suit
and filed his Notice of Appeal.27
The trial court, by Order dated September 22, 1999, denied the prosecutions Motion.
In their brief, Roble and Wates assign the following errors:
1. THE TRIAL COURTS OBSERVATION THAT APPELLANTS WATES AND ROBLE CONSPIRED WITH
VICTOR VINECARIO IN TRANSPORTING MARIJUANA FROM PARANG, MAGUINDANAO IS NOT BORNE BY
THE EVIDNECE (sic) ON RECORD AND SHOWS THAT THE TRIAL COURT GRAVELY ERRED IN
MISAPPREHENDING FACTS IF NOT A COMPLETE DISREGARD OF THE EVIDENCE, BOTH
DOCUMENTARY AND TESTIMONIAL.
2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO AFFORD EVIDENTIARY WEIGHT TO THE
RECANTATION MADE BY POLICE OFFICERS HAYDENBURG GOC-ONG AND VICENTE CARVAJAL THAT
BOTH APPELLANTS WATES AND ROBLE WERE NOT NERVOUS AND APPREHENSIVE AT THE TME (sic)
OF THE OPENING OF THE MILITARY PACK CONTAINING MARIJUANA NEAR THE CHECKPOINT.
3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO THE TESTIMONIES OF
APPELLANTS WATES AND ROBLE THAT THEY WERE MERELY HIRED BY VICTOR VINECARIO TO BRING
HIM TO PARANG, MAGUINDANAO FOR A FEE OF P500.00 WITH FREE FOOD AND GASOLINE.
4. THE TRIAL COURT GRAVELY ERRED IN DECLARING THE RENTAL OF P500.00 WHICH VINECARIO
PAID TO THE OWNER OF THE [MOTORCYCLE] AS INADEQUATE BY TAKING JUDICIAL NOTICE OF THE
BUS FARE OF P268.00 FROM MACO, DAVAO PROVINCE TO SUN WAY CROSSING, MAGUINDANAO
DOWN TO PARANG, MAGUINDANAO.28
Wates and Roble argue that there is no iota of evidence to prove that they acted with unity of purpose and in the
execution of any unlawful objective with Vinecario.29 They assert that they had no prior knowledge of Vinecarios
plan to meet with a man who would give the backpack containing marijuana; that prosecution witnesses SPO1
Goc-ong and PO1 Carvajals declaration that they (appellants Wates and Roble) were not nervous, uneasy or
apprehensive when the backpack was opened buttresses their claim that they did not conspire with Vinecario; and
that the prosecutions theory of conspiracy was merely based on the testimony of PO1 Carvajal that they acted
nervously when the backpack was ordered opened for inspection; that there was a "great variance" in the
testimonies of SPO1 Goc-ong and PO1 Carvajal in the direct examination and their testimonies on rebuttal as to
the events that transpired on April 10, 1995, thus casting serious doubts on the trial courts findings of guilt.
On September 17, 2001, Vinecario filed an Urgent Motion to Withdraw Appeal,30 stating that he is "practically
satisfied with the decision of the trial court"; that "he would not waste anymore the effort of the honorable Supreme
Court Justices in further reviewing his case"; and that as he was "driven by the sincerest desire in renewing his
life," he "irrevocably moves for the withdrawal of his appeal." On even date, Roble and Wates likewise filed an
Urgent Motion to Withdraw Appeal,31 stating that they admit the commission of the offense for which they were
convicted; that they are satisfied with the decision of the trial court; and that they are already serving the penalty
for their offense and "realize the overt admittance of guilt as the only vehicle in [their] gradual renewal."
By Resolution of November 27, 2001, this Court denied the Motions of appellants and directed Vinecario to file his
brief within forty-five days from notice of the resolution.
In a brief dated January 25, 2002, Vinecario attributes the following errors to the trial court:
I. THE COURT A QUO GRAVELY ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic)
VALID.
II. THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT
THE ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A PRODUCT OF AN ILLEGAL SEARCH.
III. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF
PROSECUTION WITNESSES AND IN GIVING THE POLICEMEN THE PRESUMPTION OF REGULARITY IN
THE PERFORMANCE OF DUTY DESPITE THE APPARENT IRREGULARITIES IN THE MANNER OF
ARRESTING THE ACCUSED-APPELLANT.
IV. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT
FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.32
Vinecario argues that the prosecution failed to show that the search conducted by the police officers was
incident to a lawful arrest; that he could not have been deemed to have consented to the search as any
such consent was given under intimidating or coercive circumstances; and that there existed no probable
cause to justify the search and seizure of the backpack, hence, the marijuana is inadmissible in evidence, it
being a product of illegal search.
Vinecario adds that the police officers who arrested and investigated him failed to inform him of his rights to remain
silent and to have competent and independent counsel of his choice, thereby violating Section 12(1), Article III of
the Constitution.33
The rule is constitutionally enshrined that no search and seizure can lawfully be conducted without a valid warrant
issued by a competent judicial authority. Section 2, Article III of the Constitution so ordains:
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.
And Section 3(2), Article III of the same Constitution mandates that any evidence obtained in violation of the right
of the people under Section 2 shall be inadmissible for any purpose in any proceeding.
The constitutional proscription against warrantless searches and seizures admits of certain exceptions, however.
Search and/or seizure may be made without a warrant and the evidence obtained therefrom may be admissible in
the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in
violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right
against unreasonable searches and seizures; and (6) stop-and-frisk situations.34
Searches conducted in checkpoints are valid for as long as they are warranted by the exigencies of public order
and are conducted in a way least intrusive to motorists.35 For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individuals right against unreasonable search.36
x x x [Checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of
organized government is on the balance, or where the lives and safety of the people are in grave peril,
checkpoints may be allowed and installed by the government.
xxx
No one can be compelled, under our libertarian system, to share with the present government its ideological
beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one
must concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of
government intended for public welfare; and in the pursuit of those objectives, the government has the equal right,
under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is
evidently one of such means it has selected.
Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorists right to "free passage
without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travelers during
which the vehicles occupants are required to answer a brief question or two. x x x
These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme
Court:
"Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with
legitimate traffic is minimal. Motorists using these highways are not taken by surprise as they know, or may obtain
knowledge of, the location of the checkpoints and will not be stopped elsewhere. Second checkpoint operations
both appear to and actually involve less discretionary enforcement activity. The regularized manner in which
established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are
duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by
officers in the field, but by official responsible for making overall decisions as to the most effective allocation of
limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it
bears arbitrarily or oppressively on motorists as a class, and since field officers may stop only those cars passing
the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of
roving-patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint
is unreasonable is subject to post-stop judicial review."37
Judicial notice is taken of the existence of COMELEC Resolution No. 2735 imposing a gun ban during an election
period issued pursuant to Section 52(c) of the Omnibus Election Code (Batas Pambansa Blg. 881).38 The national
and local elections in 1995 having been held on May 8, the present incident, which occurred on April 10, 1995,
was well within the election period.
Although the general rule is that motorists and their vehicles as well as pedestrians passing through checkpoints
may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is
probable cause which justifies a reasonable belief of the men at the checkpoints that either the motorist is a law
offender or the contents of the vehicle are or have been instruments of some offense.39
Probable cause has been defined as such facts and circumstances which could lead a reasonable, 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 required probable cause that will justify a warrantless search
and seizure is not detemined by any fixed formula but is resolved according to the facts of each case.
Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of
existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or
where the accused was acting suspiciously, and attempted to flee.40 (Emphasis supplied).
That probable cause existed to justify the search conducted by the police officers at the checkpoint is gathered
from the following testimony of SPO1 Goc-ong:
Q: You said you saw three on board a motorcycle what did your unit do when these three persons approached?
A: We were waiting for them. When they arrived they stopped and speeded away.
Q: What was your reaction when you saw the motor speeding away?
A: One of my men blew his whistle ordering to (sic) return back (sic).
xxx
Q: When they returned back (sic) what happened?
A: When they returned back (sic) I asked them why they speeded away?
Q: What did they answer?
A: One of them said that he is a member of the army.
Q: If that person who said that he is a member of the army is in court, can you point to him?
A: (Witness went down from the witness stand and pointed to a man wearing yellow t-shirt who stood up and when
asked about his name answered that he is Victor Venecario).
xxx
Q: What was your reaction when Venecario failed to show any identification papers to show that he is really a
member of the army?
A: We saw his big backpack and asked him what was inside.
Q: Who was carrying that big backpack?
A: Venecario.
xxx
Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him?
A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different
reactions (sic).
Q: They were acting suspiciously?
A: Yes.
Q: That is what you have observed from their faces?
A: Yes, sir.
Q: What did Venecario do when you asked him about the contents of that backpack?
A: He said that it is a mat and passed it on to his companion.
Q: You said he passed it on to his companion, there were two (2) companions, to whom did he pass it on?
A: He passed it on to Wates and Wates passed it on to Roble.
Q: What did Roble do when Wates passed it to him?
A: Roble returned it back (sic) to Venecario.
Q: So what was your reaction when you saw the three passing the bag from one person to another?
A: My suspicion was it was a bomb and ordered my men to scatter.
Q: Tell us why are you (sic) concerned about explosives was there any incident prior to that checkpoint?
A: Election was past (sic) approaching and there was a threat that Davao City will be bombed.
Q: Prior to that was there any incident?
xxx
A: In Ipil, Zamboanga on April 4.
Q: If you recall when was that?
A: April 4 of the same year.

