EN BANC

[G.R. No. 83988. September 29, 1989.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS

(ULAP),  petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

DECISION

PADILLA,J p:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the
declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and
banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of
checkpoints, for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP),and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers
and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of
the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to
Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security
operations within its area of responsibility and peripheral areas, for the purpose of 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. 1 As part of its duty to maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried
of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military
manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-
ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for
their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of
Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the
checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspite of warning shots fired in the air. Petitioner  Valmonte also claims
that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket authority to make
searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have
occurred where a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented
before the Court to show that, in the course of their routine checks, the military indeed committed specific violations
of petitioners' right against unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right
(ULAP)  vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights
were violated are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal right invocable only by
those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or
1
 unreasonable search and seizure in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. 5
Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search
warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which
amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine
whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures
are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any
fixed formula but is to be resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the
public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable
search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered
as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and
maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart
plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial
notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased
killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed
firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in
media, most likely brought about by deteriorating economic conditions — which all sum up to what one can rightly
consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and
promote public welfare and an individual's right against a warrantless search which is however reasonably conducted,
the former should prevail.
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same
manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort
and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable
limits, are part of the price we pay for an orderly society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review
and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the
National Capital Regional Command Chief and the Metropolitan Police Director. 10
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
|||  (Valmonte v. De Villa, G.R. No. 83988, [September 29, 1989], 258 PHIL 838-848)

2
 EN BANC

[G.R. No. 83988. May 24, 1990.]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLES'S

RIGHTS (ULAP), petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION
DISTRICT COMMAND, respondents.

DECISION

PADILLA, J p:

In the Court's decision dated 29 September 1989, petitioners' petition for prohibition seeking the declaration
of the checkpoints as unconstitutional and their dismantling and/or banning, was dismissed. cdphil
Petitioners have filed the instant motion and supplemental motion for reconsideration of said decision. Before
submission of the incident for resolution, the Solicitor General, for the respondents, filed his comment, to which
petitioners filed a reply.
It should be stated, at the outset, that nowhere in the questioned decision did this Court legalize all
checkpoints, i.e. at all times and under all circumstances. What the Court declared is, that checkpoints are not
illegal  per se. Thus, under exceptional circumstances, as where the survival of organized government is on the
balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by
the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed,
checkpoints will have absolutely no reason to remain.
Recent and on-going events have pointed to the continuing validity and need for checkpoints manned by
either military or police forces. The sixth (6th) attempted coup d'etat (stronger than all previous ones) was staged only
last 1 December 1989. Another attempt at a coup d'etat is taken almost for granted. The NPA, through its sparrow
units, has not relented but instead accelerated its liquidation of armed forces and police personnel. Murders, sex
crimes, hold-ups and drug abuse have become daily occurrences. Unlicensed firearms and ammunition have
become favorite objects of trade. Smuggling is at an all-time high. Whether or not effective as expected, checkpoints
have been regarded by the authorities as a security measure designed to entrap criminals and insurgents and to
constitute a dragnet for all types of articles in illegal trade.
No one can be compelled, under our libertarian system, to share with the present government its ideological
beliefs and practices, or commend its political, social and economic policies or performance. But, at least, one must
concede to it the basic right to defend itself from its enemies and, while in power, to pursue its program of
government intended for public welfare; and in the pursuit of those objectives, the government has the equal right,
under its police power, to select the reasonable means and methods for best achieving them. The checkpoint is
evidently one of such means it has selected. cdphil
Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's right to "free passage
without interruption", but it cannot be denied that, as a rule, it involves only a brief detention of travellers during which
the vehicle's occupants are required to answer a brief question or two. 1 For as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search,
said routine checks cannot be regarded as violative of an individual's right against unreasonable search.
These routine checks, when conducted in a fixed area, are even less intrusive. As held by the U.S. Supreme
Court:
"Routine checkpoint stops do not intrude similarly on the motoring public. First, the
potential interference with legitimate traffic is minimal. Motorists using these highways are not
taken by surprise as they know, or may obtain knowledge of, the location of the checkpoints and
will not be stopped elsewhere. Second checkpoint operations both appear to and actually involve
less discretionary enforcement activity. The regularized manner in which established checkpoints
3
 are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly
authorized and believed to serve the public interest. The location of a fixed checkpoint is not
chosen by officers in the field, but by officials responsible for making overall decisions as to the
most effective allocation of limited enforcement resources. We may assume that such officials will
be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a
class, and since field officers may stop only those cars passing the checkpoint, there is less room
for abusive or harassing stops of individuals them there was in the case of roving-patrol stops.
Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is
unreasonable is subject to post-stop judicial review." 2
The checkpoints are nonetheless attacked by the movants as a warrantless search and seizure and,
therefore, violative of the Constitution. 3
As already stated, vehicles are generally allowed to pass these checkpoints after a routine inspection and a
few questions. If vehicles are stopped and extensively searched, it is because of some probable cause which justifies
a reasonable belief of the men at the checkpoints that either the motorist is a law-offender or the contents of the
vehicle are or have been instruments of some offense. Again, as held by the U.S. Supreme Court —
"Automobiles, because of their mobility, may be searched without a warrant upon facts
not justifying a warrantless search of a residence or office. Brinegar v. United States, 338 US
160, 93 L Ed 1879, 69 S Ct 1302(1949); Carroll v. United States, 267 US 132, 69 L Ed 543, 45 S
Ct 280, 39 ALR 790 (1925). The cases so holding have, however, always insisted that the
officers conducting the search have 'reasonable or probable cause' to believe that they will find
the instrumentality of a crime or evidence pertaining to a crime before they begin their
warrantless search. . . ." 4
Besides these warrantless searches and seizures at the checkpoints are quite similar to searches and
seizures accompanying warrantless arrests during the commission of a crime, or immediately thereafter.
In People  vs. Kagui Malasuqui, it was held —
"To hold that no criminal can, in any case, be arrested and searched for the evidence
and tokens of his crime without a warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their
escape in many instances." 5
By the same token, a warrantless search of incoming and outgoing passengers, at the arrival and departure
areas of an international airport, is a practice not constitutionally objectionable because it is founded on public
interest, safety, and necessity.
Lastly, the Court's decision on checkpoints does not, in any way, validate nor condone abuses committed by
the military manning the checkpoints. The Court's decision was concerned with power, i.e. whether the government
employing the military has the power to install said checkpoints. Once that power is acknowledged, the Court's
inquiry ceases. True, power implies the possibility of its abuse. But whether there is abuse in a particular situation is a
different "ball game" to be resolved in the constitutional arena.
The Court, like all other concerned members of the community, has become aware of how some checkpoints
have been used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of
foodstuffs coming from the provinces, entering the Metro Manila area and other urban centers, are largely blamed on
the checkpoints, because the men manning them have reportedly become "experts" in mulcting travelling traders.
This, of course, is a national tragedy. llcd
But the Court could not a priori regard in its now assailed decision that the men in uniform are rascals or
thieves. The Court had to assume that the men in uniform live and act by the code of honor and they are assigned to
the checkpoints to protect, and not to abuse, the citizenry. 6 The checkpoint is a military "concoction." It behooves the
military to improve the QUALITY of their men assigned to these checkpoints. For no system or institution will succeed
unless the men behind it are honest, noble and dedicated.
In any situation, where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military
is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who
man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable
criminally and civilly for their abusive acts. 7 This tenet should be ingrained in the soldiery in the clearest of terms by
higher military authorities.
ACCORDINGLY, the Motion and Supplemental Motion for Reconsideration are DENIED. This denial is
FINAL.
SO ORDERED.
4
|||  (Valmonte v. De Villa, G.R. No. 83988, [May 24, 1990], 264 PHIL 265-276)

EN BANC

[G.R. No. 80508. January 30, 1990.]

EDDIE GUAZON, JOSEFINA CABRERA, et al,  petitioners, vs. MAJ. GEN. RENATO DE VILLA, BRIG.

GEN ALEXANDER AGUIRRE, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO LIM, and COL.
JESUS GARCIA,  respondents.

DECISION
GUTIERREZ, JR.,J  p:

This is a petition for prohibition with preliminary injunction to prohibit the military and police officers represented by public
respondents from conducting "Areal Target Zonings" or "Saturation Drives" in Metro Manila.
The forty one (41) petitioners state that they are all of legal age, bonafide residents of Metro Manila and taxpayers and
leaders in their respective communities. They maintain that they have a common or general interest in the preservation of
the rule of law, protection of their human rights and the reign of peace and order in their communities. They claim to
represent "the citizens of Metro Manila who have similar interests and are so numerous that it is impracticable to bring
them all before this Court."
The public respondents, represented by the Solicitor General, oppose the petition contending inter alia that petitioners
lack standing to file the instant petition for they are not the proper parties to institute the action. prcd
According to the petitioners, the following "saturation drives" were conducted in Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan, and Magdalena Streets, Tondo, Manila.
2. June 19, 1987 at about 10:00 PM in Mata Street, Panday Pira Extension and San Sebastian Street,
Tondo, Manila.
3. July 20, 1987 at about 8:00 AM in Bangkusay Street, Tondo, Manila.
4. August 11 to 13, 1987 between 11:00 PM and 2:00 AM in six blocks along Aroma Beach up to Happy
Land, Magsaysay Village, Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino Street, and Pacheco Street, Tondo,
Manila.
6. August 28, 1987 at 10:30 PM, in Block 34, Dagat-dagatan, Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension, Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz Compound, Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo, Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive, Manila International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta. Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban, Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or "saturation drives" are in critical areas pinpointed by the military
and police as places where the subversives are hiding. The arrests range from seven (7) persons during the July 20
saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500) allegedly apprehended on November 3 during
the drive at Lower Maricaban, Pasay City. The petitioners claim that the saturation drives follow a common pattern of
human rights abuses. In all these drives, it is alleged that the following were committed:

5
 "1. Having no specific target house in mind, in the dead of the night or early morning hours, police and
military units without any search warrant or warrant of arrest cordon an area of more than one
residence and sometimes whole barangay or areas of barangay in Metro Manila. Most of them are in
civilian clothes and without nameplates or identification cards.
"2. These raiders rudely rouse residents form their sleep by banging on the walls and windows of their
homes, shouting, kicking their doors open (destroying some in the process),and then ordering the
residents within to come out of their respective residences.
"3. The residents at the point of high-powered guns are herded like cows, the men are ordered to strip
down to their briefs and examined for tattoo marks and other imagined marks.
"4. While the examination of the bodies of the men are being conducted by the raiders, some of the
members of the raiding team force their way into each and every house within the cordoned off area
and then proceed to conduct search of the said houses without civilian witnesses from the
neighborhood.
"5. In many instances, many residents have complained that the raiders ransack their homes, tossing
about the residents' belongings without total regard for their value. In several instances, walls are
destroyed, ceilings are damaged in the raiders' illegal effort to 'fish' for incriminating evidence.
"6. Some victims of these illegal operations have complained with increasing frequency that their money
and valuables have disappeared after the said operations.
"7. All men and some women who respond to these illegal and unwelcome intrusions are arrested on
the spot and hauled off to waiting vehicles that take them to detention centers where they are any
warrants of arrest duly issued by a judge, nor under the conditions that will authorize warrantless arrest.
Some hooded men are used to fingerpoint suspected subversives.
 
"8. In some instances, arrested persons are released after the expiration of the period wherein they can
be legally detained without any charge at all. In other instances, some arrested persons are released
without charge after a few days of arbitrary detention.
"9. The raiders almost always brandish their weapons and point them at the residents during these
illegal operations.
"10. Many have also reported incidents of 'on-the-spot beatings',maulings and maltreatment.
"11. Those who are detained for further 'verification' by the raiders are subjected to mental and physical
torture to extract confessions and tactical information." (Rollo, pp. 2-4)
The public respondents stress two points in their Comment which was also adopted as their Memorandum after the
petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And second, they allege that the accusations of
the petitioners about a deliberate disregard for human rights are total lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite Article VII, Section 17 of
the Constitution which provides:
"The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.(Emphasis supplied by the respondents.)
They also cite Section 18 of the same Article which provides:
"The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. ...."
There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners
would be illegal and blantantly violative of the express guarantees of the Bill of Rights. If the military and the police must
conduct concerted campaigns to flush out and catch criminal elements, such drives must be consistent with the
constitutional and statutory rights of all the people affected by such actions. llcd

6
There is, of course, nothing in the Constitution which denies the authority of the Chief Executive, invoked by the Solicitor
General, to order police actions to stop unabated criminality, rising lawlessness, and alarming communist activities.
The Constitution grants to Government the power to seek and cripple subversive movements which would bring down
constituted authority and substitute a regime where individual liberties are suppressed as a matter of policy in the name of
security of the State. However, all police actions are governed by the limitations of the Bill of Rights. The Government
cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left, the enlargement of
whose spheres of influence it is trying hard to suppress. Our democratic institutions may still be fragile but they are not in
the least bit strengthened through violations of the constitutional protections which are their distinguishing features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986],the Court stated:
"One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy
of his own house. That right has ancient roots, dating back through the mists of history to the mighty
English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was
monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord
and all the forces of the Crown.
"That right has endured through the ages albeit only in a few libertarian regimes. Their number,
regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the
fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and
protect it all the more now because it is like a prodigal son returning.
"That right is guaranteed in the following provisions of article IV of the 1973 Constitution:
"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."
xxx xxx xxx
Only last year, the Court again issued this reminder in 20th Century Fox Film Corporation v.  Court of Appeals (164 SCR
650, 660-661 [1988]):
"This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and
liberty as to his person, papers and effects. We have explained in the case of People  vs. Burgos (144
SCRA 1) citing Villanueva  v. Querubin (48 SCRA 345) why the right is so important:
"'It is deference to one's personality that lies at the core of this right, but it could be also looked upon as
a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can
assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants
around him. There the state, however powerful, does not as such have 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. Schmerber v. California, 384 US 757
[1966],Brennan, J. and Boyd v. United States, 116 630 [1886]).In the same vein, Landynski in his
authoritative work (Search and Seizure and the Supreme Court [1966]),could fitly characterize
constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home
and person and to afford its constitutional protection against the long reach of government is no less
than to value human dignity, and that his privacy must not be disturbed except in case of overriding
social need, and then only under stringent procedural safeguards.' (ibid, p. 74.)"
The decision of the United States Supreme Court in Rochin  v. California, (342 US 165; 96 L. Ed. 183 [1952]) emphasizes
clearly that police actions should not be characterized by methods that offend a sense of justice. The court ruled:
"Applying these general considerations to the circumstances of the present case, we are compelled to
conclude that the proceedings by which this conviction was obtained do more than offend some
fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is
conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to
7
 open his mouth and remove what was there, the forcible extraction of his stomach's contents — this
course of proceeding by agents of government to obtain evidence is bound to offend even hardened
sensibilities. They are methods too close to the rack and the screw to permit of constitutional
differentiation."
It is significant that it is not the police action per se which is impermissible and which should be prohibited. Rather, it is the
procedure used or in the words of the court, methods which "offend even hardened sensibilities." In Breithaupt  v.
Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]),the same court validated the use of evidence, in this case blood samples
involuntarily taken from the petitioner, where there was nothing brutal or offensive in the taking. The Court stated:
"Basically the distinction rests on the fact that there is nothing 'brutal' or 'offensive' in the taking of a
sample of blood when done, as in this case, under the protective eye of a physician. To be sure, the
driver here was unconscious when the blood was taken, but the absence of conscious consent, without
more, does not necessarily render the taking a violation of a constitutional right; and certainly the rest
was administered here would not be considered offensive by even the most delicate. Furthermore, due
process is not measured by the yardstick of personal reaction or the sphygmogram of the most
sensitive person, but by that whole community sense of 'decency and fairness' that has been woven by
common experience into the fabric of acceptable conduct. ...."
The individual's right to immunity from such invasion of his body was considered as "far outweighed by the value of its
deterrent effect" on the evil sought to be avoided by the police action. LexLib
It is clear, therefore, that the nature of the affirmative relief hinges closely on the determination of the exact facts
surrounding a particular case.
The violations of human rights alleged by the petitioners are serious. If an orderly procedure ascertains their truth, not only
a writ of prohibition but criminal prosecutions would immediately issue as a matter of course. A persistent pattern of
wholesale and gross abuse of civil liberties, as alleged in the petition, has no place in civilized society.
On the other hand, according to the respondents, the statements made by the petitioners are a complete lie.
The Solicitor General argues:
"This is a complete lie.
Just the contrary, they had been conducted with due regard to human rights. Not only that, they were
intelligently and carefully planned months ahead of the actual operation. They were executed in
coordination with barangay officials who pleaded with their constituents to submit themselves voluntarily
for character and personal verification. Local and foreign correspondents, who had joined these
operations, witnessed and recorded the events that transpired relative thereto. (After Operation
Reports: November 5, 1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex
14).That is why in all the drives so far conducted, the alleged victims who numbered thousands had not
themselves complained.
 
"In her speech during turn-over rites on January 26, 1987 at Camp Aguinaldo, President Aquino
branded all accusations of deliberate disregard for human rights as 'total lies.' Here are excerpts from
her strongest speech yet in support of the military:
"'All accusations of a deliberate disregard for human rights have been shown up to be
total lies.
"' ...To our soldiers, let me say go out and fight, fight with every assurance that I will
stand by you through thick and thin to share the blame, defend your actions, mourn the losses
and enjoy with you the final victory that I am certain will be ours.
"'You and I will see this through together.
"'I've sworn to defend and uphold the Constitution.
"'We have wasted enough time answering their barkings for it is still a long way to
lasting peace. ....The dangers and hardships to our men in the field are great enough as it is
without having them distracted by this worthless carping at their backs.

8
 "'Our counter-insurgency policy remains the same: economic development to pull out
the roots — and military operations to slash the growth — of the insurgency.
"'The answer to terror is force — now.
"'Only feats of arms can buy us the time needed to make our economic and social
initiatives bear fruit. ....Now that the extreme Right has been defeated, I expect greater vigor in
the prosecution of the war against the communist insurgency, even as we continue to watch our
backs against attacks from the Right. (Philippine Star, January 27, 1988, p. 1, Annex 15;
emphasis ours.)'
"Viewed in the light of President Aquino's observation on the matter, it can be said that petitioners
misrepresent as human nights violations the military and police zealous vigilance over the people's right
to live in peace and safety." (Rollo, pp. 36-38)
Herein lies the problem of the Court. We can only guess the truth. Everything before us consists of allegations. According
to the petitioners, more than 3,407 persons were arrested in the saturation drives covered by the petition. No estimates
are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo Cruz Compound, Pasig; and Sun Valley Drive near
the Manila International Airport area. Not one of the several thousand persons treated in the illegal and inhuman manner
described by the petitioners appears as a petitioner or has come before a trial court to present the kind of evidence
admissible in courts of justice. Moreover, there must have been tens of thousands of nearby residents who were
inconvenienced in addition to the several thousand allegedly arrested. None of those arrested has apparently been
charged and none of those affected has apparently complained.
A particularly intriguing aspect of the Solicitor General's comments is the statement that local and foreign correspondents
actually joined the saturation drives and witnessed and recorded the events. In other words, the activities sought to be
completely proscribed were in full view of media. The sight of hooded men allegedly being used to fingerpoint suspected
subversives would have been good television copy. If true, this was probably effected away from the ubiquitous eye of the
TV cameras or, as the Solicitor General contends, the allegation is a "complete lie." LLjur
The latest attempt to stage a coup d'etat where several thousand members of the Armed Forces of the Philippines sought
to overthrow the present Government introduces another aspect of the problem and illustrates quite clearly why those
directly affected by human rights violations should be the ones to institute court actions and why evidence of what actually
transpired should first be developed before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or military may go in force to the combat areas, enter
affected residences or buildings, round up suspected rebels and otherwise quell the mutiny or rebellion without having to
secure search warrants and without violating the Bill of Rights. This is exactly what happened in the White Plains
Subdivision and the commercial center of Makati during the first week of December, 1989.
The aerial target zonings in this petition were intended to flush out subversives and criminal elements particularly because
of the blatant assassinations of public officers and police officials by elements supposedly coddled by the communities
where the "drives" were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that there was no rebellion or criminal activity
similar to that of the attempted coup d' etats. There appears to have been no impediment to securing search warrants or
warrants of arrest before any houses were searched or individuals roused from sleep were arrested. There is no strong
showing that the objectives sought to be attained by the "areal zoning' could not be achieved even as the rights of
squatter and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the Constitution is involved, it is the duty of the court to stop
the transgression and state where even the awesome power of the state may not encroach upon the rights of the
individual.
It is the duty of the court to take remedial action even in cases such as the present petition where the petitioners do not
complain that they were victims of the police actions, where no names of any of the thousands of alleged victims are
given, and where the prayer is a general one to stop all police "saturation drives," as long as the Court is convinced that
the event actually happened.
The Court believes it highly probable that some violations were actually committed. This is so inspite of the alleged pleas
of barangay officials for the thousands of residents "to submit themselves voluntarily for character and personal
verification." We cannot imagine police actions of the magnitude described in the petitions and admitted by the
respondents, being undertaken without some undisciplined soldiers and policemen committing certain abuses. However,
the remedy is not to stop all police actions, including the essential and legitimate ones.We see nothing wrong in police
9
making their presence visibly felt in troubled areas. Police cannot respond to riots or violent demonstrations if they do not
move in sufficient numbers. A show of force is sometimes necessary as long as the rights of people are protected and not
violated.A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one
confrontations where search warrants and warrants of arrests against specific individuals are easily procured. Anarchy
may reign if the military and the police decide to sit down in their offices because all concerted drives where a show of
force is present are totally prohibited. LibLex
The remedy is not an original action for prohibition brought through a taxpayers' suit. Where not one victim complains and
not one violator is properly charged, the problem is not initially for the Supreme Court.It is basically one for the executive
departments and for trial courts.Well meaning citizens with only second hand knowledge of the events cannot keep on
indiscriminately tossing problems of the executive, the military, and the police to the Supreme Court as if we are the
repository of all remedies for all evils. The rules of constitutional litigation have been evolved for an orderly procedure in
the vindication of rights. They should be followed. If our policy makers sustain the contention of the military and the police
that occasional saturation drives are essential to maintain the stability of government and to insure peace and order, clear
policy guidelines on the behavior of soldiers and policemen must not only be evolved, they should also be enforced. A
method of pinpointing human rights abuses and identifying violators is necessary.
The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the
heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies and
institutions to devise procedures for the prevention of abuses.
Under the circumstances of this taxpayers' suit, there is no erring soldier or policeman whom we can order prosecuted. In
the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given at this time.
Further investigation of the petitioners' charges and a hard look by administration officials at the policy implications of the
prayed for blanket prohibition are also warranted:
In the meantime and in the face of a prima facie showing that some abuses were probably committed and could be
committed during future police actions, we have to temporarily restrain the alleged banging on walls, the kicking in of
doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of residences even
if these are humble shanties of squatters, and the other alleged acts which are shocking to the conscience.
WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts of Manila, Malabon, and Pasay City where
the petitioners may present evidence supporting their allegations and where specific erring parties may be pinpointed and
prosecuted.
Copies of this decision are likewise forwarded to the Commission on Human Rights, the Secretary of Justice, the
Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement of clear
guidelines to govern police actions intended to abate riots and civil disturbances, flush out criminal elements, and subdue
terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are
ENJOINED until such time as permanent rules to govern such actions are promulgated.
SO ORDERED.
|||  (Guazon v. De Villa, G.R. No. 80508, [January 30, 1990], 260 PHIL 673-701)

10
 THIRD DIVISION

[G.R. No. 81561. January 18, 1991.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. ANDRE MARTI, accused-appellant.

