PEOPLE OF THE PHILIPPINES, plaintiff-appellee, expenses.
expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was nonetheless
arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving
him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of
P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9
at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him
simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him
to their headquarters for investigation. The two bundles of suspect articles were confiscated from
him and later taken to the NBI laboratory for examination. When they were verified as marijuana
leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the
information was amended to include Farida Ali y Hassen, who had also been arrested with him
that same evening and likewise investigated. 3 Both were arraigned and pleaded not
guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a
sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The
motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted .6
According to the prosecution, the PC officers had earlier received a tip from one of their
informers that the accused-appellant was on board a vessel bound for Iloilo City and was
carrying marijuana. 7 He was Identified by name. 8Acting on this tip, they waited for him in the
evening of June 25, 1984, and approached him as he descended from the gangplank after the
informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was
found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner, 10who testified that she conducted microscopic, chemical and chromatographic tests
on them. On the basis of this finding, the corresponding charge was then filed against
Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his
clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was
arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search
warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the
marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he
parried the blows while he was still handcuffed. 12 He insisted he did not even know what
marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He
also argued that the marijuana he was alleged to have been carrying was not properly Identified
and could have been any of several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that he claimed
to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from
Jolo for that purpose and spending P107.00 for fare, not to mention his other
but, strangely, they were not discovered when he was bodily searched by the arresting officers
nor were they damaged as a result of his manhandling. 16 He also said he sold one of the
watches for P400.00 and gave away the other, although the watches belonged not to him but to
his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also
rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him. 19
There is no justification to reverse these factual findings, considering that it was the trial judge
who had immediate access to the testimony of the witnesses and had the opportunity to weigh
their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush
of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the
impersonal record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.
The only exception we may make in this case is the trial court's conclusion that the accused-
appellant was not really beaten up because he did not complain about it later nor did he submit
to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that
opportunity as he was at that time under detention by the PC authorities and in fact has never
been set free since he was arrested in 1984 and up to the present. No bail has been allowed for
his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that
he was arrested and searched without warrant, making the marijuana allegedly found in his
possession inadmissible in evidence against him under the Bill of Rights. The decision did not
even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short
argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b)
of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a
lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution,
that they had no warrant when they arrested Aminnudin and seized the bag he was carrying.
Their only justification was the tip they had earlier received from a reliable and regular informer
who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their
testimony varies as to the time they received the tip, one saying it was two days before the
arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may
prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as
follows:
Q You mentioned an intelligence report, you mean with respect to the coming of Idel
Aminnudin on June 25, 1984?
A Yes, sir.
Q When did you receive this intelligence report?
A Two days before June 25, 1984 and it was supported by reliable sources.
Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of
marijuana leaves on that date?
A Yes, sir, two days before June 25, 1984 when we received this information from that Q You only knew that he was coming on June 25,1984 two days before?
particular informer, prior to June 25, 1984 we have already reports of the particular
operation which was being participated by Idel Aminnudin.
A Yes, sir.

Q You said you received an intelligence report two days before June 25, 1984 with respect
Q You mean that before June 23, 1984 you did not know that minnudin was coming?
to the coming of Wilcon 9?

A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23,
A Yes, sir.
1984 that was the time when I received the information that he was coming. Regarding the
reports on his activities, we have reports that he was already consummated the act of
Q Did you receive any other report aside from this intelligence report? selling and shipping marijuana stuff.

A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For COURT:
instance, report of illegal gambling operation.
Q And as a result of that report, you put him under surveillance?
COURT:
A Yes, sir.
Q Previous to that particular information which you said two days before June 25, 1984, did
you also receive daily report regarding the activities of Idel Aminnudin
Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
A Yes, sir.

Q What were those activities?

Q Are you sure of that?

A Purely marijuana trafficking.

A On the 23rd he will be coming with the woman.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of information, maybe for
security reason and we cannot Identify the person.
Q But you received it from your regular informer?
A Yes, sir.
Q So that even before you received the official report on June 23, 1984, you had already
gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25,
1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or search of the subject
mentioned in your intelligence report?

ATTY. LLARIZA: A No, more.

Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming Q Why not?
with drugs?
A Because we were very very sure that our operation will yield positive result.
A Marijuana, sir.
Q Is that your procedure that whenever it will yield positive result you do not need a search
Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was warrant anymore?
received by you many days before you received the intelligence report in writing?
23
A Search warrant is not necessary.
A Not a report of the particular coming of Aminnudin but his activities.
That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of
the PC. The Supreme Court cannot countenance such a statement. This is still a government of
laws and not of men.
The mandate of the Bill of Rights is clear:
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.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge after
personal determination by him of the existence of probable cause. Contrary to the averments of
the government, the accused-appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of
the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the
warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and
aircraft are subject to warrantless searches and seizures for violation of the customs law
because these vehicles may be quickly moved out of the locality or jurisdiction before the
warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of the PC
witnesses, it is clear that they had at least two days within which they could have obtained a
warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name
was known. The vehicle was Identified. The date of its arrival was certain. And from the
information they had received, they could have persuaded a judge that there was probable
cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who
was the head of the arresting team, had determined on his own authority that a "search warrant
was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of the
Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result
of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was
clearly applicable because at the precise time of arrest the accused was in the act of selling the
prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so. What he was
doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive
finger that triggered his arrest. The Identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin
and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen years of the
despised dictatorship, when any one could be picked up at will, detained without charges and
punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed
to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of
Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own words
suggest that he is lying, that fact alone does not justify a finding that he is guilty. The
constitutional presumption is that he is innocent, and he will be so declared even if his defense is
weak as long as the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the
prosecution must fall. That evidence cannot be admitted, and should never have been
considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the
fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an
incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did
not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search
was also illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers against those who would inflict this
malediction upon our people, especially the susceptible youth. But as demanding as this
campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the
protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against any
manner of high- handedness from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights of the
individual in the name of order. Order is too high a price for the loss of liberty. As Justice
Holmes, again, said, "I think it a less evil that some criminals should escape than that the
government should play an ignoble part." It is simply not allowed in the free society to violate a
law to enforce another, especially if the law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against the
accused-appellant, his guilt has not been proved beyond reasonable doubt and he must
therefore be discharged on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is
ACQUITTED. It is so ordered.
Separate Opinions
AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying
marijuana leaves in his bag at the moment of his arrest. He was not "innocently disembarking
from the vessel." The unauthorized transportation of marijuana (Indian hemp), which is a
prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a crime, his
arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of Court), and the
search of his bag (which yielded the marijuana leaves) without a search warrant was also lawful
(Sec. 12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding him
guilty of illegally transporting marijuana.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31,
1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of
selling marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing
dried marijuana leaves, knowing the same to be a prohibited drug.
CONTRARY TO LAW.2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the
9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-
bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics
Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation;
and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP
Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was
summarized by the trial court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian,
Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a
certain Mari Musa of Suterville, Zamboanga City. Information received from civilian
informer was that this Mari Musa was engaged in selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
inspected the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00
(with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh.
"L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A pre-
arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he
had succeeded to buy the marijuana. The two NARCOM teams proceeded to the target
site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader,
Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest
of the NARCOM group positioned themselves at strategic places about 90 to 100
meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani
and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa went
back to his house and came back and gave Amado Ani two newspaper wrappers
containing dried marijuana. Ani opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked back towards his companions
and raised his right hand. The two NARCOM teams, riding the two civilian vehicles,
sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the
P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and
he told the NARCOM team he has given the money to his wife (who had slipped away).
Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in
the kitchen. Mari Musa was then placed under arrest and brought to the NARCOM
office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-wrapped
marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari
Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped
marijuana (bought at the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a letter-request, dated December
14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory
(Exh. "B-1") on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results for the presence of marijuana.
Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-
89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs.
Anderson identified in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989,
 through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report
(Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his
initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on
Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with
SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the
PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of
the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa;
and (2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at
Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his
one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About
1:30 that afternoon, while he was being manicured at one hand, his wife was inside the
one room of their house, putting their child to sleep. Three NARCOM agents, who
introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari
Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The NARCOM
agents searched Mari Musa's house and Mari Musa asked them if they had a search
warrant. The NARCOM agents were just silent. The NARCOM agents found a red
plastic bag whose contents, Mari Musa said, he did not know. He also did not know if
the plastic bag belonged to his brother, Faisal, who was living with him, or his father,
who was living in another house about ten arms-length away. Mari Musa, then, was
handcuffed and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by
one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him. Mari Musa said he was
not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and
his fingers were pressed which felt very painful. The NARCOM agents boxed him and
Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was
outside the NARCOM building. The very day he was arrested (on cross-examination
Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office by
three NARCOM agents. The fiscal asked him if the marijuana was owned by him and
he said "not." After that single question, Mari Musa was brought to the City Jail. Mari
Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents
because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid that was against the law and
that the person selling marijuana was caught by the authorities; and he had a wife and
a very small child to support. Mari Musa said he had not been arrested for selling
marijuana before.5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable
doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment.6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and
impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because:
(1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were
personally known by the appellant or vice-versa; and (2) there was no witness to the alleged
giving of the two wrappers of marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he
conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana
for P15.00 from the latter.7 He reported the successful operation to T/Sgt. Belarga on the same
day.8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for
the following day.9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by
T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation, which was the
appellant's house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with
the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was
given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt.
Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted.
Sgt. Ani asked him for some more marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the
appellant went inside the house and brought back two paper wrappers containing marijuana
which he handed to Sgt. Ani.13 From his position, Sgt. Ani could see that there were other people
in the house.14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand.15 The NARCOM agents, accompanied by Sgt. Ani, went inside
the house and made the arrest. The agents searched the appellant and unable to find the
marked money, they asked him where it was. The appellant said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the
buy-bust operation, which resulted in the apprehension, prosecution and subsequent conviction
of the appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any
of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not
know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during
the buy-bust operation. Moreover, the Court has held that what matters is not an existing
familiarity between the buyer and the seller, for quite often, the parties to the transaction may be
strangers, but their agreement and the acts constituting the sale and delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for
the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place
of the commission of the crime of selling prohibited drugs has been held to be not crucial 18 and
the presence of other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco,19 these factors may
sometimes camouflage the commission of the crime. In the instant case, the fact that the other
people inside the appellant's house are known to the appellant may have given him some
assurance that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt.
Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters
away from Sgt. Ani and the appellant, he could not have possibly witnessed the sale. The
appellant invokes People v.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman cannot
distinguish between marijuana cigarette from ordinary ones by the type of rolling done on the
cigarette sticks. And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends
that the uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-
buyer based on the appearance of the cigarette sticks. The Court rejected this claim, stating
that:
This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different
from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on
those cigarettes from the distance where they were observing the alleged sale of more
or less 10 to 15 meters.21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant
hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain
articles between the two. The relevant portion of T/Sgt. Belarga's testimony reads:22
Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari
Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were
boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by
one person and later known as Mari Musa who was at the time wearing short pants
and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari
Musa and went inside the house and came back later and handed something to Sgt.
Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have
seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the
latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani
received from the appellant was marijuana because of the distance, his testimony, nevertheless,
corroborated the direct evidence, which the Court earlier ruled to be convincing, presented by
Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a
surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December
13, 1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful
operation and turned over to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then
organized a team to conduct a buy-bust operation the following day; 25 (4) on December 14,
1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville, Zamboanga
City;26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-
bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt.
Ani proceeded to the house of the appellant while some agents stayed in the vehicles and others
positioned themselves in strategic places;28 the appellant met Sgt. Ani and an exchange of
articles took place.29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the
poseur-buyer were unable to see exactly what the appellant gave the poseur-buyer because of
their distance or position will not be fatal to the prosecution's case 30 provided there exists other
evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to
prove the consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing
marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt.
Ani gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested
the appellant inside the house. They searched him to retrieve the marked money but didn't find
it. Upon being questioned, the appellant said that he gave the marked money to his
wife.31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt.
Belarga described as a "cellophane colored white and stripe hanging at the corner of the
kitchen."32 They asked the appellant about its contents but failing to get a response, they opened
it and found dried marijuana leaves. At the trial, the appellant questioned the admissibility of the
plastic bag and the marijuana it contains but the trial court issued an Order ruling that these are
admissible in evidence.33
Built into the Constitution are guarantees on the freedom of every individual against
unreasonable searches and seizures by providing in Article III, Section 2, the following:
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 witness he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from
unreasonable searches and seizures.35
While a valid search warrant is generally necessary before a search and seizure may be
effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,36 the Court stated that.
"[t]he most important exception to the necessity for a search warrant is the right of search and
seizure as an incident to a lawful arrest."37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and
seizure incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. — A person lawfully arrested may
be searched for dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon the person of the person arrested. As early as 1909, the
Court has ruled that "[a]n officer making an arrest may take from the person arrested any money
or property found upon his person which was used in the commission of the crime or was the
fruit of the crime or which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . .
"38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law enforcement
agents may seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him
in his house but found nothing. They then searched the entire house and, in the kitchen, found
and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend
beyond the person of the one arrested to include the premises or surroundings under his
immediate control.40 Objects in the "plain view" of an officer who has the right to be in the
position to have that view are subject to seizure and may be presented as evidence.41
In Ker v. California42 police officers, without securing a search warrant but having information
that the defendant husband was selling marijuana from his apartment, obtained from the building
manager a passkey to defendants' apartment, and entered it. There they found the defendant
husband in the living room. The defendant wife emerged from the kitchen, and one of the
officers, after identifying himself, observed through the open doorway of the kitchen, a small
scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy
substance which he recognized as marijuana. The package of marijuana was used as evidence
in prosecuting defendants for violation of the Narcotic Law. The admissibility of the package was
challenged before the U.S. Supreme Court, which held, after observing that it was not
unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the
defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute
a search, since the officer merely saw what was placed before him in full view.43 The U.S.
Supreme Court ruled that the warrantless seizure of the marijuana was legal on the basis of the
"plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's
evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find evidence
of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless inadvertently comes across an
incriminating object.45 Furthermore, the U.S. Supreme Court stated the following limitations on
the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to supplement the prior justification —
whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a search directed against the
accused — and permits the warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent to the police that they have
evidence before them; the "plain view" doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating at last emerges. 46
It has also been suggested that even if an object is observed in "plain view," the "plain view"
doctrine will not justify the seizure of the object where the incriminating nature of the object is not
apparent from the "plain view" of the object.47 Stated differently, it must be immediately apparent
to the police that the items that they observe may be evidence of a crime, contraband, or
otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living room.
Failing to retrieve the marked money which they hoped to find, the NARCOM agents searched
the whole house and found the plastic bag in the kitchen. The plastic bag was, therefore, not
within their "plain view" when they arrested the appellant as to justify its seizure. The NARCOM
agents had to move from one portion of the house to another before they sighted the plastic bag.
Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the
adjacent kitchen and from which position he saw the marijuana, the NARCOM agents in this
case went from room to room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen,
they had no clue as to its contents. They had to ask the appellant what the bag contained. When
the appellant refused to respond, they opened it and found the marijuana. Unlike Ker v.
California, where the marijuana was visible to the police officer's eyes, the NARCOM agents in
this case could not have discovered the inculpatory nature of the contents of the bag had they
not forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across
the plastic bag because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of the
contents of the plastic bag was not immediately apparent from the "plain view" of said object. It
cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transprarency, or otherwise, that its contents are obvious to an observer. 48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not
apply and the marijuana contained in the plastic bag was seized illegally and cannot be
presented in evidence pursuant to Article III, Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging
effect of the other pieces of evidence presented by the prosecution to prove that the appellant
sold marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold
that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of
marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court
AFFIRMED.