Q: You said the bag was passed to Venecario and you told your men to scatter, what happened next?
A: I ordered Venecario to open the backpack.
Q: What did Venecario do when you ordered him to open?
A: They opened the backpack..41
SPO1 Goc-ongs testimony was corroborated by PO1 Vicente Carvajal:
Q: At about 10:45 in the evening of that date April 10, 1995 do you recall of any unusual incident while you were
conducting that checkpoint?
A: Yes, sir.
Q: What was that incident all about?
A: At that time, while we were conducting a checkpoint, we saw this motorcycle passing and flagged them to stop
and there were three (3) persons and one was manning and they briefly stopped but speeded away.
xxx
Q: When these three (3) persons retured (sic) back (sic) what happened?
A: The one riding introduced himself as a member of the army.
xxx
Q: You said these three persons were nervous and one of them introduced himself as an army man, what did you
do?
A: I asked for an ID.
Q: Who among you asked for an ID?
A: Sgt. Goc-ong.
Q: Where were you at that time when Goc-ong asked for his ID?
A: I was behind him because I backed him up.
Q: What was the reaction of Venecario when he was asked to produce an ID?
A: He answered that he has no ID.
Q: What was the reaction of the group when Venecario failed to show any ID that he was an army man?
A: Our other companion moved closer as security.
Q: Why?
A: We were on alert because on April 4 the one who attacked were (sic) in uniform.
Q: At that time what was Venecario wearing?
A: He was in camouflage and wearing sleepers (sic).
xxx
Q: After that what happened?
A: We were able to observe that he was carrying a bag.
Q: What was the reaction of Venecario when he was asked what was (sic) the contents of the bag?
A: He appeared to be hesitant and he said that it contained clothes.
Q: Before that what did Venecario do?
A: He placed it in (sic) his shoulder.
Q: What did he do with the backpack?
A: When asked he passed it to his other companions.

Q: What did Venecario when he passed it to his companion?
A: Venecario passed it to his companion and that companion passed it to his other companion.
Q: After this companion received the backpack from his companion what did he do?
A: He returned back (sic) to Venecario.
Q: They passed it from one person to another until it was returned to Venecario?
A: Yes, sir.
xxx
Q: You said that backpack was passed from one person to another and when he got hold of that backpack what
happened?
A: He opened the backpack.
Q: Who told him to open the backpack?
A: Sgt. Goc-ong.42
In light then of appellants speeding away after noticing the checkpoint and even after having been flagged down
by police officers, their suspicious and nervous gestures when interrogated on the contents of the backpack which
they passed to one another, and the reply of Vinecario, when asked why he and his co-appellants sped away from
the checkpoint, that he was a member of the Philippine Army, apparently in an attempt to dissuade the policemen
from proceeding with their inspection, there existed probable cause to justify a reasonable belief on the part of the
law enforcers that appellants were offenders of the law or that the contents of the backpack were instruments of
some offense.
As to Vinecarios allegation that his constitutional rights were violated during the custodial investigation conducted
by the police officers, the same is relevant and material only when an extrajudicial admission or confession
extracted from an accused becomes the basis of his conviction.43 In the case at bar, the trial court convicted
appellants on the basis of the testimonies of the prosecution witnesses, particularly those of SPO1 Haydenburge
Goc-ong and PO1 Vicente Carvajal.
Finally, Vinecario harps on his defense of denial which he recounted as follows:
Q: After leaving the residence of your brother was there any unusual incident that took place?
A: Yes, sir.
Q: What was that?
A: The moment we arrived there there was a person who blocked us.
Q: Where?
A: Parang Highway.
Q: Coming here to Davao?
A: Yes.
Q: What happened after Crossing Parang?
A: There was a person who blocked us.
Q: A former companion of yours?
A: Yes.
Q: A former soldier?
A: No, sir.
Q: You said your former companion, am I correct?
A: Before I became a soldier, I worked in Emerson Plywood.
Q: So that person who flagged down you were (sic) your former companion?
A: Yes.
Q: You are familiar with him?
A: I know him very well.
Q: He was your close friend?
A: Yes.
Q: What is the name of that person who stopped you?
A: Abdul Karim Datolarta.
Q: He was alone when he stopped you?
A: Yes, sir.
Q: What happened when your friend Abdul Karin (sic) Datolarta stopped you?
A: When he stopped us, I immediately disembarked from the motor vehicle and shook hands with him.
Q: He was the one who stopped you or you were the one who told the driver to stop?
A: My friend.
Q: You immediately recognized the face of that friend of yours?
A: Not yet.
Q: What else happened aside from shaking hands and greeting?
A: He asked me where I was heading.
Q: What was your answer?
A: I told him that I am going back to Davao.
Q: What else did he tell you?