DECISION

BIDIN, J p:

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 II and Section 2 (e)(i),
Article I 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). LLpr
"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 curiosity
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

11
 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. cdphil
"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 (Secs. 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:
"Section 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.
"Section 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
12
 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 2d [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. LLpr
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:

13
 "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. LLphil
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 parcels 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. cdphil
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

14
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 (See Soliven  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.
Corollarily, 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 (Sec. 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. cdphil
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
|||  (People v. Marti, G.R. No. 81561, [January 18, 1991], 271 PHIL 51-65)

15
 EN BANC

[G.R. No. L-32409. February 27, 1971.]

BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, petitioners, vs. HON. JUDGE

VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as Commissioner of Internal Revenue,
ARTURO LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ, MIMIR DELLOSA, NICANOR
ALCORDO, JOHN DOE, JOHN DOE, JOHN DOE, and JOHN DOE, respondents.

DECISION

VILLAMOR, J  p:

This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary
mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized and
existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null
and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to order respondents to
desist from enforcing the same and/or keeping the documents, papers and effects seized by virtue thereof, as well as
from enforcing the tax assessments on petitioner corporation alleged by petitioners to have been made on the basis of
the said documents, papers and effects, and to order the return of the latter to petitioners. We gave due course to the
petition but did not issue the writ of preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter
addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against petitioners for
violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions thereof,
particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon, one of herein
respondents, to make and file the application for search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent
Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers: respondent
Vera's aforesaid letter-request; an application for search warrant already filled up but still unsigned by respondent De
Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a deposition in printed form of
respondent Logronio already accomplished and signed by him but not yet subscribed; and a search warrant already
accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy
Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had adjourned,
respondent Judge was informed that the depositions had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter, respondent Judge asked respondent Logronio
to take the oath and warned him that if his deposition was found to be false and without legal basis, he could be

16
charged for perjury. Respondent Judge signed respondent de Leon's application for search warrant and respondent
Logronio's deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant
petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners' lawyers protested the
search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The agents
nevertheless proceeded with their search which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search
warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be issued,
that the search warrant be declared null and void, and that the respondents be ordered to pay petitioners, jointly and
severally, damages and attorney's fees. On March 18, 1970, the respondents, thru the Solicitor General, filed an
answer to the petition. After hearing, the court, presided over by respondent Judge, issued on July 29, 1970, an order
dismissing the petition for dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau of
Internal Revenue made tax assessments on petitioner corporation in the total sum of P2,594,729.97, partly, if not
entirely, based on the documents thus seized. Petitioners came to this Court.
The petition should be granted for the following reasons:
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are:
"(3) 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." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined by the judge or justice of the
peace 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.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. — The judge or justice of the peace must, before issuing
the warrant, personally examine on oath or affirmation the complainant and any witnesses he may
produce and take their depositions in writing, and attach them to the record, in addition to any affidavits
presented to him." (Rule 126, Revised Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of
the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the judge
himself and not by others. The phrase "which shall be determined by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce," appearing in the said constitutional provision, was
introduced by Delegate Francisco as an amendment to the draft submitted by the Sub-Committee of Seven. The
following discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional Convention,
Vol. III, pp. 755-757) is enlightening:
"SR. ORENSE. Vamos a dejar compañero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de
la justicia mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Señoria que
causaria cierta demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los
fines de la justicia o si Su Señoria encuentra un remedio para esto casos con el fin de compaginar los
fines de la justicia con los derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Señoria pregunta por
la siguiente razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese
escrito no aparecer en la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion
de sucuestro. Esa persona que presenta el registro puede ser el mismo denunciante o alguna persona
que solicita dicho mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que
haya peticion de registro y el juez no se atendra solamente a sea peticion sino que el juez examiner a
ese denunciante y si tiene testigos tambin examiner a los testigos.

17
 "SR. ORENSE. No cree Su Señoria que el tomar le declaracion de ese denunciante por escrito
siempre requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo
lo posible las vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo
que entre dos males debemos escoger. el menor.
xxx xxx xxx
"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are
incorporating in our constitution something of a fundamental character. Now, before a judge could issue
a search warrant, he must be under the obligation to examine personally under oath the complainant
and if he has any witness, the witnesses that he may produce . . ."
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it
requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the complainant and
any witnesses he may produce . . ."
Personal examination by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution,
and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants except "upon
probable cause." The determination of whether or not a probable cause exists calls for the exercise of judgment after
a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant
(respondent De Leon) and his witness (respondent Logronio). While it is true that the complainant's application for
search warrant and the witness' printed-form deposition were subscribed and sworn to before respondent Judge, the
latter did not ask either of the two any question the answer to which could possibly be the basis for determining
whether or not there was probable cause against herein petitioners. Indeed, the participants seem to have attached
so little significance to the matter that notes of the proceedings before respondent Judge were not even taken. At this
juncture it may be well to recall the salient facts. The transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex
J-2 of the Petition) taken at the hearing of this case in the court below shows that per instruction of respondent Judge,
Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the depositions of the complainant and his witness,
and that stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent Judge was at the sala
hearing a case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales, stenographer Gaspar,
complainant De Leon and witness Logronio went to respondent Judge's chamber and informed the Judge that they
had finished the depositions. Respondent Judge then requested the stenographer to read to him her stenographic
notes. Special Deputy Clerk Gonzales testified as follows:
 
"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed
them, requested Mr. Logronio to raise his hand and warned him if his deposition will be found to
be false and without legal basis, he can be charged criminally for perjury. The Honorable Court
told Mr. Logronio whether he affirms the facts contained in his deposition and the affidavit
executed before Mr. Rodolfo de Leon.
"Q And thereafter?
"A And thereafter, he signed the deposition of Mr. Logronio.
"Q Who is this he?
"A The Honorable Judge.
"Q The deposition or the affidavit?
"A The affidavit, Your Honor."
Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2-
M-70 was thus limited to listening to the stenographer's readings of her notes, to a few words of warning against the
commission of perjury, and to administering the oath to the complainant and his witness. This cannot be consider a
personal examination. If there was an examination at all of the complainant and his witness, it was the one conducted
by the Deputy Clerk of Court. But, as stated, the Constitution and the rules require a personal examination by the
18
judge. It was precisely on account of the intention of the delegates to the Constitutional Convention to make it a duty
of the issuing judge to personally examine the complainant and his witnesses that the question of how much time
would be consumed by the judge in examining them came up before the Convention, as can be seen from the record
of the proceedings quoted above. The reading of the stenographic notes to respondent Judge did not constitute
sufficient compliance with the constitutional mandate and the rule; for by that manner respondent Judge did not have
the opportunity to observe the demeanor of the complainant and his witness, and to propound initial and follow-up
questions which the judicial mind, on account of its training, was in the best position to conceive. These were
important in arriving at a sound inference on the all-important question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for "[v]iolation of Sec. 46(a) of the National Internal Revenue Code in
relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question is: Was the
said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule 126?
To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to
above. Thus we find the following:
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and
fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the
information required under the Tax Code.
Sec. 208 penalizes "[a]ny person who distills, rectifies, repacks, compounds, or manufactures
any article subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets
in the conduct of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to
specific tax . . .," and provides that in the case of a corporation, partnership, or association, the official
and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of
output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is
the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated. The second is
the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of Sec. 208 (unlawful pursuit
of business or occupation); and the fourth is the violation of Sec. 209 (failure to make a return of receipts, sales,
business or gross value of output actually removed or to pay the tax due thereon). Even in their classification the six
above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73 are under Title II (Income
Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on Business and Occupation).
Respondents argue that Stonehill, et al. vs. Diokno, et al., L-19550, June 19, 1967 (20 SCRA 383), is not
applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal Revenue
(Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation of only one
code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because it was precisely on
account of the Stonehill incident, which occurred sometime before the present Rules of Court took effect on January
1, 1964, that this Court amended the former rule by inserting therein the phrase "in connection with one specific
offense," and adding the sentence "No search warrant shall issue for more than one specific offense," in what is now
Sec. 3, Rule 126. Thus we said in Stonehill:
"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 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.'"
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this
manner:

19
 "Unregistered and private books of accounts (ledgers, journals, columnars, receipts and
disbursements books, customers ledgers); receipts for payments received; certificates of stocks and
securities; contracts, promissory notes and deeds of sale; telex and coded messages; business
communications, accounting and business records; checks and check stubs; records of bank deposits
and withdrawals; and records of foreign remittances, covering the years 1966 to 1970."
The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of
the Revised Rules of Court, that the warrant should particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:
"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 paper 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."
While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for the
language used therein is so all-embracing as to include all conceivable records of petitioner corporation, which, if
seized, could possibly render its business inoperative.
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the purpose
of the requirement that the warrant should particularly describe the place to be searched and the things to be seized,
to wit:
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a
search warrant should particularly describe the place to be searched and the things to be seized. The
evident purpose and intent of this requirement is to limit the things to be seized to those, and only
those, particularly described in the search warrant — to leave the officers of the law with no discretion
regarding what articles they shall seize, to the end that 'unreasonable searches and seizures' may not
be made, — that abuses may not be committed. That this is the correct interpretation of this
constitutional provision is borne out by American authorities."
The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when the description therein is
as specific as the circumstances will ordinarily allow (People vs. Rubio; 57 Phil. 384); or when the description
expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making the search and
seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct
relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein
search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct
relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to
prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen
such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least,
the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and
securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and
withdrawals, records of foreign remittances, among others, enumerated in the warrant.
 
Respondents contend that certiorari does not lie because petitioners failed to file a motion for reconsideration
of respondent Judge's order of July 29, 1970. The contention is without merit. In the first place, when the questions
raised before this Court are the same as those which were squarely raised in and passed upon by the court below,
the filing of a motion for reconsideration in said court before certiorari can be instituted in this Court is no longer a
20
prerequisite. (Pajo, etc., et al. vs. Ago, et al., 108 Phil., 905). In the second place, the rule requiring the filing of a
motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be
applied without considering the circumstances. (Matutina vs. Buslon, et al., 109 Phil., 140.) In the case at bar time is
of the essence in view of the tax assessments sought to be enforced by respondent officers of the Bureau of Internal
Revenue against petitioner corporation, On account of which immediate and more direct action becomes necessary.
(Matute vs. Court of Appeals, et al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the
deprivation of petitioners' fundamental right to due process taints the proceeding against them in the court below not
only with irregularity but also with nullity. (Matute vs. Court of Appeals, et al., supra.)
It is next contended by respondents that a corporation is not entitled to protection against unreasonable
search and seizures. Again, we find no merit in the contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a corporation
which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed
in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such
corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity,
under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but
an association of individuals under an assumed name and with a distinct legal entity. In organizing itself
as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot
be taken without compensation. It can only be proceeded against by due process of law, and is
protected, under the 14th Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S.
43, 50 L. ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule
applied to a corporation, the ground that it was not privileged from producing its books and papers. But
the rights of a corporation against unlawful search and seizure are to be protected even if the same
result might have been achieved in a lawful way." (Silverthorne Lumber Company, et al. v. United
States of America, 251 U.S. 385, 64 L. ed. 319.)
In Stonehill, et al. vs. Diokno, et al., supra, this Court impliedly recognized the right of a corporation to object against
unreasonable searches and seizures, thus:
"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 the interest of each of them in said
corporations, whatever, the offices they hold therein may be. Indeed, it is well settled that the legality of
a seizure can be contested only by the party whose rights have been impaired thereby, and that the
objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.
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 . . ."
In the Stonehill case only the officers of the various corporations in whose offices documents, papers and effects were
searched and seized were the petitioners. In the case at bar, the corporation to whom the seized documents belong,
and whose rights have thereby been impaired, is itself a petitioner. On that score, petitioner corporation here stands
on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely — as claimed by petitioners — at
least partly — as in effect admitted by respondents — based on the documents seized by virtue of Search Warrant
No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months after the search
and seizure on February 25, 1970, is a strong indication that the documents thus seized served as basis for the
assessments. Those assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by
respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said search
warrant; the documents, papers and effects seized thereunder are ordered to be returned to petitioners; and
respondent officials the Bureau of Internal Revenue and their representatives are permanently enjoined from
enforcing the assessments mentioned in Annex "G" of the present petition, as well as other assessments based on
the documents, papers and effects seized under the search warrant herein nullified, and from using the same against
petitioners in any criminal or other proceeding. No pronouncement as to costs.

21
 Concepcion, C  . J  ., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ ., concur.
|||  (Bache & Co. (Phil.), Inc. v. Ruiz, G.R. No. L-32409, [February 27, 1971], 147 PHIL 794-816)

EN BANC

[G.R. No. L-19550. June 19, 1967.]

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 of the 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.

DECISION

CONCEPCION, C .J  p:

Upon application of the officers of the government named on the margin 1 — hereinafter referred to as
Respondent-Prosecutors — several judges 2 — hereinafter referred to as Respondent-Judges — issued, on different
dates, 3 a total of 42 search warrants against petitioners herein 4 and/or the corporations of which they were
officers, 5 directed to 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 Respondent-
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
22
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 (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations
and (b) those found 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, denied the lifting of the writ of preliminary injunction previously issued by
this Court, 12 thereby, in effect, restraining herein Respondent-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.
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that,
accordingly, the seizures effected upon the authority thereof are null and void. In this connection, the
Constitution 13 provides:
"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."

23
 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 persons therein named had committed a "violation of Central
Bank 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 a 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 codes.
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 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), Respondent- 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:

24
 "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 of the same Federal
Court. 20 After 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 held that all evidence obtained by searches and seizures in violation of the
Constitution is, by that same authority, inadmissible in a State court.
"Since the Fourth Amendment's right of privacy has been declared enforceable against the
States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without
the Weeks rule the assurance against unreasonable federal searches and seizures would be 'a form of
words', valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so
too, 'without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not
to permit this Court's high regard as a 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 federal officers the
Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even
Wolf 'stoutly adhered' to that proposition. The right to privacy, when conceded operatively enforceable
against the States, was not susceptible of destruction by avulsion of the sanction upon which its
protection and enjoyment had always been deemed dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches — state or federal — it was logically and constitutionally
necessary that the exclusion doctrine — an essential part of the right 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 by Wolf could not consistently tolerate denial of its most important constitutional
privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of
the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and
enjoinment. Only last year the Court itself recognized that the purpose of the exclusionary rule 'is to
deter — to compel respect for the constitutional guaranty in the only effectively available way — by
removing the incentive to disregard it.' . . .
"The ignoble shortcut to conviction left open to the State tends to destroy the entire 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 enforceable against the States, and that the right to be
secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no
longer permit that right to remain an empty promise. Because it is enforceable in the same manner and
to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be
revocable at the whim of any police officer who, in the name of law enforceable itself, chooses to
suspend its enjoinment. 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 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

25
 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.
Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make
unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in general, committed by agents of the party in power, for, certainly,
those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under
which the minority usually — but, understandably — finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility  21 of securing their conviction, is
watered down by the pardoning, power of the party for whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962,
petitioners allege that Room Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No.
1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises
considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks
and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the
corporations above referred to include personal belongings of said petitioners and other effects under their exclusive
possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of
the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has been advanced,  not in
their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of
June 29, 1962. In other words, said theory would appear to be a readjustment of that followed in said petitions, to suit
the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or
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 advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions and motion for reconsideration,
and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have
sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners, to warrant
application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to
express our opinion 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.
|||  (Stonehill v. Diokno, G.R. No. L-19550, [June 19, 1967], 126 PHIL 738-766)

26
 FIRST DIVISION

[G.R. No. 45358. January 29, 1937.]

NARCISO ALVAREZ,  petitioner, vs. THE COURT OF  FIRST INSTANCE  OF TAYABAS and THE

ANTI-USURY BOARD, respondents.

DECISION

IMPERIAL,  J p:

The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas,

ordering the search of his house and the seizure, at any time of the day or night, of certain accounting books,
documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as well as the
order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal
and set aside, and prays that all the articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over
the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in
his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection
with his activities as a money-lender, charging usurious rates of interest in violation of the law. In his oath at the
end of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the
best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts
but upon the information received by him from a reliable person. Upon the affidavit in question the judge, on said date,
issued the warrant which is the subject matter of the petition, ordering the search of the petitioner's house at any
time of the day or night, the seizure of the books and documents above-mentioned and the immediate delivery thereof
to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board
entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took
possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals,
two cashbooks, nine order books, four notebooks, four check stubs, two memorandums, three bankbooks, two
contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one
bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt
27
book belonging to Luis Fernandez, fourteen bundles of invoices and other papers, many documents and loan
contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong
& Shanghai Banking Corporation. The search for and seizure of said articles were made with the opposition of the
petitioner who stated his protest below the inventories on the ground that the agents seized even the originals of the
documents. As the articles had not been brought immediately to the judge who issued the search warrant, the
petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other
agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be
declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order
directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the receipt of notice thereof
and giving him a period of five (5) days within which to show cause why he should not be punished for
contempt of court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion
praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the
articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on June
20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-
Usury Board had failed to deposit the articles seized by them and praying that a search warrant be issued, that the
sheriff be ordered to take all the articles into his custody and deposit them in the clerk's office, and that the
officials of the Anti-Usury Board be punished for contempt o court. Said attorney, on June 24th, filed an ex parte
petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the office  of the
clerk of court, he had so far failed to file an inventory duly verified by oath of all the documents seized by him, to
return the search warrant together with the affidavit presented in support thereof, or to present the report of the
proceedings taken by him; and prayed that said agent be directed to file the documents in question immediately. On
the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant
and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by
oath of all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that
the search warrant issued was illegal and that it had not yet been returned to date together with the proceedings taken
in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all
the articles seized to the petitioner, that the agent who seized them be declared guilty  of contempt of court, and that
charges be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding: that
the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and,
consequently, should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and
must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within
the unextendible period of two (2) days from the date of notice of said order, why all the articles seized appearing in
the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief  of the Anti-Usury Board of the
Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered
retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the
petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th, issued an order
requiring the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and
which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of said month the
assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the
order of September 25th and that the clerk of court be ordered to return to him all the documents and papers together
with the inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of ten
(10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official again filed
another motion alleging that he needed sixty (60) days to examine the documents and papers seized, which are
designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31 , 34, 36, 37, 38, 39, 40, 41, 42,
43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th,
the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges,
and it is not denied by the respondents, that these nineteen (19) documents continue in the possession of the court,
the rest having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by
a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and
bring it before the court (section 95, General Orders, No. 58, as amended by section 6 of Act No. 2886). Of all the
rights of a citizen, few are of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection
and scrutiny of others (In re  Pacific Railway Commission, 32 Fed., 241; Interstate Commerce Commn. vs. Brimson,
38 Law. ed., 1047; Boyd vs. U. S., 29 Law. ed., 746; Carroll vs. U. S., 69 Law. ed., 543, 549). While the power to
search and seize is necessary to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government (People vs. Elias, 147 N. E., 472).