SO ORDERED.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,
ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P.
DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.
PER CURIAM:
The are eight (8) petitioners for habeas corpus filed before the Court, which have been
consolidated because of the similarity of issues raised, praying for the issuance of the writ
of habeas corpus, ordering the respective respondents to produce the bodies of the persons
named therein and to explain why they should not be set at liberty without further delay.
In their respective Returns, the respondents uniformly assert that the privilege of the writ
of habeas corpus is not available to the petitioners as they have been legally arrested and are
detained by virtue of valid informations filed in court against them.
The petitioners counter that their detention is unlawful as their arrests were made without
warrant and, that no preliminary investigation was first conducted, so that the informations filed
against them are null and void.
The Court has carefully reviewed the contentions of the parties in their respective pleadings, and
it finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their
constitutional right to liberty, and that the circumstances attending these cases do not warrant
their release on habeas corpus.
The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The
occasions or instances when such an arrest may be effected are clearly spelled out in Section 5,
Rule 113 of the Rules of Court, as amended, which provides:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the
Rules of Court, as amended, is justified when the person arrested is caught in flagranti
delicto, viz., in the act of committing an offense; or when an offense has just been committed
and the person making the arrest has personal knowledge of the facts indicating that the person
arrested has committed it. The rationale behind lawful arrests, without warrant, was stated by
this Court in the case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and searched for the
evidence and tokens of his crime without a warrant, would be to leave
society, to a large extent, at the mercy of the shrewdest, the most expert,
and the most depraved of criminals, facilitating their escape in many
instances.
The record of the instant cases would show that the persons in whose behalf these petitions
for habeas corpus have been filed, had freshly committed or were actually committing an
offense, when apprehended, so that their arrests without a warrant were clearly justified, and
that they are, further, detained by virtue of valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional
Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential
information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a
gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it
was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is
actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two
(2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong
Barrio, Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional
Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February
1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top
of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated
inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City
Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan
City an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double
Murder with Assault Upon Agents of Persons in Authority." The case was docketed therein as
Criminal Case No. C-30112 and no bail was recommended. On 15 February 1988, the
information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the
original information, was still unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf
of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas
corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988.
Thereafter, the parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the
Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had
been filed against them, and they were accordingly released. The petition for habeas corpus,
insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly
dismissed, since the writ of habeas corpus does not lie in favor of an accused in a criminal case
who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the
two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the
said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest
without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an
outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando
Dural without warrant is justified as it can be said that he was committing an offense when
arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes,
and crimes or offenses committed in furtherance thereof or in connection therewith constitute
direct assaults against the State and are in the nature of continuing crimes. As stated by the
Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners that they were initially
arrested illegally is, therefore, without basis in law and in fact. The crimes of
insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes,
and other crimes and offenses committed in the furtherance, on the occasion thereof,
or incident thereto, or in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set them apart from the
common offenses, aside from their essentially involving a massive conspiracy of
nationwide magnitude. Clearly then, the arrest of the herein detainees was well within
the bounds of the law and existing jurisprudence in our jurisdiction.
2. 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 equally 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 is 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. . . . 3
The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo
Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or
on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and
sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the
trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early
case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his arrest, the fact remains
that the defendant was actually in court in the custody of the law on March 29, when a
complaint sufficient in form and substance was read to him. To this he pleaded not
guilty. The trial followed, in which, and in the judgment of guilty pronounced by the
court, we find no error. Whether, if there were irregularities in bringing him personally
before the court, he could have been released on a writ of habeas corpus or now has
a civil action for damages against the person who arrested him we need not inquire. It
is enough to say that such irregularities are not sufficient to set aside a valid judgment
rendered upon a sufficient complaint and after a trial free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo
Buenaobra, without warrant, is also justified. When apprehended at the house of Renato
Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he
was an NPA courier and he had with him letters to Renato Constantino and other members of
the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front
Commission, in charge of finance, and admitted ownership of subversive documents found in
the house of her sister in Caloocan City. She was also in possession of ammunition and a
fragmentation grenade for which she had no permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a
member of the NPA, who had surrendered to the military authorities, told military agents about
the operations of the Communist Party of the Philippines (CPP) and the New Peoples Army
(NPA) in Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member
of the Communications and Transportation Bureau; "Ka Nelia", a staff member in charge of
finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka
Totoy". He also pointed to a certain house occupied by Renato Constantino located in the
Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a
safehouse of the National United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military surveillance and
on 12 August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the
Regional Trial Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the
afternoon, by a combined team of the Criminal Investigation Service, National Capital District
(CIS-NCD) and the Constabulary Security Group (CSG). In the course of the search, the
following articles were found and taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority to possess the
firearms, ammunition, radio and other communications equipment. Hence, he was brought to the
CIS Headquarters for investigation. When questioned, he refused to give a written statement,
although he admitted that he was a staff member of the executive committee of the NUFC and a
ranking member of the International Department of the Communist Party of the Philippines
(CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra
arrived at the house of Renato Constantino in the Villaluz Compound. When accosted, he
readily admitted to the military agents that he is a regular member of the CPP/NPA and that he
went to the place to deliver letters to "Ka Mong", referring to Renato Constatino, and other
members of the rebel group. On further questioning, he also admitted that he is known as "Ka
Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from
him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated
August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated
August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11,
1988.
Also found Buenaobra's possession was a piece of paper containing a written but jumbled
telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo
St., Caloocan City. Acting on the lead provided as to the whereabouts of Amelia Roque, the
military agents went to the given address the next day (13 August 1988). They arrived at the
place at about 11:00 o'clock in the morning. After identifying themselves as military agents and
after seeking permission to search the place, which was granted, the military agents conducted
a search in the presence of the occupants of the house and the barangay captain of the place,
one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP. They found
ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and subversive
documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition
for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a
result, Amelia Roque and the other occupants of the house were brought to the PC-CIS
Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the
investigators that the voluminous documents belonged to her and that the other occupants of the
house had no knowledge of them. As a result, the said other occupants of the house were
released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after
which an information charging her with violation of PD 1866 was filed with the Regional Trial
Court of Caloocan City. The case is docketed therein as Criminal Case No. C-1196. Another
information for violation of the Anti-Subversion Act was filed against Amelia Roque before the
Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C-
150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed
therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia
Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra
manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. According,
the petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of
Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers and/or
members of the National United Front Commission (NUFC) of the CPP was not controverted or
traversed by said petitioners. The contention must be deemed admitted. 5 As officers and/or
members of the NUFC-CPP, their arrest, without warrant, was justified for the same reasons
earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was additionally
justified as she was, at the time of apprehension, in possession of ammunitions without license
to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon
Casiple, without warrant, is also justified under the rules. Both are admittedly members of the
standing committee of the NUFC and, when apprehended in the house of Renato Constatino,
they had a bag containing subversive materials, and both carried firearms and ammunition for
which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August
1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at
Marikina Heights, Marikina, which was still under surveillance by military agents. The military
agents noticed bulging objects on their waist lines. When frisked, the agents found them to be
loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC
Headquarters for investigation. Found in their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine
for Cal. 7.65 containing ten (10) live ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one
(1) magazine containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka
Totoy" of the CPP, by their comrades who had previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary evidence were
forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which
Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No.
1866 before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as
Criminal Cases Nos. 74386 ad 74387, respectively. No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo
Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully
arrested without a warrant and that the informations filed against them are null and void for
having been filed without prior hearing and preliminary investigation. On 30 August 1988, the
Court issued the writ of habeas corpus, and after the respondents had filed a Return of the Writ,
the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there
was no previous warrant of arrest, is without merit The record shows that Domingo Anonuevo
and Ramon Casiple were carrying unlicensed firearms and ammunition in their person when
they were apprehended.
There is also no merit in the contention that the informations filed against them are null and void
for want of a preliminary investigation. The filing of an information, without a preliminary
investigation having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the
Rules of Court, as amended, reads:
Sec. 7. When accused lawfully arrested without a warrant. — When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional Trial
Court the complaint or information may be filed by the offended party, peace officer or
fiscal without a preliminary investigation having been first conducted, on the basis of
the affidavit of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may apply for bail
as provided in the corresponding rule and the investigation must be terminated within
fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of
the information, ask for a preliminary investigation with the same right to adduced
evidence in his favor in the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed
against them, the prosecutor made identical certifications, as follows:
This is to certify that the accused has been charged in accordance with Sec. 7, Rule
112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a waiver of the provisions
of Art. 125 of the Revised Penal Code, as amended; that based on the evidence
presented, there is reasonable ground to believe that the crime has been committed,
and that the accused is probably guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had been filed
against them in court. Petitioners cannot now claim that they have been deprived of their
constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified
under the Rules, since she had with her unlicensed ammunition when she was arrested. The
record of this case shows that on 12 May 1988, agents of the PC Intelligence and Investigation
of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino
of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house located at
Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by
Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car
driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal.
pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were
brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any
permit or authorization to possess the ammunition, an information charging her with violation of
PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed
therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was released from
custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya
and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained,
and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest
without a warrant is justified. No preliminary investigation was conducted because she was
arrested without a warrant and she refused to waive the provisions of Article 125 of the Revised
Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that
the firearms, ammunition and subversive documents alleged to have been found in their
possession when they were arrested, did not belong to them, but were "planted" by the military
agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid claim. On
the other hand, no evil motive or ill-will on the part of the arresting officers that would cause the
said arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides,
the arresting officers in these cases do not appear to be seekers of glory and bounty hunters for,
as counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the
evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with a
reward of P150,000.00 each on their heads.'" 6 On the other hand, as pointed out by the Solicitor
General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but
the result of an in-depth surveillance of NPA safehouses pointed to by no less than former
comrades of the petitioners in the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra,
Anonuevo and Casiple, was the lawful search and seizure conducted by the military at
the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina
Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch
hunting or fishing expedition on the part of the military. It was a result of an in-depth
military surveillance coupled with the leads provided by former members of the
underground subversive organizations. That raid produced positive results. to date,
nobody has disputed the fact that the residence of Constantino when raided yielded
 communication equipment, firearms and ammunitions, as well as subversive
documents.
The military agents working on the information provided by Constantino that other
members of his group were coming to his place, reasonably conducted a "stake-out"
operation whereby some members of the raiding team were left behind the place. True
enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra
arrived at Constantino's residence. He acted suspiciously and when frisked and
searched by the military authorities, found in his person were letters. They are no
ordinary letters, as even a cursory reading would show. Not only that, Buenaobra
admitted that he is a NPA courier and was there to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of Constantino and
Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it
be unreasonable for the military agents to believe that petitioners Anonuevo and
Casiple are among those expected to visit Constantino's residence considering that
Constatino's information was true, in that Buenaobra did come to that place? Was it
unreasonable under the circumstances, on the part of the military agents, not to frisk
and search anyone who should visit the residence of Constantino, such as petitioners
Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and Casiple's
flimsy and bare assertion that they went to visit Constantino, who was to leave for
Saudi Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military authorities to effect her
arrest without warrant considering that it was Buenaobra who provided the leads on
her identity? It cannot be denied that Buenaobra had connection with Roque. Because
the former has the phone number of the latter. Why the necessity of jumbling Roque's
telephone number as written on a piece of paper taken from Buenaobra's possession?
Petitioners Roque and Buenaobra have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted reasonably, under the
time, place and circumstances of the events in question, especially considering that at
the time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or
subversive documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor innocently visiting a
camp, but were arrested in such time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and
comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias
Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised
Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not
warranted.
The record of the case shows that the said petitioner is the General Secretary of the
Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of
drivers and operators of public service vehicles in the Philippines, organized for their mutual aid
and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was
sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his
sister Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he
went down to talk to them, he was immediately put under arrest. When he asked for the warrant
of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their
owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany
him, but the men did not accede to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila
where he was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he
was brought before the respondent Lim and, there and then, the said respondent ordered his
arrest and detention. He was thereafter brought to the General Assignment Section,
Investigation Division of the Western Police District under Police Capt. Cresenciano A. Cabasal
where he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is justified in view of the
Information filed against him before the Regional Trial Court of Manila, docketed therein as
Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code
(Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of
arrest since petitioner when arrested had in fact just committed an offense in that in the
afternoon of 22 November 1988, during a press conference at the National Press Club.
Deogracias Espiritu through tri-media was heard urging all drivers and operators to go
on nationwide strike on November 23, 1988, to force the government to give into their
demands to lower the prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON (Pinag-isang Samahan ng
Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place
of PISTON president Medardo Roda and also announced the formation of the Alliance
Drivers Association to go on nationwide strike on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he
gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering
of drivers and symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa,
Manila where he was heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila,
at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto
nating pagbaba ng halaga ng spare parts, bilihin at and pagpapalaya sa
ating pinuno na si Ka Roda hanggang sa magkagulo na. 10 (emphasis
supplied)
The police finally caught up with the petitioner on 23 November 1988. He was invited for
questioning and brought to police headquarters after which an Information for violation of Art.
142 of the Revised Penal Code was filed against him before the Regional Trial Court of
Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule
113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid
information filed with the competent court, he may not be released on habeas corpus. He may,
however be released upon posting bail as recommended. However, we find the amount of the
recommended bail (P60,000.00) excessive and we reduce it to P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission
of Narciso Nazarenothat he was illegally arrested and is unlawfully detained. The record of this
case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye
II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang,
Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regal who was arrested
by the police on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as
on of his companions in the killing of the said Romulo Bunye II. In view thereof, the police
officers, without warrant, picked up Narciso Nazareno and brought him to the police
headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3
January 1989, an information charging Narciso Nazareno, Ramil Regala, and two (2) others,
with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro
Manila. The case is docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by
the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by
his co-accused, Manuel Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso
Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the
Presiding Judge of the Regional Trial Court of Biñan, Laguna, Branch 24, ordering said court to
hear the case on 30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional
Trial Court of Biñan, Laguna issued a resolution denying the petition for habeas corpus, it
appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an
information filed against him with the Regional Trial Court of Makati, Metro Manila which had
taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso
Nazareno (presumably because of the strength of the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna are based upon
the facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of
Nazareno was effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of
Court after he was positively implicated by his co-accused Ramil Regala in the killing of Romulo
Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by reason of a crime, does
not presuppose as a necessary requisite for the fulfillment thereof, the indubitable
existence of a crime. For the detention to be perfectly legal, it is sufficient that the
agent or person in authority making the arrest has reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime and that the
same grounds exist to believe that the person sought to be detained participated
therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the
proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court judge, and that the court or
judge had jurisdiction to issue the process or make the order, of if such person is charged before
any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as
amended is quite explicit in providing that:
Sec. 4. When writ is allowed or discharge authorized. — If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge or by virtue of a judgment or order of a court of record, and
that the court or judge had jurisdiction to issue the process, render the judgment, or
make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ
is allowed, the person shall not be discharged by reason of any informality or defect in
the process, judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with a convicted of an offense in the Philippines or of a
person suffering imprisonment under lawful judgment. (emphasis supplied)
At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its
pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an
information is filed against the person detained and a warrant of arrest or an order of
commitment, is issued by the court where said information has been filed. 14 The petitioners
claim that the said ruling, which was handed down during the past dictatorial regime to enforce
and strengthen said regime, has no place under the present democratic dispensation and
collides with the basic, fundamental, and constitutional rights of the people. Petitioners point out
that the said doctrine makes possible the arrest and detention of innocent persons despite lack
of evidence against them, and, most often, it is only after a petition for habeas corpus is filed
before the court that the military authorities file the criminal information in the courts of law to be
able to hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as
an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State
action.
We find, however, no compelling reason to abandon the said doctrine. It is based upon express
provision of the Rules of Court and the exigencies served by the law. The fears expressed by
the petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal,
with a view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and
the better practice would be, not to limit the function of the habeas corpus to a mere inquiry as to
whether or not the court which issued the process, judgment or order of commitment or before
whom the detained person is charged, had jurisdiction or not to issue the process, judgment or
order or to take cognizance of the case, but rather, as the Court itself states in Morales,
Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and
aspect of petitioner's detention-from the moment petition was taken into custody up to the
moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the
court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This
is exactly what the Court has done in the petitions at bar. This is what should henceforth be
done in all future cases of habeas corpus. In Short, all cases involving deprivation of individual
liberty should be promptly brought to the courts for their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs.
Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00
to P10,000.00. No costs.
SO ORDERED.
 Separate Opinions In my view, the very broad statement made about "continuing crimes" in G.R. No. 81567 (Umil,
et al v. Ramos) constitutes dictum, considering that Rolando Dural and Bernardo Itucal, Jr. had
already been tried in the court below for "double murder, etc." and found guilty of the offense
CRUZ, J., dissenting and concurring:
charged, sentenced accordingly, and at least in the case of Rolando Dural, service of the
sentence imposed upon him by the trial court had already begun.
I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a
continuing offense, to justify the arrest without warrant of any person at any time as long as the
Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of petitioner Espiritu
authorities say he has been placed under surveillance on suspicion of the offense. That is a
without a warrant was in accordance with the provisions of Section 5(b), Rule 113 of the Revised
dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as
Rules of Court does not appear strictly necessary, considering that the petitioner had already
when he is only washing his hands, or taking his supper, or even when he is sleeping, on the
been charged in a valid information filed with the competent court, which court had presumably
ground that he is committing the "continuing" offense of subversion. Libertarians were appalled
issued an order for his commitment, and considering further that he is entitled to bail.
when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new
Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the
disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the There is thus no obstacle, to my mind, to a careful examination of the doctrine of "continuing
people against unreasonable searches and seizures. We can do no less if we are really to reject crimes" as applied to such offenses as subversion and inciting to sedition and possibly other
the past oppression and commit ourselves to the true freedom. Even if it be argued that the offenses, in some future case where that issue is raised squarely and is unavoidable.
military should be given every support in our fight against subversion, I maintain that that fight
must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting
Cortes, J., concurs.
the enemy we must adopt the ways of the enemy, which are precisely what we are
fighting against. I submit that our more important motivation should be what are we fighting for.
SARMIENTO, J., dissenting:
Except for this reservation and appeal, I concur with the decision.
I beg to differ from my brethren. I submit that habeas corpus lies in all eight cases.
FELICIANO, J., concurring:
G.R. No. 81567
I concur in the result reached in each of the eight (8) consolidated Petitions for Habeas Corpus.
At the same time, I have some reservations concerning certain statements made by the Court in The majority says that Rolando Dural's arrest without a warrant is lawful under the Rules of
G.R. No. 81567 (Umil, et al. v. Ramos) (Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Court, which reads:
Lim) (Part VI of the Decision).
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states categorically that: "the may, without a warrant, arrest a person:
crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or
offenses committed in furtherance thereof or in connection therewith constitute direct assaults
against the State and are in the nature of continuing crimes." The majority here relies (a) When, in his presence, the person to be arrested has committed, is actually
upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there made the same equally committing, or is attempting to commit an offense;
broad statement but without any visible effort to examine the basis, scope and meaning of such
a sweeping statement. Garcia-Padilla did not even identify the specific offenses which it (b) When an offense has in fact just been committed, and he has personal
regarded as "in the nature of continuing offenses which set them apart from the common knowledge of facts indicating that the person to be arrested has committed
offenses" (121 SCRA at 489). It appears to me that in G.R. No. 85727 (Espiritu v. Lim) (Part VI it; and
of the Decision), the per curiam opinion has in effect included the offense of "inciting to sedition"
penalized under Article 142 of the Revised Penal Code as a "continuing offense" under the
capacious blanket of the majority opinion in Garcia-Padilla, at least for purposes of determining (c) When the person to be arrested is a prisoner who has escaped from a
the legality of the arrest without a warrant of petitioner Deogracias Espiritu. penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
I would respectfully recall to my learned colleagues in the Court that "inciting to sedition" is
defined in Article 142 of the Revised Penal Code in terms of speech 1 and that consequently it is
important constantly do distinguish between speech which is protected by the constitutional In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall
guaranty of freedom of speech and of the press and speech which may constitutionally be be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in
regarded as violative of Article 142 of the Revised Penal Code. Precisely because speech which accordance with Rule 112, Section 7. 1
the police authorities might regard as seditious or as criminal inciting to sedition may well turn
out to be only an exercise of a constitutionally guaranteed freedom, I would submit that we must "Rolando Dural," so states the majority, "was arrested for being a member of the New People's
apply the concept of "continuing offense" narrowly for purposes of application of Section 5(b), Army (NPA), an outlawed subversive organization," 2 and that "[s]ubversion being a continuing
Rule 113 of the Revised Rules of Court.
offense, the arrest of Rolando Dural without a warrant is justified as it can be said that he was
committing an offense when arrested." 3
As I said, I beg to differ.
First, Rolando Dural was charged with "Double Murder with Assault upon Agents of
Authority." 4 If he had been guilty of subversion — the offense for which he was supposedly
arrested via a warrantless arrest — subversion was the logical crime with which he should have
been charged.
The authorities could not have rightly arrested him for subversion on account of the slay of the
two CAPCOM soldiers, a possible basis for violation of the Anti-Subversion Act, because as the
majority points out, "he was not arrested while in the act of shooting [them] . . . [n]or was he
arrested just after the commission of the said offense for his arrest came a day after the said
shooting incident." 5
Second, I do not believe that a warrantless (or citizen's) arrest is possible in case of subversion
— in the absence of any overt act that would justify the authorities to act. "Subversion," as the
term is known in law, means "knowingly, wilfully and by overt acts affiliat[ing] [oneself] with,
becom[ing] or remain[ing] a member of the Communist Party of the Philippines and/or its
successor or of any subversion association as defined in sections two and three hereof. . . .
" 6 Logically, the military could not have known that Dural, at the time he was taken, was a
member of the New People's Army because he was not performing any over act that he was
truly, a rebel. Indeed, it had to take a "verification"6 before he could be identified as allegedly a
member of the underground army. Under these circumstances, I am hard put to say that he was
committing subversion when he was arrested, assuming that he was guilty of subversion, for
purposes of a warrantless arrest.
"Overt act" is made up of "[e]very act, movement, deed and word of the
[accused]," 7 indicating intent to accomplish a criminal objective. Dural, at the time he
was arrested, was lying in a hospital bed. This is not the overt act contemplated by
law.
Under the Rule above-quoted, the person must have either been apprehended in flagranti (first
paragraph) or after the act, provided that the peace officer has "personal knowledge" that he, the
suspect, is guilty. (second paragraph.) As I stated, Dural was not caught in the act. Moreover,
what the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) had
in its hands was a mere "confidential information." I do not think that this is the personal
knowledge referred to by the second paragraph. 8 Plainly and simply, it is hearsay.
The rule, furthermore, on warrantless arrest is an exceptional one. By its language, it may be
exercised only in the most urgent cases and when the guilt of an offender is plain and evident.
What I think we have here is purely and simply, the military taking the law in its hands.
By stamping validity to Rolando Dural's warrantless arrest, I am afraid that the majority has set a
very dangerous precedent. With all due respect, my brethren has accorded the military a blanket
authority to pick up any Juan, Pedro, and Maria without a warrant for the simple reason that
subversion is supposed to be a continuing offense.
That Rolando Dural was arrested for being a member of the New People's Army" 9 is
furthermore to me, a hasty statement. It has yet to be established that Dural is indeed a member
of the Communist Party's military arm. And unless proven guilty, he is presumed, and must be
presumed most of all by this Court, to be innocent.
The majority also says that habeas corpus is moot and academic because Dural has been
convicted and is serving sentence. I likewise take exception. It has been held that: "The writ may
be granted upon a judgment already final." 10
The writ of liberty is a high prerogative writ. 11
Vindication of due process is its historic office. 12
G.R. Nos. 84581-82
In the case of Wilfredo Buenaobra, the majority avers that he had "manifested his desire to stay
in the PC-INP stockade," 13 for which habeas corpus has supposedly become moot and
academic. I am not convinced that that is reason enough to dismiss habeas corpus as moot and
academic. It is the duty of this Court, in my opinion, to make sure that Buenaobra has made his
choice freely and voluntarily. Personally, I find it indeed strange why he should prefer to stay in
jail than go scot-free.
There is further no doubt that Buenaobra's petition is one impressed with a public interest. In one
case 14 we denied a motion to withdraw a petition for habeas corpus in view of its far-reaching
importance to the motion, I do not see how we should act differently, perhaps even insouciantly,
here, especially since it involves persons who think and believe differently from the rest of us.
Both Buenaobra and Amelia Roque supposedly admitted that they were ranking officers of the
Communist Party of the Philippines. According to the majority, Buenaobra and Roque are bound
by their admissions. 15
That both parties had admitted to be members of the Communist Party of the Philippines (the
National United Front Commission) is a naked contention of the military. The fact that it has not
been controverted, in my view, does not justify the couple's arrest without warrant. Worse, by
relying on the bare word of the military, this very Court has, to all intents and purposes,
condemned the duo for a crime (subversion and/or illegal possession of firearms) the bone of
contention, precisely, below.
G.R. Nos. 84583-84
I also find the warrantless arrests of Domingo Añonuevo and Ramon Casiple to be contrary to
law. That they are "admittedly members of the standing committee of the NUFC" 16 and that
"subversive materials" 17 and unlicensed firearms were found in their possession, are, like
Buenaobra's and Roque's cases, barren claims of the military. I also fear that by the majority's
strong language (that Añonuevo and Casiple are admitted NUCF officers) the majority has
pronounced the petitioners guilty, when the lower courts have yet to sit in judgment. I think we
should be the last to preempt the decision of the trial courts. We would have set to naught the
presumption of innocence accused persons enjoy.
G.R. No. 83162
With respect to the case of Vicky Ocaya, I am afraid that I am inclined towards the same
conclusion. There was basis — at the outset — to say that Ocaya was probably guilty of illegal
possession of firearms. As I have observed, a warrantless arrest must be predicated upon the
existence of a crime being actually committed or having been committed. What I find here,
rather, is nothing less than a successful fishing expedition conducted by the military upon an
unwary citizen. I am quite distressed to note that this is still possible under a supposed
democracy.
G.R. No. 85727
Deogracias Espiritu was fast asleep in his house when he was placed under arrest. For the life
of me, I can not figure out how one can be picked upon in one's own home and held moments
later without a warrant of arrest.
Espiritu was allegedly guilty of inciting to sedition as a result of a speech delivered in a press
conference at the National Press Club on November 21, 1988. He was, however, arrested the
day after, November 22, 1988. Under these circumstances, it eludes me how an arrest without a
warrant could be justified, either under paragraph (a) or paragraph (b) of the Rule on warrantless
arrests.
The majority avers that since an information had been filed with the court, Espiritu's detention, is
allegedly justifiable. The question is whether or not an information is an authority to hold a
person in custody. Under the Rules, an information means "an accusation in writing charging a
person with an offense subscribed by the fiscal and filed with the court." 18 It is not, however, an
order to keep one under detention.
G.R. No. 86332
The offense for which Narciso Nazareno is being held — the fatal shooting of Romulo Bunye II
— was committed on December 14, 1988. It was, however, only on December 28, 1988 that the
police collared a suspect, Ramil Regala, who subsequently pointed to Nazareno as his
accomplice. It also escapes me how Nazareno, under these circumstances, could have been
validly put under arrest without a warrant or the existence of the circumstance described under
either paragraph (a) or (b) of the Rule above-quoted: The crime had long been committed prior
to the arrest.
G.R. Nos. 81567; 84581-82; 84583-84; 83162;
85727 & 86332; Postscripts
The majority has disposed of these cases on the bedrock of what I view as doctrines that have
lost their luster:
1. The teaching of Garcia-Padilla v. Enrile, 19 which held that subversion is a continuing offense;
2. The ruling in Ilagan v. Enrile. 20
I also find, for reasons to be set forth hereinafter, a glossing over of the fundamental rights of the
petitioners under the Constitution in the authorities' handling of the petitioners' cases.
I hold that Garcia-Padilla is no longer good law under the present Constitution. Two reasons
persuade me. First, it is repugnant to due process of law. ("The arrest, therefore, need not follow
the usual procedure in the prosecution of offenses which require 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." 21 Under the 1987 Constitution, not even "[a] state of
martial law suspend[s] the operation of [the Charter]. . ." 22 Second, it leaves the liberty of
citizens to the whim of one man ("On these occasions [the existence of a state of emergency],
the President takes absolute command, for the very life of the Nation and its government, which,
incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to
his conscience, the people and to God. For their part, in giving him the supreme mandate as
their President, the people can only trust and pray that, giving him their own loyalty and without
patriotism, the President will not fail them." 23 ) Under the Charter now prevailing, the Chief
Executive shares, to a certain extent, the exercise of emergency powers, with Congress. 24
As a law advocate under the regime of Marcos, I had challenged the soundness of Garcia-
Padilla. I doubted whether it could stand up under the aegis of the 1973 Constitution. I still doubt
whether it can withstand scrutiny under the 1987 Constitution.
The majority also fails to point out that six days after Garcia-Padilla was handed down, the Court
promulgated Morales, Jr. v. Enrile, 25 a case that in my view has significantly whittled
down Garcia-Padilla's very esse. In that case, Mr. Justice Hermogenes Concepcion, Jr. wrote for
the majority:
xxx xxx xxx
16. After a person is arrested . . . without a warrant . . . the proper complaint
or information against him must be filed with the courts of justice within the
time prescribed by law. . .
17. Failure of the public officer to do so without any valid reason would
constitute a violation of Art. 125, Revised Penal Code, as amended. And the
person detained would be entitled to be released on a writ of habeas
corpus, unless he is detained under subsisting process issued by a
competent court. 26
I also gather from the records that none of the petitioners had been: (1) informed of their right to
remain silent; and (2) to have competent and independent counsel. 27
As I said, the majority is denying habeas corpus on self-serving claims of the military that the
petitioners (Dural, Buenaobra, Roque, Añonuevo, and Casiple) are members of the Communist
Party of the Philippines — and that they have supposedly confessed to be in fact members of
the outlawed organization. The question that has not been answered is whether or not these
supposed confessions are admissible, for purposes of a warrantless arrest, as evidence of guilt,
in the absence of any showing that they were apprised of their constitutional rights. I am
perturbed by the silence of the majority. I am distressed because as we held in one case,
violation of the Constitution divests the court of jurisdiction and entitles the accused to habeas
corpus. 28
According to the majority, a "re-examination or re-appraisal . . . of
the Ilagan doctrine is not the answer." 29 In my considered opinion, Ilagan v. Enrile 30 does not
rightfully belong in the volumes of Philippine jurisprudence. In that case, the petitioners, three
Davao-based lawyers, were held by virtue of a simple information ("the petition herein has been
rendered moot and academic by virtue of the filing of an Information against them for Rebellion .
. . and the issuance of a Warrant of Arrest against them" 31 ) without any preliminary
investigation (examination) having been previously conducted (to justify the issuance of a
warrant).i•t•c-aüsl As I have stated, an information is not a warrant of arrest. The fact that an
information exists does not mean that a warrant will be issued.