A: He told me if he can also ride with us.
Q: What did you tell him?
A: I told him we were already three.
Q: What happened next?
A: Since I refused he asked me if I could bring his bag and he mentioned the name of that cousin of his in Tagum.
Q: He mentioned the name?
A: Yes, Merly.
Q: What is the family name?
A: He just mentioned Merly who is residing in Tagum.
Q: Where in Tagum?
A: Roxas, Tagum.
Q: What did you do when he asked you to bring that bag to his cousin in Tagum?
A: I asked him what was (sic) the contents?
Q: What did he answer you?
A: He answered clothes.
Q: What did you do?
A: Because were (sic) were in a hurry I slung it in (sic) my shoulder.
Q: You did not become suspicious?
A: No more because I trusted the person and I have an emergency to take (sic) that time.44
Vinecarios account - that in the evening of April 10, 1995, while he and his co-appellants were cruising along the
highway, a person whom he failed to recognize but who turned out to be an acquaintance, Abdul Karim Datolarta,
flagged down45 the motorcycle, and as requested by Datolarta, he readily agreed to bring a backpack to
Datolartas cousin without checking its contents - is incredible, contrary to human experience, and taxes credulity.
Datolarta was not even apprehended nor presented at the trial, thus further eliciting serious doubts on Vinecarios
tale.
The defense of denial, like alibi, has invariably been viewed by the courts with disfavor for it can just as easily be
concocted and is a common and standard defense ploy in most prosecutions of the Dangerous Drugs Act.46
The categorical and consistent testimonies, and the positive identification by prosecution witnesses SPO1 Goc-
ong and PO1 Carvajal, against whom no ill motive to falsely charge appellants was shown, must thus then prevail
over the unconvincing alibi and unsubstantiated denial of appellants.
As for the challenged finding by the trial court of conspiracy among appellants, the same fails.
Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and
decide to commit it.47 Where the acts of the accused collectively and individually demonstrate the existence of a
common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the
perpetrators will be liable as principals.48 To exempt himself from criminal liability, the conspirator must have
performed an overt act to dissociate or detach himself from the unlawful plan to commit the crime.49
In People v. Concepcion,50 this Court held:
x x x Proof of agreement need not rest on direct evidence as the same may be inferred from the conduct of the
parties indicating a common understanding among them with respect to the commission of the offense. It is not
necessary to show that two or more persons met together and entered into an explicit agreement setting out the
details of an unlawful scheme or the details by which an illegal objective is to be carried out. It may be deduced
from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused evincing
a joint or common purpose and design, concerted action and community of interest.
In the case at bar, as established by the evidence, appellants connived in unlawfully transporting the subject
marijuana. Roble, who was driving the motorcycle at Ulas, did not stop but instead sped away upon seeing the
checkpoint in a clear attempt to avoid inspection by the police officers. When asked as to the contents of the
backpack by SPO1 Goc-ong, appellants passed the same to one another, indicating that they knew its contents.
These circumstances manifest appellants concerted efforts and cooperation towards the attainment of their
criminal objective.
Wates and Roble assail the credibility of prosecution witnesses SPO1 Goc-ong and PO1 Carvajal, they contending
that these witnesses contradicted their testimonies-in-chief when they subsequently testified on rebuttal that
appellants were not nervous or apprehensive at all when they were being inspected by the policemen.
It bears noting, however, that the alleged conflicting observations of SPO1 Goc-ong and PO1 Carvajal referred to
by Roble and Wates on their deportment pertain to different stages of the checkpoint inspection as a scrutiny of
the records reveals. Thus, in his direct examination, SPO1 Goc-ong testified as follows:
Q: You said you asked him what was (sic) the contents of that backpack, can you tell us why did you (sic) ask him?
A: I asked about that because I observed them to be acting suspiciously as if they were afraid and different
reactions (sic).
Q: They were acting suspiciously?
A: Yes.
Q: That is what you observed in their faces?
A: Yes, sir.51
PO1 Carvajal, on cross-examination, echoed Goc-ongs observations on appellants deportment upon returning to
the checkpoint:
Q: You said when these three (3) suspects riding the motorcycle returned and stopped you said you noticed one
of them was nervous, did I get you right?
A: Yes, sir.
Q: Only one was nervous?
A: All of them.
Q: When you said they appeared to be nervous, could that mean that they were trembling?
A: Yes, sir.
Q: In fact they were pale, is that correct?
A: Yes.
Q: You noticed they were pale despite the fact that it was dark and it was 10:00 oclock in the evening?
A: There was light.
Q: The place was well-lighted?
A: Yes, sir.52
On rebuttal, SPO1 Goc-ong stated that appellants were not anxious or apprehensive when he flagged them down
as they crossed the checkpoint.53
PO1 Carvajal, on the other hand, testified on rebuttal that Wates was not nervous as Vinecarios backpack was
being opened.54
As to the other alleged discrepancies pointed out by Wates and Roble, the following arguments of the Office of the
Solicitor General, which are quoted with approval, should dispose of the same:
It is incorrect to suggest that just because SPO1 Goc-ong testified that other vehicles passed through the
checkpoint before the appellants arrived, the latter could not have sped away from the checkpoint. SPO1 Goc-ong
did not give any testimony that other vehicles were still at the checkpoint at the time the appellants arrived. On the
contrary, he testified there was no other vehicle ahead of the appellants at the checkpoint when the latter arrived
on their motorcycle (TSN, June 17, 1999, p.7).
It is also incorrect to suggest that appellants may not have noticed the checkpoint just because SPO1 Goc-ong
made no mention of using reflectorized objects at the checkpoint. As described earlier in his Brief, this witness
explained that the checkpoint was visible because it had a sign board at the middle of the road that read,
"COMELEC GUN BAN" (TSN, June 17, 1999, pp. 6 and 8). There is no way for appellants not to have noticed the
checkpoint.55
In fine, appellants defenses fail in light of their clearly proven act of delivering or transporting marijuana.
The evidence shows that accused-appellant was apprehended in the act of delivering or transporting illegal drugs.
"Transport" as used under the Dangerous Drugs Act is defined to mean: "to carry or convey from one place to
another." When accused-appellant used his vehicle to convey the package containing marijuana to an unknown
destination, his act was part of the process of transporting the said prohibited substance. Inherent in the crime of
transporting the prohibited drug is the use of a motor vehicle. The very act of transporting a prohibited drug, like in
the instant case, is a malum prohibitum since it is punished as an offense under a special law. The mere
commission of the act constitutes the offense and is sufficient to validly charge and convict an individual
committing the act, regardless of criminal intent. Since the appellant was caught transporting marijuana, the crime
being mala prohibita, accused-appellants intent, motive, or knowledge, thereof need not be shown.56
(Underscoring supplied)
A word on the penalty. As provided in Section 4 of the Dangerous Drugs Act, the penalty of reclusion perpetua to
death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall transport any prohibited drug. Section 20, Article IV of the same act
provides that the penalty imposed in Section 4 shall be applied if the dangerous drug is, with respect to marijuana,
750 grams or more. In the case at bar, the marijuana involved weighed 1,700 grams. Since the law prescribes two
indivisible penalties, a resort to Article 63 of the Revised Penal Code57 is necessary. There being no mitigating
nor aggravating circumstance that attended the commission of the offense, the lesser penalty of reclusion
perpetua was properly imposed by the trial court. A fine of P500,000.00 should, however, been likewise imposed
on the appellants in solidum in accordance with the law.
WHEREFORE, the decision of the Regional Trial Court, Davao City, Branch 16, in Criminal Case No. 35233-95
finding appellants Victor Vinecario, Arnold Roble and Gerlyn Wates guilty beyond reasonable doubt of illegally
transporting marijuana under Section 4, Article II of Republic Act No. 6425, as amended, is hereby AFFIRMED with
MODIFICATION. As modified, appellants are sentenced to each suffer the penalty of reclusion perpetua and
solidarity pay a fine of P500,000.00.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
Footnotes
1 Id. at 8.
2 TSN, December 13, 1995 at 18.
3 Ibid.
4 Ibid.
5 Id. at 20-21.
6 Id. at 21.
7 Id. at 23.
8 Id. at 23.
9 Exhibit "F", Records at 234.
11 Exhibit "D", Records at 232.
13 Exhibit "C"-Chemistry Report No. D-072-85, Records at 231.
14 TSN, July 29, 1998 at 13.
15 Id. at 15.
16 Id. at 14.
17 Id. at 20.
18 Id. at 21.
19 Id. at 23.
20 TSN, July 29, 1998 at 23-24; TSN, November 14, 1996 at 14; TSN, November 15, 1996 at 44.
21 TSN, July 29, 1998 at 26.
22 Id. at 30.
23 Rollo at 44.
24 Id. at 45-D.
25 Records at 209-223.
26 Rollo at 45-I.
27 Records at 232-A-232-C.
28 Id. at 53-54.
29 Id. at 73.
30 Id. at 149.
31 Id. at 157.
32 Rollo at 176-177.
33 SEC. 12(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
34 People v. Usana, 323 SCRA 754, 768 (2000) (citations omitted); People v. Doria, 301 SCRA 668, 705
(1999) (citations omitted).
35 People v. Usana, 323 SCRA 754, 767 (2000) (citation omitted).
36 Id.
37 Valmonte v. de Villa, 185 SCRA 665 (1990).
38 SEC. 52 Powers and functions of the Commission on Elections.- In addition to the powers and functions
conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections, and shall:
xxx
(c) Promulgate rules and regulations implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer, and require the payment of legal fees and collect
the same in payment of any business done in the Commission, at rates that it may provide and fix in
its rules and regulations.
xxx
39 Valmonte v. De Villa, 185 SCRA 665, 670 (1990).
40 People v. Malmstedt, 198 SCRA 401, 408 (1991).
41 TSN, December 13, 1995 at 17-22.
42 Id. at 39-42.
43 People v. Buluran, 325 SCRA 476, 485 (2000) (citation omitted).
44 TSN, July 29, 1998 at 19-23.
45 Id. at 21.
46 People v. Concepcion, 361 SCRA 716, 723 (2001) (citations omitted).
47 Id at 731.
48 People v. Ellado, 353 SCRA 643, 649 (2001) (citation omitted).
49 People v. Morial, 363 SCRA 96, 124 (2001) (citation omitted).
50 361 SCRA 716 (2001).
51 TSN, December 13, 1995 at 20-21.
52 Id. at 53-54.
53 TSN, June 17, 1999 at 8.
54 Id. at 14.
55 Rollo at 255-256.
56 People v. Del Mundo, 366 SCRA 471 (2001).
57 ART. 63. Rules for the application of indivisible penalties. xxx
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance, the
greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed,
the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act. The
court shall reasonably allow them to offset one another in consideration of their number and
importance, for the purpose of applying the penalty in accordance with the preceding rules, according
to the result of such compensation.
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Camara v. Municipal Court, 387 U.S. 523 (1967)
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Camara v. Municipal Court of the City and County of San Francisco
No. 92
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Argued February 15, 1967 Question:
Decided June 5, 1967 Please Ask Your Question Here. e.g.,