28
 II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties
and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict
construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights
secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since
the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353;
Perry vs. U. S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613).
 
III. The petitioner claims that the search warrant issued by the court is illegal because it has been based upon
the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal knowledge  of the facts
which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere
information secured from a person whom he considered reliable. To the question "What are your reasons for applying
for this search warrant", appearing in the affidavit, the agent answered: "It has been reported to me by a person whom
I consider to be reliable that there are being kept in said premises, books, documents, receipts, lists, chits, and other
papers used by him in connection with his activities as a money- lender, charging a usurious rate  of interest, in
violation of the law" and in attesting the truth of his statements contained in the affidavit, the said agent stated that he
found them to be correct and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The
right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, 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." Section 97  of General Orders, No. 58
provides that "A search warrant shall not issue except for probable cause and upon application supported by oath
particularly describing the place to be searched and the person or thing to be seized." It will be noted that both
provisions require that there be not only probable cause before the issuance of a search warrant but that the search
warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In
its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience
to perform an act faithfully and truthfully; and it is sometimes defined as an outward pledge given by the person taking
it that his attestation or promise is made under an immediate sense of his responsibility to God (Bouvier's Law
Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphrey vs. State, 122 N. W.,
19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required
must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265
Fed., 839; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an
affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be
charged thereon and affiant be held liable for damages caused (State vs. Roosevelt County 20th Jud. Dis. Ct., 244
Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable
searches and seizures. Unreasonable searches and seizures are a menace against which the constitutional
guaranties afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in
General Orders, No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has
been defined in general language. All illegal searches and seizures are unreasonable while lawful ones are
reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a
judicial question, determinable from a consideration of the circumstances involved, including the purpose of the
search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place
or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S., 75 Law. ed., 374;
Peru vs. U. S., 4 Fed., [2d], 881; U. S. vs. Vatune, 292 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U.
S., 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which served as
the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the
oath was made, and therefore, it is hereby held that the search warrant in question and the subsequent seizure  of the
books, documents and other papers are illegal and do not in any way warrant the deprivation to which the petitioner
was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and
cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other words, it is
contended that the search warrant cannot be issued unless it be supported by affidavits made by the applicant and

29
the witnesses to be presented necessarily by him. Section 1, paragraph 3, of Article III of the Constitution provides
that 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. Section 98 of General Orders, No. 58 provides that
the judge or justice must, before issuing the warrant, examine under oath the complainant and any witnesses he may
produce and take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the
applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case,
relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the
deposition of any other witness. Neither the Constitution nor General Orders, No. 58 provides that it is of imperative
necessity to take the depositions of the witnesses to be presented by the applicant or complainant in addition to the
affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy
the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant
is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case
was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to
require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to
warrant the issuance of the search warrant. When the affidavit of the applicant or complainant contains sufficient facts
within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when
the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal
knowledge of the facts is necessary. We conclude, therefore, that the warrant issued is likewise illegal because it was
based only on the affidavit of the agent who had no personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and the
cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders, No. 58 authorizes
that the search be made at night when it is positively asserted in the affidavit that the property is on the person or in
the place ordered to be searched. As we have declared the affidavit insufficient and the warrant issued exclusively
upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be
made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued
illegally is the lack of an adequate description of the books and documents to be seized. Section 1, paragraph
3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to be presented,
which shall serve as the basis for determining whether probable cause exists and whether the warrant should be
issued, must contain a particular description of the place to be searched and the person or thing to be seized. These
provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1
Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co.,
253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 415); but where, by the nature of the
goods to be seized, their description must be rather general, it is not required that a technical description be given, as
this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only
description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said
premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as
money-lender, charging a usurious rate of interest, in violation of the law." Taking into consideration the nature of the
articles so described, it is clear that no other more adequate and detailed description could have been given,
particularly because it is difficult to give a particular description of the contents thereof. The description so made
substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby
placed in a position enabling him to identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was obtained
illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself with evidence to be
used by it in the criminal case or cases which might be filed against him for violation  of the Anti-Usury Law. At the
hearing of the incidents of the case raised before the court, it clearly appeared that the books and documents had
really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles
in question as evidence against the petitioner in the criminal cases that may be filed against him. The seizure of books
and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against
the person in whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and
it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against
himself (Uy Kheytin vs. Villareal , 42 Phil., 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365;
U. S. vs. Madden, 297 Fed., 679; Boyd vs. U. S., 116 U. S., 616; Carroll vs. U. S., 267 U. S., 132). Therefore, it
appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence
against the petitioner in the criminal proceeding or proceedings for violation of the Anti-Usury Law, which it is
attempted to institute against him, we hold that the search warrant issued is illegal and that the documents should be
returned to him.

30
 The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity  of the
search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional
rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading the criminal
proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has
emphatically denied the offer of compromise and, second, because if there was a compromise it referred not to the
search warrant and the incidents thereof but to the institution of criminal proceedings for violation of the Anti- Usury
Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the
search and seizure of the articles in question, but such was not the case because the petitioner protested from the
beginning and stated his protest in writing in the insufficient inventory furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not lie because he can
appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222 of the
Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain, speedy and
adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders
would not in this case be a plain, speedy and adequate remedy for the petitioner because a long time would have to
elapse before he recovers possession of the documents and before the rights, of which he has been unlawfully
deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119;
Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure, should
be given a liberal construction in favor of the individual in order to maintain the constitutional guaranties whole and in
their full force;
2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they should be strictly
construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based
solely upon the affidavit of the petitioner who had no personal knowledge of the facts necessary to determine the
existence or non-existence of probable cause, and (b) because the warrant was issued for the sole purpose of seizing
evidence which would later be used in the criminal proceedings that might be instituted against the petitioner, for
violation of the Anti- Usury Law;
4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit that
the articles were in the possession of the petitioner and in the place indicated, neither could the search and seizure be
made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or
complainant in cases where the latter has personal knowledge of the facts, when the applicant's or complainant's
knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of other witnesses so that he
may determine whether probable cause exists;
6. That a detailed description of the person and place to be searched and the articles to be seized is
necessary, but where, by the nature of the articles to be seized, their description must be rather general, it is not
required that a technical description be given, as this would mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of compromise or settlement
attributed to him, does not mean, if so made, that he voluntarily tolerated the search and seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an effective,
speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for mandamus filed by him
lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of the
respondent court authorizing the retention of the books and documents, are declared illegal and are set aside, and it
is ordered that the judge presiding over the Court of First Instance of Tayabas direct the immediate return to the
petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26,
27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So ordered.
Avanceña, C. J., Villa-Real, Diaz and Concepcion, JJ., concur.
|||  (Alvarez v. Court of First Instance of Tayabas, G.R. No. 45358, [January 29, 1937], 64 PHIL 33-51)

31
 EN BANC

[G.R. No. 64261. December 26, 1984.]

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES,

INC.,  petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF,
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY
COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL.,  respondents.

DECISION

ESCOLIN, J p:

Assailed in this petition for certiorari, prohibition and mandamus with preliminary mandatory and prohibitory
injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-
Paño, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as
No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business
addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and
printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books and other written literature
alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum"
newspaper, were seized.
32
 Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return
of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the
Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns,
subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner
Jose Burgos, Jr. and the other accused in Criminal Case No. Q-022782 of the Regional Trial Court of Quezon City,
entitled "People v. Jose Burgos, Jr. et al." 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for
preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on
motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of
preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in
the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles . . . " 2 With
this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. LexLib
Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court
without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners,
before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in
the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of
the seriousness and urgency of the constitutional issues raised, not to mention the public interest generated by the
search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies.
The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the
words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza  v. Raymundo, 4 "it is always in the
power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the
purposes of justice require it . . . "
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the
fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by
exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to
assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:
"Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the
fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises
had been raided.
"The climate of the times has given petitioners no other choice. If they had waited this long to
bring their case to court, it was because they tried at first to exhaust other remedies. The events of the
past eleven [11] years had taught them that everything in this country, from release of public funds to
release of detained persons from custody, has become a matter of executive benevolence or largesse.
"Hence, as soon as they could, petitioners, upon suggestion of persons close to the President,
like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronel, asking the
return at least of the printing equipment and vehicles. And after such a letter had been sent, through
Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they
were further encouraged to hope that the latter would yield the desired results.
"After waiting in vain for five [5] months, petitioners finally decided to come to Court." [pp. 123-
124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to
punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite
evidently negate the presumption that they had abandoned their right to the possession of the seized property,
thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence
some of the seized documents in Criminal Case No. Q-022872, he is now estopped from challenging the validity of
the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner
Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them
33
as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this
petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or
affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as well as
Sec. 4, Rule 126 of the Rules of Court. 6 This objection, however, may properly be considered moot and academic,
as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20-82[b] were used to search two distinct places: No. 19, Road 3,
Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is
interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search
warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the
articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search
Warrant No. 20-82[b] which states:
"Which have been used, and are being used as instruments and means of committing the crime
of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City."
The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and
issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for
respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the
places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who
headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20-82[b] was
applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the
opening paragraph of the said warrant. 7 Obviously, this is the same place that respondent judge had in mind when
he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with sufficient
particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is
relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the
warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the
affidavit. And it has also been said that the executing officer may look to the affidavit in the official court file to resolve
an ambiguity in the warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the warrants were
directed against Jose Burgos, Jr. alone, articles belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and
the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a
search warrant, to wit:
"Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and
seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the offense; and
[c] Property used or intended to be used as the means of committing an offense.
The above rule does not require that the property to be seized should be owned by the person against whom
the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by
one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore,
is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the
articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants.
Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended
by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and
34
which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao
Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by
nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by
a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of
the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the
machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant. prcd
5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N.
Abadilla, Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col.
Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents could not have provided
sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section
3, Article IV of the 1973 Constitution which provides: LLphil
"SEC. 3.  . . . and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized."
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the place sought to be searched. And
when the search warrant applied for is directed against a newspaper publisher or editor in connection with the
publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a
specification, stating with particularity the alleged subversive material he has published or is intending to publish.
Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in
possession or has in his control printing equipment and other paraphernalia, news publications and other documents
which were used and are all continuously being used as a means of committing the offense of subversion punishable
under Presidential Decree 885, as amended . . . " 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable
cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement contained in the joint
affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly
shows that the premises above-mentioned and the articles and things above-described were used and are
continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, . . . after
examination under oath or affirmation of the complainant and the witnesses he may
produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the
facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court
ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted
averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this
Court in Alvarez case.
Another factor which makes the search warrants under consideration constitutionally objectionable is that they
are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:
"1] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets,
tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the 'WE FORUM' newspaper and any and all documents/communications,
letters and facsimile of prints related to the 'WE FORUM' newspaper.

35
 2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the 'WE FORUM' and other subversive
materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969;
3] A delivery truck with Plate No. NBS 542;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong Silang.'"
In Standford v. State of Texas, 16 the search warrant which authorized the search for 'books, records,
pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the
Communist Parties of Texas, and the operations of the Community Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like manner, directions to "seize any evidence in connection with the violation
of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant - which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the
statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid.  17 The
description of the articles sought to be seized under the search warrants in a question cannot be characterized
differently.
In the Standford case, the U.S. Supreme Court calls to mind a notable chapter in English history: the era of
disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving
commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and
Puritan." Reference herein to such historical episode would not be relevant for it is not the policy of our government to
suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail"
and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express
themselves in print. Thus state of being is patently anathematic to a democratic framework where a free, alert and
even militant press is essential for the political enlightenment and growth of the citizenry. LLjur
Respondents would justify the continued sealing of the printing machines on the ground that they have been
sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the
property of any person, natural or artificial, engaged in subversive activities against the government and its duly
constituted authorities . . . in accordance with implementing rules and regulations as may be issued by the Secretary
of National Defense." It is doubtful, however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President
Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus:
"The President denied a request filed by government prosecutors for sequestration of the WE
FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendaña."
"On the basis of court orders, government agents went to the We Forum offices in Quezon City
and took a detailed inventory of the equipment and all materials in the premises.
"Cendaña said that because of the denial, the newspaper and its equipment remain at the
disposal of the owners, subject to the discretion of the court." 19
That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of
then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall

36
 addressed to President Marcos, expressing alarm over the "WE FORUM" case. 20 In this reply dated February 11,
1983, Minister Romulo stated:
"2. Contrary to reports, President Marcos turned down the recommendation of our authorities to
close the paper's printing facilities and confiscate the equipment and materials it uses." 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on
December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory
injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered
released to petitioners. No costs.
SO ORDERED.
|||  (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, [December 26, 1984], 218 PHIL 754-773)

EN BANC

[G.R. No. 82585. November 14, 1988.]

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOILI, and GODOFREDO L.

MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional
Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department
of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA AND PRESIDENT CORAZON C.
AQUINO,  respondents.

[G.R. No. 82827. November 14, 1988.]

LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch

35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR CITY FISCAL OF MANILA,
PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, AND
THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.

37
 RESOLUTION

PER CURIAM p:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process
when informations for libel were filed against them although the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights
of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the
complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a
complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied
petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City
Fiscal's finding of a  prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran
was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the
Executive Secretary on May 16, 1988. With these developments, petitioner's contention that they have been denied the
administrative remedies available under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary
investigation is negated by the fact that instead of submitting his counter-affidavits, he filed a "Motion to Declare
Proceeding Closed", in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does
not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation
completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so
minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of
warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973
Constitution to issue warrants to "other responsible officers as may be authorized by law", has apparently convinced
petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses
determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the
existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof
he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of
warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the
issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot
be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose
a correlative disability to file suit". He contends that if criminal proceedings ensue by virtue of the President's filing of her

38
complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's
jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on
the witness stand, she would be exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential
duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government
is a job that, aside from requiring all of the office-holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the
holder of the office; not by any other person in the President's behalf Thus, an accused in a criminal case in which the
President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against
such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to
exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and
imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character
or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to
appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom,
the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to
amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public
respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to
maintain status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution
dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.

THIRD DIVISION

[G.R. No. 81756. October 21, 1991.]

NICOMEDES SILVA @ "Comedes", MARLON SILVA @ "Tama" and

ANTONIETA SILVA, petitioners, vs. THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL
COURT OF NEGROS ORIENTAL, BRANCH XXXIII, DUMAGUETE CITY, respondent.

DECISION

FERNAN, C.J  p:

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1 issued by
respondent Judge as well as the return of the money in the amount of P1,231.00 seized from petitioner Antonieta Silva.

39
The antecedent facts are as follows:
On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in Dumaguete City, Negros
Oriental, filed an "Application for Search Warrant" with the Regional Trial Court, Branch XXXIII, Dumaguete City against
petitioners Nicomedes Silva and Marlon Silva. 1 This application was accompanied by a "Deposition of Witness" executed
by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo, also dated June 13, 1986. 2
On the same day, Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete
City, pursuant to the said "Application for Search Warrant" and "Deposition of Witness", issued Search Warrant No. 1,
directing the aforesaid police officers to search the room of Marlon Silva in the residence of Nicomedes Silva for violation
of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. Pertinent portions of
Search Warrant No. 1 read as follows: prLL
"It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT. Ranulfo T.
Villamor, Jr. and his witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo that there is
probable cause to believe that possession and control of Marijuana dried leaves, cigarettes, joint has
been committed or is about to be committed and that there are good and sufficient reasons to believe
that marijuana dried leaves, cigarettes, joint has in possession and/or control at Tama's Room (Rgt.
side 1st Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:
"X (Subject of the offense stated above
(Stolen or embezzled or other proceeds of fruits of the offense;
"X (Used or intended to be used as means of committing an offense.
"You are hereby commanded to make an immediate search at any time of the day (night) of the  room of
Tama Silva  residence of his father Comedes Silva  to open (sic) aparadors, lockers, cabinets, cartoons,
containers, forthwith seize and take possession of the following property Marijuana dried leaves,
cigarettes, joint and bring the said property to the undersigned to be dealt with as the law directs." 3
In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of
P1,231.40.
On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that the search warrant
only authorized the serving officers to seize marijuana dried leaves, cigarettes and joint, and that said officers failed or
refused to make a return of the said search warrant in gross violation of Section 11, Rule 126 of the Rules of Court. 4
Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in abeyance the
disposition of the said amount of P1,231.40 pending the filing of appropriate charges in connection with the search
warrant." 5
On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was issued on the
sole basis of a mimeographed "Application for Search Warrant" and "Deposition of Witness", which were accomplished by
merely filling in the blanks and (2) the judge failed to personally examine the complainant and witnesses by searching
questions and answers in violation of Section 3, Rule 126 of the Rules of Court. 6
On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced
retired Judge Ontal, issued an Order denying the motion for lack of merit, finding the requisites necessary for the issuance
of a valid search warrant duly complied with. 7
A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an order
dated October 19, 1987.
Hence, this special civil action for certiorari.
Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that respondent Judge should
be viewed to have acted without or in excess of jurisdiction, or committed grave abuse of discretion amounting to lack of
jurisdiction when he issued the Order dated August 11, 1987, denying their motion to quash Search Warrant No. 1.
We rule for petitioners.
Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of homes
against unreasonable searches and seizures. This section provides: LLpr
"SECTION 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
40
 search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized."
The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private
security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under
legislative or judicial sanction, and to give remedy against such usurpations when attempted. 8
Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant, to
wit:
"SECTION 3. Requisite for issuing search warrant. — A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized.
"SECTION 4. Examination of complainant;  record. — The judge must, before issuing the warrant,
personally examine in the form of searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts personally known to them and attach to the
record their sworn statements together with any affidavits submitted."
Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant,
determine whether there is probable cause by examining the complainant and witnesses through searching questions and
answers.
In the case of Prudente  vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable
cause" as follows:
"The 'probable cause' for a valid search warrant, has been defined 'as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are in the place sought to be
searched'. This probable cause must be shown to be within the personal knowledge of the complainant
or the witnesses he may produce and not based on mere hearsay."
 
In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search
Warrant" and "Deposition of Witness", and found that Judge Ontal failed to comply with the legal requirement that he must
examine the applicant and his witnesses in the form of searching questions and answers in order to determine the
existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the most part, suggestive questions
answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only four (4) questions
asked, to wit:
"Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a search warrant?"
A Yes, sir.
"Q Do you have personal knowledge that the said premises subject of the offense stated above, and
other proceeds of fruit of the offense, used or obtain (sic) or intended to be used as means of
committing an offense?"
A  Yes, sir. LexLib
"Q Do you know personally who is/are the person who has have the property in his/their possession
and control?"
A Yes, sir.
"Q How did you know all this (sic) things?"
A Through discreet surveillance." 9
The above deposition did not only contain leading questions but it was also very broad. The questions propounded to the
witnesses were in fact, not probing but were merely routinary. The deposition was already mimeographed and all that the
witnesses had to do was fill in their answers on the blanks provided.
In the case of Nolasco vs.  Paño, G.R. No. 69803, October 8, 1986, 139 SCRA 152, 163, this Court held:
"The 'probable cause' required to justify the issuance of a search warrant comprehends such facts and
circumstances as will induce a cautious man to rely upon them and act in pursuant thereof Of the 8

41
 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th are leading not searching
questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is
identical to that in the Search Warrant and suffers from the same lack of particularity. The examination
conducted was general in nature and merely repetitious of the deposition of said witness. Mere
generalization will not suffice and does not satisfy the requirements or probable cause upon which a
warrant may issue."
Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure of
the judge to examine the witness in the form of searching questions and answers. Pertinent portion of the decision reads:
"Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and short.
Respondent Judge did not examine him 'in the form of searching questions and answers'. On the
contrary, the questions asked were leading as they called for a simple 'yes' or 'no' answer. As held in
Quintero vs. NBI, 'the questions propounded by respondent Executive Judge to the applicant's witness
are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent
in an application for search warrant, and conducting of examination in a general manner, would not
satisfy the requirements for issuance of a valid search warrant." 10
Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement that he
must determine the existence of probable cause by personally examining the applicant and his witnesses in the form of
searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As
declared in Marcelo vs.  De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 667, "the capricious disregard by
the judge in not complying with the requirements before issuance of search warrants constitutes abuse of discretion".
The officers implementing the search warrant clearly abused their authority when they seized the money of
Antonieta Silva. This is highly irregular considering that Antonieta Silva was not even named as one of the respondents,
that the warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes and joints, and that the
search warrant was issued for the seizure of personal property (a) subject of the offense and (b) used or intended to be
used as means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits of
the offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected the motion of petitioner
Antonieta Silva seeking the return of her seized money.
WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent  Judge of the
Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the
amount of P1,231.40 which had earlier been seized from her by virtue of the illegal search warrant. This decision is
immediately executory. No costs. LexLib
SO ORDERED.
|||  (Silva v. Presiding Judge, RTC of Negros Oriental, Br. XXXIII, Dumaguete City, G.R. No. 81756, [October 21, 1991],
280 PHIL 151-159)

EN BANC

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

VICENTE LIM, SR. and MAYOR SUSANA LIM,  petitioners, vs. HON. NEMESIO S. FELIX and HON.