32
Accused persons have the right of preliminary investigation (examination). It forms part and
parcel of due process of law .33

I find the majority's reliance on U.S. v. Wilson, 34 an ancient (1905) decision, inapt and
untenable. In that case, the accused had been served with a warrant and thereafter taken into
custody. The question that faced the Court was whether or not the warrant was valid, amid the
accused's charges that the judge who issued it did not examine the complainant under oath. We
held that the query was academic, because the accused had already pleaded, and the case had
entered the trial stage.

The cases at bar are not on all fours. Here, no warrant has been issued. I submit that in that
event, the petitioners are entitled to freedom by way of the writ of liberty.

xxx xxx xxx

The apprehensions in question chronicle in my mind the increasing pattern of arrests and
detention in the country without the sanction of a judicial decree. Four years ago at "EDSA", and
many years before it, although with much fewer of us, we valiantly challenged a dictator and all
the evils his regime had stood for: repression of civil liberties and trampling on of human rights.
We set up a popular government, restored its honored institutions, and crafted a democratic
constitution that rests on the guideposts of peace and freedom. I feel that with this Court's ruling,
we have frittered away, by a stroke of the pen, what we had so painstakingly built in four years of
democracy, and almost twenty years of struggle against tyranny.

It also occurs to me that I am interposing what looms as a quixotic outlook of Philippine law on
warrantless arrests and its implications on liberty. It is an impression that does not surprise me.
Quixotic as they may seem, and modesty aside, my views reflect a strong bias on my part —
forged by years of experience and sharpened by a painful and lonely struggle for freedom and
justice — toward men and women who challenge settled beliefs. If this dissent can not gain any
adherent for now, let it nevertheless go on record as a plea to posterity and an appeal for
tolerance of opinions with which we not only disagree, but opinions we loathe.

I feel it is my duty to articulate this dissent.