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387 U.S. 523
APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA,

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Syllabus
Appellant was charged with violating the San Francisco Housing Code for refusing, after
three efforts by city housing inspectors to secure his consent, to allow a warrantless
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inspection of the ground-floor quarters which he leased and residential use of which
allegedly violated the apartment building's occupancy permit. Claiming the inspection Follow justiacom
ordinance unconstitutional for failure to require a warrant for inspections, appellant
while awaiting trial, sued in a State Superior Court for a writ of prohibition, which the Fan Justia
court denied. Relying on Frank v. Maryland, 359 U. S. 360, and similar cases, the
District Court of Appeal affirmed, holding that the ordinance did not violate the Fourth Justia
Amendment. The State Supreme Court denied a petition for hearing. Like
Held: 138,407 people like Justia.
1. The Fourth Amendment bars prosecution of a person who has refused to permit a
warrantless code enforcement inspection of his personal residence. Frank v. Maryland,
supra, pro tanto overruled. Pp. 387 U. S. 528-534.
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(a) The basic purpose of the Fourth Amendment, which is enforceable against the
States through the Fourteenth, through its prohibition of "unreasonable" searches and
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invasions by governmental officials. P. 387 U. S. 528. Legal Issue or Lawyer Name
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(b) With certain carefully defined exceptions, an unconsented warrantless search of
private property is "unreasonable." Pp. 387 U. S. 528-529. Lawyers
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interests are not merely "peripheral" where municipal fire, health, and housing inspection Mehmet Basoglu
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programs are involved whose purpose is to determine the existence of physical Parsippany, NJ
conditions not complying with local ordinances. Those programs, moreover, are Keith Oliver
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Page 387 U. S. 524
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that warrant in such cases are unfeasible; or that area inspection programs could not Jeffrey Grow
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function under reasonable search warrant requirements. Pp. 387 U. S. 531-533.
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appraisal of conditions in the area as a whole. The standards to guide the magistrate in
the issuance of such search warrants will necessarily vary with the municipal program
being enforced. Pp. 387 U. S. 534-539.
3. Search warrants which are required in nonemergency situations should normally be