ANTONIO ALFANE, respondents.

[G.R. Nos. 94266-69. February 19, 1991.]

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR.,NONILON A. BAGALIHOG, MAYOR

NESTOR C. LIM and MAYOR ANTONIO KHO,  petitioners, vs. HON. NEMESIO S. FELIX and HON.
ANTONIO ALFANE, respondents.
42
 DECISION

GUTIERREZ, JR.,J  p:

May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification
or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?
On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic
Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security
escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a
lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot,
although, he himself suffered a gunshot wound. LLjur
An investigation of the incident then followed.
Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the
PC Criminal Investigation Service at Camp Bagong Ibalon, Legazpi City filed an amended complaint with the Municipal
Trial Court of Masbate accusing, among others, Vicente Lim, Sr.,Mayor Susana Lim of Masbate (petitioners in G.R. Nos.
94054-57),Jolly T. Fernandez, Florencio T. Fernandez, Jr.,Nonilon A. Bagalihog, Mayor Nestor C.  Lim and Mayor Antonio
Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the
airport incident. The case was docketed as Criminal Case No. 9211. prcd
After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:
"...after weighing the affidavits and answers given by the witnesses for the prosecution during the
preliminary examination in searching questions and answers, concludes that a probable cause has
been established for the issuance of a warrant of arrest of named accused in the amended complaint,
namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio
Fernandez, Jr.,Vicente Lim, Sr.,Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag
and Rene Tualla alias Tidoy." (Rollo, p. 58, G.R. Nos. 94054-57)
xxx xxx xxx
In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for
the provisional liberty of each of the accused.
Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court
and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the
accused posted bail at P200,000.00 each.
On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to
the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case.
On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a  prima facie case against the
petitioners but differed in the designation of the crime in that the ruled that "...all of the accused should not only be
charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims
and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex 'H',Comment of Fiscal
Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and
Mayor Susana Lim was denied. cdrep
On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of
murder against the twelve (12) accused with a recommendation of no bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue.
(Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90).
On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court
of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:
"Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and
5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon
City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to
avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the
43
 Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to
the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court;
and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance
of the said cases until such time that the petition is finally resolved."
The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in
substance prayed for the following:
"1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or
investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this
Honorable Court in its personal determination of the existence of a probable cause or prima facie
evidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of
the constitution that no warrant shall issue unless the issuing magistrate shall have himself been
personally convinced of such probable cause.
2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of
right; and
3. In the event that this court may later be convinced of the existence of a probable cause, to be
allowed to file a motion for reduction of bail or for admission of bail." (p. 17, Rollo, G.R. Nos. 94054-57)
In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima
facie case against them in the light of documents which are recantations of some witnesses in the preliminary
investigation. The motions and manifestations were opposed by the prosecution.
On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and
issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:
"In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of
Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was
committed and that all the accused are probably guilty thereof, which was affirmed upon review by the
Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for
murder. Considering that both the two competent officers to whom such duty was entrusted by law have
declared the existence of probable cause, each information is complete in form and substance, and
there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's
certification in each information which reads:" (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis
supplied)
xxx xxx xxx
The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.
In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued "...a TEMPORARY RESTRAINING ORDER,
effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly
authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without
bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14."
In another Resolution dated July 31,1990 in G.R. Nos. 94266-69, we resolved:
xxx xxx xxx
"...To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the
respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail
issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and
Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame,
Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until
further orders from this Court, ordering the respondent judge or his duly authorized representatives or
agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail
issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho."
The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without
bail by simply relying on the prosecution's certification and recommendation that a probable cause exists.

44
This is not a novel question. In the case of Placer  v. Villanueva (126 SCRA 463 [1983]),we ruled that a judge may rely
upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest.
However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the
"search and seizure" provision of the 1973 Constitution which provides:
"'...no search warrant or warrant of arrest shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be authorized by law, after examination under oath
or affirmation of the complainant and the witnesses he may produce ...'"
We ruled:
"...The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial
discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6,
Rule 112 of the Rules of Court.
Warrant of arrest, when issued.— If the judge be satisfied from the preliminary examination
conducted by him or by the investigating officer that the offense complained of has been
committed and that there is reasonable ground to believe that the accused has committed it, he
must issue a warrant or order for his arrest.
Under this section, the judge must satisfy himself of the existence of probable cause before issuing a
warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may
disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S  v.
Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739).And this evidently is the reason for the
issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982.
Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-
standing practice had been attached to the information filed in his sala, respondent found the
informations inadequate bases for the determination of probable cause. For as the ensuing events
would show, after petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the case where he was satisfied that probable cause existed."
The case of Soliven v.  Makasiar (167 SCRA 393 [1988]) was decided after the effectivity of the 1987 Constitution. We
stated:
"The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:
'Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word 'personally' after the word 'determined' and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to 'other respondent officers as may be authorized
by law', has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the submission of supporting
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examinations and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts."

45
The decision in People v.  Honorable Enrique B.  Inting, et al. (G.R. No. 88919, July 25, 1990),reiterated the above
interpretation of "personal" determination by the Judge:
"We emphasize important features of the constitutional mandate that '. . . no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge . . .' (Article
III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this
determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to
make the determination of probable cause. The Judge does not have to follow what the Prosecutor
presents to him. By itself the Prosecutor's certification of probable cause is ineffectual. It is the report,
the affidavits, the transcripts of stereographic notes (if any),and all other supporting documents behind
the Prosecutor's certification which are material in assisting the Judge to make his determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which
ascertains whether the offender should be held for trial or released. Even if the two inquiries are
conducted in the course of one and the same proceeding, there should be no confusion about the
objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper — whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial — is the function of the Prosecutor.
The Court made this clear m the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
'Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in them
under Sections 13,14 and 16, Rule 112 of the Rules of Court of 1964 (See Sec. 4, Rule 108,
Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules,
1980 ed.,Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal
Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted
all provisions granting that power to said Judges. We had occasion to point this out in Salta  v.
Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions,
namely: (1) that the conduct of a preliminary investigation is 'not a judicial function ...(but) part
of the prosecution's job, a function of the executive,' (2) that whenever 'there are enough fiscals
or prosecutors to conduct preliminary investigations, courts are counseled to leave this job
which is essentially executive to them,' and the fact 'that a certain power is granted does not
necessary mean that it should be indiscriminately exercised.
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on
October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of
October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or courts having authority to conduct
preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the
power to make a preliminary examination for the purpose of determining whether probable
cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power —
indeed, it is as much a duty as it is a power — has been and remains vested in every judge by
the provisions in the Bill of Rights in the 1935, the 1973 and the present
[1987] Constitutions securing the people against unreasonable searches and seizures, thereby
placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction
must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint
or information, he retains the authority, when such a pleading is filed with his court, to
determine whether there is probable cause justifying the issuance of a warrant of arrest. It
might be added that this distinction accords, rather than conflicts, with the rationale of Salta
because both law and role, in restricting to judges the authority to order arrest, recognize the
function to be judicial in nature.

46
 We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for
the determination of a sufficient ground for the filing of the information or it is an investigation for the
determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary
investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary
investigation which is more properly called preliminary examination is judicial in nature and is lodged
with the Judge. ..."
Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that
the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the
certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest.
We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted
to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article
III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of
either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution
because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the
certification standing alone but because of the records which sustain it. Cdpr
It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia
of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also
interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms.
There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of
work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly
urban areas. If a Judge has to personally question each complainant and witness or go over the records of the
Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest
warrants on his desk, he or she may have no more time for his or her more important judicial functions. LexLib
At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to
be  personally determined by the judge ...",not by any other officer or person.
If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in
Masbate, he or she has not  personally determined probable cause. The determination is made by the Provincial
Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion.
The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent
Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was
no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause
for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired
in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the
transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a
probable cause exists is sufficient for him to issue a warrant of arrest. prLL
We reiterate the ruling in Soliven  v. Makasiar that the Judge does not have to personally examine the complainant and his
witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However,
there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before
the Judge.
The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case.
We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to
exercise sound discretion for, after all, the personal determination is vested in the Judge by the  Constitution. It can be as
brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to
answer the court's probing questions when the circumstances of the case so require. LLjur
It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of
recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general
rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan
Ang Bun v. Court of Appeals, et al.,G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing,46 SCRA 298 [1972])
the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of
the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in
view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the
recantations of some witnesses when he recommends a reinvestigation of the cases, to wit:

47
 "It must be pointed out, however, that among the documents attached to this Petition are affidavits of
recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by
one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was
precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial
Court of Masbate found the existence of a  prima facie case against petitioners and accordingly
recommended the filing of a Criminal Information. Evidently, the same written statements were also the
very basis of the 'Fiscal's Certification', since the attached affidavits of recantation were not yet then
available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since
the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if
a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect
them from an open and public accusation of crime, from the trouble, expense and anxiety of a public
trial, and also to protect the State from useless and expensive trials (Salonga v. Paño, G.R. No. 59524,
February 18, 1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201).
We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence
earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is
subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him,
he issues a warrant of arrest. LLjur
Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and
issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination
of the existence of a probable cause.
WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio
S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The
Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made
PERMANENT.
SO ORDERED.
|||  (Lim, Sr. v. Felix, G.R. Nos. 94054-57, 94266-69, [February 19, 1991], 272 PHIL 122-138)

SECOND DIVISION

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA,  petitioner, vs. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding

Judge of the City Court of Ormoc, BERNARDO GOLES and REYNALDO MAYOTE, respondents.

DECISION

DE CASTRO, J p:

48
 The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by petitioner
for its alleged failure to comply with the requisites of the Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent Judge was based merely on the
application for search warrant and a joint affidavit of private respondents which were wrongfully it is alleged
subscribed, and sworn to before the Clerk of Court of respondent Judge. Furthermore, there was allegedly a failure on
the part of respondent Judge to attach the necessary papers pertinent to the issuance of the search warrant to the
records of Criminal Case No. 4298-CC wherein petitioner is accused under PD 810, as amended by PD 1306, the
information against him alleging that Soriano Mata offered, took and arranged bets on the Jai Alai game by "selling
illegal tickets known as 'Masiao tickets' without any authority from the Philippine Jai Alai & Amusement Corporation or
from the government authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of the said
case could be found the search warrant and other pertinent papers connected to the issuance of the same, so that he
had to inquire from the City Fiscal its whereabouts, and to which inquiry respondent Judge replied, "it is with the
court". The Judge then handed the records to the Fiscal who attached them to the records. prcd
This led petitioner to file a motion to quash and annul the search warrant and for the return of the articles
seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court. The motion was
denied by respondent Judge on March 1, 1979, stating that the court has made a thorough investigation and
examination under oath of Bernardo U. Goles and Reynaldo T. Mayote, members of the Intelligence Section of 352nd
PC Co./Police District II INP; that in fact the court made a certification to that effect; and that the fact that documents
relating to the search warrant were not attached immediately to the record of the criminal case is of no moment,
considering that the rule does not specify when these documents are to be attached to the records. 2 Petitioner's
motion for reconsideration of the aforesaid order having been denied, he came to this Court, with the instant petition,
praying, among others, that this Court declare the search warrant to be invalid and all the articles confiscated under
such warrant as inadmissible as evidence in the case, or in any proceedings on the matter.
We hold that the search warrant is tainted with illegality for being violative of the Constitution and the Rules of
Court.
Under the Constitution "no search warrant shall issue but 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". More emphatic and detailed is the implementing rule of the
constitutional injunction, Section 4 of Rule 126 which provides that the judge must before issuing the warrant
personally examine on oath or affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take
depositions in writing of the complainant and the witnesses he may produce and to attach them to the record. Such
written deposition is necessary in order that the Judge may be able to properly determine the existence or non-
existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his
declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with
the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search
warrant invalid. cdll
The judge's insistence that she examined the complainants under oath has become dubious by petitioner's
claim that at the particular time when he examined all the relevant papers connected with the issuance of the
questioned search warrant, after he demanded the same from the lower court since they were not attached to the
records, he did not find any certification at the back of the joint affidavit of the complainants. As stated earlier, before
he filed his motion to quash the search warrant and for the return of the articles seized, he was furnished, upon his
request, certified true copies of the said affidavits by the Clerk of Court but which certified true copies do not bear any
certification at the back. Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset
of this case does not show also the certification of respondent judge. This doubt becomes more confirmed by
respondent Judge's own admission, while insisting that she did examine thoroughly the applicants, that "she did not
take the deposition of Mayote and Goles because to have done so would be to hold a judicial proceeding which will be
open and public", 3 such that, according to her, the persons subject of the intended raid will just disappear and move
his illegal operations somewhere else.
Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it may, there
was no "deposition in writing" attached to the records of the case in palpable disregard of the statutory prohibition
heretofore quoted.
49
 Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every man,
woman and child, and even the lowliest laborer who could hardly make both ends meet justifies her action. She claims
that in order to abate the proliferation of this illegal "masiao" lottery, she thought it more prudent not to conduct the
taking of deposition which is done usually and publicly in the court room.
Two points must be made clear. The term "depositions" is sometimes used in a broad sense to describe any
written statement verified by oath; but in its more technical and appropriate sense the meaning of the word is limited
to written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon
oral examination. 4 A deposition is the testimony of a witness, put or taken in writing, under oath or affirmation before
a commissioner, examiner or other judicial officer, in answer to interlocutory and cross interlocutory, and usually
subscribed by the witnesses. 5 The searching questions propounded to the applicants of the search warrant and his
witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers establish a
reasonable ground to believe the commission of a specific offense and that the applicant is one authorized by law,
and said answers particularly describe with certainty the place to be searched and the persons or things to be seized.
The examination or investigation which must be under oath may not be in public. It may even be held in the secrecy of
his chambers. Far more important is that the examination or investigation is not merely routinary but one that is
thorough and elicit the required information. To repeat, it must be under oath and must be in writing. LexLib
The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the legal
requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. vs. Herrera:
"It has been said that of all the rights of a citizen, few are of greater importance or more essential to his
peace and happiness than the right of personal security, and that involves the exemption of his private
affairs, books, and papers from inspection and scrutiny of others. While the power to search and seize
is necessary to the public welfare, still it must be exercised and the law enforced without transgressing
the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government." 6
Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and
the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the Constitution. 7 No presumption of regularity
are to be invoked in aid of the process when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro vs. Pabalan, 9 it was held that the illegality of the search warrant does not call for the return of the things
seized, the possession of which is prohibited.
WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to annul the
search warrant as well as the order of March 21, 1979 denying the motion for reconsideration are hereby reversed,
the search warrant, being declared herein as illegal. Notwithstanding such illegality, the things seized under such
warrant, such as stock of "masiao" tickets; "masiao" issue tickets; bet money; control pad or "masiao" numbers;
stamping pad with rubber stamp marked Ormoc City Jai-Alai," cannot be returned as sought by petitioner. No costs.
SO ORDERED.
|||  (Mata v. Bayona, G.R. No. 50720, [March 26, 1984], 213 PHIL 348-355)

THIRD DIVISION

[G.R. Nos. 76649-51. August 19, 1988.]

20TH CENTURY FOX FILM CORPORATION,  petitioner, vs. COURT OF APPEALS, EDUARDO M.

BARRETO, RAUL SAGULLO and FORTUNE LEDESMA, respondents.

DECISION

50
GUTIERREZ, JR.,J  p:

The petitioner questions the application of the constitutional provision against illegal searches and seizures to
raids conducted in connection with the government's anti-film piracy campaign. The main issue hinges on whether or
not the judge properly lifted the search warrants he issued earlier upon the application of the National Bureau of
Investigation on the basis of the complaint filed by the petitioner.
In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film Corporation through counsel
sought the National Bureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection
with the latter's anti-film piracy campaign. Specifically, the letter-complaint alleged that certain videotape outlets all
over Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in videotape form which
constitute a flagrant violation of Presidential Decree No. 49 (otherwise known as the Decree on the Protection of
Intellectual Property).
Acting on the letter-complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by
the petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the
private respondents. The applications were consolidated and heard by the Regional Trial Court of Makati, Branch
132. prLL
On September 4, 1985, the lower court issued the desired search warrants.
Armed with the search warrants, the NBI accompanied by the petitioner's agents, raided the video outlets and
seized the items described therein. An inventory of the items seized was made and left with the private respondents.
Acting on a motion to lift search warrants and release seized properties filed by the private respondents, the
lower court issued an order dated October 8, 1985, lifting the three (3) search warrants issued earlier against the
private respondents by the court. The dispositive portion of the order reads:
"WHEREFORE, the Court hereby orders that Search Warrants Nos. SW-85-024; issued
against Eduardo M. Barreto of the Junction Video, etc.,Parañaque, Metro Manila; SW No. 85-025,
issued against Raul M. Sagullo of South Video Bug Center, Inc.,etc.,also of No. 5355 Pres. Avenue BF
Homes, Parañaque, Metro Manila; and SW No. 85-026, issued against Fortune A. Ledesma of Sonix
Video Services of San Antonio Plaza, Forbes Park, Makati, Metro Manila, be lifted.
"Consequently, the articles listed in the returns of the three search warrants which could not be
a basis of any criminal prosecution, now in the possession of the National Bureau of Investigation which
under the law must be delivered to this Court, but which the NBI failed to do, are hereby ordered to be
returned to their owners through their lawyer, Atty. Benito Salazar or his agents or representatives,
against proper receipt, to be forwarded to this Court for record purposes, as proof that said properties
have been returned to the possession of the rightful owners." (p. 34, Rollo)
The lower court denied a motion for reconsideration filed by the petitioner in its order dated January 2,
1986. llcd
The petitioner filed a petition for certiorari with the Court of Appeals to annul the October 8, 1985 and January
2, 1986 orders of the lower court. The petition was dismissed.
Hence, this petition.
The main issue hinges on the meaning of "probable cause" within the context of the constitutional provision
against illegal searches and seizures (Section 3, Article IV, 1973 Constitution, now, Section 2, Article III, 1987
Constitution.
The petitioner maintains that the lower court issued the questioned search warrants after finding the existence
of a probable cause justifying their issuance. According to the petitioner, the lower  court arrived at this conclusion on
the basis of the depositions of applicant NBI's two witnesses which were taken through searching questions and
answers by the lower court.
Section 2, Article III of the present Constitution which substantially reproduces Section 3, Article IV of
the 1973 Constitution on illegal searches and seizures provides:
"The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized."