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in
his capacity as Acting Director, National Bureau of Investigation; SPECIAL
PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and
ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila;
JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG,
Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ,
Municipal Court of Quezon City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for
petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro,
Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C.
Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin1 — hereinafter referred
to as Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-
Judges — issued, on different dates,3 a total of 42 search warrants against petitioners
herein4 and/or the corporations of which they were officers,5 directed to the any peace officer, to
search the persons above-named and/or the premises of their offices, warehouses and/or
residences, and to seize and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,
journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets
and profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or
"used or intended to be used as the means of committing the offense," which is described in the
applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants are null and void, as contravening the
Constitution and the Rules of Court — because, inter alia: (1) they do not describe with
particularity the documents, books and things to be seized; (2) cash money, not mentioned in
the warrants, were actually seized; (3) the warrants were issued to fish evidence against the
aforementioned petitioners in deportation cases filed against them; (4) the searches and
seizures were made in an illegal manner; and (5) the documents, papers and cash money
seized were not delivered to the courts that issued the warrants, to be disposed of in accordance
with law — on March 20, 1962, said petitioners filed with the Supreme Court this original action
for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of
the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors,
their agents and /or representatives from using the effects seized as aforementioned or any
copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter,
decision be rendered quashing the contested search warrants and declaring the same null and
void, and commanding the respondents, their agents or representatives to return to petitioners
herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers,
things and cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are
valid and have been issued in accordance with law; (2) that the defects of said warrants, if any,
were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible
in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned
searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as
the papers, documents and things seized from the offices of the corporations above mentioned
are concerned; but, the injunction was maintained as regards the papers, documents and things
found and seized in the residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the warrants in
question may be split into two (2) major groups, namely: (a) those found and seized in the
offices of the aforementioned corporations, and (b) those found and seized in the residences of
petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or of the interest of
each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it
is well settled that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby,9 and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to
the admission of said papers in evidence belongs exclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these
papers were unlawfully seized and thereby the constitutional rights of or any one were
invaded, they were the rights of the corporation and not the rights of the other
defendants. Next, it is clear that a question of the lawfulness of a seizure can be
raised only by one whose rights have been invaded. Certainly, such a seizure, if
unlawful, could not affect the constitutional rights of defendants whose property had
not been seized or the privacy of whose homes had not been disturbed; nor could they
claim for themselves the benefits of the Fourth Amendment, when its violation, if any,
was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F.
501, 511. It follows, therefore, that the question of the admissibility of the evidence
based on an alleged unlawful search and seizure does not extend to the personal
defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis
supplied.)
With respect to the documents, papers and things seized in the residences of petitioners herein,
the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously
issued by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using
them in evidence against petitioners herein.
In connection with said documents, papers and things, two (2) important questions need be
settled, namely: (1) whether the search warrants in question, and the searches and seizures
made under the authority thereof, are valid or not, and (2) if the answer to the preceding
question is in the negative, whether said documents, papers and things may be used in
evidence against petitioners herein.1äwphï1.ñët
Petitioners maintain that the aforementioned search warrants are in the nature of general
warrants and that accordingly, the seizures effected upon the authority there of are null and void.
In this connection, the Constitution 13provides:
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, to be determined 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.
Two points must be stressed in connection with this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. Indeed, the
same were issued upon applications stating that the natural and juridical person therein named
had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code." In other words, no specific offense had been alleged in said
applications. The averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have found the
existence of probable cause, for the same presupposes the introduction of competent proof that
the party against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws. As a matter of fact,
the applications involved in this case do not allege any specific acts performed by herein
petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of
Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code," — as alleged in the aforementioned applications — without reference to any determinate
provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely one of the
most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the
domicile and the privacy of communication and correspondence at the mercy of the whims
caprice or passion of peace officers. This is precisely the evil sought to be remedied by the
constitutional provision above quoted — to outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times of keen political strife, when the party in power
feels that the minority is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search
warrant shall not issue but upon probable cause in connection with one specific offense." Not
satisfied with this qualification, the Court added thereto a paragraph, directing that "no search
warrant shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants
was compounded by the description therein made of the effects to be searched for and seized,
to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets
and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all business
transactions of petitioners herein, regardless of whether the transactions were legal or illegal.
The warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of
Rights — that the things to be seized be particularly described — as well as tending to defeat its
major objective: the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under consideration were unconstitutional, the documents,
papers and things thus seized are admissible in evidence against petitioners herein. Upon
mature deliberation, however, we are unanimously of the opinion that the position taken in the
Moncado case must be abandoned. Said position was in line with the American common law
rule, that the criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches
and seizures is protected by means other than the exclusion of evidence unlawfully
obtained, 17 such as the common-law action for damages against the searching officer, against
the party who procured the issuance of the search warrant and against those assisting in the
execution of an illegal search, their criminal punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass against the
offending official may have been protection enough; but that is true no longer. Only in
case the prosecution which itself controls the seizing officials, knows that it cannot
profit by their wrong will that wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment,
declaring his rights to be secure against such searches and seizures, is of no value,
and, so far as those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the guilty to
 punishment, praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same
Federal Court. 20After reviewing previous decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right
of privacy free from unreasonable state intrusion, and after its dozen years on our
books, are led by it to close the only courtroom door remaining open to evidence
secured by official lawlessness in flagrant abuse of that basic right, reserved to all
persons as a specific guarantee against that very same unlawful conduct. We hold
that all evidence obtained by searches and seizures in violation of the Constitution is,
by that same authority, inadmissible in a State.
law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on
reason and truth, gives to the individual no more than that which the Constitution
guarantees him to the police officer no less than that to which honest law enforcement
is entitled, and, to the courts, that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable searches and seizures. To be sure, if the
applicant for a search warrant has competent evidence to establish probable cause of the
commission of a given crime by the party against whom the warrant is intended, then there is no
reason why the applicant should not comply with the requirements of the fundamental law. Upon
the other hand, if he has no such competent evidence, then it is not possible for the Judge to
find that there is probable cause, and, hence, no justification for the issuance of the warrant. The
only possible explanation (not justification) for its issuance is the necessity of fishing evidence of
the commission of a crime. But, then, this fishing expedition is indicative of the absence of
evidence to establish a probable cause.

Since the Fourth Amendment's right of privacy has been declared enforceable against
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant
the States through the Due Process Clause of the Fourteenth, it is enforceable against
and/or make unreasonable searches or seizures would suffice to protect the constitutional
them by the same sanction of exclusion as it used against the Federal Government.
guarantee under consideration, overlooks the fact that violations thereof are, in general,
Were it otherwise, then just as without the Weeks rule the assurance against
committed By agents of the party in power, for, certainly, those belonging to the minority could
unreasonable federal searches and seizures would be "a form of words," valueless
not possibly abuse a power they do not have. Regardless of the handicap under which the
and underserving of mention in a perpetual charter of inestimable human liberties, so
minority usually — but, understandably — finds itself in prosecuting agents of the majority, one
too, without that rule the freedom from state invasions of privacy would be so
must not lose sight of the fact that the psychological and moral effect of the possibility 21 of
ephemeral and so neatly severed from its conceptual nexus with the freedom from all
securing their conviction, is watered down by the pardoning power of the party for whose benefit
brutish means of coercing evidence as not to permit this Court's high regard as a
the illegality had been committed.
freedom "implicit in the concept of ordered liberty." At the time that the Court held in
Wolf that the amendment was applicable to the States through the Due Process
Clause, the cases of this Court as we have seen, had steadfastly held that as to In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June
federal officers the Fourth Amendment included the exclusion of the evidence seized 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No.
in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-
to when conceded operatively enforceable against the States, was not susceptible of Navy Club, should be included among the premises considered in said Resolution as residences
destruction by avulsion of the sanction upon which its protection and enjoyment had of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck,
always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. respectively, and that, furthermore, the records, papers and other effects seized in the offices of
Therefore, in extending the substantive protections of due process to all the corporations above referred to include personal belongings of said petitioners and other
constitutionally unreasonable searches — state or federal — it was logically and effects under their exclusive possession and control, for the exclusion of which they have a
constitutionally necessarily that the exclusion doctrine — an essential part of the right standing under the latest rulings of the federal courts of federal courts of the United States. 22
to privacy — be also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new constitutional Right
We note, however, that petitioners' theory, regarding their alleged possession of and control over
by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has
the exclusion of the evidence which an accused had been forced to give by reason of
Been Advanced, not in their petition or amended petition herein, but in the Motion for
the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its
Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory
privilege and enjoyment. Only last year the Court itself recognized that the purpose of
would appear to be readjustment of that followed in said petitions, to suit the approach intimated
the exclusionary rule to "is to deter — to compel respect for the constitutional guaranty
in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or
in the only effectively available way — by removing the incentive to disregard it" . . . .
copies of alleged affidavits attached to said motion for reconsideration, or submitted in support
thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now
The ignoble shortcut to conviction left open to the State tends to destroy the entire advanced by petitioners herein.
system of constitutional restraints on which the liberties of the people rest. Having
once recognized that the right to privacy embodied in the Fourth Amendment is
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for
enforceable against the States, and that the right to be secure against rude invasions
reconsideration, and the contents of the aforementioned affidavits and other papers submitted in
of privacy by state officers is, therefore constitutional in origin, we can no longer permit
support of said motion, have sufficiently established the facts or conditions contemplated in the
that right to remain an empty promise. Because it is enforceable in the same manner
cases relied upon by the petitioners; to warrant application of the views therein expressed,
and to like effect as other basic rights secured by its Due Process Clause, we can no
should we agree thereto. At any rate, we do not deem it necessary to express our opinion
longer permit it to be revocable at the whim of any police officer who, in the name of
thereon, it being best to leave the matter open for determination in appropriate cases in the
future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction heretofore issued, in connection
with the documents, papers and other effects thus seized in said residences of herein petitioners
is hereby made permanent; that the writs prayed for are granted, insofar as the documents,
papers and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied;
and that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and other
premises enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the
import of the deliberations of the Court on this case, I gather the following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case
are general warrants and are therefore proscribed by, and in violation of, paragraph 3
of section 1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be,
and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said residences is
made permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily
demonstrated that they have legal standing to move for the suppression of the
documents, papers and effects seized in the places other than the three residences
adverted to above, the opinion written by the Chief
Justice refrains from expressly declaring as null and void the such warrants served at
such other places and as illegal the searches and seizures made therein, and leaves
"the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately preceding
paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the
search warrants served at places other than the three residences, and the illegibility of the
searches and seizures conducted under the authority thereof. In my view even the exacerbating
passions and prejudices inordinately generated by the environmental political and moral
developments of this case should not deter this Court from forthrightly laying down the law not
only for this case but as well for future cases and future generations. All the search warrants,
without exception, in this case are admittedly general, blanket and roving warrants and are
therefore admittedly and indisputably outlawed by the Constitution; and the searches and
seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente,
have no legal standing to ask for the suppression of the papers, things and effects seized from
places other than their residences, to my mind, cannot in any manner affect, alter or otherwise
modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and
seizures made thereunder. Whether or not the petitioners possess legal standing the said
warrants are void and remain void, and the searches and seizures were illegal and remain
illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the
lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or
illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings submitted to
this Court the petitioners have the requisite legal standing to move for the suppression and
return of the documents, papers and effects that were seized from places other than their family
residences.
Our constitutional provision on searches and seizures was derived almost verbatim from the
Fourth Amendment to the United States Constitution. In the many years of judicial construction
and interpretation of the said constitutional provision, our courts have invariably regarded as
doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the
Federal Supreme Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or return of
documents, papers and effects which are the fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b)
ownership and/or control or possession — actual or constructive — of premises searched gives
"standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the
"aggrieved person," gives "standing."
An examination of the search warrants in this case will readily show that, excepting three, all
were directed against the petitioners personally. In some of them, the petitioners were named
personally, followed by the designation, "the President and/or General Manager" of the particular
corporation. The three warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the
petitioners in all the other search warrants directed against the petitioners and/or "the President
and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of
April 2, 1962). The searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to return and
suppress, and gives them standing as persons aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261
(1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States,
296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which
the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in
an apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th
Cir. 1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano
vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by
nor in exclusive possession of the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held
that under the constitutional provision against unlawful searches and seizures, a person places
himself or his property within a constitutionally protected area, be it his home or his office, his
hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental nature and
scope of Fourth Amendment protection. What the Fourth Amendment protects is the
security a man relies upon when he places himself or his property within a
constitutionally protected area, be it his home or his office, his hotel room or his
automobile. There he is protected from unwarranted governmental intrusion. And
when he puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he
has the right to know it will be secure from an unreasonable search or an
unreasonable seizure. So it was that the Fourth Amendment could not tolerate the
warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless
other cases which have come to this Court over the years have involved a myriad of
differing factual contexts in which the protections of the Fourth Amendment have been
appropriately invoked. No doubt, the future will bring countless others. By nothing we
say here do we either foresee or foreclose factual situations to which the Fourth
Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966).
See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis
supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents seized, the
petitioners have standing to move for return and suppression by virtue of their proprietary or
leasehold interest in many of the premises searched. These proprietary and leasehold interests
have been sufficiently set forth in their motion for reconsideration and need not be recounted
here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all
the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises
2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate
offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the
filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually,
or through their respective spouses, owned the controlling stock of the corporations involved.
The petitioners' proprietary interest in most, if not all, of the premises searched therefore
independently gives them standing to move for the return and suppression of the books, papers
and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of
the interest in the searched premises necessary to maintain a motion to suppress. After
reviewing what it considered to be the unduly technical standard of the then prevailing circuit
court decisions, the Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and
seizures subtle distinctions, developed and refined by the common law in evolving the
body of private property law which, more than almost any other branch of law, has
been shaped by distinctions whose validity is largely historical. Even in the area from
which they derive, due consideration has led to the discarding of those distinctions in
the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2,
c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions
such as those between "lessee", "licensee," "invitee," "guest," often only of gossamer
strength, ought not be determinative in fashioning procedures ultimately referable to
constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17
(1961).
It has never been held that a person with requisite interest in the premises searched must own
the property seized in order to have standing in a motion to return and suppress. In Alioto vs.
United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose
apartment the corporate records were seized successfully moved for their return. In United
States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's
president successfully moved for the return and suppression is to him of both personal and
corporate documents seized from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure.
Under the circumstances in the case at bar, the search and seizure were
unreasonable and unlawful. The motion for the return of seized article and the
suppression of the evidence so obtained should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place searched or the
articles seize had the necessary standing to invoke the protection of the exclusionary rule. But
in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice
Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he
is under against criminal intrusion." This view finally became the official view of the U.S.
Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years
later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step
further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless
declared that the exclusionary rule protected him as well. The concept of "person aggrieved by
an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where
the search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth
Circuit held that the defendant organizer, sole stockholder and president of a corporation had
standing in a mail fraud prosecution against him to demand the return and suppression of
corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The
court conclude that the defendant had standing on two independent grounds: First —he had a
sufficient interest in the property seized, and second — he had an adequate interest in the
premises searched (just like in the case at bar). A postal inspector had unlawfully searched the
corporation' premises and had seized most of the corporation's book and records. Looking
to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person
aggrieved by an unlawful search and seizure." It tells us that appellant should not have
been precluded from objecting to the Postal Inspector's search and seizure of the
 corporation's books and records merely because the appellant did not show ownership
or possession of the books and records or a substantial possessory interest in the
invade premises . . . (Henzel vs. United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962).
In Villano, police officers seized two notebooks from a desk in the defendant's place of
employment; the defendant did not claim ownership of either; he asserted that several
employees (including himself) used the notebooks. The Court held that the employee had a
protected interest and that there also was an invasion of privacy.
Both Henzel and Villano considered also the fact that the search and seizure were "directed at"
the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United States, 310
F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and went to
Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to
quash as unreasonable search and seizure under the Fourth Amendment of the U.S.
Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The
Government contended that the petitioner had no standing because the books and papers were
physically in the possession of the custodian, and because the subpoena was directed against
the custodian. The court rejected the contention, holding that
Possession (actual or constructive), no less than ownership, gives standing to move to
suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the records stored
with Dunn, it matters not whether he had any interest in the premises searched. See
also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed
432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not
appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the
present petitioners; as in Birrell, many personal and corporate papers were seized from
premises not petitioners' family residences; as in Birrell, the searches were "PRIMARILY
DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents
were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners
connection with the premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants regardless
whether these were directed against residences in the narrow sense of the word, as long as the
documents were personal papers of the petitioners or (to the extent that they were corporate
papers) were held by them in a personal capacity or under their personal control.