sought only after entry is refused. Pp. 387 U. S. 539-540.
4. In the nonemergency situation here, appellant had a right to insist that the
inspectors obtain a search warrant. P. 387 U. S. 540.
237 Cal.App.2d 128, 46 Cal.Rptr. 585, vacated and remanded.
Page 387 U. S. 525
MR. JUSTICE WHITE delivered the opinion of the Court.
In Frank v. Maryland, 359 U. S. 360, this Court upheld, by a five-to-four vote, a state
court conviction of a homeowner who refused to permit a municipal health inspector to
enter and inspect his premises without a search warrant. In Eaton v. Price, 364 U. S.
263, a similar conviction was affirmed by an equally divided Court. Since those closely
divided decisions, more intensive efforts at all levels of government to contain and
eliminate urban blight have led to increasing use of such inspection techniques, while
numerous decisions of this Court have more fully defined the Fourth Amendment's
effect on state and municipal action. E.g., Mapp v. Ohio, 367 U. S. 643; Ker v.
California, 374 U. S. 23. In view of the growing nationwide importance of the problem,
we noted probable jurisdiction in this case and in See v. City of Seattle, post, p. 387 U.
S. 541, to reexamine whether administrative inspection programs, as presently
authorized and conducted, violate Fourth Amendment rights as those rights are
enforced against the States through the Fourteenth Amendment. 385 U.S. 808.
Appellant brought this action in a California Superior Court alleging that he was awaiting
trial on a criminal charge of violating the San Francisco Housing Code by refusing to
permit a warrantless inspection of his residence, and that a writ of prohibition should
issue to the criminal court because the ordinance authorizing such inspections is
unconstitutional on its face. The Superior Court denied the writ, the District Court of
Appeal affirmed, and the Supreme Court of California denied a petition for hearing.
Appellant properly raised and had considered by the California courts the federal
constitutional questions he now presents to this Court.
Though there were no judicial findings of fact in this prohibition proceeding, we shall set
forth the parties' factual allegations. On November 6, 1963, an inspector
Page 387 U. S. 526
of the Division of Housing Inspection of the San Francisco Department of Public Health
entered an apartment building to make a routine annual inspection for possible
violations of the city's Housing Code. [Footnote 1] The building's manager informed the
inspector that appellant, lessee of the ground floor, was using the rear of his leasehold
as a personal residence. Claiming that the building's occupancy permit did not allow
residential use of the ground floor, the inspector confronted appellant and demanded
that he permit an inspection of the premises. Appellant refused to allow the inspection
because the inspector lacked a search warrant.
The inspector returned on November 8, again without a warrant, and appellant again
refused to allow an inspection. A citation was then mailed ordering appellant to appear
at the district attorney's office. When appellant failed to appear, two inspectors
returned to his apartment on November 22. They informed appellant that he was
required by law to permit an inspection under 503 of the Housing Code:
"Sec. 503 RIGHT TO ENTER BUILDING. Authorized employees of the City departments
or City agencies, so far as may be necessary for the performance of their duties, shall,
upon presentation of proper credentials, have the right to enter, at reasonable times,
any building, structure, or premises in the City to perform any duty imposed upon them
by the Municipal Code. "
Page 387 U. S. 527
Appellant nevertheless refused the inspectors access to his apartment without a search
warrant. Thereafter, a complaint was filed charging him with refusing to permit a lawful
inspection in violation of 507 of the Code. [Footnote 2] Appellant was arrested on
December 2 and released on bail. When his demurrer to the criminal complaint was
denied, appellant filed this petition for a writ of prohibition.
Appellant has argued throughout this litigation that 503 is contrary to the Fourth and
Fourteenth Amendments in that it authorizes municipal officials to enter a private
dwelling without a search warrant and without probable cause to believe that a violation
of the Housing Code exists therein. Consequently, appellant contends, he may not be
prosecuted under 507 for refusing to permit an inspection unconstitutionally
authorized by 503. Relying on Frank v. Maryland, Eaton v. Price, and decisions in
other States, [Footnote 3] the District
Page 387 U. S. 528
Court of Appeal held that 503 does not violate Fourth Amendment rights because it
"is part of a regulatory scheme which is essentially civil, rather than criminal in nature,
inasmuch as that section creates a right of inspection which is limited in scope and may
not be exercised under unreasonable conditions."
Having concluded that Frank v. Maryland, to the extent that it sanctioned such
warrantless inspections, must be overruled, we reverse.
The Fourth Amendment provides that,
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."
The basic purpose of this Amendment, as recognized in countless decisions of this