51
 This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty
as to his person, papers and effects. We have explained in the case of People  v. Burgos (144 SCRA 1)
citing Villanueva  v. Querubin (48 SCRA 345) why the right is so important:
"'It is deference to one's personality that lies at the core of this right but it could be also looked
upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily
thereto confined. (Cf. Hoffa v. United States, 385 US 293 [1966]) What is sought to be guarded is a
man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his
individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of
objects he wants around him. There the state, however powerful, does not as such have 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. Schmerber v. California,
384 US 757 [1966],Brennan, J. and Boyd v. United States, 116 630 [1886]).In the same vein, Landynski
in his authoritative work (Search and Seizure and the Supreme Court [1966]),could fitly characterize
constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home
and person and to afford its constitutional protection against the long reach of government is no less
than to value human dignity, and that his privacy must not be disturbed except in case of overriding
social need, and then only under stringent procedural safeguards.' (ibid, p. 74)."
The government's right to issue search warrants against a citizen's papers and effects is circumscribed by the
requirements mandated in the searches and seizures provision of the Constitution. llcd
In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800),we defined probable cause for a valid
search "as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with the offense are in the place sought to be
searched." This constitutional provision also demands "no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be justified" in order to convince the judge,
not the individual making the affidavit and seeking the issuance of the warrant, of the existence of a probable cause.
(Alvarez  v. Court of First Instance,64 Phil. 33; Burgos, Sr.  v. Chief of Staff, AFP,supra).
In the instant case, the lower court lifted the three questioned search warrants against the private
respondents on the ground that it acted on the application for the issuance of the said search warrants and granted it
on the misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular
film have been committed. Thus the lower court stated in its questioned order dated January 2, 1986:
"According to the movant, all three witnesses during the proceedings in the application for the
three search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI
stated that the counsel or representative of the Twentieth Century Fox Corporation will testify on the
video cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy.
The witness Bacani also said that the video cassettes were pirated without stating the manner it was
pirated and that it was Atty. Domingo that has knowledge of that fact.
"On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from
master tapes allegedly belonging to the Twentieth Century Fox, because, according to him, it is of his
personal knowledge.
"At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified
that when the complaint for infringement was brought to the NBI, the master tapes of the allegedly
pirated tapes were shown to him and he made comparisons of the tapes with those purchased by their
man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not
shown to the Court during the application gives some misgivings as to the truth of that bare statement
of the NBI agent on the witness stand.
"Again as the application and search proceedings is a prelude to the filing of criminal cases
under PD 49, the copyright infringement law, and although what is required for the issuance thereof is
merely the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a
time-honored precept that proceedings to put a man to task as an offender under our laws should be
interpreted in strictissimi juris against the government and liberally in favor of the alleged offender.
xxx xxx xxx
"This doctrine has never been overturned, and as a matter of fact it had been enshrined in the
Bill of Rights in our 1973 Constitution.
52
 "So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI
and were compared to the purchased and seized video tapes from the respondents' establishments, it
should be dismissed as not supported by competent evidence and for that matter the probable cause
hovers in that grey debatable twilight zone between black and white resolvable in favor of respondents
herein.
"But the glaring fact is that 'Cocoon,' the first video tape mentioned in the search warrant, was
not even duly registered or copyrighted in the Philippines. (Annex C of Opposition p. 152 record).So,
that lacking in the requisite presentation to the Court of an alleged master tape for purposes of
comparison with the purchased evidence of the video tapes allegedly pirated and those seized from
respondents, there was no way to determine whether there really was piracy, or copying of the film of
the complainant Twentieth Century Fox." (pp. 37-39, Rollo)
xxx xxx xxx
The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause
that the private respondents violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did
not have personal knowledge of the subject matter of their testimony which was the alleged commission of the offense
by the private respondents. Only the petitioner's counsel who was also a witness during the application for the
issuance of the search warrants stated that he had personal knowledge that the confiscated tapes owned by the
private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the
lower court did not give much credence to his testimony in view of the fact that the master tapes of the allegedly
pirated tapes were not shown to the court during the application.
All these factors were taken into consideration by the lower court when it lifted the three questioned search
warrants. There is no truth, therefore, to the petitioner's allegation that the lower  court based its January 2, 1986 order
only "on the fact that the original or master copies of the copyrighted films were not presented during the application
for search warrants, thus leading it to conclude that it had been "misled by the applicant and his witnesses." (p. 17,
Rollo)
The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly
copied, was necessary for the validity of search warrants against those who have in their possession the pirated films.
The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause
exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or
copied tapes were necessarily reproduced from master tapes that it owns.
The application for search warrants was directed against video tape outlets which allegedly were engaged in
the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial similarity of the purported
pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to
compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established
to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot
serve as basis for the issuance of a search warrant. LLphil
Furthermore, we note that the search warrants described the articles sought to be seized as follows:
xxx xxx xxx
"c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners, accessories,
equipments and other machines used or intended to be used in the unlawful reproduction, sale,
rental/lease, distribution of the above-mentioned video tapes which she is keeping and concealing in
the premises above-described." (p 26, Rollo)
 
In the case of Burgos  v. Chief of Staff, AFP supra, we stated:
xxx xxx xxx
"Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe the
articles sought to be seized in this wise:

53
 "'1] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets,
tables communications/recording equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the 'WE FORUM' newspaper and any related to the WE FORUM'
newspaper and any and all document/communications, letters and facsimile of prints related to the 'WE
FORUM' newspaper.
"'2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and
"'3] Motor vehicles used in the distribution/circulation of the `WE FORUM' and other subversive
materials and propaganda, more.
"1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
"'2] DATSUN pick-up colored white with Plate No. NKV 969;
"'3] A delivery truck with Plate No. NBS 542;
"'4] TOYOTA-TAMARAW, colored white with Plate No. NBS 542;
"'5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong
Silang.'
"In Stanford v. State of Texas (379 U.S. 476, 13 L ed 2nd 431),the search warrant which
authorized the search for 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures,
recordings and other written instruments concerning the Communist Parties of Texas, and the
operations of the Community Party in Texas,' was declared void by the U.S. Supreme Court for being
too general. In like manner, directions to 'seize any evidence in connection with the violation of SDC 13-
3703 or otherwise' have been held too general, and that portion of a search warrant which authorized
the seizure of any 'paraphernalia which could be used to violate Sec 54-197 of the Connecticut General
Statutes [the statute dealing with the crime of conspiracy]' was held to be a general warrant, and
therefore invalid (68 Am. Jur. 2d.,pp. 736-737).The description of the articles sought to be seized under
the search warrants in question cannot be characterized differently." (at pp. 814-815)
Undoubtedly, a similar conclusion can be deduced from the description of the articles sought to be
confiscated under the questioned search warrants.
Television sets, video cassette recorders, rewinders and tape cleaners are articles which can be found in a
video tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles
and appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of
intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or
particularity that they were really instruments in violating an Anti-Piracy law makes the search warrant too general
which could result in the confiscation of all items found in any video store. In fact, this actually happened in the instant
case. Thus, the lower court, in its questioned order dated October 8, 1985 said:
"Although the applications and warrants themselves covered certain articles of property usually
found in a video store, the Court believes that the search party should have confined themselves to
articles that are according to them, evidence constitutive of infringement of copyright laws or the piracy
of intellectual property, but not to other articles that are usually connected with, or related to, a
legitimate business, not involving piracy of intellectual property, or infringement of copyright laws. So
that a television set, a rewinder, and a whiteboard listing Betamax tapes, video cassette cleaners video
cassette recorders as reflected in the Returns of Search Warrants, are items of legitimate business
engaged in the video tape industry, and which could not be the subject of seizure. The applicant and his
agents therefore exceeded their authority in seizing perfectly legitimate personal property usually found
in a video cassette store or business establishment." (p. 33, Rollo)
All in all, we find no grave abuse of discretion on the part of the lower court when it lifted the search warrants
it earlier issued against the private respondents. We agree with the appellate court's findings to the effect that:
"An assiduous examination of the assailed orders reveal that the main ground upon which the
respondent Court anchored said orders was its subsequent findings that it was misled by the applicant
(NBI) and its witnesses 'that infringement of copyright or a piracy of a particular film have been
committed when it issued the questioned warrants.' Stated differently, the respondent Court merely
corrected its erroneous findings as to the existence of probable cause and declared the search and
54
 seizure to be unreasonable. Certainly, such action is within the power and authority of the
respondent Court to perform, provided that it is not exercised in an oppressive or arbitrary manner.
Indeed, the order of the respondent Court declaring the existence of probable cause is not final and
does not constitute res judicata.
"A careful review of the record of the case shows that the respondent Court did not commit a
grave abuse of discretion when it issued the questioned orders. Grave abuse of discretion 'implies such
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words,
where the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law.' But far from being despotic
or arbitrary, the assailed orders were motivated by a noble desire of rectifying an error, much so when
the erroneous findings collided with the constitutional rights of the private respondents. In fact, the
petitioner did not even contest the righteousness and legality of the questioned orders but instead
concentrated on the alleged denial of due process of law." (pp. 44-45, Rollo)
The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is
also an indication of the widespread breakdown of national order and discipline. Courts should not impose any
unnecessary roadblocks in the way of the anti-film piracy campaign. However, the campaign cannot ignore or violate
constitutional safeguards. To say that the problem of pirated films can be solved only by the use of unconstitutional
shortcuts is to denigrate the long history and experience behind the searches and seizures clause of the Bill of Rights.
The trial court did not commit reversible error. LLpr
WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of
Appeals are AFFIRMED.
SO ORDERED.
|||  (20th Century Fox Film Corp. v. Court of Appeals, G.R. Nos. 76649-51, [August 19, 1988], 247 PHIL 624-637)

EN BANC

[G.R. No. L-69803. October 8, 1985.]

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO,  petitioners, vs. HON.

ERNANI CRUZ PAÑO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P.
SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City; HON. SERGIO F.
APOSTOL, City Fiscal Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL.
JESUS ALTUNA,  respondents.

55
 DECISION

MELENCIO-HERRERA, J p:

The facts before the Court in these Certiorari, Prohibition, and Mandamus proceedings will be briefly stated.
The three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and
TOLENTINO. LLpr
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the
accused of Rebellion in Criminal Case No. SMC-1-1 before Special Military Commission No. 1, and also one of the
accused of Subversion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled
"People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security
Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation
of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously been
issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon
City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT,
however, respondents have alleged that the search was conducted "late on the same day"; that is late on August 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant
from respondent Hon. Ernani Cruz Paño, Executive Judge of the Regional Trial Court in Quezon City, to be served at
No. 239-B Mayon Street, Quezon City, determined to be the leased residence of AGUILAR-ROQUE, after almost a
month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA."
AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of the
Philippines, particularly connected with the MV Karagatan/Doña Andrea cases.
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque,
Accused, Search Warrant No. 80-84 for Rebellion" (the SEARCH WARRANT CASE). Judge Paño's Court was
Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by Lt. Col.
Saldajeno to Judge Paño.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under
oath by Judge Paño, but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his
personal knowledge, there were kept in the premises to be searched records, documents and other papers of the
CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be
used for rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th, the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party
presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter,
and 2 wooden boxes, making 431 items in all. 3
(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was
made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention
was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was
signed by the two Barangay Tanods, but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged
before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against
petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion.
"(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal
Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon
City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.

56
 (c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-
ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE
praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, "in connection with cases
that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court." 5
(b) On September 28th, petitioners were required by Judge Paño to comment on the Amended Return, which
AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to
the Search Warrant.
(c) On December 13, 1984, Judge Paño admitted the Amended Return and ruled that the seized documents
"shall be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE,
praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under
the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity
of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the
Order of Judge Paño of December 13th issued in the SEARCH WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and Mandamus to annul and set aside the (1) Search Warrant
issued by respondent RTC Judge Paño; (2) his Order admitting the Amended Return and granting the Motion to
Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their
duly authorized representatives from introducing evidence obtained under the Search Warrant. prcd
The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it
does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause
has not been properly established for lack of searching questions propounded to the applicant's witness. The
respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be
entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with
the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees 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. It
also specifically provides that no Search Warrant 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
things to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
"Documents, papers and other records of the Communist Party of the Philippines/New Peoples
Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these
groups, Programs, List of possible supporters, subversive books and instructions, manuals not
otherwise available to the public, and support money from foreign or local sources."
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely
described and not particularized. It is an all-embracing description which includes everything conceivable regarding
the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive
books and instructions are; what the manuals not otherwise available to the public contain to make them subversive
or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to
what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should
seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general
warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the
recent rulings of this Court, search warrants of similar description were considered null and void for being too general.
Thus:
"Subversive documents, pamphlets, leaflets, books, and other publications to promote the
objectives and purposes of the subversive organizations known as Movement for Free Philippines.
Light-a-Fire Movement and April 6 Movement." 6

57
 "The things to be seized under the warrant issued by respondent judge were described as
`subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive
materials.' Such description hardly provided a definite guideline to the search team as to what articles
might be lawfully seized thereunder. Said description is no different from if not worse than, the
description found in the search warrants in `Burgos, et al. v. the Chief of Staff' which this Court declared
null and void for being too general." 7
"In the case at bar, the search warrant issued by respondent judge allowed the seizure of
printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper
dummies, subversive documents, articles, etc., and even typewriters, duplicating machines,
mimeographing and tape recording machines. Thus, the language used is so all embracing as to
include all conceivable records and equipment of petitioner regardless of whether they are legal or
illegal. The search warrant under consideration was in the nature of a general warrant which is
constitutionally objectionable." 8
The lack of particularization is also evident in the examination of the witness presented by the applicant for
Search Warrant.
"Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio
Saldajeno, and the Court would like to know if you affirm the truth of your answer in this
deposition?
 (The deposition is read) —
A Yes, sir.
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the application for search warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila Aguilar-Roque?
A Because of our day and night surveillance, Your Honor, there were so many suspicious
persons with documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines and New People's Army.
Q What else?
A Conferences of the top ranking officials from the National Democratic Front, Organization of
the Communist Party of the Philippines . . .
Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of these groups,
Programs, List of possible supporters, subversive books and instructions, manuals not
otherwise available to the public and support money from foreign and local sources." 9
The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not
sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search
warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in
pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to identity. The 3rd and 5th are leading not
searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is identical to
that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in
nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not
satisfy the requirements of probable cause upon which a warrant may issue, 11
Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with
the Court that issued it instead of this original, independent action to quash. The records show, however, that
petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact,
they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest
investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on
December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore,
while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant.
Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the
SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of
justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a
58
 criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the
SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal
case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should
have the right to act on petitions to exclude evidence unlawfully obtained. LexLib
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized
under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-
ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly
provides:
"Section 12. Search without warrant of person arrested. — 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."
The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a
person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where
the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness
of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of
general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises
which may be searched". 12 "What must be considered is the balancing of the individual's right to privacy and the
public's interest in the prevention of crime and the apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order;
that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the
general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are of
the opinion that, in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant;
this, for possible effective results in the interest of public order.
Such being the case, the personalities seized may be retained by CSG, for possible introduction as evidence
in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military
Commission No. 1 to return to her any all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge
Ernani Cruz Paño is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents from
introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby made
permanent, the personalities seized may be retained by the Constabulary Security Group for possible introduction as
evidence in Criminal Case No. SMC-1-l, pending before Special Military Commission No. 1, without prejudice to
petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all
irrelevant documents and articles.
SO ORDERED.
|||  (Nolasco v. Paño, G.R. No. L-69803, [October 8, 1985], 223 PHIL 363-383)

EN BANC

[G.R. No. 91107. June 19, 1991.]

THE PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. MIKAEL MALMSTEDT, * defendant-

appellant.

DECISION

59
PADILLA, J p:

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

60
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. LibLex
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 II 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 425,
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. LLphil
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
61
 
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.
|||  (People v. Malmstedt, G.R. No. 91107, [June 19, 1991], 275 PHIL 447-472)

THIRD DIVISION

[G.R. No. 96177. January 27, 1993.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. MARI MUSA y HANTATALU, accused-

appellant.

DECISION

ROMERO, J  p:
62
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: LLjur
 
"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-1'). 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

63
 turned over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from
Mari Musa (Exhs. 'C' & 'D'). LexLib
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. 'E-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. cdll
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
64
 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. cdll
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. Ale  20 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

65
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: 2 2
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,
1939; 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. cdll
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

66
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:
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.
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 and 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. LLjur
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. California, 42 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
67
 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  v.
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 transparency, 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. cdrep
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.
|||  (People v. Musa y Hantatalu, G.R. No. 96177, [January 27, 1993], 291 PHIL 623-642)

U.S. Supreme Court

Terry v. Ohio, 392 U.S. 1 (1968)

Terry v. Ohio

68
No. 67

Argued December 12, 1967

Decided June 10, 1968

392 U.S. 1

CERTIORARI TO THE SUPREME COURT OF OHIO

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street
between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to
three years in the penitentiary. [Footnote 1] Following the denial of a pretrial motion to suppress, the prosecution
introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton,
[Footnote 2] by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence,
Officer McFadden testified that, while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in
the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of
Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first
drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35, and that he
had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained
that he had developed routine habits of observation over the years, and that he would "stand and watch people or walk
and watch people at many intervals of the day." He added: "Now, in this case, when I looked over, they didn't look right to
me at the time."

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from
the two men. "I get more purpose to watch them when I seen their movements," he testified. He saw one of the men leave
the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store
window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look
in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man
went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short
distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two
men repeated this ritual alternately between five and six times apiece -- in all, roughly a dozen trips. At one point, while
the two were standing together on the corner, a third man approached them and engaged them briefly in conversation.
This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing,
peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on
Euclid Avenue, following the path taken earlier by the third man.

By this time, Officer McFadden had become thoroughly suspicious. He testified that, after observing their elaborately
casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of "casing a job,
a stick-up," and that he considered it his duty as a police officer to investigate further. He added that he feared "they may
have a gun." Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the
same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action,
Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point,
his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by
sight, and he had received no information concerning them from any other source. When the men "mumbled something"
in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the
other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast
pocket of Terry's overcoat, Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to
remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter
Zucker's store. As they went in, he removed Terry's overcoat completely, removed a .38 caliber revolver from the pocket
and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer
clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but
no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons,
and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as
69
appears from the record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized Chilton's
gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry
were formally charged with carrying concealed weapons.

On the motion to suppress the guns, the prosecution took the position that they had been seized following a search
incident to a lawful arrest. The trial court rejected this theory, stating that it "would be stretching the facts beyond
reasonable comprehension" to find that Officer McFadden had had probable cause to arrest the men before he patted
them down for weapons. However, the court denied the defendants' motion on the ground that Officer McFadden, on the
basis of his experience, "had reasonable cause to believe . . . that the defendants were conducting themselves
suspiciously, and some interrogation should be made of their action." Purely for his own protection, the court held, the
officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed.
The court distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer clothing for
weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the
officer's investigatory duties, for, without it, "the answer to the police officer may be a bullet, and a loaded pistol
discovered during the frisk is admissible."

After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court
adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry,
5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no
"substantial constitutional question" was involved. We granted certiorari, 387 U.S. 929 (1967), to determine whether the
admission of the revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the
States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We affirm the conviction.

The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated. . . ." This inestimable right of personal security belongs
as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret
affairs. For as this Court has always recognized,

"No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the
possession and control of his own person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U. S. 250, 251 (1891).

We have recently held that "the Fourth Amendment protects people, not places," Katz v. United States, 389 U. S. 347,
351 (1967), and wherever an individual may harbor a reasonable "expectation of privacy," id. at 361 (MR. JUSTICE
HARLAN, concurring), he is entitled to be free from unreasonable governmental intrusion. Of course, the specific content
and incidents of this right must be shaped by the context in which it is asserted. For "what the Constitution forbids is not all
searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U. S. 206, 222 (1960).
Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he walked down the street in
Cleveland.  The question is whether, in all the circumstances of this on-the-street encounter, his right to personal security
was violated by an unreasonable search and seizure.

We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome
issues regarding a sensitive area of police activity -- issues which have never before been squarely presented to this
Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both
sides of the public debate over the power of the police to "stop and frisk" -- as it is sometimes euphemistically termed --
suspicious persons.

On the one hand, it is frequently argued that, in dealing with the rapidly unfolding and often dangerous situations on city
streets, the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information
they possess. For this purpose, it is urged that distinctions should be made between a "stop" and an "arrest" (or a
"seizure" of a person), and between a "frisk" and a "search." [Footnote 3] Thus, it is argued, the police should be allowed
to "stop" a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity.
Upon suspicion that the person may be armed, the police should have the power to "frisk" him for weapons. If the "stop"
and the "frisk" give rise to probable cause to believe that the suspect has committed a crime, then the police should be
empowered to make a formal "arrest," and a full incident "search" of the person. This scheme is justified in part upon the
notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity," [ Footnote 4] which can
70
properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer's
suspicion. [Footnote 5]

On the other side, the argument is made that the authority of the police must be strictly circumscribed by the law of arrest
and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. [ Footnote 6] It is
contended with some force that there is not -- and cannot be -- a variety of police activity which does not depend solely
upon the voluntary cooperation of the citizen, and yet which stops short of an arrest based upon probable cause to make
such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for
any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce
upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent in
the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed
an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is
necessarily colored by their primary involvement in "the often competitive enterprise of ferreting out crime." Johnson v.
United States, 333 U. S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the
crowded centers of our Nation's cities. [Footnote 7]

In this context, we approach the issues in this case mindful of the limitations of the judicial function in controlling the
myriad daily situations in which policemen and citizens confront each other on the street. The State has characterized the
issue here as "the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known
in street vernacular as 'stop and frisk'). [Footnote 8]" But this is only partly accurate. For the issue is not the abstract
propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and
seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been
recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U. S. 383, 391-
393 (1914). Thus, its major thrust is a deterrent one, see Linkletter v. Walker, 381 U. S. 618, 629-635 (1965), and
experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that, without it,
the constitutional guarantee against unreasonable searches and seizures would be a mere "form of words."  Mapp v.
Ohio, 367 U. S. 643, 655 (1961). The rule also serves another vital function -- "the imperative of judicial integrity." Elkins
v. United States, 364 U. S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to
lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such
invasions. Thus, in our system, evidentiary rulings provide the context in which the judicial process of inclusion and
exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state
agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct
which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.