Schwimmer legally had such possession, control and unrelinquished personal rights in
the books and papers as not to enable the question of unreasonable search and
seizure to be escaped through the mere procedural device of compelling a third-party
naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F.
2d 855, 861 (8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said person
gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191
(1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers,
which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's
attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a
farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management."
The papers turned out to be private, personal and business papers together with corporate
books and records of certain unnamed corporations in which Birrell did not even claim
ownership. (All of these type records were seized in the case at bar). Nevertheless, the search in
Birrell was held invalid by the court which held that even though Birrell did not own the premises
where the records were stored, he had "standing" to move for the return ofall the papers and
properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co.,
53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra,
pointed out that
Prescinding a from the foregoing, this Court, at all events, should order the return to the
petitioners all personal and private papers and effects seized, no matter where these were
seized, whether from their residences or corporate offices or any other place or places.
The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to
this Court indisputably show that amongst the things seized from the corporate offices and other
places were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which where the
objects of the unlawful searches and seizures, I submit that the grouping should be:
(a) personal or private papers of the petitioners were they were unlawfully seized, be it their
family residences offices, warehouses and/or premises owned and/or possessed (actually or
constructively) by them as shown in all the search and in the sworn applications filed in securing
the void search warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers, documents and
things are personal/private of the petitioners or purely corporate papers will have to be left to the
lower courts which issued the void search warrants in ultimately effecting the suppression and/or
return of the said documents.
And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear
legal standing to move for the suppression of purely corporate papers as "President and/or
General Manager" of the corporations involved as specifically mentioned in the void search
warrants.

It is overwhelmingly established that the searches here in question were directed

Finally, I must articulate my persuasion that although the cases cited in my disquisition were
solely and exclusively against Birrell. The only person suggested in the papers as
criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and
having violated the law was Birrell. The first search warrant described the records as
seizures do not withhold the mantle of their protection from cases not criminal in origin or nature.
having been used "in committing a violation of Title 18, United States Code, Section
1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant
was captioned: "United States of America vs. Lowell M. Birrell. (p. 198)
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE, respondents.
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) firearms3 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
petition13 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 hisponencia, 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,2the 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 faith3 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 20 November 1991. Considering then that the offense for which he was to be charged was for
majority opinion, are whether (a) COMELEC Resolution No. 2327, dated 26 December 1991, is the violation of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section
unconstitutional, and (b) COMELEC Resolutions No. 92-0829, dated 6 April 1992, and No. 92- 32 of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the offer in
0999, dated 23 April 1992, have legal and factual bases, I am unable to agree with the specific evidence of the seized firearms, I fail to grasp the rationale of a ruling on the admissibility in
disposition declaring (a) illegal the warrantless search conducted by the Philippine National evidence of the firearms.
Police (PNP) on 13 January 1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such warrantless
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on the
search, and (c) unconstitutional COMELEC Resolution
ground of unconstitutionality. It simply directed the filing of an information against the petitioner
No. 92-0829.
and Arellano for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No.
1. Having declined to rule on the constitutionality of Resolution 7166, and directed the petitioner to show cause why he should not be disqualified from running
No. 2327 because "this petition may be resolved without passing upon this particular issue" (first for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections 32,
paragraph, page 10, Ponencia), this Court may no longer inquire into the constitutionality of the 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus Election Code.
spot checkpoints authorized to be established thereunder. And whether the warrantless search Insofar as Arellano is concerned, he is not a petitioner in this case. Moreover, as to him, the
conducted by the PNP at the checkpoint was valid, it being assumed that it would have been, resolution was nothing more than a disapproval of the recommendation of the Office of the City
provided there existed a probable cause therefor, is a question of fact whose presentation in this Prosecutor to dismiss the complaint against him. As against the petitioner, there was no denial
case is either procedurally premature, or one which this Court cannot, with definiteness, resolve of due process because the petitioner was later heard on his motion for reconsideration.
considering the obvious paucity of the facts before it. The most the majority opinion can state is Moreover, the right of an accused to a preliminary investigation is not a creation of the
that "[t]here was no evidence to show that the police were impelled to do so because of a Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng
confidential report leading them to reasonably believe that certain motorists matching the Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]).
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
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information against the
package or behavior of Arellano that could have triggered the suspicion of the policemen."
petitioner despite the fact that he was never formally charged before the Office of the City
Nothing more could be expected at this stage since the records of the proceedings conducted by
Prosecutor. There was only an "'unofficial' charge imputed against" him. The COMELEC then
the Office of the City Prosecutor and the COMELEC are not before this Court. A declaration of
acted with grave abuse of discretion amounting to want or excess of jurisdiction.
invalidity of the warrantless search and of the inadmissibility in evidence of the firearms seized
would thus be premature.
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
It may additionally be relevant to state that the search was not in connection with the crime of
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32 of R.A. No.
illegal possession of firearms, which would have been factually and legally baseless since the
7166.
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 Melo, J., concurs.
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
PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in
relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-
law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export
Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four
(4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that he was sending the
packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II,
8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four
(4) packages were then placed inside a brown corrugated box one by two feet in size
(1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the
box was sealed with masking tape, thus making the box ready for shipment (Decision,
p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt dried leaves inside.
Opening one of the bundles, he pulled out a cellophane wrapper protruding from the
opening of one of the gloves. He made an opening on one of the cellophane wrappers
and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987;
Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting
a laboratory examination of the samples he extracted from the cellophane wrapper
(tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of
the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of
that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the
Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took
out the cellophane wrappers from inside the gloves. Dried marijuana leaves were
found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6,
1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out
that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39,
October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-
3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in
his passport being the Manila Central Post Office, the agents requested assistance from the
latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post
Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves.
On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana
flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-
134).
Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been obtained in
violation of his constitutional rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should
be held inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
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. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search and seizure
had its origin in the 1935 Charter which, worded as follows:
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, to be determined 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. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United States
Constitution. As such, the Court may turn to the pronouncements of the United States Federal
Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme
Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20
SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective
search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v.
People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the
illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized
the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the constitutional safeguard against
unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971];
Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510,
March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were
invariably procured by the State acting through the medium of its law enforcers or other
authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence sought to
be excluded was primarily discovered and obtained by a private person, acting in a private
capacity and without the intervention and participation of State authorities. Under the
circumstances, can accused/appellant validly claim that his constitutional right against
unreasonable searches and seizure has been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's constitutional rights, be invoked against the
State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed
by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966]
and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in previous cases, its protection applies to governmental action. Its origin
and history clearly show that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon other than
governmental agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested occupation of his dwelling
and the possession of his property, subject to the right of seizure by process duly
served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking
attendant who searched the automobile to ascertain the owner thereof found marijuana instead,
without the knowledge and participation of police authorities, was declared admissible in
prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo.,
391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:
The search of which appellant complains, however, was made by a private citizen —
the owner of a motel in which appellant stayed overnight and in which he left behind a
 travel case containing the evidence***complained of. The search was made on the
motel owner's own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees
no cogent reason why the same should not be admitted against him in the prosecution of the
offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In both
instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI
agents conducted an illegal search and seizure of the prohibited merchandise. Records of the
case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who
made search/inspection of the packages. Said inspection was reasonable and a standard
operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-
18; pp. 7-8; Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of
the same to the NBI and later summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted the care and custody
thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an
illegal one, contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe
and look at that which is in plain sight is not a search. Having observed that which is open,
where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429
SW2d 135). Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US
559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore
v. State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was
taken into custody of the police at the specific request of the manager and where the search was
initially made by the owner there is no unreasonable search and seizure within the constitutional
meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of
private individuals finds support in the deliberations of the Constitutional Commission. True, the
liberties guaranteed by the fundamental law of the land must always be subject to protection. But
protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights
answers the query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The
Bill of Rights governs the relationship between the individual and the state. Its concern
is not the relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July
17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore applies as a
restraint directed only against the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary
and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be first
secured if it is to pass the test of constitutionality. However, if the search is made at the behest
or initiative of the proprietor of a private establishment for its own and private purposes, as in the
case at bar, and without the intervention of police authorities, the right against unreasonable
search and seizure cannot be invoked for only the act of private individual, not the law enforcers,
is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit of alleged
unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been modified
by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any
evidence obtained in violation of the constitutional prohibition against illegal search and seizure,
it matters not whether the evidence was procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships between
individuals. Moreover, it must be emphasized that the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar,
167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987].
The modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with the State
and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be invoked
against the State by an individual unjustly traduced by the exercise of sovereign authority. To
agree with appellant that an act of a private individual in violation of the Bill of Rights should also
be construed as an act of the State would result in serious legal complications and an absurd
interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through private
seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of
appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in convicting
him despite the undisputed fact that his rights under the constitution while under custodial
investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact", that appellant was not informed of his
constitutional rights or that he gave statements without the assistance of counsel. The law
enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed
that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies
should be given full faith and credence, there being no evidence to the contrary. What is clear
from the records, on the other hand, is that appellant refused to give any written statement while
under investigation as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here,
did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of
his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p.
62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the defense on
cross-examination. As borne out by the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated. What is more, we
have examined the assailed judgment of the trial court and nowhere is there any reference made
to the testimony of appellant while under custodial investigation which was utilized in the finding
of conviction. Appellant's second assignment of error is therefore misplaced.
the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171
SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of the
Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal
Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment,
Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an
hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must
be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van
Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant
did not even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise, appellant
should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
contrary, appellant signed the contract as the owner and shipper thereof giving more weight to
the presumption that things which a person possesses, or exercises acts of ownership over, are
owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim
otherwise.
Premises considered, we see no error committed by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of
the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he
was not the owner of the packages which contained prohibited drugs but rather a certain
Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the
course of their 30-minute conversation, Michael requested him to ship the packages and gave
him P2,000.00 for the cost of the shipment since the German national was about to leave the
country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a man to entrust the shipment of
four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents. As stated by the trial court,
"(a) person would not simply entrust contraband and of considerable value at that as the
marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the
Accused. The Accused, on the other hand, would not simply accept such undertaking to take
custody of the packages and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary weight than
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, and found positive result for marijuana (Exhibit E); that the remaining bigger quantity
vs. of the marijuana leaves were taken to the PCCL at Camp Olivas by Pat. Roberto
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant. Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and when examined, the
same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-10, Rollo)

GUTIERREZ, JR., J.:

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region
The accused declared that he got married on October 25, 1981 and his wife begot a
at San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty
child on June 10, 1982; that he was formerly employed in the poultry farm of his uncle
beyond reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous
Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business of selling
Drugs Act of 1972 as amended) and sentencing him to life imprisonment, to pay a fine of
poultry medicine and feeds, including chicks, and used to conduct his business at
P20,000 and to pay the costs.
Taytay, Rizal; that he goes to Subic at times in connection with his business and
whenever he is in Subic, he used to buy C-rations from one Nena Ballon and dispose
The information filed against the appellant alleged: the same in Manila; that he never left his residence at Antipolo, Rizal, on March 2,
1982; that on March 3, 1982, he went to Subic to collect a balance of P100.00 from a
customer thereat and to buy C-rations; that he was able to meet Nena Ballon at 6:00
That on or about the 2nd day of March, 1982, in the municipality of San Fernando,
o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because he
Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court,
had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to
the above-named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well
Manila from Olongapo City but he failed and was able to take the bus only by 9:00
that Marijuana is a prohibited drug, did then and there willfully, unlawfully and
o'clock that evening that it was a Victory Liner Bus that he rode and because he was
feloniously have his possession, control and custody one (1) bag of dried marijuana
tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga;
leaves with an approximate weight of one (1) kilo and to transport (sic) the same to
that upon alighting at the Victory Liner Compound at San Fernando, Pampanga he
Olongapo City, without authority of law to do so. (At p. 6, Rollo)
crossed the street to wait for a bus going to Manila; that while thus waiting for a bus, a
man whom he came to know later as Pat. Punzalan, approached him and asked him if
The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based he has any residence certificate; that when he took out his wallet, Pat. Punzalan got
is narrated by the trial court as follows: the wallet and took all the money inside the wallet amounting to P545.00; that Pat.
Punzalan told him that he'll be taken to the municipal building for verification as he
may be an NPA member; that at the municipal building, he saw a policeman, identified
It appears from the evidence presented by the prosecution that in the late evening of
by him later as Pat. Silverio Quevedo, sleeping but was awakened when he arrived
March 2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San
that Pat. Quevedo took him upstairs and told him to take out everything from his
Fernando Police Station, together with Barangay Tanod Macario Sacdalan, were
pocket saying that the prisoners inside the jail may get the same from him; that inside
conducting surveillance mission at the Victory Liner Terminal compound located at
his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall
Barangay San Nicolas, San Fernando, Pampanga; that the surveillance was aimed
be returned to him but that it was never returned to him; that he was thereafter placed
not only against persons who may commit misdemeanors at the said place but also on
under detention and somebody told him that he is being charged with possession of
persons who may be engaging in the traffic of dangerous drugs based on informations
marijuana and if he would like to be bailed out, somebody is willing to help him; and,
supplied by informers; that it was around 9:30 in the evening that said Patrolmen
that when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo
noticed a person caring a traveling bag (Exhibit G) who was acting suspiciously and
took away all his money but he told his wife not to complain anymore as it would be
they confronted him; that the person was requested by Patrolmen Quevedo and
useless. (Rollo, pp. 10-11)
Punzalan to open the red traveling bag but the person refused, only to accede later on
when the patrolmen identified themselves; that found inside the bag were marijuana
leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or less; Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in
that the person was asked of his name and the reason why he was at the said place his appeal:
and he gave his name as Medel Tangliben and explained that he was waiting for a
ride to Olongapo City to deliver the marijuana leaves; that the accused was taken to
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND
the police headquarters at San Fernando, Pampanga, for further investigation; and
FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND
that Pat. Silverio Quevedo submitted to his Station Commander his Investigator's
DOUBTFUL EVIDENCE. (At p. 48, Rollo)
Report (Exhibit F).