Court, is to safeguard the privacy and security of individuals against arbitrary invasions
by governmental officials. The Fourth Amendment thus gives concrete expression to a
right of the people which "is basic to a free society." Wolf v. Colorado, 338 U. S. 25,
338 U. S. 27. As such, the Fourth Amendment is enforceable against the States
through the Fourteenth Amendment. Ker v. California, 374 U. S. 23, 374 U. S. 30.
Though there has been general agreement as to the fundamental purpose of the Fourth
Amendment, translation of the abstract prohibition against "unreasonable searches and
seizures" into workable guidelines for the decision of particular cases is a difficult task
which has for many years divided the members of this Court. Nevertheless, one
governing principle, justified by history and by current experience, has consistently
been followed: except in certain carefully defined classes of cases, a search of private
property without proper consent
Page 387 U. S. 529
is "unreasonable" unless it has been authorized by a valid search warrant. See, e.g.,
Stoner v. California, 376 U. S. 483; United States v. Jeffers, 342 U. S. 48; McDonald v.
United States, 335 U. S. 451; Agnello v. United States, 269 U. S. 20. As the Court
explained in Johnson v. United States, 333 U. S. 10, 333 U. S. 14:
"The right of officers to thrust themselves into a home is also a grave concern not only
to the individual, but to a society, which chooses to dwell in reasonable security and
freedom from surveillance. When the right of privacy must reasonably yield to the right
of search is, as a rule, to be decided by a judicial officer, not by a policeman or
government enforcement agent."
In Frank v. Maryland, this Court upheld the conviction of one who refused to permit a
warrantless inspection of private premises for the purposes of locating and abating a
suspected public nuisance. Although Frank can arguably be distinguished from this case
on its facts, [Footnote 4] the Frank opinion has generally been interpreted as carving
out an additional exception to the rule that warrantless searches are unreasonable
under the Fourth Amendment. See Eaton v. Price, supra. The District Court of Appeal
so interpreted Frank in this case, and that ruling is the core of appellant's challenge
here. We proceed to a reexamination of the factors which
Page 387 U. S. 530
persuaded the Frank majority to adopt this construction of the Fourth Amendment's
prohibition against unreasonable searches.
To the Frank majority, municipal fire, health, and housing inspection programs
"touch at most upon the periphery of the important interests safeguarded by the
Fourteenth Amendment's protection against official intrusion,"
359 U.S. at 359 U. S. 367, because the inspections are merely to determine whether
physical conditions exist which do not comply with minimum standards prescribed in
local regulatory ordinances. Since the inspector does not ask that the property owner
open his doors to a search for "evidence of criminal action" which may be used to
secure the owner's criminal conviction, historic interests of "self-protection" jointly
protected by the Fourth and Fifth Amendments [Footnote 5] are said not to be
involved, but only the less intense "right to be secure from intrusion into personal
privacy." Id. at 359 U. S. 365.
We may agree that a routine inspection of the physical condition of private property is a
less hostile intrusion than the typical policeman's search for the fruits and
instrumentalities of crime. For this reason alone, Frank differed from the great bulk of
Fourth Amendment cases which have been considered by this Court. But we cannot
agree that the Fourth Amendment interests at stake in these inspection cases are
merely "peripheral." It is surely anomalous to say that the individual and his private
property are fully protected by the Fourth Amendment only when the individual is
suspected of criminal behavior. [Footnote 6] For instance, even the most law-abiding
citizen
Page 387 U. S. 531
has a very tangible interest in limiting the circumstances under which the sanctity of his
home may be broken by official authority, for the possibility of criminal entry under the
guise of official sanction is a serious threat to personal and family security. And even
accepting Frank's rather remarkable premise, inspections of the kind we are here
considering do, in fact, jeopardize "self-protection" interests of the property owner. Like
most regulatory laws, fire, health, and housing codes are enforced by criminal
processes. In some cities, discovery of a violation by the inspector leads to a criminal
complaint. [Footnote 7] Even in cities where discovery of a violation produces only an
administrative compliance order, [Footnote 8] refusal to comply is a criminal offense,
and the fact of compliance is verified by a second inspection, again without a warrant.
[Footnote 9] Finally, as this case demonstrates, refusal to permit an inspection is itself
a crime, punishable by fine or even by jail sentence.
The Frank majority suggested, and appellee reasserts, two other justifications for
permitting administrative health and safety inspections without a warrant. First, it is
argued that these inspections are "designed to make the least possible demand on the
individual occupant." 359 U.S. at 359 U. S. 367. The ordinances authorizing inspections
are hedged with safeguards, and at any rate the inspector's particular decision to enter
must comply with the constitutional standard of reasonableness even if he may enter
without a warrant. [Footnote 10] In addition, the argument
Page 387 U. S. 532
proceeds, the warrant process could not function effectively in this field. The decision to
inspect an entire municipal area is based upon legislative or administrative assessment
of broad factors such as the area's age and condition. Unless the magistrate is to
review such policy matters, he must issue a "rubber stamp" warrant which provides no
protection at all to the property owner.
In our opinion, these arguments unduly discount the purposes behind the warrant
machinery contemplated by the Fourth Amendment. Under the present system, when
the inspector demands entry, the occupant has no way of knowing whether
enforcement of the municipal code involved requires inspection of his premises, no way
of knowing the lawful limits of the inspector's power to search, and no way of knowing
whether the inspector himself is acting under proper authorization. These are questions
which may be reviewed by a neutral magistrate without any reassessment of the basic
agency decision to canvass an area. Yet only by refusing entry and risking a criminal
conviction can the occupant at present challenge the inspector's decision to search. And
even if the occupant possesses sufficient fortitude to take this risk, as appellant did
here, he may never learn any more about the reason for the inspection than that the
law generally allows housing inspectors to gain entry. The practical effect of this system
is to leave the occupant subject to the discretion of the official in the field. This is
precisely the discretion to invade private property which we have consistently
circumscribed by a requirement that a disinterested party warrant the need to
Page 387 U. S. 533
search. See cases cited p. 387 U. S. 529 supra. We simply cannot say that the
protections provided by the warrant procedure are not needed in this context; broad
statutory safeguards are no substitute for individualized review, particularly when those
safeguards may only be invoked at the risk of a criminal penalty.
The final justification suggested for warrantless administrative searches is that the
public interest demands such a rule: it is vigorously argued that the health and safety
of entire urban populations is dependent upon enforcement of minimum fire, housing,
and sanitation standards, and that the only effective means of enforcing such codes is
by routine systematized inspection of all physical structures. Of course, in applying any
reasonableness standard, including one of constitutional dimension, an argument that
the public interest demands a particular rule must receive careful consideration. But we
think this argument misses the mark. The question is not, at this stage, at least,
whether these inspections may be made, but whether they may be made without a
warrant. For example, to say that gambling raids may not be made at the discretion of
the police without a warrant is not necessarily to say that gambling raids may never be
made. In assessing whether the public interest demands creation of a general exception
to the Fourth Amendment's warrant requirement, the question is not whether the
public interest justifies the type of search in question, but whether the authority to
search should be evidenced by a warrant, which in turn depends in part upon whether
the burden of obtaining a warrant is likely to frustrate the governmental purpose behind
the search. See Schmerber v. California, 384 U. S. 757, 384 U. S. 770-771. It has
nowhere been urged that fire, health, and housing code inspection programs could not
achieve their goals within the confines of a reasonable search warrant requirement.
Thus, we do not find the public need argument dispositive.
Page 387 U. S. 534
In summary, we hold that administrative searches of the kind at issue here are
significant intrusions upon the interests protected by the Fourth Amendment, that such
searches, when authorized and conducted without a warrant procedure, lack the
traditional safeguards which the Fourth Amendment guarantees to the individual, and
that the reasons put forth in Frank v. Maryland and in other cases for upholding these
warrantless searches are insufficient to justify so substantial a weakening of the Fourth
Amendment's protections. Because of the nature of the municipal programs under
consideration, however, these conclusions must be the beginning, not the end, of our
inquiry. The Frank majority gave recognition to the unique character of these inspection
programs by refusing to require search warrants; to reject that disposition does not
justify ignoring the question whether some other accommodation between public need
and individual rights is essential.
II
The Fourth Amendment provides that, "no Warrants shall issue but upon probable
cause." Borrowing from more typical Fourth Amendment cases, appellant argues not
only that code enforcement inspection programs must be circumscribed by a warrant
procedure, but also that warrants should issue only when the inspector possesses
probable cause to believe that a particular dwelling contains violations of the minimum
standards prescribed by the code being enforced. We disagree.
In cases in which the Fourth Amendment requires that a warrant to search be obtained,
"probable cause" is the standard by which a particular decision to search is tested
against the constitutional mandate of reasonableness. To apply this standard, it is
obviously necessary first to focus upon the governmental interest which allegedly
justifies official intrusion upon the constitutionally protected
Page 387 U. S. 535