The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the
products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves
unwarranted intrusions upon constitutional protections. Moreover, in some contexts, the rule is ineffective as a deterrent.
Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly
exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or
injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough
manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are
initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for
crime. [Footnote 9] Doubtless some police "field interrogation" conduct violates the Fourth Amendment. But a stern refusal
by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of
how effective the rule may be where obtaining convictions is an important objective of the police, [ Footnote 10] it is
powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting
or are willing to forgo successful prosecution in the interest of serving some other goal.

Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations.
The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes,
frequently complain, [Footnote 11] will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid
and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively
to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can
comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing
we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our
decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing,
or which trenches upon personal security without the objective evidentiary justification which the Constitution requires.
When such conduct is identified, it must be condemned by the judiciary, and its fruits must be excluded from evidence in
criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of
71
ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to
curtail abuses for which that sanction may prove inappropriate.

Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in
general and the background against which this case presents itself, we turn our attention to the quite narrow question
posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a
limited search for weapons unless there is probable cause for an arrest.

Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the
scope of a policeman's power when he confronts a citizen without probable cause to arrest him.

II

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must
decide whether and when Officer McFadden "seized" Terry, and whether and when he conducted a "search." There is
some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the purview of the
Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the
Constitution. [Footnote 12] We emphatically reject this notion. It is quite plain that the Fourth Amendment governs
"seizures" of the person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in
traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his
freedom to walk away, he has "seized" that person. And it is nothing less than sheer torture of the English language to
suggest that a careful exploration of the outer surfaces of a person's clothing all over his or her body in an attempt to find
weapons is not a "search." Moreover, it is simply fantastic to urge that such a procedure performed in public by a
policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a "petty indignity." [ Footnote
13] It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,
and it is not to be undertaken lightly. [Footnote 14]

The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person, and
between a "frisk" and a "search," is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact
between the policeman and the citizen. And, by suggesting a rigid all-or-nothing model of justification and regulation under
the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of
constitutional regulation. [Footnote 15] This Court has held, in the past that a search which is reasonable at its inception
may violate the Fourth Amendment by virtue of its intolerable intensity and scope. The scope of the search must be
"strictly tied to and justified by" the circumstances which rendered its initiation permissible. 

The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central inquiry under the Fourth
Amendment -- the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal
security. "Search" and "seizure" are not talismans. We therefore reject the notions that the Fourth Amendment does not
come into play at all as a limitation upon police conduct if the officers stop short of something called a "technical arrest" or
a "full-blown search."

In this case, there can be no question, then, that Officer McFadden "seized" petitioner and subjected him to a "search"
when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether, at that point, it was
reasonable for Officer McFadden to have interfered with petitioner's personal security as he did. [ Footnote 16] And, in
determining whether the seizure and search were "unreasonable," our inquiry is a dual one -- whether the officer's action
was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the
interference in the first place.

III

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain
whether "probable cause" existed to justify the search and seizure which took place. However, that is not the case. We do
not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and
seizures through the warrant procedure, or that, in most instances, failure to comply with the warrant requirement can only
be excused by exigent circumstances, see, e.g., Warden v. Hayden, 387 U. S. 294 (1967) (hot pursuit); cf. Preston v.
United States, 376 U. S. 364, 367-368 (1964). But we deal here with an entire rubric of police conduct -- necessarily swift
action predicated upon the on-the-spot observations of the officer on the beat -- which historically has not been, and, as a

72
practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be
tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. [Footnote 17]

Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully
relevant in this context. In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it
is necessary "first to focus upon the governmental interest which allegedly justifies official intrusion upon the
constitutionally protected interests of the private citizen," for there is "no ready test for determining reasonableness other
than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails."  Camara v.
Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). And, in justifying the particular intrusion, the police officer must
be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion. [Footnote 18] The scheme of the Fourth Amendment becomes meaningful only when it is assured
that, at some point, the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral
scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular
circumstances. [Footnote 19] And, in making that assessment, it is imperative that the facts be judged against an
objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of
reasonable caution in the belief" that the action taken was appropriate? Anything less would invite intrusions upon
constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has
consistently refused to sanction.  And simple "'good faith on the part of the arresting officer is not enough.' . . . If subjective
good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be
'secure in their persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio, supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One
general interest is, of course, that of effective crime prevention and detection; it is this interest which underlies the
recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this
legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his
companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in
itself, but which, taken together, warranted further investigation. There is nothing unusual in two men standing together on
a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances
strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is
quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it
becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical
route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed
immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a
third man who leaves swiftly, and where the two men finally follow the third and rejoin him a couple of blocks away. It
would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in
this same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's
suspicious behavior, but, rather, whether there was justification for McFadden's invasion of Terry's personal security by
searching him for weapons in the course of that investigation. We are now concerned with more than the governmental
interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to
assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be
used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the
performance of their duties. American criminals have a long tradition of armed violence, and every year in this country
many law enforcement officers are killed in the line of duty, and thousands more are wounded.

Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. [Footnote 21]

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other
prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified
in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is, in fact, carrying a weapon and to neutralize the threat of
physical harm.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if
police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is

73
lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon
cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the
possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However,
this argument must be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances
until such time as he has probable cause to make an arrest; nor does he deny that police officers, in properly discharging
their investigative function, may find themselves confronting persons who might well be armed and dangerous. Moreover,
he does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is
unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable
cause to make an arrest. When that point has been reached, petitioner would concede the officer's right to conduct a
search of the suspect for weapons, fruits or instrumentalities of the crime, or "mere" evidence, incident to the arrest.

There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional limitations upon
the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to
an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to
protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U. S. 364, 367 (1964), is
also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search
for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by
the exigencies which justify its initiation. Thus, it must be limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a
"full" search, even though it remains a serious intrusion.

A second, and related, objection to petitioner's argument is that it assumes that the law of arrest has already worked out
the balance between the particular interests involved here -- the neutralization of danger to the policeman in the
investigative circumstance and the sanctity of the individual. But this is not so. An arrest is a wholly different kind of
intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are
likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in
having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement,
whether or not trial or conviction ultimately follows. [Footnote 22] The protective search for weapons, on the other hand,
constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that,
because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the
person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making
any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the
officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a
crime. Petitioner's reliance on cases which have worked out standards of reasonableness with regard to "seizures"
constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated
and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis
of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court,
supra.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a
narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has
reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause
to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others
was in danger.  And in determining whether the officer acted reasonably in such circumstances, due weight must be given
not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled
to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

IV

We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of
petitioner were reasonable, both at their inception and as conducted. He had observed Terry, together with Chilton and
another man, acting in a manner he took to be preface to a "stick-up." We think, on the facts and circumstances Officer
McFadden detailed before the trial judge, a reasonably prudent man would have been warranted in believing petitioner
was armed, and thus presented a threat to the officer's safety while he was investigating his suspicious behavior. The

74
actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a daylight
robbery -- which, it is reasonable to assume, would be likely to involve the use of weapons -- and nothing in their conduct
from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him
sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to
indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the
three men gathered before the display window at Zucker's store, he had observed enough to make it quite reasonable to
fear that they were armed, and nothing in their response to his hailing them, identifying himself as a police officer, and
asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat
his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in the course of an investigation, had to make a
quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they
were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as
by imposing preconditions upon its initiation. Compare Katz v. United States, 389 U. S. 347, 354-356 (1967). The entire
deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption
that "limitations upon the fruit to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914
(C.A.2d Cir.1930); see, e.g., Linkletter v. Walker, 381 U. S. 618, 629-635 (1965); Mapp v. Ohio, 367 U. S.
643 (1961); Elkins v. United States, 364 U. S. 206, 216-221 (1960). Thus, evidence may not be introduced if it was
discovered by means of a seizure and search which were not reasonably related in scope to the justification for their
initiation. 

We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a
protective seizure and search for weapons. These limitations will have to be developed in the concrete factual
circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to note that such a
search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the
disappearance or destruction of evidence of crime. See Preston v. United States, 376 U. S. 364, 367 (1964). The sole
justification of the search in the present situation is the protection of the police officer and others nearby, and it must
therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted
down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the
outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He
never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which
might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn
whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general
exploratory search for whatever evidence of criminal activity he might find.

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized
petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed
and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true
facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was
appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be
decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is
dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself
as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel
his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him.

Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be
introduced in evidence against the person from whom they were taken. Affirmed.

75
 SECOND DIVISION

[G.R. No. 119220. September 20, 1996.]

THE PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. NILO  SOLAYAO, accused-appellant.

DECISION

ROMERO,  J p:

Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with
the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866.
The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock in the evening of July 9,
1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran,
Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on
the presence of armed persons roaming around the barangays of Caibiran. 2
From Barangay Caulangohan, the team of Police Officer Niño proceeded to Barangay Onion where they met
the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that
the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-
appellant's companions, upon seeing the government agents, fled. 3
Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after which he
seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade
firearm locally known as "latong." When he asked accused-appellant who issued him a license to carry said firearm or
whether he was connected with the military or any intelligence group, the latter answered that he had no permission to
possess the same. Thereupon, SPO3 Niño confiscated the firearm and turned him over to the custody of the
policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4
Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was
only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He
claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using
the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been
used up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from
Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6
On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under
Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging from reclusion
temporalmaximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance
of nighttime, sentenced accused-appellant to suffer the prison term of reclusion perpetua with the accessory penalties
provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Niño confiscated the firearm
from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's
submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he
followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he
earlier claimed that he did not know his companions. 8
Accused-appellant comes to this Court on appeal and assigns the following errors:
"I. The trial court erred in admitting in evidence the homemade firearm.
II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the
maximum penalty against the accused-appellant." 9
This Court, in the case of People v.  Lualhati 10 ruled that in crimes involving illegal possession of firearm, the
prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact
that the accused who owned or possessed it does not have the corresponding license or permit to possess the same.
In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm
in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his
76
 person violated his constitutional right to be secure in his person and effects against unreasonable searches and
seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances
enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia:
"A peace officer or a private person may, without a warrant, arrest a person when in his
presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense."
Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for
being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant
acquitted.
Accused-appellant's arguments follow the line of reasoning in People  v. Cuizon, et al. 12 where this Court
declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in
order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must
precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on
evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law."
Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardly tenable.
He and his companions' drunken actuations aroused the suspicion of SPO3 Niño's group, as well as the fact that he
himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his
companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports
that armed persons were roaming around the barangays of Caibiran. 14
The circumstances in this case are similar to those obtaining in Posadas v.  Court of Appeals 15 where this
Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted
to flee, they did not know that he had committed, or was actually committing the offense of illegal possession of
firearm and ammunitions. They just suspected that he was hiding something in the buri bag. They did not know what
its contents were. The said circumstances did not justify an arrest without a warrant."
This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to
conduct a search even before an arrest could be made.
In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified himself as
a government agent. 16 The peace officers did not know that he had committed, or was actually committing, the
offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the
barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their
suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was
carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without
first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled
upon seeing the government agents. Under the circumstances, the government agents could not possibly have
procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor
was there error on the part of the trial court when it admitted the homemade firearm as evidence.
As to the question of whether or not the prosecution was able to prove the second element, that is, the
absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General
which pointed out that the prosecution failed to prove that accused-appellant lacked the necessary permit or license to
possess the subject firearm. 17
Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution.
The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession
of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond
reasonable doubt. 18
In People  v. Tiozon, 19 this Court said:
"It is true that People  vs. Lubo, 101 Phil. 179 and People  vs. Ramos, 8 SCRA 758 could be
invoked to support the view that it is incumbent upon a person charged with illegal possession of a
firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered
opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in
criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative
fact alleged by the prosecution must be proven if 'it is an essential ingredient of the offense charged,'
77
 the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in
committing the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an essential ingredient of the
offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No.
3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no 'license or permit to
possess' the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty
not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated
cases. In U.S.  vs. Tria, 17 Phil. 303, the accused was charged with 'having criminally inscribed himself
as a voter knowing that he had none of the qualifications required to be a voter. It was there held that
the negative fact of lack of qualification to be a voter was an essential element of the crime charged and
should be proved by the prosecution. In another case (People vs.  Quebral, 68 Phil. 564) where the
accused was charged with illegal practice of medicine because he had diagnosed, treated and
prescribed for certain diseases suffered by certain patients from whom he received monetary
compensation, without having previously obtained the proper certificate of registration from the Board of
Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the
subject of the negative averment like, for instance, the act of voting without the qualifications provided
by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the
same, although in view of the difficulty of proving a negative allegation, the prosecution, under such
circumstance, need only establish a prima facie case from the best evidence obtainable. In the case
before Us, both appellant and the Solicitor General agree that there was not even aprima facie case
upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moran
upholds this view as follows:
'The mere fact that the adverse party has the control of the better means of proof of the
fact alleged, should not relieve the party making the averment of the burden of proving it. This
is so, because a party who alleges a fact must be assumed to have acquired some knowledge
thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a
license. How could the prosecution aver the want of a license if it had acquired no knowledge of
that fact? Accordingly, although proof of the existence or non-existence of such license can,
with more facility, be adduced by the defendant, it is nevertheless, incumbent upon the party
alleging the want of the license to prove the allegation. Naturally, as the subject matter of the
averment is one which lies peculiarly within the control or knowledge of the accused  prima
facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him.' (6
Moran, Comments on the Rules of Court, 1963 edition, p. 8)."
Finally, the precedents cited above have been crystallized as the present governing case law on this question. As
this Court summed up the doctrine in People  v. Macagaling: 20
"We cannot see how the rule can be otherwise since it is the inescapable duty of the
prosecution to prove all the ingredients of the offense as alleged against the accused in an information,
which allegations must perforce include any negative element provided by the law to integrate that
offense. We have reiterated quite recently the fundamental mandate that since the prosecution must
allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence
all the elements it has thus alleged."
In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant
admitted before Police Officer Niño at the time that he was accosted that he did not have any authority or license to carry
the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused-appellant's
admission to prove the second element.
Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of
firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is
whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond
reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime
charged.
This Court answers both questions in the negative. By its very nature, an "admission is the mere
acknowledgment of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker,
but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts
pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of

78
 itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in
criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged.
Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of
the Revised Rules of Court which states:
"An admission, verbal or written, made by a party in the course of the trial or other proceedings
in the same case does not require proof."
Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable doubt the
second element of illegal possession of firearm. It does not even establish a  prima facie case. It merely bolsters the case
for the prosecution but does not stand as proof of the fact of absence or lack of a license.
This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish
the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being
able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not
lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to
establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from
the government agency concerned." 24
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each party, then the
burden of proof is upon the party averring the negative." 25
In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that
accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to
prove beyond reasonable doubt the second element of the crime of illegal possession of firearm.
In view of the foregoing, this Court sees no need to discuss the second assigned error.
WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant
Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are
other legal grounds for his continued detention, with costs de oficio.
SO ORDERED.
|||  (People v. Solayao, G.R. No. 119220, [September 20, 1996], 330 PHIL 811-824)

79
 EN BANC

[G.R. No. 123595. December 12, 1997.]

SAMMY MALACAT y MANDAR,  petitioner, vs.  COURT  OF APPEALS, and PEOPLE OF  THE

PHILIPPINES,  respondents.

DECISION

DAVIDE, JR., J  p:

In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional
Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section
3 of Presidential Decree No. 1866, 2 as follows: LLjur
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first
securing the necessary license and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de officio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant  of arrest at the time
they arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the
arresting officer; Josefino C. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported
seven days earlier, he was on foot patrol with three other police officers (all  of them in uniform) along Quezon Boulevard,
Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men,
with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the
Mercury Drug Store. These men were acting suspiciously with "[t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen
gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade
tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan
from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where
Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims
was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous
Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The
attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were
unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the
corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since
they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the
grenade he allegedly recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan
were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects,
80
informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite
Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance  of a
lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein
petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking
sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division
(ISAD) of the Explosive Ordinance Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in
evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the
examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt.
Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the
subject grenade detailing his name, the date and time he received the specimen. During the preliminary
examination of the grenade, he "found that [the] major components consisting of [a] high filler and fuse assembly [were] all
present," and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification
stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the
Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a
breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched
petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to
and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot
wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the
muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me."
Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police
officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on
him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was akin to a "stop and frisk," where a
"warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to
maintain the status quo momentarily while the police officer seeks to obtain more information." 15 Probable cause was
not required as it was not certain that a crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions
were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the
destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting
suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away
in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited
search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his
investigation without fear of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since
petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose  of bombing the Mercury Drug
Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to
suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and
issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE
PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST."

81
 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT
THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN
UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence  of any of the conditions provided
for in Section 5 of Rule 113 of the Rules of Court, citing People  vs. Mengote. 23 As such, the search was illegal, and the
hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its
decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner
abandoned his original theory before the court a quo  that the grenade was "planted" by the police officers; and second,
the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue.
Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner.
Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable
cause for the arrest as petitioner was "attempting to commit an offense," thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the
company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time
when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not
attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for
being a favorite bomb site especially during times of political upheaval. As the mere possession of an
unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution
witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner
two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the
"accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the
grenade, and kill several innocent persons while maiming numerous others, before arriving at what
would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We
are in agreement with the lower court in saying that the probable cause in such a situation should not
be the kind of proof necessary to convict, but rather the practical considerations of everyday life on
which a reasonable and prudent mind, and not legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People  v. Mengote, 26 which petitioner relied upon,
was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the
corner of a busy street [would] be in possession of a prohibited article. Here the police officers were
responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis,
and, after receiving intelligence reports about a bomb threat aimed at the vicinity  of the historically
notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious
movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that
the person arrested has committed, is actually committing, or is attempting to commit an offense. Here,
PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before
he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT
THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING
IN  PEOPLE VS.  MENGOTE  DOES NOT FIND APPLICATION IN THE INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity  of the warrantless arrest
and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the
evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon
Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally,
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petitioner points out the factual similarities between his case and that of People v.  Mengote to demonstrate that
the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades
is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should
have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and
Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the
Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua  in view of Section
5(2) of Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the
trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider
the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the
comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as
their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish
petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned
it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to
corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred
to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but
nearly seven (7) months later or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received
was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to
Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade
examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly,
the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to
detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering
that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then
unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that
Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner's
eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by
police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the presence of counsel.
xxx xxx xxx

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 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present
and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if
petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it
was not in writing, neither was it executed in the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were
invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the
same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected
without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found
in Section 5, Rule 113 of the Rules of Court, which reads, in part:
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 . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in
flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2)
search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a
lawful arrest; 34 and (6) a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the
grenade from the accused [as] an appropriate incident to his arrest," hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to
a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may
be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a
pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a search can
be made — the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the
person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize
any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may
be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto  or hot pursuit arrest preceding the search in light of the
lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner,
indicating that a crime had just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner
could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective
search of outer clothing for weapons," as laid down in Terry; thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous, where in the course  of investigating
this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing
in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he

84
 is entitled for the protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"  40 it
nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in
light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has
weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without
probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly
and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to
bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by
any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise
diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the
credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being
apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere
suspicion other than that his eyes were "moving very fast" — an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared
on cross-examination: cdrep
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming
that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were not yet aware that a handgrenade
was tucked inside his waistline. They did not see any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2
and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No.
15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the
decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner
SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his
further detention is justified for any other lawful cause.
SO ORDERED.
|||  (Malacat y Mandar v. Court of Appeals, G.R. No. 123595, [December 12, 1997], 347 PHIL 462-492)

85
 EN BANC

[G.R. No. L-27360. February 28, 1968.]

HON. RICARDO G. PAPA, as Chief of Police of Manila, HON. JUAN PONCE ENRILE, as
Commissioner of Customs, PEDRO PACIS, as Collector of Customs of the Port of Manila, and
MARTIN ALAGAO, as Patrolman of the Manila Police-
Department, petitioners, vs. REMEDIOS MAGO and HON. HILARION U. JARENCIO, as Presiding
Judge of Branch 23, Court of First Instance of Manila, respondents.