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.
It appears also from the prosecution's evidence that in the following morning or on
March 3, 1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo,
who happens to be his brother and who has had special training on narcotics, to However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique
conduct a field test on a little portion of the marijuana leaves and to have the Chan died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and
remaining portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; pursuant thereto, the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new
that Pat. Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves
counsel to file her appellant's brief. The latter complied and, in her brief, raised the following
assignment of errors:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF
MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A
PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.
II
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED
PACKAGE OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED
FROM ACCUSED WHEN IT WAS NEVER AUTHENTICATED.
III
THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED
TO PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)
It is contended that the marijuana allegedly seized from the accused was a product of an
unlawful search without a warrant and is therefore inadmissible in evidence.
This contention is devoid of merit.
One of the exceptions to the general rule requiring a search warrant is a search incident to a
lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:
Section 12. Search incident to a lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
Meanwhile, Rule 113, Sec. 5(a) provides:
. . . A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This
case therefore falls squarely within the exception. The warrantless search was incident to a
lawful arrest and is consequently valid.
In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same
issue, held that:
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a
warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless
search being an incident to a lawful arrest is in itself lawful. (Nolasco V. Paño, 147
SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of
marijuana.
We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402
[1988]. In that case the PC officers had earlier received a tip from an informer that accused-
appellant. was on board a vessel bound for Iloilo City and was carrying marijuana. Acting on this
tip, they waited for him one evening, approached him as he descended from the gangplank,
detained him and inspected the bag he was carrying. Said bag contained marijuana leaves. The
Court held that the marijuana could not be admitted in evidence since it was seized illegally. The
records show, however, that there were certain facts, not sing in the case before us, which led
the Court to declare the seizure as invalid. As stated therein:
The present case presented no such urgency From the conflicting declarations of the
PC witnesses, it is clear that they had at react two days within which they could have
obtained a warrant of arrest and search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival
was certain. And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet
they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."
In contrast, the case before us presented urgency. Although the trial court's decision did not
mention it, the transcript of stenographic notes reveals that there was an informer who pointed to
the accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot
information, the police officers had to act quickly. There was not enough time to secure a search
warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms,
jueteng collectors, smugglers of contraband goods, robbers, etc. would make it extremely
difficult, if not impossible to contain the crimes with which these persons are associated.
Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized
from him was never authenticated and therefore should not have been admitted as evidence. He
capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the
PC Crime Laboratory for examination did not contain a tag bearing the name of the accused. We
rule, however, that since Patrolman Quevedo testified that he gave the marijuana package
together with a letter-request for examination, and the forensic chemist Marilene Salangad
likewise testified that she received the marijuana together with the letter-request and said letter-
request bore the name of the accused, then the requirements of proper authentication of
evidence were sufficiently complied with. The marijuana package examined by the forensic
checklist was satisfactorily identified as the one seized from accused.
Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto
Quevedo which yielded positive results for marijuana.
Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.
In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an
already settled issue. This Court has ruled in several cases that non-presentation of the
informer, where his testimony would be merely corroborative or cumulative, is not fatal to the
prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R.
No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia,
147 SCRA 538).
As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue
of credibility of witnesses and their testimonies are entitled to great respect and accorded the
highest consideration by the appellate court. Since credibility is a matter that is peculiarly within
the province of the trial judge, who had first hand opportunity to watch and observe the
demeanor and behavior of witnesses both for the prosecution and the defense at the time of
their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167
SCRA 278), we find no reason to disturb the following findings:
The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo
Punzalan are positive and sufficiently clean to show the commission by the accused of
the offense herein chatted. These prosecution witnesses have no motive to fabricate
the facts and to foist a very serious offense against the accused. The knowledge on
what these witnesses testified to were (sic) acquired by them in the official
performance of their duties and then, (sic) being no showing that they are prejudiced
against the accused, their testimonies deserve full credit.
The testimonies of the afore-mentioned petitioner that what they found in the
possession of the accused were marijuana leaves were corroborated by the
examination findings conducted by Pat. October to Salangad of the PCCL, with station
at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)
Moreover, if there is truth in the testimony of the accused to the effect that Pat.
Punzalan got all the money from his wallet when he was accosted at the Victory Liner
Terminal and was told just to keep quiet otherwise he will be "salvaged" why will Pat.
Punzalan still bring the accused to the municipal Building for interrogation and/or
verification? Would not Pat. Punzalan be exposing his identity to the accused? This is
unnatural. And this is also true on the testimony to the accused that Pat. Silverio
Quevedo got his fifty-peso bill arid never returned the same to him. If the policemen
really got any money from the accused and that the marijuana leaves do not belong to
the accused, why will the two policemen still produce in Court as evidence that
expensive-looking traveling red bag (Exhibit G) taken from the accused and which
contained the marijuana in question if the instant case is a mere fabrication?
As already stated, all the evidence, oral and documentary, presented by the
prosecution in this case were all based on personal knowledge acquired by the
prosecution witnesses in the regular performance of their official duties and there is
nothing in their testimonies to show that they are bias (sic) or that they have any
prejudice against the herein accused. Between the testimonies of these prosecution
witnesses and that of the uncorroborated and self-serving testimony of the accused,
the former should prevail. (Rollo, p. 13)
Likewise, the appellant chose to limit his defense to his own testimony. He could have availed
himself through compulsory court processes of several witnesses to buttress his defense. Since
not one other witness was presented nor was any justification for the non-appearance given, the
inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the
positive testimonies given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the
lower court, is an added circumstance tending to establish his guilt.
We take exception, however, to the trial court's finding that:
The dried marijuana leaves found in the possession of the accused weighs one (1)
kilo, more or less. The intent to transport the same is clear from the testimony of Pat.
Silverio Quevedo who declared, among other things, that when he confronted the
accused that night, the latter told him that he (accused) is bringing the marijuana
leaves to Olongapo City. Moreover, considering the quantity of the marijuana leaves
found in the possession of the accused and the place he was arrested which is at San
Fernando, Pampanga, a place where the accused is not residing, it can be said that
the intent to transport the marijuana leaves has been clearly established. (Rollo, pp.
13-14)
The alleged extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied
upon. Even assuming it to be true, the extrajudicial confession cannot be admitted because it
does not appear in the records that the accused, during custodial investigation, was apprised of
his rights to remain silent and to counsel and to be informed of such rights. In People
v. Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed
to prove that before Duero made his alleged oral confession he was informed of his rights to
remain silent and to have counsel and because there is no proof that he knowingly and
intelligently waived those rights, his confession is inadmissible in evidence. This ruling was
reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that:
In effect, the Court not only abrogated the rule on presumption of regularity of official
acts relative to admissibility of statements taken during in-custody interrogation but
likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this
jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior
to questioning, the confessant was warned of his constitutionally protected rights.
The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding
extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the forensic chemist
who examined the marijuana leaves testified that the marijuana weighed only 600 grams Such
amount is not a considerable quantity as to conclusively confer upon the accused an intent to
transport the marijuana leaves.
Nor can it be said that the intent to transport is clearly established from the fact that the accused
was arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a
crime with an extremely severe penalty must be based on evidence which is clearer and more
convincing than the inferences in this case.
What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana
leaves but his actual session.
The offense committed by the appellant is possession of marijuana under Section 8 of Republic
Act No. 6425 (Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but
MODIFIED. The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.

SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANITA CLAUDIO Y BAGTANG, accused-appellant.
GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73
finding the accused Anita Claudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4,
Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing her to serve the
penalty of reclusion perpetua, to pay a fine of P 20,000.00, and to pay the costs.
The information filed against the accused alleged:
That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and
within the jurisdiction of this Honorable Court, the above-named ACCUSED without
being lawfully authorized, did then and there wilfully, unlawfully and knowingly
transport 1.1 kilos of Marijuana dried leaves, which are prohibited drugs for the
purpose of selling the same from Baguio City to Olongapo City. (Rollo, p. 13)
The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's
evidence as follows:
To prove the guilt of the accused, the prosecution offered the following document and
testimonial evidence as follows: Exhibit "A" Letter request for Examination of
suspected marijuana dried leaves weighing approximately 1.1 kilos dated July 25,
1981; "B" plastic container; "B- 1"-marijuana contained in the plastic container; "B-1-
a"—another plastic container; "C"—Chemistry Report No. D-668-81;"C-1" Findings:
Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E" and "E-1" photographs of
accused with Pat. Daniel Obiña and Pauline Tiongco showing the marijuana, "F"—
Victory Liner Ticket No. 84977;"G"—Sworn Statement of Pat. Daniel Obiña, "H"
Request for Field Test on suspected marijuana from accused by P/Lt. Antonio V.
Galindo;"H-1"—date of of the request; "L"—Certificate of Field Test dated July 22,
1981; "B-2" and "B-2a" additional Wrapping paper; and the testimonies of witnesses of
the prosecution, Theresa Ann Bugayong; Pat. Daniel Obiño, Cpl. Paulino Tiongco,
Cpl. Ernesto Abello and Sgt. Leoncio Bagang.
Theresa Ann Bugayong—22 years old, single, Forensic Chemist and a resident of
1150 Sampaloc, Metro Manila testified that she received a request from the Task
Force Bagong Buhay, Olongapo City, dated July 25, 1981, on specimen marijuana
submitted for examination. The specimen consisted of 900 grams of suspected dried
marijuana flowering tops wrapped in a newspaper placed in a plastic bag with a
marking "MB Store" (Exh. "B").
The examination conducted by her proved to be positive for marijuana. After her
examination, she prepared Chemistry Report No. D-668-81 dated July 29,1981 (Exhs.
"C" and "C-l"). She conducted three eliminations; microscopic examination, the
duguenoi levine test and thirdly, the confirmatory examination of thin layer
chromatographic test. The said specimen was submitted to them by OIC Danilo
Santiago, a representative of the CANU, Olongapo City.
The second witness for the prosecution was Daniel Obiña, 37 years old, married,
policeman and residing at 34 Corpuz St., East Tapinac, Olongapo City. Obiña testified
that he has been a member of the INP, since 1970 up to the present. He was
assigned in June, 1972 at the Investigation Division as operative. His job then was
among other things to follow up reports in their office, recover stolen items and
apprehend suspects. On July 21,1981, he was on Detached Service with the ANTI-
NARCOTICS Unit; and that on that date, he came from Baguio City and arrived in
Olongapo City at about 1:30 o'clock in the afternoon having left Baguio at about 8:30
o'clock in the morning. He took the Victory Liner in going back to Olongapo City. His
family lives in Baguio City. On board the Victory Liner, he was seated on the second
seat at the back. While he was thus seated, suspect Anita Claudio boarded the same
bus and took the seat in front of him after putting a bag which she was carrying at the
back of the seat of Obiña. The bag placed by suspect behind his seat was a wooven
buri bag made of plastic containing some vegetables. The act of the accused putting
her bag behind Pat. Obiña's seat aroused his suspicion and made him felt (sic)
nervous. With the feeling that there was some unusual, he had the urge to search the
woven plastic bag. But it was only at San Fernando, Pampanga when he was able to
go to the bag. He inserted one of his fingers in a plastic bag located at the bottom of
the woven bag and smelt marijuana. The plastic woven bag appearing to contain
camote tops on the top has a big bundle of plastic of marijuana at the bottom. He
could recognize the smell of marijuana because he was assigned at that time at the
ANTI-NARCOTICS Unit. He did not, however, do anything after he discovered that
there was marijuana inside the plastic bag of the accused until they reached Olongapo
City and the accused alighted from the bus in front of the Caltex Gasoline Station in
Sta. Rita. Right after the accused alighted from the bus, policeman Obina intercepted
her and showed her his Id Identifying himself as a policeman and told her he will
search her bag because of the suspicion that she was carrying marijuana inside said
bag. In reply, accused told him, "Please go with me, let us settle this at home."
However, the witness did not heed her plea and instead handcuffed her right hand and
with her, boarded a tricycle right away and brought the suspect to the police
headquarters with her bag appearing to contain vegetables.
At the police headquarters Investigation Section, the bag was searched in the
presence of Investigator Cpl. Tiongco; Pat. Obiña, the accused and Sgt. Leoncio
Bagang. Inside the plastic bag was found a big bundle of plastic containing marijuana
weighing about one kilo. Witness stated that he could detect marijuana even before
the application of chemicals because of one year and a half assignment with the
CANU. After the marijuana was taken from the bag of the accused, photographs were
taken of the accused and the marijuana confiscated from her possession with Pat.
Obiña and that of Investigator Tiongco, accused and himself Identified photographs
shown to him in open Court. (Exhs. "D," "D-l," "D-2" and "D-3"). Witness was likewise
shown a plastic bag of marijuana contained in a plastic container (Exhs. "B," "B-1" and
"B-1 -a") and Identified it as the one confiscated from the accused and pointed to his
initials on the newspaper wrapping which also shows the date and time, although the
wrapper at the time he testified appeared to be soiled already. The marijuana was
allegedly still fresh when confiscated.
To prove further that the accused transported the confiscated marijuana from Baguio
City to Olongapo City, witness Identified Victory Liner Ticket No. 684977 which was
confiscated from the accused and for Identification purposes, the witness presented
the body number of the bus he wrote at the back of the ticket which is "309" (Exhs. "F"
and "F-l"). Regarding himself, he did not pay his fare from Baguio City because as a
policeman, he used his badge and a free ride.
On cross-examination, witness stated that he went to Baguio City on July 15,1981 and
underwent treatment of his heart while he was there. He was given a furlough for
medical treatment. He stayed in Baguio City for about five days and returned to
Olongapo City on July 21, 1981. Prior to July 21, 1981, witness never knew the
accused, and the first time he saw her was in Baguio when she boarded the same
Victory Liner he took. When the accused who was bringing with her a woven plastic
bag placed the bag right behind his seat instead of placing it in front of her or beside
her seat. Witness Obiña became suspicious and his suspicion was confirmed when
they reached San Fernando, Pampanga, after he checked the buri bag. The bus
stopped at said town to load some gasoline. Witness inserted one of his fingers inside
the buri bag and thereafter smelt marijuana. He confirmed his testimony on direct that
when witness confronted accused he was invited to go with her in order to settle the
matter to which he refused. Accused further testified that from the time the accused
placed her bag behind his seat from Baguio City, he felt so nervous and had to take
his medicine at the Tarlac Station. It was only after having taken his medicine that his
apprehension was contained and thus was able to insert his right hand inside the buri
bag in San Fernando, Pampanga. His fingers reached the very bottom of the bag. He
Identified his sworn statement regarding this incident given on July 21, 1981 which is
Exhibit "G." Witness likewise Identified accused Anita Claudio in open court.
Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac
Bajac, Olongapo City, testified that as a policeman on the afternoon of July 21, 1981,
he was inside the Investigation Division of the Police Station, Olongapo City. As Duty
Investigator, between 1:45 and 2:00 o'clock in the afternoon of the same day, Pat.
Daniel Obiña arrived at the Police Station with a woman and Identified her in the
courtroom as Anita Claudio. Pat. Obiña reported to him that he apprehended Anita
Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The
marijuana leaves were contained in a buri bag with some vegetables such as camote
tops, bananas and some other vegetables. The marijuana was placed in a plastic
wrapper with the name National Book Store colored black and white. Witness
Identified the wrapper (Exh. "B-2"). The bag contained the markings of Pat. Obiña
which are his initials, (Exhs. "B-2-a"), and numbers 210781 representing the date
which was placed by Pat. Obiña after Cpl. Tiongco examined the suspected
marijuana.
After examining and seeing the marijuana together with the vegetables, he interviewed
apprehending officer Obiña and reduced his statements in writing. Cpl. Tiongco
Identifled the sworn statement of Obiña (Exh. "G"). He also interviewed accused Anita
Claudio who was all the while inside the Investigation room seated on a chair. After
appraising her of her constitutional rights, he asked the accused whether she was
willing to give her written statements to which the accused refused. Hence, no
statements were taken of her. However, pictures were taken inside the investigation
room. Exhs. "D" and "E," series which were already previously Identified by Pat.
Obiña, Witness Identified the persons appearing in the pictures as that of Pat. Obiña
and the accused and also of himself. Thereafter, the marijuana contained in the plastic
bag were turned over to Lt. Galindo and Anita Claudio was detained.
Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East
Tapinac, Olongapo City, testified he was since March 1972 a policeman and was
stationed at Police Station 21, Olongapo City, Metrodiscom. However, in 1981, he was
already assigned to the CANU General Anti-NARCOTICS Unit. On July 22, 1981, he
reported for work at the CANU and received from Lt. Galindo more than a kilo of
suspected marijuana dried leaves. As requested by Lt. Galindo he conducted a field
test on this marijuana which he received from Lt. Galindo, as evidenced by a request
signed by him dated July 22,1981 (Exh. "H").
In connection with the field test conducted by him on the specimen, he prepared a
Certificate of Fleld Test dated July 22,1981 (Exhs. "I"). The Certificate of Field Test
indicated the presence of tetra-hydrocannabinol (THC), an active substance that can
be only be found in marijuana, a prohibited drug. Cpl. Abello Identified a plastic bag of
marijuana received from Lt. Galindo which he later give to CIC Danilo Santiago, the
Evidence Custodian, for the latter to bring the specimen to the PC Crime Laboratory.
The last witness for the prosecution was Leoncio Bagang, 40 years old, married,
residing at No. 27 Jones St., East Tapinac, Olongapo City, a policeman of Olongapo
City, assigned with Police Station "21." He has been a policeman since 1966 up to the
present. In July, 1981, he was then assigned at the Patrol Division and his duty was to
patrol the city proper from Magsaysay Drive up to east Bajac Bajac.
He narrated that on July 21,1981, between the hours of 1:00 and 2:00 o'clock in the
afternoon, he was at the Caltex Gasoline Station, East Bajac Bajac, Olongapo City
along Rizal Avenue. He was then on duty patrol using a motorcycle. While he was at
the said place, he saw Pat. Obiña alighted from the Victory Liner bus ordering
somebody to alight from the same bus. When he heard Pat. Obiña he approached him
and asked him what was happening. Pat. Obiña told him he apprehended a certain
woman possessing dried marijuana. The woman was still then inside the bus. Pat.
Obiña then brought the woman to the police department who was bringing with her a
buri bag. They boarded a tricycle, the woman riding inside the tricycle while Pat. Obiña
sat behind the driver. He then followed in his motorcycle the said tricycle to police
station. He went inside the Investigation Section of the Police Station and he was
there when Pat. Obiña reported to Cpl. Tiongco his apprehension of the woman
possessing marijuana. He saw the marijuana for the first time inside the Investigation
Section placed in a buri bag covered with newspaper. He witnessed the taking out of
the marijuana from inside the bag by Pat. Obiña in the presence of Cpl. Tiongco and
the woman or the accused in this case, and himself. Policeman Bagang Identified the
accused in open Court. When asked about the nature of the marijuana when it was
brought out from the bag, he said that the marijuana was dried but not well dried.
Aside from the marijuana inside the buri bag, there were vegetables and bananas,
Witness Identified in open Court, the marijuana he saw found in the buri bag of the
accused. His means of Identification was the signature of Pat. Obiña, (Exh. "B-1"). He
likewise Identified a newspaper wrapping which was already torn.
While in the Investigation Division, witness Bagang heard the accused's answer to
Cpl. Tiongco's questions that she was going to deliver the marijuana to Sta. Rita. He,
however, did not linger long at the investigation Division. After he saw the marijuana
and heard the answer of the accused to Cpl. Tiongcos question the place of delivery
of the marijuana, he left the police station. Witness likewise Identified an initial DO-21-
07-81 already marked as Exhibit "B-2." DO which is an initial, and not a signature,
stands for Daniel Obiña. After the testimony of Leoncio Bagang, the prosecution
rested its case. (Rollo, pp. 42-47)
Accused Claudio raised the following assignments of errors in this appeal:
I
 CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR
SOME OF THE ELEMENTS OF THE OFFENSE IS OR ARE ABSENT.
II
CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE
ALLEGED BUYMAN WAS NOT PRESENTED TO TESTIFY.
III
APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS
WRONG BECAUSE SOME MATERIAL FACTS WERE OVERLOOKED AND NOT
CONSIDERED IN FAVOR OF APPELLANT. (Rollo, p. 91)
The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of
Rep. Act No. 6425 and not for violating Sec. 4 of the same Act.
The latter section, Sec. 4 provides:
Sec. 4. Sale, Administration, Delivery Distribution and Transportation of Prohibited
Drugs.—The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who, unless
authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or should a prohibited drug
involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed.
Claudio contends that there was no delivery as there was no recipient of the prohibited drugs.
Therefore, she may not be convicted under Sec. 4 of Rep. Act No. 6425.
The contention is without merit. A closer perusal of the subject provision shows that it is not only
delivery which is penalized but also the sale, administration, distribution and transportation of
probihited drugs. Claudio was caught transporting 1.1 kilos of marijuana, thus the lower court did
not err in finding her guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of the possessor is
unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of
marijuana. This is a considerable quantity. As held in the case of People v. Toledo, (140 SCRA
259, 267) "the possession of such considerable quantity as three plastic bags of marijuana
leaves and seeds coupled with the fact that he is not a user of prohibited drugs cannot indicate
anything except the intention of the accused to sell, distribute and deliver said marijuana.
The accused next contends the warrantless search, seizure and apprehension as unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:
.. A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense. xxx xxx xxx
Meanwhile, its Rule 126, Sec. 12 provides:
Section 12. Search incident to lawful arrest.— A person lawfully arrested
may be searched for dangerous weapons or anything which may be used
as proof of the commission of an offense, without a search warrant. (12a)
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obiña did not need a
warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search
being an incident to a lawful arrest is in itself lawful. (Nolasco v. Pano, 147 SCRA 509).
Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.
The accused takes inconsistent positions in her appellant's brief. At first, she does not deny
having had with her marijuana at the time of her arrest. Instead, she claims that she should just
be guilty of possession. In a complete turnabout, in the latter portion of said brief, she claims that
the evidence against her were mere fabrications and the marijuana allegedly found in her
possession was only planted.
We have carefully examined the records of the case and we find no ground to alter the trial
court's findings and appreciation of the evidence presented.
Credence is accorded to the prosecution's evidence, more so as it consisted mainly of
testimonies of policemen. Law enforcers are presumed to have regularly performed their duty in
the absence of proof to the contrary (People v. De Jesus, 145 SCRA 521). We also find no
reason from the records why the prosecution witnesses should fabricate their testimonies and
implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500).
The accused testified that she was not on that bus that came from Baguio City but rather she
was in Olongapo City all that time. She alleged that she was arrested by Pat. Obiña for no
reason at all.
In the case at bar, alibi does not deserve much credit as it was established only by the accused
herself (People v. De la Cruz, 148 SCRA 582).
Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v.
De La Cruz, supra).
WHEREFORE, the judgment appealed from is AFFIRMED.
SO ORDERED.
LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision
of the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court,
dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against
unreasonable searches and seizures of the Constitution, as well as its prohibition against
deprivation of property without due process of law. There is no controversy as to the facts. We
quote:
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscence reading materials on December 1
and 3, 1983, but claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ
of preliminary injunction, defendant pointed out that in that anti- smut campaign
conducted on December 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their reading
materials, and that the plaintiffs establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as to "whether or not the defendants
and/or their agents can without a court order confiscate or seize plaintiffs magazine
before any judicial finding is made on whether said magazine is obscene or not".