interests of the private citizen. For example, in a criminal investigation, the police may
undertake to recover specific stolen or contraband goods. But that public interest would
hardly justify a sweeping search of an entire city conducted in the hope that these
goods might be found. Consequently, a search for these goods, even with a warrant, is
"reasonable" only when there is "probable cause" to believe that they will be uncovered
in a particular dwelling.
Unlike the search pursuant to a criminal investigation, the inspection programs at issue
here are aimed at securing city-wide compliance with minimum physical standards for
private property. The primary governmental interest at stake is to prevent even the
unintentional development of conditions which are hazardous to public health and
safety. Because fires and epidemics may ravage large urban areas, because unsightly
conditions adversely affect the economic values of neighboring structures, numerous
courts have upheld the police power of municipalities to impose and enforce such
minimum standards even upon existing structures. [Footnote 11] In determining
whether a particular inspection is reasonable -- and thus in determining whether there
is probable cause to issue a warrant for that inspection -- the need for the inspection
must be weighed in terms of these reasonable goals of code enforcement.
There is unanimous agreement among those most familiar with this field that the only
effective way to seek universal compliance with the minimum standards required by
municipal codes is through routine periodic
Page 387 U. S. 536
inspections of all structures. [Footnote 12] It is here that the probable cause debate is
focused, for the agency's decision to conduct an area inspection is unavoidably based
on its appraisal of conditions in the area as a whole, not on its knowledge of conditions
in each particular building. Appellee contends that, if the probable cause standard urged
by appellant is adopted, the area inspection will be eliminated as a means of seeking
compliance with code standards, and the reasonable goals of code enforcement will be
dealt a crushing blow.
In meeting this contention, appellant argues, first, that his probable cause standard
would not jeopardize area inspection programs because only a minute portion of the
population will refuse to consent to such inspections, and second, that individual
privacy, in any event, should be given preference to the public interest in conducting
such inspections. The first argument, even if true, is irrelevant to the question whether
the area inspection is reasonable within the meaning of the Fourth Amendment. The
second argument is, in effect, an assertion that the area inspection is an unreasonable
search. Unfortunately, there can be no ready test for determining reasonableness
Page 387 U. S. 537
other than by balancing the need to search against the invasion which the search
entails. But we think that a number of persuasive factors combine to support the
reasonableness of area code enforcement inspections. First, such programs have a long
history of judicial and public acceptance. See Frank v. Maryland, 359 U.S. at 359 U. S.
367-371. Second, the public interest demands that all dangerous conditions be
prevented or abated, yet it is doubtful that any other canvassing technique would
achieve acceptable results. Many such conditions -- faulty wiring is an obvious example
-- are not observable from outside the building, and indeed may not be apparent to the
inexpert occupant himself. Finally, because the inspections are neither personal in
nature nor aimed at the discovery of evidence of crime, they involve a relatively limited
invasion of the urban citizen's privacy. Both the majority and the dissent in Frank
emphatically supported this conclusion:
"Time and experience have forcefully taught that the power to inspect dwelling places,
either as a matter of systematic area-by-area search or, as here, to treat a specific
problem, is of indispensable importance to the maintenance of community health; a
power that would be greatly hobbled by the blanket requirement of the safeguards
necessary for a search of evidence of criminal acts. The need for preventive action is
great, and city after city has seen this need and granted the power of inspection to its
health officials, and these inspections are apparently welcomed by all but an insignificant
few. Certainly the nature of our society has not vitiated the need for inspections first
thought necessary 158 years ago, nor has experience revealed any abuse or inroad on
freedom in meeting this need by means that history and dominant public opinion have
sanctioned."
359 U.S. at 359 U. S. 372.
Page 387 U. S. 538
". . . This is not to suggest that a health official need show the same kind of proof to a
magistrate to obtain a warrant as one must who would search for the fruits or
instrumentalities of crime. Where considerations of health and safety are involved, the
facts that would justify an inference of 'probable cause' to make an inspection are
clearly different from those that would justify such an inference where a criminal
investigation has been undertaken. Experience may show the need for periodic
inspections of certain facilities without a further showing of cause to believe that
substandard conditions dangerous to the public are being maintained. The passage of a
certain period without inspection might of itself be sufficient in a given situation to
justify the issuance of a warrant. The test of 'probable cause' required by the Fourth
Amendment can take into account the nature of the search that is being sought. 359
U.S. at 359 U. S. 383 (MR. JUSTICE DOUGLAS, dissenting)."
Having concluded that the area inspection is a "reasonable" search of private property
within the meaning of the Fourth Amendment, it is obvious that "probable cause" to
issue a warrant to inspect must exist if reasonable legislative or administrative
standards for conducting an area inspection are satisfied with respect to a particular
dwelling. Such standards, which will vary with the municipal program being enforced,
may be based upon the passage of time, the nature of the building (e.g., a multi-family
apartment house), or the condition of the entire area, but they will not necessarily
depend upon specific knowledge of the condition of the particular dwelling. It has been
suggested that so to vary the probable cause test from the standard applied in criminal
cases would be to authorize a "synthetic search warrant," and thereby to lessen the
overall protections of the Fourth Amendment. Frank v. Maryland, 359
Page 387 U. S. 539
U.S. at 359 U. S. 373. But we do not agree. The warrant procedure is designed to
guarantee that a decision to search private property is justified by a reasonable
governmental interest. But reasonableness is still the ultimate standard. If a valid public
interest justifies the intrusion contemplated, then there is probable cause to issue a
suitably restricted search warrant. Cf. Oklahoma Press Pub. Co. v. Walling, 327 U. S.
186. Such an approach neither endangers time-honored doctrines applicable to criminal
investigations nor makes a nullity of the probable cause requirement in this area. It
merely gives full recognition to the competing public and private interests here at stake
and, in so doing, best fulfills the historic purpose behind the constitutional right to be
free from unreasonable government invasions of privacy. See Eaton v. Price, 364 U.S.
at 364 U. S. 273-274 (opinion of MR. JUSTICE BRENNAN).
III
Since our holding emphasizes the controlling standard of reasonableness, nothing we