DECISION

ZALDIVAR, J p:

This is an original action for prohibition and certiorari, with preliminary injunction, filed by Ricardo Papa, Chief
of Police of Manila; Juan Ponce Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of
Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion
Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order
issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7,
1967, which authorized the release under bond of certain goods which were seized and held by petitioners in
connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent
Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil
Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining
the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496
and from proceeding with said case.
Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a
reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly
misdeclared and undervalued, would be released the following day from the customs zone of the port of Manila and
loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized
agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate
No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the
trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks, consisting of nine bales
of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed
ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected on Informal
Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit.
Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo,
Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with
restraining order or preliminary injunction," docketed as Civil Case No. 67496, alleging, among others, that
Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San
Fernando, Pampanga; that she hired the trucks owned by Valentin B. Lanopa to transport the goods from said place
to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila
Police Department without search warrant issued by a competent court; that Manila Chief of Police
Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods
contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned
appraisers to examine the goods because the goods were no longer under the control and supervision of the
Commissioner of Customs; that the goods, even assuming them to have been misdeclared and undervalued, were
not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them
from another person without knowledge that they were imported illegally; that the bales had not yet been opened,
although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the
goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable
injury. Hence Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining
86
the above-named police and customs authorities, or their agents, from opening the bales and examining the goods,
and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and
exemplary damages in their favor.
On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the
respondents in Civil Case No. 67496 — now petitioners in the instant case before this Court — from opening the nine
bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16,
1966. However, when the restraining order was received by herein petitioners, some bales had already been opened
by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant
city fiscal and a representative of herein respondent Remedios Mago.
Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496,
including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the
Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with
Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and
detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to
wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive
jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated
no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in
the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full
duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to
make the seizure; that the seizure was not unreasonable; and that the persons deputized under Section 2203 (c) of
the Tariff and Customs Code could effect searches, seizures and arrests in inland places in connection with the
enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred
in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main
reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the  Tariff and
Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and
Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the
restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower court, with the conformity of the parties, ordered that an
inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the
goods, the Bureau of Customs, and the Anti- Smuggling Center of the Manila Police Department. On December 13,
1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales.
Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods,
alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same
should be released as per agreement of the parties upon her posting of the appropriate bond that may be determined
by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order
the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods,
as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was
filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the
goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions
affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the
Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes
and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent
Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent
Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed
the corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of
the order of the court releasing the goods under bond, upon the ground that the Manila Police Department had been
directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure
proceedings.
Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain,
speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition
and certiorari with preliminary injunction before this Court. In their petition petitioners allege, among others, that the
respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed
goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no
jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court
87
of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial
intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agents in not collecting
the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient.
In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their
answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by
respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967,
because said Civil Case No. 67496 was instituted long before seizure and identification proceedings against the nine
bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the
goods in question after the corresponding duties and taxes had been paid and said goods had left the customs
premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios  Mago is a
purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture
proceedings; (4) that the seizure of the goods was effected by members of the Manila Police Department at a place
outside the control and jurisdiction of the Bureau of Customs and effected without any search warrant or a warrant of
seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs
is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the
goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute
the present action because they had agreed before the respondent Judge that they would not interpose any objection
to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and
(8) that the bond for the release of the goods was sufficient.
The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in
issuing the order of March 7, 1967 releasing the goods in question.
The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all
lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the  tariff
and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce  tariff
and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts
of Duties Collected on Informal Entry." 2 As long as the importation has not been terminated the imported goods
remain under the jurisdiction of the Bureau of Customs. Importation is deemed terminated only upon the payment of
the duties, taxes and other charges upon the articles, or secured to be paid, at the port of entry and the legal permit
for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4
The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of
Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated
that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as
evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not
been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the
"Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in
the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to
avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states
that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states
that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100
pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's
metal watch bands (white) and 120 dozens of men's metal watch bands (gold color), and in bale No. 7, 320 dozens of
men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex
H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale
No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in
question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the  Tariff and
Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8
 
Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the
Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the
Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders
of their Chief, Ricardo G. Papa, who had been formally deputized by the Commissioner of Customs, 9 the Bureau of
Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes
upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other
charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in
question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for
mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9,
88
1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the
warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet
been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G. R. No. L-24037, decided
by this Court on April 27, 1967, is squarely applicable to the instant case. In the  De Joya case, it appears that
Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles and
rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial
shipped the goods to Manila on board an inter-island vessel. When the goods were about to leave the customs
premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon
examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that
it is a purchaser in good faith of those goods; that a local purchase was involved so the Bureau of Customs had no
right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy
Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of
Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods.
Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction
over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes
because the transaction was not an original importation; that the goods were not in the hands of the importer nor
subject to said importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's)
knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila
issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of
Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition
on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture
proceedings. The court of first instance held resolution on the motion to dismiss in abeyance pending decision on the
merits. On December 14, 1964, the Court of First Instance of Manila issued a writ of preventive and mandatory
injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the
Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion
to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the
preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00.
Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition
with preliminary injunction. In resolving the question raised in that case, this Court held:
"This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the
goods and institute forfeiture proceeding against them? and (2) has the Court of First Instance
jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the
goods?
"Francindy Commercial contends that since the petition in the Court of First Instance was filed
(on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on
November 12, 1964), the Customs bureau should yield to the jurisdiction of the said court.
"The record shows, however, that the goods in question were actually seized on October 6,
1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs
bureau was to verify whether or not Customs duties and taxes were paid for their importation. Hence,
on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been
released regularly from the Cebu Port (Petition Annex 'L'). As to goods imported illegally or released
irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the  Tariff and
Customs Code (RA 1957).
"The Bureau of Customs has jurisdiction and power, among others, to collect revenues from
imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to
enforce tariff and customs laws (Sec. 602, Republic Act 1957).
"The goods in question are imported articles entered at the Port of Cebu. Should they be found
to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and
forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant
to Republic Act 1937.
"Said proceedings should be followed; the owner of the goods may set up defenses therein
(Pacis v. Averia, L-22526, Nov. 20, 1966). From the decision of the Commissioner of Customs appeal
lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11
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 of Republic Act 1125. To permit recourse to the Court of First Instance in cases of seizure of imported
goods would in effect render ineffective the power of the Customs authorities under the  Tariff Code and
deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled
in Pacis v. Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being
special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general
legislation, not to mention that the former are later enactments, the Court of First Instance should yield
to the jurisdiction of the Customs authorities."
It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported
goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its
possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of
Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually
seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction
over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular
courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after
the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967.  10 And so, it cannot
be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent
Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire
jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need
of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance
of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not
seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila
Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for
the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests, 11 and it was
his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be
subject to forfeiture or liable for any fine imposed under customs and tariff laws.  12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the
presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and
examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It
cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the
search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of
any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the
two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief
of Police to make the interception of the cargo. 15
Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search
warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case.
The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter,
pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to
inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board,
or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in
said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and
searched only upon warrant issued by a judge or justice of the peace . . ." 17 It is our considered view, therefore, that
except in the case of the search of a dwelling house, persons exercising police authority under the customs law may
effect search and seizure without a search warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court,
considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows:
"Thus, contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the necessity for
a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar
place, and like goods in course of transportation and concealed in a movable vessel, where they readily
could be put out of reach of a search warrant . . ."
"Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L. 231, 232, chap. 94), it was
made lawful for customs officers not only to board and search vessels within their own and adjoining

90
 districts, but also to stop, search, and examine any vehicle, beast, or person on which or whom they
should suspect there was merchandise which was subject to duty or had been introduced into the
United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or
otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probable
cause to believe had been so unlawfully brought into the country, to seize and secure the same, and
the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Stat. at L.
315, chap. 100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d
section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the
Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither § 3061 nor
any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was
referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U. S. 215, 219, 27 L.
ed. 540, 541, 2 Sup. Ct. Rep. 503 . . ."
In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make
any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the
court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18 All that they
complained of was,
"That while the trucks were on their way, they were intercepted without any search warrant near
the Agrifina Circle and taken to the Manila Police, where they were detained."
But even if there was a search, there is still authority to the effect that no search warrant would be needed
under the circumstances obtaining in the instant case. Thus, it has been held that:
"The guaranty of freedom from unreasonable searches and seizures is construed as
recognizing a necessary difference between a search of a dwelling house or other structure in respect
of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or
automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle
can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." (47 Am.
Jur., pp. 513-514, citing Carroll v. United States, 267 U.S., 132, 69 L. ed., 543, 45 S. Ct., 280, 39
A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by
defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or
other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws
of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable
searches and seizures. The Court said:
". . . Neither our state nor the Federal Constitution directly prohibits search and seizure without
a warrant, as is sometimes asserted. Only 'unreasonable' search and seizure is forbidden. . . .
". . . The question whether a seizure or a search is unreasonable in the language of the
Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not
unreasonable, all of the circumstances under which it is made must be looked to.
"The automobile is a swift and powerful vehicle of recent development, which has multiplied by
quantity production and taken possession of our highways in battalions, until the slower, animal- drawn
vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form
in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful
commission of crime a disguising means of silent approach and swift escape unknown in the history of
the world before their advent. The question of their police control and reasonable search on highways
or other public places is a serious question far deeper and broader than their use in so-called
"bootlegging' or 'rum running,' which is itself is no small matter. While a possession in the sense of
private ownership, they are but a vehicle constructed for travel and transportation on highways. Their
active use is not in homes or on private premises, the privacy of which the law especially guards from
search and seizure without process. The baffling extent to which they are successfully utilized to
facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to
robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition,
and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure
from an automobile upon a highway or other public place without a search warrant is unreasonable is in
its final analysis to be determined as a judicial question in view of all the circumstances under which it is
made."
91
 Having declared that the seizure by the members of the Manila Police Department of the goods in question
was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for
the purposes of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of
Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary,
for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for by petitioners;
(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion
U. Jarencio, dated March 7, 1967, in Civil Case No. 67496 of the Court of First Instance of Manila;
(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining
respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496
of the Court of First Instance of Manila, and from proceeding in any manner in said case;
(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and
(e) Ordering the private respondent, Remedios Mago, to pay the costs.
It is so ordered.
|||  (Papa v. Mago, G.R. No. L-27360, [February 28, 1968], 130 PHIL 886-905)

92
 THIRD DIVISION

[G.R. No. 168650. October 26, 2007.]

PEOPLE OF THE PHILIPPINES,  appellee, vs. JOSE  TUAZON,  appellant.

DECISION

NACHURA,  J p:

AAA is the daughter of BBB by her first marriage. After the death of AAA's father, BBB contracted marriage
with the appellant, Jose Tuazon; they then lived together as husband and wife, together with the former's children.
Instead of guarding his stepchildren/children against wrongful acts of strangers, the appellant committed
lustful acts against one of them, by repeatedly abusing AAA. The first of this series of acts was committed in 1995
while AAA was still in Grade V. 1 She was at that time 11 years old, having been born on November 14, 1984 as
shown in her certificate 2 of live birth.
One night sometime in 1995, AAA was inside their house with the appellant, together with her younger
brothers and sisters, while BBB was out as she went to harvest coffee at Calakkad, Tabuk. Appellant then went inside
the room where all of the children were sleeping; approached the place where AAA was lying down; removed her
panty; kissed her; brought out his male organ; placed his penis inside her vagina; then made the push and pull
movement, after which AAA felt that there was liquid coming out of his penis. She was then in pain and her private
part bled. She could not offer resistance at that time because the appellant threatened to kill her if she would report
the incident. Immediately after satisfying his lustful desire, appellant put on AAA's panty.  3 Unsatisfied, he repeated
the incident several times, always when BBB was out. The last incident took place on May 27, 1997.
AAA did not reveal her gruesome experience to anybody — not even to her mother BBB, because of her fear
that the appellant would make good his promise of killing her if she would report the incident.
Sometime in May 1997, AAA's grandmother CCC, invited her to sleep in the latter's house but she was
prevented by the appellant. The next day, CCC went to the house of the appellant and inquired why AAA did not sleep
at her house. Instead of answering CCC, AAA started crying. When CCC asked why, she answered that "she was
raped." 4 It was then that she revealed her ordeal at the hands of the appellant.
CCC thereafter reported the matter to AAA's uncle who, in turn, reported it to BBB's brothers. Together, they
reported the incident to the Municipal Hall of XXX, Isabela. HSTAcI
On May 29, 1997, AAA submitted herself to medical examination by Dr. Alpha Dulig (Dr. Dulig), Rural Health
Physician of XXX, Isabela, who subsequently issued a medical certificate, 5 the pertinent portion of which reads:
GENITALIA
Pubic hairs: few(,) fine, short hair
Labia Majora: reddish and swollen
Labia Minora: reddish and swollen
Fourchete: healed laceration, not coaptated
Vestibules: reddish
Hymen: absent
Orifice: Accepts 2 finger (sic) withease (sic) and without pain
Vagina:
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  Walls: reddish,
 Rugosities: rough
Uteros (sic): palpable; small
Cervix: soft close, reddish
Discharge: none
Thereafter, AAA and CCC executed their respective sworn statements 6 before the XXX police.
Subsequently, AAA filed a complaint 7 dated May 30, 1997, with the 12th Municipal Circuit Trial Court (MCTC) of
XXX, Province of Isabela.
After the requisite preliminary investigation, on January 28, 1998, two separate Informations for rape were
filed against the appellant before the Regional Trial Court of Roxas (RTC). The cases were docketed as Criminal
Cases Nos. 23-829 and 23-830. The respective accusatory portions of the foregoing informations are as follows:
That on or about the 27th day of May, 1997, in the municipality of XXX, province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, by means of force,
intimidation and with lewd designs, did then and there, willfully, unlawfully and feloniously, lay with and
have carnal knowledge with one AAA, a girl of 12 years of age, against her will and consent.
CONTRARY TO LAW. 8
That on or about the year 1995, in in (sic) the municipality of XXX, province of Isabela,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, by means of force,
intimidation and with lewd design, did then and there, willfully, unlawfully and feloniously, lay with and
have carnal knowledge with one AAA, a girl below 12 years of age, against her will and consent.
CONTRARY TO LAW. 9
Appellant pleaded "Not Guilty" to both charges. Accordingly, joint trial ensued.
For his part, appellant denied the charges imputed against him. He testified that they were fabricated by
AAA's paternal grandmother, CCC, who was angry at him because of his marriage to BBB. 10
The defense likewise presented BBB who testified that she did not know of anyone who opposed her
relationship with the accused but she did not answer when asked if her in-laws opposed such marriage.  11 She
likewise testified that she did not have personal knowledge that the appellant abused her daughter AAA. 12 HEAcDC
After trial, the RTC rendered a Joint Decision 13 dated December 6, 2000, finding the appellant guilty of the
offenses charged. The fallo reads:
WHEREFORE, finding the accused guilty beyond any iota of doubt, of the offenses as charged
in both informations above-quoted, the court hereby sentences the accused to  RECLUSION
PERPETUA for each count of rape and to pay the sum of Fifty Thousand (P50,000.00) Pesos as
damages for each offense and additional Seventy-five (sic) (P75,000.00) Pesos as civil damages or a
total of One Hundred Twenty-five Thousand (P125,000.00) Pesos for each count following prevailing
jurisprudence, with all the necessary penalties provided for by law, and to pay the costs.
SO ORDERED. 14
The records of this case were originally forwarded to this Court by the RTC in view of the notice of appeal
filed by the appellant. After the parties submitted their respective briefs, conformably with our Decision in   People  v.
Mateo, 15 we transferred this case and its records to the Court of Appeals (CA) in a Resolution  16 dated August 30,
2004 for appropriate action and disposition.
In his Brief, 17 appellant raised the following as errors of the RTC:
I.
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE
UNBELIEVABLE AND INCREDIBLE TESTIMONY OF THE PRIVATE COMPLAINANT, AAA.
II
THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN CONVICTING ACCUSED-
APPELLANT OF THE CRIME OF RAPE IN CRIMINAL CASE NO. 23-829.
III

94
 THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT IN CRIMINAL CASE NO. 23(-)830 HAS BEEN PROVEN BEYOND REASONABLE
DOUBT. 18
On April 21, 2005, the CA rendered the assailed Decision: 19
WHEREFORE, premises considered, the appeal is hereby DENIED. The assailed decision of
the Regional Trial Court, Branch 23, Roxas, Isabela dated December 6, 2000 is hereby AFFIRMED.
SO ORDERED. 20
Hence, the present appeal.
The Court stresses that conviction or acquittal in a rape case more often than not depends almost entirely on
the credibility of the complainant's testimony because of the very nature of this crime. It is usually the victim who alone
can testify as to its occurrence. In rape cases, the accused may be convicted solely on the basis of the testimony of
the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the
normal course of things. 21 The credibility given by the trial court to the rape victim is an important aspect of evidence
which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their
demeanor, conduct and attitude during direct and cross-examination by counsel. Absent any showing that the trial
judge overlooked, misunderstood, or misapplied some facts and circumstances of weight which would affect the result
of the case, his assessment of credibility deserves the appellate court's highest respect. 22 cADEIa
We agree with the conclusion of the RTC, as affirmed by the CA, that the testimony of AAA was direct,
unequivocal and consistent, and thus deserves full faith and credit. She testified:
1st Incident of Rape
Sometime in 1995
(Criminal Case No. 23-830)
Q: If that is the case tell all what happened to you that first night?
A: That night he went to our room, he make (sic) me naked then he raped me, sir.
Q: Did he kiss you?
A: Yes, sir.
Q: When he kissed you, did he bring (sic) his male organ?
A: Yes, sir. 23
xxx xxx xxx
Q: When he brought out his penis, what did he do?
A: He had sexual intercourse with me, sir.
Q: Did he place his penis into your vagina?
A: Yes, sir.
Q: Will you tell the Court if his penis penetrated in your private parts?
A: Yes, sir.
Q: After the insertion of his penis into your vagina, what did he do?
A: He told me that whenever I will report the matter he would kill me, sir.
Q: When his penis was inside your vagina, did you ever feel any liquid coming out from his penis?
Atty. Lamorena:
Objection, Your Honor.
A: There was, sir. 24
xxx xxx xxx
Q: Did you notice if he made the push and pull movement?
A: Yes, sir.
Q: And did he kiss you while he was making that movement?
A: Yes, sir.
Q: After you have feel (sic) that there was a liquid coming out from his penis, what else
happened? ACEIac
A: After he finished, sir, he put on my panty. 25
2nd Incident of Rape
May 27, 1997
(Criminal Case No. 23-829)
Q: On May 27, 1997, will you describe how he raped you for the last time? What did he do?
A: He went again in our room where we were lying down, then he made me naked, and told me that if I
will report the matter he will kill me, sir.