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor
of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan
Police Force of Manila, seized and confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and indecent and later burned
the seized materials in public at the University belt along C.M. Recto Avenue, Manila,
in the presence of Mayor Bagatsing and several officers and members of various
student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of
the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin
and/or restrain said defendants and their agents from confiscating plaintiffs magazines
or from otherwise preventing the sale or circulation thereof claiming that the magazine
is a decent, artistic and educational magazine which is not per se obscene, and that
the publication is protected by the Constitutional guarantees of freedom of speech and
of the press.
The restraining order issued on December 14,1983 having lapsed on January 3,1984,
the plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order
would violate the Resolution of the Supreme Court dated January 11, 1983, providing
for the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129,
which provides that a temporary restraining order shall be effective only for twenty
days from date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in
support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned
by the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of Preliminary Injunction shall be
resolved".

By order dated December 8, 1 983 the Court set the hearing on the petition for Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed
preliminary injunction on December 14,1983 and ordered the defendants to show his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and
cause not later than December 13, 1983 why the writ prayed for should not be plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.
granted.
On February 3, 1984, the trial court promulgated the Order appealed from denying the
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of temporary motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign.
The Court granted the temporary restraining order on December 14, 1983.
 We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the
press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201,
Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well
settled is the rule that the right against unreasonable searches and seizures
recognizes certain exceptions, as when there is consent to the search or seizure,
(People vs. Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs.
Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or
movable structure (See Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and,
in effect, holding that the police officers could without any court warrant or
order seize and confiscate petitioner's magazines on the basis simply of
their determination that they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and,
in effect, holding that the trial court could dismiss the case on its merits
without any hearing thereon when what was submitted to it for resolution
was merely the application of petitioner for the writ of preliminary injunction. 4
The Court states at the outset that it is not the first time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or pornographic literature. Early on, in People
vs. Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as follows:
"whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which
shocks the ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say,
however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances
of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate
sense of the community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing
a problem that has grown increasingly complex over the years. Precisely, the question is: When
does a publication have a corrupting tendency, or when can it be said to be offensive to human
sensibilities? And obviously, it is to beg the question to say that a piece of literature has a
corrupting influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would
leave the final say to a hypothetical "community standard" — whatever that is — and that the
question must supposedly be judged from case to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under
Article 201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit and art galleries for the cause of art, to be viewed
and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for art's sake but rather
for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so,
were not exactly artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but rather people
desirous of satisfying their morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures. 11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not
entitled to any constitutional protection.
It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the
"redeeming" element that should accompany the work, to save it from a valid prosecution. We
quote:
...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual
act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is
no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it does, nothing
but lust and lewdness, and exerting a corrupting influence specially on the youth of the
land. ...14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the
exhibition was attended by "artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes,"15 could the same legitimately
lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs
of [art], and painters and sculptors might find inspiration,"16 in it, would it cease to be a case of
obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has
permitted an ad lib of Ideas and "two-cents worths" among judges as to what is obscene and
what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United
States, adopted the test: "Whether to the average person, applying contemporary standards, the
dominant theme of the material taken as a whole appeals to prurient interest." 18 Kalaw-
Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity
in terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the
final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a consequence, to temper the
wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey
from development to development, which, states one authoritative commentator (with ample
sarcasm), has been as "unstable as it is unintelligible."19
Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly
without any redeeming social value,"21 marked yet another development.
The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes,
and established "basic guidelines,"23 to wit: "(a) whether 'the average person, applying
contemporary standards' would find the work, taken as a whole, appeals to the prurient interest .
. .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."24
(A year later, the American Supreme Court decided Hamling v. United States 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins, curiously,
acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals"
portrayed on screen, although the film highlighted contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been
attributed to the reluctance of the courts to recognize the constitutional dimension of the problem
.27 Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free
speech, an assumption that, as we averred, has allowed a climate of opinions among
magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And
"[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that
it will ever do so until the Court recognizes that obscene speech is speech nonetheless,
although it is subject — as in all speech — to regulation in the interests of [society as a whole] —
but not in the interest of a uniform vision of how human sexuality should be regarded and
portrayed."28
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of
police power, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply
because one insists it is smut. So is it equally evident that individual tastes develop, adapt to
wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked
our forebears, say, five decades ago, is not necessarily repulsive to the present generation.
James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered
important literature today.29 Goya's La Maja desnuda was once banned from public exhibition
but now adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we
said earlier, it is the divergent perceptions of men and women that have probably compounded
the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has not been,
an easy one to answer, as it is far from being a settled matter. We share Tribe's disappointment
over the discouraging trend in American decisional law on obscenity as well as his pessimism on
whether or not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as evolving standards for proper police conduct faced
with the problem, which, after all, is the plaint specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not
its protection. In free expression cases, this Court has consistently been on the side of the
exercise of the right, barring a "clear and present danger" that would warrant State interference
and action.30 But, so we asserted in Reyes v. Bagatsing,31"the burden to show the existence of
grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]."32
"There must be objective and convincing, not subjective or conjectural, proof of the existence of
such clear and present danger."33 "It is essential for the validity of ... previous restraint or
censorship that the ... authority does not rely solely on his own appraisal of what the public
welfare, peace or safety may require."34
"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
clear and present danger test."35
The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only
we may arrive at one-but rather as a serious attempt to put the question in its proper
perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
process and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the
presumption is that the speech may validly be said. The burden is on the State to demonstrate
the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to
justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It
has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and
present danger), it must come to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required proof to justify
a ban and to warrant confiscation of the literature for which mandatory injunction had been
sought below. First of all, they were not possessed of a lawful court order: (1) finding the said
materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way
of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the
state has the right to protect society from pornographic literature that is offensive to public
morals."36 Neither do we. But it brings us back to square one: were the "literature" so confiscated
"pornographic"? That we have laws punishing the author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969),"37 is also fine, but the question, again, is: Has the petitioner been found guilty under the
statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is no license
to seize property in disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We
defined police power as "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare ."39 Presidential Decrees Nos. 960 and
969 are, arguably, police power measures, but they are not, by themselves, authorities for high-
handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to
due process of law and the right against unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down procedures for implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal,
the obscene/immoral literature, films, prints, engravings, sculptures, paintings or other
materials and articles involved in the violation referred to in Section 1 (referring to Art.
201) hereof shall nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may,
within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to
the Secretary of National Defense for review. The decision of the Secretary of National
Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No.
969.)
Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations
of Section I hereof, the penalty as provided herein shall be imposed in the maximum
period and, in addition, the accessory penalties provided for in the Revised Penal
Code, as amended, shall likewise be imposed .40
Under the Constitution, on the other hand:
SEC. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
they become unreasonable and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We
counter-minded the orders of the Regional Trial Court authorizing the search of the premises
of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant.
We have greater reason here to reprobate the questioned raid, in the complete absence of a
warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no
different from Burgos, a political case, because, and as we have indicated, speech is speech,
whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules
then prevailing), provide:
SEC. 12. Search without warrant of personarrested. — A person charged
with an offense may be searched for dangerous weapons or anything which
may be used as proof of the commission of the offense.44
but as the provision itself suggests, the search must have been an incident to a lawful arrest,
and the arrest must be on account of a crime committed. Here, no party has been charged, nor
are such charges being readied against any party, under Article 201, as amended, of the
Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision which would
free the accused of all criminal responsibility because there had been no warrant," 45 and that
"violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak
of, who ought to be "punished". Second, to say that the respondent Mayor could have validly
ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because,
in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor
judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the
petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in
their opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;
3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound
discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;
 6. Any conviction is subject to appeal. The appellate court may assess whether or not
the properties seized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or
remedies against abuse of official power under the Civil Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED
and SET ASIDE. It appearing, however, that the magazines subject of the search and seizure
ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is
moot and academic.

SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
PADILLA, J.:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred
to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet,
Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act
6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The
factual background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the
morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus
stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused
planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight
out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with
body number 8005 and Plate number AVC 902.1
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain
Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order
to establish a checkpoint in the said area was prompted by persistent reports that vehicles
coming from Sagada were transporting marijuana and other prohibited drugs. Moreover,
information was received by the Commanding Officer of NARCOM, that same morning, that a
Caucasian coming from Sagada had in his possession prohibited drugs. 2
The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station,
set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected
all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt.
Fider and CIC Galutan boarded the bus and announced that they were members of the
NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their
inspection from the front going towards the rear of the bus. Accused who was the sole foreigner
riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification
papers. When accused failed to comply, the officer required him to bring out whatever it was that
was bulging on his waist. The bulging object turned out to be a pouch bag and when accused
opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects
wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The
wrapped objects turned out to contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted from the
bus, accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was
found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the
same which did not feel like foam stuffing. It was only after the officers had opened the bags that
accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears
and they were found to also contain hashish. Representative samples were taken from the
hashish found among the personal effects of accused and the same were brought to the PC
Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a prohibited
drug which is a derivative of marijuana. Thus, an information was filed against accused for
violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the
issue of illegal search of his personal effects. He also claimed that the hashish was planted by
the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by
him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He
further claimed that the Australian couple intended to take the same bus with him but because
there were no more seats available in said bus, they decided to take the next ride and asked
accused to take charge of the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his
neck containing, among others, his passport, return ticket to Sweden and other papers. The
officer in turn handed it to his companion who brought the bag outside the bus. When said officer
came back, he charged the accused that there was hashish in the bag. He was told to get off the
bus and his picture was taken with the pouch bag placed around his neck. The trial court did not
give credence to accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by
his failure to raise such defense at the earliest opportunity. When accused was investigated at
the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was
planted by the NARCOM officers in his bag. It was only two (2) months after said investigation
when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as
well as having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable
doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as
amended.3 The dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with
subsidiary imprisonment in case of insolvency and to pay the costs.
 Let the hashish subject of this case be turned over to the First Narcotics Regional Unit
at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20,
Article IV of Republic Act 6425, as amended.
SO ORDERED.4
Seeking the reversal of the decision of the trial court finding him guilty of the crime charged,
accused argues that the search of his personal effects was illegal because it was made without
a search warrant and, therefore, the prohibited drugs which were discovered during the illegal
search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures. 5 However, where the search is
made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest
without a warrant may be made by a peace officer or a private person under the following
circumstances.6
Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the
search made upon his personal effects falls squarely under paragraph (1) of the foregoing
provisions of law, which allow a warrantless search incident to a lawful arrest.7
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 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. 8 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.9
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,10 or where the accused was acting suspiciously, 11 and
attempted to flee.12
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,13 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) travelling bags containing 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.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr.,
JJ., concur.
Sarmiento, J., is on leave.
Separate Opinions
NARVASA, J., concurring and dissenting:
The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has
not only found its niche in all our charters, from 1935 to the present; it has also received
unvarying recognition and acceptance in our case law.1 The present Constitution2 declares that
— being "the fruit of the poisonous tree.14 In that event, any evidence taken, even if confirmatory of
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose,
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
It further ordains that any evidence obtained in violation of said right, among others, "shall be
inadmissible for any purpose in any proceeding."3
The rule is that no person may be subjected by the police or other government authority to a
search of his body, or his personal effects or belongings, or his residence except by virtue of a
search warrant or on the occasion of a legitimate arrest.4
An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a
warrant, an arrest may also be lawfully made by a peace officer or a private person: 5
(a) when, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
In any of these instances of a lawful arrest, the person arrested "may be searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a
search warrant."6 And it has been held that the search may extend to the area "within his
immediate control," i.e., the area from which said person arrested might gain possession of a
weapon or destructible evidence.7
Apart from "search incidental to an arrest," a warrantless search has also been held to be proper
in cases of "search of a moving vehicle,8 and "seizure of evidence in plain view."9 This was the
pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention
to Moreno v. Ago Chi;10 Alvero v. Dizon,11 Papa v. Mago,12 and an American precedent, Harris v.
U.S.13
If, on the other, a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, supra, merely on suspicion that he is
engaged in some felonious enterprise, and in order to discover if he has indeed committed a
crime, it is not only the arrest which is illegal but also, the search on the occasion thereof, as
the initial suspicion, is inadmissible "for any purpose in any proceeding." 15 But the right against
an unreasonable search and seizure may be waived by the person arrested, provided he knew
of such right and knowingly decided not to invoke it.16
There is unanimity among the members of the Court upon the continuing validity of these
established principles. However, the Court is divided as regards the ultimate conclusions which
may properly be derived from the proven facts and consequently, the manner in which the
principles just cited should apply thereto.
The proofs of the prosecution and those of the defense are diametrically at odds. What is
certain, however, is that the soldiers had no warrant of arrest when they conducted a search of
Malmstedt's person and the things in his possession at the time. Indeed, the Court a
quo acknowledged that the soldiers could "not be expected to be armed with a warrant or arrest
nor a search warrant everytime they establish a temporary checkpoint . . . (and) no judge would
issue them one considering that searching questions have to be asked before a warrant could
be issued." Equally plain is that prior to the search, a warrantless arrest of Malmstedt could not
validly have been in accordance with the norms of the law. For Malmstedt had not committed,
nor was he actually committing or attempting to commit a crime, in the soldiers' presence, nor
did said soldiers have personal and competent knowledge that Malmstedt had in fact just
committed a crime. All they had was a suspicion that Malmstedt might have some prohibited
drug on him or in his bags; all they had was, in the words of the Trial Court, "the hope of
intercepting any dangerous drug being transported," or, as the Office of the Solicitor General
asserts, "information that most of the buses coming . . . (from the Cordillera) were transporting
marijuana and other prohibited drugs."
This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First
Division.17 There, Aminnudin was arrested without a warrant by PC officers as he was
disembarking from an inter-island vessel. The officers were waiting for him because he was,
according to an informer's report, then transporting marijuana. The search of Aminnudin's bag
confirmed the informer's report; the bag indeed contained marijuana. The Court nevertheless
held that since the PC officers had failed to procure a search warrant although they had
sufficient time (two days) to do so and therefore, the case presented no such urgency as to
justify a warrantless search, the search of Aminnudin's person and bag, the seizure of the
marijuana and his subsequent arrest were illegal; and the marijuana was inadmissible in
evidence in the criminal action subsequently instituted against Aminnudin for violating the
Dangerous Drugs Act.
There are, on the other hand, other cases adjudicated by this Court in which apparently different
conclusions were reached. It is needful to devote a few words to them so that the relevant
constitutional and legal propositions are not misunderstood.
In People v. Claudio (decision promulgated on April 15, 1988),18 the accused boarded a "Victory
Liner" passenger bus going to Olongapo from Baguio City. She placed the plastic bag she was
carrying at the back of the seat then occupied by Obiña, an INP member "on Detached Service
with the Anti-Narcotics Unit." This avowedly aroused Obiña's suspicion, and at the first
opportunity, and without Claudio's knowledge, he surreptitiously looked into the plastic bag and
noted that it contained camote tops as well as a package, and that there emanated from the
package the smell of marijuana with which he had become familiar on account of his work. So
when the bus stopped at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his ID,
identified himself as a policeman, and announced his intention to search her bag which he said
contained marijuana because of the distinctive odor detected by him. Ignoring her plea —
"Please go with me, let us settle this at home" — he brought her to the police headquarters.,
where examination of the package in Claudio's bag confirmed his suspicion that it indeed
contained marijuana. The Court held the warrantless arrest under the circumstances to be
lawful, the search justified, and the evidence thus discovered admissible in evidence against the
accused.
In People v. Tangliben (decision promulgated on April 6, 1990),19 two police officers and
a barangay tanod were conducting a "surveillance mission" at the Victory Liner Terminal at San
Nicolas, San Fernando, Pampanga, "aimed not only against persons who may commit
misdemeanors . . . (there) but also on persons who may be engaging in the traffic of dangerous
drugs based on information supplied by informers; . . . they noticed a person carrying a red
travelling bag . . who was acting suspiciously;" they asked him to open the bag; the person did
so only after they identified themselves as peace officers; found in the bag were marijuana
leaves wrapped in plastic weighing one kilogram, more or less; the person was then taken to the
police headquarters at San Fernando, Pampanga, where he was investigated; and an
information was thereafter filed against that person, Tangliben, charging him with a violation of
the Dangerous Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was
ruled, citing Claudio, supra, that there was a valid warrantless arrest and a proper warrantless
search incident thereto.
The facts in Tangliben were pronounced to be different from those in People v.
Aminnudin, supra. "In contrast" to Aminnudin where the Court perceived no urgency as to
preclude the application for and obtention of a search warrant, it was declared that the Tangliben
case —
. . . presented urgency. . . (The evidence revealed) that there was an informer who
pointed to the accused-appellant as carrying marijuana . . . Faced with such on-the-
spot information, the police officers had to act quickly. There was not enough time to
secure a search warrant . . . To require search warrants during on-the-spot
apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robber, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are associated.
In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the
PC officers to secure a search warrant, had there been time. But because there was actually no
time to get the warrant, and there were "on-the-spot" indications that Tangliben was then
actually committing a crime, the search of his person and his effects was considered valid.
Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et
al., decided on August 2, 1990,20 and People v. Moises Maspil, Jr., et al., decided on August 20,
1990.21
In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao
Metrodiscom, and when he was accosted by the two, who identified themselves as police
officers, he suddenly fled. He was pursued, overtaken and, notwithstanding his resistance,
placed in custody. The buri bag Posadas was then carrying was found to contain a revolver, for
which he could produce no license or authority to possess, four rounds of live ammunition, and a
tear gas grenade. He was prosecuted for illegal possession of firearms and ammunition and
convicted after trial. This Court affirmed Posadas' conviction, holding that there was, in the
premises, probable cause for a search without warrant, i.e., the appellant was acting
suspiciously and attempted to flee with the buri bag he had with him at the time. The Court cited
with approval the ruling of the U.S. Federal Supreme Court in John W. Terry v. State of Ohio,22 a
1968 case, which the Solicitor General had invoked to justify the search.
In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional
Unit of the Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize
vehicles on the highway going towards Baguio City. This was done because of a confidential
report by informers that Maspil and another person, Bagking, would be transporting a large
quantity of marijuana to Baguio City. In fact, the informers were with the policemen manning the
checkpoint. As expected, at about 2 o'clock in the early morning of November 1, 1986, a jeepney
approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped
the vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans.
When opened, the sacks and cans were seen to contain what appeared to be marijuana leaves.
The policemen thereupon placed Maspil and Bagking under arrest, and confiscated the leaves
which, upon scientific examination, were verified to be marijuana leaves. The Court upheld the
validity of the search thus conducted, as being incidental to a lawful warrantless arrest, 23 and
declared that, as in Tangliben, supra, Maspil and Bagking had been caught in flagrante
delictotransporting prohibited drugs at the time of their arrest. Again, the Court took occasion to
distinguish the case from Aminnudin24 in which, as aforestated, it appeared that the police
officers were aware of Aminnudin's identity, his projected criminal enterprise and the vessel on
which he would be arriving, and, equally as importantly, had sufficient time and opportunity to
obtain a search warrant. In the case of Maspil and Bagking, the Court found that the officers
concerned had no exact description of the vehicle the former would be using to transport
marijuana, and no inkling of the definite time of the suspects' arrival, and pointed out that a
jeepney on the road is not the same as a passenger boat on the high seas whose route and time
of arrival are more or less certain, and which ordinarily cannot deviate from or otherwise alter its
course, or select another destination.25
The most recent decision treating of warrantless search and seizure appears to be People v. Lo
Ho Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case,
an undercover or "deep penetration" agent, Tia, managed somehow to gain acceptance into a
group of suspected drug smugglers, which included Peter Lo and Lim Ching Huat. Tia
accompanied Peter Lo to Guangzhou, China, where he saw him and other person empty the
contents of six (6) tins of tea and replace them with white powder. On their return to Manila with
the cans of substituted "tea," they were met at the airport by Lim. As they were leaving the
airport in separate vehicles, they were intercepted by officers and operatives of the Narcotics
Command (NARCOM), who had earlier been tipped off by Tia, and placed under arrest. As
search of the luggage brought in by Tia and Peter Lo, loaded on the group's vehicles, quickly
disclosed the six (6) tin cans containing fifty-six (56) bags of white crystalline powder which,
upon analysis, was identified as metamphetamine. Tia, Lo and Lim were indicted for violation of
the Dangerous Drugs Act of 1972. Tia was discharged as state witness. Lo and Lim were
subsequently convicted and sentenced to life imprisonment. One of the questions raised by
them in this Court on appeal was whether the warrantless search of their vehicles and personal would be provided with one; not does it appear at all that he waived those rights "in writing and
effects was legal. The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 in the presence of counsel." The soldiers and the police officers simply went ahead with the
(1986),26 held legal the search of the appellants' moving vehicles and the seizure therefrom of investigation of Malmstedt, without counsel. The admissions elicited from Malmstedt under these
the dangerous drug, considering that there was intelligence information, including clandestine circumstances, as the Constitution clearly states, are "inadmissible in evidence against him.29
reports by a planted spy actually participating in the activity, that the appellants were bringing
prohibited drugs into the country; that the requirement of obtaining a search warrant "borders on
The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation
the impossible in the case of smuggling effected by the use of a moving vehicle that can
of the constitutional right against unreasonable searches and seizures, are inadmissible against
transport contraband from one place to another with impunity," and "it is not practicable to
him "for any purpose in any proceeding." Also pronounced as incompetent evidence against him
secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in
are the admissions supposedly made by him without his first being accorded the constitutional
which the warrant must be sought.27
rights of persons under custodial investigation. Without such object evidence and admissions,
nothing remains of the case against Malmstedt.
In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were
found by the Court as justifying warantless arrests. In Claudio, the arresting officer had secretly
It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in
ascertained that the woman he was arresting was in fact in possession of marijuana; he had
his defense is feeble, unworthy of credence. This is beside the point; for conformably to the
personally seen that her bag contained not only vegetables but also a package emitting the odor
familiar axiom, the State must rely on the strength of its evidence and not on the weakness of
of marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and had
the defense. The unfortunate fact is that although the existence of the hashish is an objective
been positively pointed to as carrying marijuana. And in both cases, the accused were about to
physical reality that cannot but be conceded, there is in law no evidence to demonstrate with any
board passenger buses, making it urgent for the police officers concerned to take quick and
degree of persuasion, much less beyond reasonable doubt, that Malmstedt was engaged in a
decisive action. In Posadas, the person arrested and searched was acting suspiciously, too, and
criminal activity. This is the paradox created by the disregard of the applicable constitutional
when accosted had attempted to flee from the police officers. And in Maspil and Lo Ho
safeguards. The tangible benefit is that the hashish in question has been correctly confiscated
Wing, there was definite information of the precise identity of the persons engaged in
and thus effectively withdrawn from private use.
transporting prohibited drugs at a particular time and place.

What is here said should not by any means be taken as a disapproval or a disparagement of the
Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out
efforts of the police and military authorities to deter and detect offenses, whether they be
a legitimate instance of a warrantless search and seizure, there is, as earlier pointed out, a
possession of and traffic in prohibited drugs, or some other. Those efforts obviously merit the
regrettable divergence of views among the members of the Court.
support and commendation of the Courts and indeed of every responsible citizen. But those
efforts must take account of the basic rights granted by the Constitution and the law to persons
Contrary to the conclusion reached by the majority, I believe that the appellant should be who may fall under suspicion of engaging in criminal acts. Disregard of those rights may not be
absolved on reasonable doubt. There was in this case no confidential report from, or positive justified by the objective of ferreting out and punishing crime, no matter how eminently desirable
identification by an informer; no attempt to flee; no bag or package emitting tell-tale odors; no attainment of that objective might be. Disregard of those rights, as this Court has earlier
other reasonably persuasive indications that Malmstedt was at the time in process of stressed, may result in the escape of the guilty, and all because the "constable has blundered,"
perpetrating the offense for which he was subsequently prosecuted. Hence, when the soldiers rendering the evidence inadmissible even if truthful or otherwise credible. 30
searched Malmstedt's pouch and the bags in his possession, they were simply "fishing" for
evidence. It matters not that the search disclosed that the bags contained prohibited substances,
I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the
confirming their initial information and suspicion. The search was not made by virtue of a warrant
appellant on reasonable doubt.
or as an incident of a lawful warrantless arrest, i.e., under circumstances sufficient to engender a
reasonable belief that some crime was being or about to be committed, or adjust been
committed. There was no intelligent and intentional waiver of the right against unreasonable
searches and seizure. The search was therefore illegal, since the law requires that there first be
a lawful arrest of an individual before a search of his body and his belongings may licitly be
made. The process cannot be reversed, i.e., a search be first undertaken, and then an arrest
CRUZ, J., dissenting:
effected, on the strength of the evidence yielded by the search. An arrest made in that case
would be unlawful, and the search undertaken as an incident of such an unlawful arrest, also
unlawful. I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct
application to the facts of this case of the provisions of the Bill of Rights and the Rules of Court
The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, on searches and seizures. It is consistent with my ponencia in People v. Aminnudin, 163 SCRA
402, and also with Alih v. Castro, 151 SCRA 279, the latter being a unanimous decision of the
La Trinidad, Malmstedt had, it is said, willingly admitted that there were was hashish inside the
"teddy bears" in the luggage found in his possession — an admission subsequently confirmed Court en banc, and my dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA 311,
by laboratory examination — does not help the cause of the prosecution one bit. Nothing in the Valmonte v. De Villa (on checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa
(on "zonas"), 181 SCRA 623.
record even remotely suggests that Malmstedt was accorded the rights guaranteed by the
Constitution to all persons under custodial investigation.28 He was not informed, prior to being
interrogated, that he had the "right to remain silent and to have competent and independent I write this separate opinion merely to remark on an observation made during the deliberation on
counsel preferably of his own choice," and that if he could not afford the services of counsel, he this case that some members of the Court seem to be coddling criminals instead of extending its
protection to society, which deserves our higher concern. The inference is that because of our If by deterring the government from playing "an ignoble part," I am "coddling criminals," I
wrong priorities, criminals are being imprudently let free, to violate our laws again; and it is all welcome the accusation and take pride in it. I would rather err in favor of the accused who is
our fault. impaled with outlawed evidence than exalt order at the price of liberty.

Believing myself to be among those alluded to, I will say without apology that I do not consider a
person a criminal, until he is convicted by final judgment after a fair trial by a competent and
impartial court. Until then, the Constitution bids us to presume him innocent. He may seem
boorish or speak crudely or sport tattoos or dress weirdly or otherwise fall short of our own
standards of propriety and decorum. None of these makes him a criminal although he
may look like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is also so wrong.

On the question before us, it seems to be the inclination of some judges to wink at an illegal
search and seizure as long as the suspect has been actually found in possession of a prohibited
article That fact will retroactively validate the violation of the Bill of Rights for after all, as they
would rationalize, the suspect is a criminal. What matters to them is the fact of illegal
possession, not the fact of illegal search and seizure.

This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil.
1, which was discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely
rejected by an express provision in the 1973 Constitution. That provision, which has been
retained in the present Constitution, again explicitly declares that any evidence illegally obtained
"shall be inadmissible for any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal
justice.1âwphi1 In the case at bar, the search was made at a checkpoint established for the
preposterous reason that the route was being used by marijuana dealers and on an individual
who had something bulging at his waist that excited the soldier's suspicion. Was that probable
cause? The ponencia notes that the military had advance information that a Caucasian was
coming from the Sagada with prohibited drugs in his possession. This is what the military says
now, after the fact, to justify the warrantless search. It is so easy to make such a claim, and I am
surprised that the majority should readily accept it.

The conclusion that there was probable cause may have been influenced by the subsequent
discovery that the accused was carrying a prohibited drug. This is supposed to justify the
soldier's suspicion. In other words, it was the fact of illegal possession
that retroactively established the probable cause that validated the illegal search and seizure. It
was the fruit of the poisonous tree that washed clean the tree itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available
evidence should be used.1avvphi1 It is also desirable that the government should not
itself foster and pay for other crimes, when they are the means by which the evidence
is to be obtained. If it pays its officers for having got evidence by crime, I do not see
why it may not as well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and pays and
announces that in the future it will pay for the fruits. We have to choose, and for my
part I think it a less evil that some criminals should escape than that the government
should play an ignoble part.