say today is intended to foreclose prompt inspections, even without a warrant, that the
law has traditionally upheld in emergency situations. See North American Cold Storage
Co. v. City of Chicago, 211 U. S. 306 (seizure of unwholesome food); Jacobson v.
Massachusetts, 197 U. S. 11 (compulsory smallpox vaccination); Compagnie Francaise
v. Board of Health, 186 U. S. 380 (health quarantine); Kroplin v. Truax, 119 Ohio St.
610, 165 N.E. 498 (summary destruction of tubercular cattle). On the other hand, in
the case of most routine area inspections, there is no compelling urgency to inspect at
a particular time or on a particular day. Moreover, most citizens allow inspections of
their property without a warrant. Thus, as a practical matter, and in light of the Fourth
Amendment's requirement that a warrant specify the property to be searched, it seems
likely that warrants should normally be sought only after entry is refused unless
Page 387 U. S. 540
there has been a citizen complaint or there is other satisfactory reason for securing
immediate entry. Similarly, the requirement of a warrant procedure does not suggest
any change in what seems to be the prevailing local policy, in most situations, of
authorizing entry, but not entry by force, to inspect.
IV
In this case, appellant has been charged with a crime for his refusal to permit housing
inspectors to enter his leasehold without a warrant. There was no emergency
demanding immediate access; in fact, the inspectors made three trips to the building in
an attempt to obtain appellant's consent to search. Yet no warrant was obtained, and
thus appellant was unable to verify either the need for or the appropriate limits of the
inspection. No doubt, the inspectors entered the public portion of the building with the
consent of the landlord, through the building's manager, but appellee does not contend
that such consent was sufficient to authorize inspection of appellant's premises. Cf.
Stoner v. California, 376 U. S. 483; Chapman v. United States, 365 U. S. 610;
McDonald v. United States, 335 U. S. 451. Assuming the facts to be as the parties
have alleged, we therefore conclude that appellant had a constitutional right to insist
that the inspectors obtain a warrant to search and that appellant may not
constitutionally be convicted for refusing to consent to the inspection. It appears from
the opinion of the District Court of Appeal that, under these circumstances, a writ of
prohibition will issue to the criminal court under California law.
The judgment is vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
[For dissenting opinion of MR. JUSTICE CLARK, see post, p. 387 U. S. 546.]
[Footnote 1]
The inspection was conducted pursuant to 86(3) of the San Francisco Municipal Code,
which provides that apartment house operators shall pay an annual license fee in part
to defray the cost of periodic inspections of their buildings. The inspections are to be
made by the Bureau of Housing Inspection "at least once a year and as often thereafter
as may be deemed necessary." The permit of occupancy, which prescribes the
apartment units which a building may contain, is not issued until the license is obtained.
[Footnote 2]
"Sec. 507 PENALTY FOR VIOLATION. Any person, the owner or his authorized agent
who violates, disobeys, omits, neglects, or refuses to comply with, or who resists or
opposes the execution of any of the provisions of this Code, or any order of the
Superintendent, the Director of Public Works, or the Director of Public Health made
pursuant to this Code, shall be guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine not exceeding five hundred dollars ($500.00), or by
imprisonment, not exceeding six (6) months or by both such fine and imprisonment,
unless otherwise provided in this Code, and shall be deemed guilty of a separate
offense for every day such violation, disobedience, omission, neglect or refusal shall
continue."
[Footnote 3]
Givner v. State, 210 Md. 484, 124 A.2d 764 (1956); City of St. Louis v. Evans, 337
S.W.2d 948 (Mo.1960); State ex rel. Eaton v. Price, 168 Ohio St. 123, 151 N.E.2d 523
(1958), aff'd by an equally divided Court, 364 U. S. 263 (1960). See also State v. Rees,
258 Iowa 813, 139 N.W.2d 406 (1966); Commonwealth v. Hadley, 351 Mass. 439, 222
N.E.2d 681 (1966), appeal docketed Jan. 5, 1967, No. 1179, Misc., O.T. 1966; People
v. Laverne, 14 N.Y.2d 304, 200 N.E.2d 441 (1964).
[Footnote 4]
In Frank, the Baltimore ordinance required that the health inspector "have cause to
suspect that a nuisance exists in any house, cellar or enclosure" before he could
demand entry without a warrant, a requirement obviously met in Frank because the
inspector observed extreme structural decay and a pile of rodent feces on the
appellant's premises. Section 503 of the San Francisco Housing Code has no such
"cause" requirement, but neither did the Ohio ordinance at issue in Eaton v. Price, a
case which four Justices thought was controlled by Frank. 364 U.S. at 364 U. S. 264,
364 U. S. 265, n. 2 (opinion of MR. JUSTICE BRENNAN).
[Footnote 5]
See Boyd v. United States, 116 U. S. 616. Compare Schmerber v. California, 384 U. S.
757, 384 U. S. 766-772.
[Footnote 6]
See Abel v. United States, 362 U. S. 217, 362 U. S. 254-256 (MR. JUSTICE BRENNAN,
dissenting); District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, aff'd,
339 U. S. 1.
[Footnote 7]
See New York, N.Y. Administrative Code D26-8.0 (1964).
[Footnote 8]
See Washington, D.C. Housing Regulations 2104.
[Footnote 9]
This is the more prevalent enforcement procedure. See Note, Enforcement of Municipal
Housing Codes, 78 Harv.L.Rev. 801, 813-816.
[Footnote 10]
The San Francisco Code requires that the inspector display proper credentials, that he
inspect "at reasonable times," and that he not obtain entry by force, at least when
there is no emergency. The Baltimore ordinance in Frank required that the inspector
"have cause to suspect that a nuisance exists." Some cities notify residents in advance,
by mail or posted notice, of impending area inspections. State courts upholding these
inspections without warrants have imposed a general reasonableness requirement. See
cases cited, n 3, supra.
[Footnote 11]
See Abbate Bros. v. City of Chicago, 11 Ill.2d 337, 142 N.E.2d 691; City of Louisville v.
Thompson, 339 S.W.2d 869 (Ky.); Adamec v. Post, 273 N.Y. 250, 7 N.E.2d 120;
Paquette v. City of Fall River, 338 Mass. 368, 155 N.E.2d 775; Richards v. City of
Columbia, 227 S.C. 538, 88 S.E.2d 683; Boden v. City of Milwaukee, 8 Wis.2d 318, 99
N.W.2d 156.
[Footnote 12]
See Osgood & Zwerner, Rehabilitation and Conservation, 25 Law & Contemp.Prob. 705,
718 and n. 43; Schwartz, Crucial Areas in Administrative Law, 34 Geo.Wash.L.Rev. 401,
423 and n. 93; Comment, Rent Withholding and the Improvement of Substandard
Housing, 53 Calif.L.Rev. 304, 316-317; Note, Enforcement of Municipal Housing Codes,
78 Harv.L.Rev. 801, 807, 851; Note, Municipal Housing Codes, 69 Harv.L.Rev. 1115,
1124-1125. Section 311(a) of the Housing and Urban Development Act of 1965, 79
Stat. 478, 42 U.S. C. 1468 (1964 ed., Supp. I), authorizes grants of federal funds
"to cities, other municipalities, and counties for the purpose of assisting such localities
in carrying out programs of concentrated code enforcement in deteriorated or
deteriorating areas in which such enforcement, together with those public
improvements to be provided by the locality, may be expected to arrest the decline of
the area."
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or guarantees about the accuracy, completeness, or adequacy of the information
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G. Emergency, Checkpoints &amp; Inspection of Buildings

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Today is Friday, August 30, 2013

Republic of the Philippines

G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Solicitor General for plaintiff-appellee.

Nicolas R. Ruiz, II for accused-appellant.

Five (5) bundles of C-4 or dynamites

That judgment of conviction is now challenged before us in this appeal.

Presidential Decree No. 1866 provides as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be

Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

1 TSN, August 28, 1990, 40-42.

5 Penned by Judge Jaime N. Salazar; Original Record, 146.

7 People vs. Estoista, 93 Phil. 647 (1953).

12 People vs. Estoista, supra, Fn. 7.

13 TSN, November 22, 1990, 12.

14 Ibid., December 6, 1990, 36.

15 Ibid., November 22, 1990, 33.

16 Ibid., October 2, 1990, 21-22.

17 Ibid., id., November 22, 1990, 8.

18 Ibid., id., October 2, 1990, 16-17.

19 Ibid., November 29, 1990, 58.

20 G. R. No. 91107, June 19, 1991, 198 SCRA 401.

21 G. R. No. 81567, July 9, 1990, 187 SCRA 311.

25 Original Record, 149-150.

Republic of the Philippines

G.R. No. 83988 May 24, 1990

Ricardo C. Valmonte for and in his own behalf and co-petitioners.

Gancayco, J., is on leave.

GUTIERREZ, JR., J., concurring:

CRUZ, J., dissenting:

I reiterate my original dissent and add the following observations.

SARMIENTO, J., dissenting:

GUTIERREZ, JR., J., concurring:

CRUZ, J., dissenting:

I reiterate my original dissent and add the following observations.

SARMIENTO, J., dissenting:

1 U.S. v. Martinez-Fuerte, 428 U.S. 543, 49 L Ed. 2d 1116 (1976).

3 Section 2, Article III, 1987 Constitution.

4 Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472.

6 Section 3, Article II of the 1987 Constitution provides:

Republic of the Philippines

G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,

Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.:

But, the issue on the disqualification of petitioner from running in the

On 25 June 1992, we required COMELEC to file its own comment on the

The temporary restraining order we issued on 5 May 1992 is made permanent.

Feliciano, Padilla and Bidin, JJ., are on leave.

CRUZ, J., concurring:

xxx xxx xxx

VITUG, J., concurring:

REGALADO, J., concurring and dissenting:

DAVIDE, JR., J., concurring and dissenting:

1. Having declined to rule on the constitutionality of Resolution

Melo, J., concurs.

CRUZ, J., concurring:

xxx xxx xxx

VITUG, J., concurring:

REGALADO, J., concurring and dissenting:

DAVIDE, JR., J., concurring and dissenting:

1. Having declined to rule on the constitutionality of Resolution

G. Emergency, Checkpoints & Inspection of Buildings

G. Emergency, Checkpoints & Inspection of Buildings