95
 Q: After removing your clothes, and you were already naked, what did he do?
A: He abused me again, sir.
Q: How did he abuse you?
A: When I was already naked he had sexual intercourse with me, sir.
Q: Did he go on top of you after he made you naked?
A: Yes, sir.
Q: Did he kiss you before he place (sic) his penis inside your vagina?
A: Yes, sir.
Q: Did he kiss your breast?
A: No, sir.
Q: When his penis entered into your private parts, did you feel anything?
A: There was, sir.
Q: Did you still feel pain while according to you you had so many sexual intercourse with him?
A: Yes, sir, I felt pain because it was long time ago already. We went to Dagupan to earn for a living
there for harvesting palay then Jose Tuazon came and fetched me, sir.
Q: And you did not protest when he placed his penis inside your vagina?
A: No, sir, because he told me that he will kill me, sir.
Q: And did he make the same movement as he made before?
A: Yes, sir.
Q: Did he go on top of you?
A: Yes, sir.
Q: Did he spread your legs? TEaADS
A: Yes, sir.
Q: He did not put pillow under your buttocks?
A: No, sir. 26
xxx xxx xxx
Q: How about Jose Tuazon whenever he commits or makes sexual intercourse with you, did he also
remove his clothes?
A: He removed only his brief, sir.
Q: Can you tell the Honorable Court how long did Jose Tuazon make that sexual intercourse with you?
A: A little bit long, sir.
Q: Around three (3) minutes or five (5) minutes?
A: Around five (5) minutes, sir. 27
The above testimony of AAA says everything. Jurisprudence has recognized the inbred modesty of a Filipina,
especially a young child, who would be unwilling to allow examination of her private parts, suffer the humiliation of a
public trial, endure the ordeal of recounting the details of an assault on her dignity unless her purpose is to bring the
perpetrator to the bar of justice and avenge her honor. Testimonies of rape victims who are young and immature
demand full credence. 28
Moreover, the testimony of AAA was corroborated by Dr. Dulig's medical report  29 and testimony that when
she conducted the medical examination on the person of AAA, her orifice accepted two fingers with ease and without
pain which means that there had been multiple penetration on the vaginal orifice. She likewise claimed that there was
no more hymen at the time she conducted the examination. She further testified that the labia minora in AAA's vagina
were still swollen which means that she was sexually abused one or two days prior to the examination. The Court held
that when the testimony of a rape victim is consistent with the medical findings, sufficient basis exists to warrant a
conclusion that the essential requisite of carnal knowledge has thereby been established. 30
We now come to the specific defenses set forth by appellant in his brief in his attempt to seek the reversal of
his conviction.
First, he avers that rape could not have been committed inside a room where AAA and her younger brothers
and sisters were sleeping, otherwise, it would have aroused their attention. 31
We do not agree.
We have held in a number of cases that lust is no respecter of time and place. Rape can be committed even
in places where people congregate, in parks along the roadsides, in school premises, in a house where there are
other occupants, in the same room where other members of the family are also sleeping, and even in places which to
many, would appear unlikely and high risk venues for its commission. Besides, there is no rule that rape can be
committed only in seclusion. 32 This is especially true in the present case as the brothers and sisters of AAA who
were with them inside the room were even younger than her. They did not have the slightest idea of what was

96
happening nor even had a suspicion that appellant was committing a crime against their sister because of their
innocence brought about by their young age. ACTEHI
Second, appellant claims that the evidence for the prosecution failed to show that the room where the rape
was committed was properly illuminated considering that the incident took place at nighttime. Otherwise, it would have
been impossible for AAA to properly identify the assailant. 33
During rape incidents, the offender and the victim are as close to each other as is physically possible. In truth,
a man and a woman cannot be physically closer to each other than during a sexual act.  34 Moreover, per testimony of
AAA, while appellant was performing the lustful act, he threatened to kill her. As such, she heard the voice of her
assailant. Identification of an accused by his voice has also been accepted particularly in cases where, such as in this
case, the witnesses have known the malefactor personally for so long and so intimately.  35 Considering that appellant
and AAA lived together in one house, and the former repeatedly abused her, she is undoubtedly familiar not only with
his physical features but also with his voice. Not surprisingly therefore, she readily and positively identified appellant in
court during the trial as the man who raped her.
Third, appellant questions the act of AAA in belatedly reporting the incident. He goes on by saying that the
period from 1995 until 1997 is so long such that she had the chance to report it as there were times when appellant
was not by her side. 36 He likewise questions the failure of AAA to report the incident to her mother. He avers that it is
contrary to human experience that an adolescent could actually keep to herself such a traumatic experience for a long
time. 37
The Court has acknowledged in several cases that the hesitance of the victim in reporting the crime to the
authorities is not necessarily an indication of a fabricated charge. This is especially true where the delay can be
attributed to the pattern of fear instilled by the threats of bodily harm made by a person who exercises moral
ascendancy over the victim. 38 Neither can appellant find refuge in AAA's failure to promptly report the sexual assault
to her relatives especially her mother. 39 This applies with greater force in the present case where the offended party
was barely 11 years old at the time of the first rape incident and more or less 13 years old at the time of the last
incident, and was therefore susceptible to intimidation and threats to physical harm. CDcHSa
Fourth, appellant insists that he should be acquitted because the prosecution failed to prove that he employed
force in fulfilling his lustful act and because of the admission made by AAA that she did not resist the sexual assault.
Physical resistance need not be established in rape when intimidation is exercised upon the victim who
submits against her will to the rapist's lust because of fear for her life or personal safety. The force, violence or
intimidation in rape is a relative term, depending not only on the age, size, and strength of the parties but also on their
relationship with each other. A woman of such young age like AAA can only cower in fear and yield into submission.
Rape is nothing more than a conscious process of intimidation by which a man keeps a woman in a state of fear and
humiliation. Thus, it is not impossible for a victim of rape not to make an outcry against an unarmed
assailant. 40 Because of AAA's youthfulness, coupled with the fact that the assailant is her stepfather, it was easy for
her to believe that appellant would make good his threat to kill her should she resist.
Lastly, in his attempt to impute ill motive on the part of AAA, appellant claims that the case was filed due to
the malicious instruction of her grandmother CCC who strongly opposed his marriage to BBB.
It is unnatural for a parent (or grandparent) to use her offspring as an instrument of malice, especially if it will
subject a daughter (or granddaughter) to embarrassment and even stigma. It is highly inconceivable that a mother
(grandmother) would willfully and deliberately corrupt the innocent mind of her young daughter (granddaughter) and
put into her lips the lewd description of a carnal act to justify a personal grudge or anger against the appellant.  41 This
Court cannot give weight to the bare assertion of appellant without sufficient evidence to prove the same.
In view of the foregoing, we find appellant's defense of denial to be unavailing in the face of the positive and
credible testimony of the prosecution witnesses. His guilt has been proved beyond reasonable doubt.
The trial court correctly convicted appellant of statutory rape for the crime committed in 1995 and simple rape
for that committed on May 27, 1997. Private complainant was born on November 14, 1984. She was, accordingly,
eleven years old in 1995 when the first incident of rape took place. However, in 1997, she was already more than 12
years old, thus appellant is liable for simple rape. Appellant was, therefore, correctly meted the penalty of  reclusion
perpetua for each count of rape pursuant to Article 335 of the Revised Penal Code, as amended by Section
11, Republic Act (R.A.) No. 7659 which provides:
Article 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;

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 2. . . .
3. When the woman is under 12 years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Moreover, appellant shall not be eligible for parole pursuant to the Indeterminate Sentence Law. Section 2
thereof provides that the law "shall not apply to persons convicted of offenses punished with death penalty or life
imprisonment." Although the law makes no reference to persons convicted to suffer the penalty of  reclusion
perpetua such as the appellant herein, the Court has consistently held that the Indeterminate Sentence Law likewise
does not apply to persons sentenced to reclusion perpetua. 42 aICcHA
As to the civil liability of appellant, we modify the same. The RTC awarded P50,000.00 as damages and
P75,000.00 as civil damages. This Court affirms the award of P50,000.00 for each count of rape as moral damages
instead of "damages," and reduces the amount of P75,000.00 to P50,000.00 for each count as civil indemnity instead
of "civil damages." This is pursuant to the prevailing doctrine enunciated in the cases of  People  v.
Bascugin, 43 People  v. Tolentino, 44 People v. Espinosa, 45 and People v. Rote. 46 Furthermore, as held
in  People  v. Malones, 47 this is not the first time that a child has been snatched from the cradle of innocence by some
beast to sate its deviant sexual appetite. To curb this disturbing trend, appellant should, likewise, be made to pay
exemplary damages which is pegged at P25,000.00 for each count of rape.
WHEREFORE, the Decision of the Court of Appeals dated April 21, 2005 in CA-G.R. CR-HC No. 00002, is
AFFIRMED with MODIFICATIONS. The appellant is sentenced to suffer the penalty of Reclusion Perpetua for each
count of rape without eligibility for parole. He is likewise ordered to pay private complainant P100,000.00 as civil
indemnity; P100,000.00 as moral damages; and P50,000.00 as exemplary damages.
SO ORDERED.

SECOND DIVISION

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

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and

JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant.

DECISION

REGALADO, J p:

The incidents involved in this case took place at the height of the coup d'etat staged in December, 1989 by ultra-
rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against
the Government. At that time, various government establishments and military camps in Metro Manila were being
bombarded by the rightist group with their "tora-tora" planes. At around midnight of November 30, 1989, the 4th Marine
Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the
Philippine Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of
the Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of
ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-
90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch
103. prcd
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names
and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and
explosives in the furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866,
allegedly committed as follows:

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 "That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA,
PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping one another, and without authority of law, did then and
there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the
following to wit:
Five (5) bundles of C-4 or dynamites
Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs.
without first securing the necessary license and/or permit to possess the same from the proper
authorities, and armed with said dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by common designs, come to an agreement
and decision to commit the crime of rebellion, by then and there participating therein and publicly taking
arms against the duly constituted authorities, for the purpose of overthrowing the Government of the
Republic of the Philippines, disrupting and jeopardizing its activities and removing from its allegiance
the territory of the Philippines or parts thereof." 2
In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several
John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon city upon the
person of Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of
attempted homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not
authorized to posses any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a
rebellion during the period from November 30 up to December 9, 1989. 4
The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division,
National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar
Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin
Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which
actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence
report received by the division that said establishment was being occupied by elements of the RAM-SFP as a
communication command post. LLpr
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar
building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot.
A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp Aguinaldo. After a
while a group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At
that moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario
to start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them,
drew their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in
the surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or
bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, searching them composed of F/Lt. Virgilio Babao
as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under
one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16
ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms
belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to
enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously
peeping through a door. De Gracia was the only person then present through a door. De Gracia was the only person then
present inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team
arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were
then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding team. No
search warrant was secured by the raiding team. No search warrant was secured by the raiding team because, according
to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by
the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the

99
courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr.
Gutierrez and that appellant is supposedly a "boy" therein. llcd
Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he
was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on
December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5,
1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to
guard the office of Col. Matillano which is located at the right side of the building. He denies, however, that he was inside
the room of Col. Matillano when the raiding team barged in and that he had explosives in his possession. He testified that
when the military raided the office, he was ordered to get out of his house and made to lie on the ground face down,
together with "Obet" and "Dong" who were janitors of the building. He avers that he does not know anything about the
explosives and insists that when they were asked to stand up, the explosives were already there.
Appellants stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated
National Police (PC-INP), and that he knew Matillano was detained because of the latter's involvement in the 1987  coup
d'etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he
could stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the Eurocar office,
appellant worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni
Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted
homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of
rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that
"(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained
in the 2nd paragraph of Art. 135, R.P.C., the court recommends that Rolando de Gracia be extended executive clemency
after serving a jail term of five (5) years of good behavior."
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he
did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he
is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely
employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he
did not have actual possession of the explosives. He claims that intent to possess, which is necessary before one can be
convicted under Presidential Decree No. 1866, was not present in the case at bar. cdll
Presidential Decree No. 1866 provides as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms
or Ammunition or Instruments Used or intended to be used in the Manufacture of Firearms or
Ammunition. — The Penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
firearms, part of firearms, ammunition or machinery, took or instrument used or intended to be used in
the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or supervision, the penalty of death shall be imposed."
Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and
safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which
criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the
country. The series of coup d' etats unleashed in the country during the first few years of the transitional government
under then President Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No.
1866 which seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public peace and
order.
I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense
punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess
firearms and ammunition.
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 The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. what the
law requires is merely possession which includes not only actual physical possession but also constructive possession or
the subjection of the thing to one's control and management. 6 This has to be so if the manifest intent of the law is to be
effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder
of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the
possession can have no bearing whatsoever. 7
But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since
the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith
and absence of criminal intent are not valid defenses. 9
When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient
that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and
that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal
intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. 10
In the present case, a distinction should be made between criminal intent and intent to possess. While mere
possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess is,
however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the
firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be
found guilty of a violation of the decree, it is sufficient that the accused had no authority or licensed to possess a firearm,
and that he intended to possess the same, even if such possession was in good faith and without criminal intent. LibLex
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be
considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree No.
1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is
no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of
having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority
therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales
Office when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several
explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives.
Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not
constitute for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on
his part to possess the same, since he was merely employed as an errand by Col. Matillano. His pretension of impersonal
or indifferent material possession does not and cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration
the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is
often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served
with the Philippine Constabulary prior to his separation from the service for going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the
dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession.
As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these
weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of
explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor
one where such items can ordinarily but lawfully be stored, as in a gun store, a arsenal or armory. Even an ordinarily
prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the
business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and
ammunition. llcd
On the basis of the foregoing disquisition, it is apparent, and we sold hold, that appellant De Gracia actually
intended to possess the articles confiscated from his person.
II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While
the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties,

101
to delve into the legality of the warrantless search conducted by the raiding them, considering the gravity of the offense for
which herein appellant stands to be convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as
headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the
surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided
the place, the occupants thereof refused to open the door despite the requests for them to do so, thereby compelling the
former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory
or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of
automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or
even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and
intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel
forces. 18 The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein
were deserted.
Under the foregoing circumstances, it is out considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the
facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently
more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding
team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that
on December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the
moment, a search warrant could lawfully be dispensed with. LexLib
The view that we here take is in consonance with our doctrinal ruling which was amply explained in  People  vs.
Malmsted 20 and bears reiteration:
"While it is true that the NARCOM officers were not alarmed with a search was made over the
personal effects of accused, however, under the circumstances of the case, there was sufficient
probable cause for said officers to believe that accused was then and there committing a crime.
"Probable cause has been defined as such facts and circumstances which would lead a
reasonable, discreet and prudent man to believe that an offense has been committed, and that the
objects sought in connection with the offense are in the place sought to be searched. The required
probable cause that will justify a warrantless search and seizure is not determined by any fixed formula
but is resolved according to the facts of each case.
"Warrantless search of the personal effects of an accused has been declared by this Court as
valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic
bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee.
"Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City. llcd
"When NARCOM received the information, a few hours before the apprehension of herein
accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited
drugs, there was no time to obtain a search warrant. In the Tangliben  case, the police authorities
conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando,
Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied
by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer
was apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.
"It must be observed that, at first, the NARCOM officers merely conducted a routine check
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?
102
 "The receipt of information by NARCOM that a Causasian coming from Sagada had prohibited
drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken
together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which justified
the warrantless search that was made on the personal effects of the accused. In other words, the acts
of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the
wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2)
teddy bears with hashish stuffed inside the, were prompted by accused's own attempt to hide his
identity by refusing to present his passport, and by the information received by the NARCOM that a
Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM
agents of the ability and facility to act accordingly, including, to search even without warrant, in the light
of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society."
In addition, we find the principles enunciated in Umil, et al. vs. Ramos, et al., 21 applicable, by analogy, to the
present case:
"The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them
in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence of probable cause
before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable.
Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against government forces, or any other milder acts but really in
pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly constituted authorities. If
killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities
which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion,
merely seizing their persons and detaining them while any of these contigencies continues cannot be
less justified."
III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until
December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms,
explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to
paragraph 2 of Article 135 of the Revised Penal Code which states that "any person merely participating or executing the
command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held
that appellant De Gracia, who has been servicing the personal needs of Co. Matillano (whose active armed opposition
against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives
and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower court. LexLib
The above provision of the law was, however, erroneously and improperly used by the court below as a basis in
determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant
is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree
No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal
Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code
treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms,
that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a
specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. 22
As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the
Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized
under two different statutes with different penalties, even if considered highly advantageous to the prosecution and
onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in each case, unlawful
possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of
Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on
rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while
the second is a felony punished by the Revised Penal Code, 24 with variant elements.

103
 It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in
this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive
clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any
event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated
against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives and ammunition confiscated
from appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that
time. In the words of the court a quo:
"2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo
and 100 bottles of molotov bombs indicate that the reports received by the military that the Eurocar
Sales Building was being used by the rebels was not without basis. Those items are clearly not for
one's personal defense. They are for offensive operations. De Gracia admitted that per instruction of
Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there.
"His manifestation of innocence of those items and what he had been guarding in that office is
not credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on
November 30, 1989 may soldiers and ex-soldiers were present which self-evidently discloses
that De Gracia, in the company of his boss, was till very much at home and constantly in touch with
soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup
d'etat; (c) it appears that he is the only person tasked with caretaking (sic) there in the Matillano office,
which shows that he is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore
discussed, de Gracia was earlier seen with some who fired upon a car of the AFP intelligence
agents." 25
Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition
is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance
of that law, the imposition of the death penalty was prescribed by the Constitution. Consequently,
appellant De Gracia could only sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the
trial court, albeit with an erroneous recommendation in connection therewith. cdrep
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for
executive clemency and the supposed basis thereof are hereby DELETED, with cots against accused-appellant.
SO ORDERED.
|||  (People v. De Gracia, G.R. Nos. 102009-10, [July 6, 1994], 304 PHIL 118-138)

104
 EN BANC

[G.R. No. 104961. October 7, 1994.]

CONGRESSMAN FRANCISCO B. ANIAG, JR.,  petitioner, vs. COMMISSION ON ELECTIONS and

DEPARTMENT OF JUSTICE SPECIAL TASK FORCE,  respondents.

DECISION

BELLOSILLO, J  p:

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. cdrep
The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11
May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323
otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and
transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by
members of security agencies or police organizations, and organization or maintenance of reaction forces
during the election period. 1 Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327
providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of
firearms, organizing special strike forces, and establishing spot checkpoints. 2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of
Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the
return of the two (2) firearms  3 issued to him by the House of Representatives. Upon being advised of the
request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick
up the firearms from petitioner's house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP)
headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some
twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost
flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the
firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then
apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house
and return them to Sergeant-at Arms Taccad of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The
referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the
City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4
105
 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 Secs. 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. LibLex
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

106
 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon
manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be
excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263,
of B.P. Blg. 881 which provides that "the principals, accomplices and accessories, as defined in the Revised
Penal Code, shall be criminally liable for election offenses." It points out that it was upon petitioner's instruction
that Arellano brought the firearms in question outside petitioner's residence, submitting that his right to be heard
was not violated as he was invited by the City Prosecutor to explain the circumstances regarding Arellano's
possession of the firearms. Petitioner also filed a sworn written explanation about the incident.
Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence, the intention of the offender
is immaterial. 15
Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No.
2327 since this petition may be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate
authority. However, this is not absolute. Aside from a search incident to a lawful arrest, a warrantless search
had been upheld in cases of moving vehicles and the seizure of evidence in plain view, 17 as well as the
search conducted at police or military checkpoints which we declared are not illegal per se, and stressed that
the warrantless search is not violative of the Constitution  for as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search.  18
Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and
that they were neatly packed in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the
package was bundled led the PNP to suspect that it contained firearms. There was not 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.

107
 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 chance 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 rules 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
fundamental, 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. cdll
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.
108
 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 an 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.
|||  (Aniag, Jr. v. Commission on Elections, G.R. No. 104961, [October 7, 1994], 307 PHIL 437-461)

THIRD DIVISION

[G.R. No. 120431. April 1, 1998.]

RODOLFO ESPANO,  accused-petitioner,vs.COURT OF APPEALS and PEOPLE OF THE

PHILIPPINES,  respondents.

DECISION
ROMERO,  J p:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 16,
1995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convicting petitioner
Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the
Dangerous Drugs Act. aisadc
Petitioner was charged under the following information:
"That on or about July 14, 1991, in the City of Manila, Philippines the said accused, not being
authorized by law to possess or use any prohibited drug, did then and there wilfully, unlawfully and
knowingly have in his possession and under his custody and control twelve (12) plastic cellophane
(bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991,
at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquilino, Simplicio Rivera, and Erlindo Lumboy of
the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of
drug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they
approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane tea
bags of marijuana . When asked if he had more marijuana, he replied that there was more in his house. The policemen
went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the police
headquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and
the trial court issued his order of release on July 29, 1991. 4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles
sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested
positive for marijuana, with total weight of 5.5 grams.

109
 By way of defense, petitioner that on said evening, he was sleeping in house and was awakened only when the
policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when they could
not find the latter, he was brought to the police station for investigation and later indicted for possession of prohibited
drugs. His wife Myrna corroborated his story.
The trial court rejected petitioner's defense as a "mere afterthought" and found the version of the prosecution
"more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the
dispositive portion of which reads:
"WHEREFORE there being proof beyond reasonable doubt, the court finds the accused
Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2
(e-L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law
hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years and
to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs.
The marijuana is declared fortified in favor of government and shall be turned over to the
Dangerous Drugs Board without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of
the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the
pieces of evidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over
the doctrine of presumption of regularity; (c) he was denied the constitutional right of confrontation and to compulsory
process; and (d) his conviction was based on evidence which was irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse
the decisions of the trial and appellate courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of
respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine
the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing that
he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have
altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the
defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons
other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of
prohibited drugs. In the absence of such ill motive, the presumption of regularity of his official duty must prevail.
In People  v. Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance of official
duty which provides:
"...Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team
are policemen engaged in mulcting or other unscrupulous activities who where motivated either by the
desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they
entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely
impute such a serious crime against appellant, as in this case, the presumption of regularity in the
performance of official duty, ...,must prevail over the self-serving and uncorroborated claim of appellant
that she had been framed." 8
Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he
was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all
defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime of its
commission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a
defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to
prove, and is a common and standard line of defense in most prosecutions arising from violations of  the Dangerous Drugs
Act." 9 No clear and convincing evidence was presented by petitioner to prove his defense of alibi.

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 Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a
reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the
informant in court is of no moment especially when he is not even the best witness to establish the fact that a buy-bust
operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner,
testified on the actual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited
drugs. Thus,
"We find that the prosecution had satisfactorily proved its case against appellants. There is no
compelling reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the
lone witness for the prosecution, was straightforward, spontaneous and convincing. The testimony of a
sole witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to
convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed
committed the crime charged; consequently, the finding of conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113 Section 5(a)
of the Rules of Court 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."
Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-bust
operation conducted by police officers on the basis of information received regarding the illegal trade of drugs within the
area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over something to an alleged
buyer. After the buyer left, they searched him and discovered two cellophanes of marijuana. His arrest was, therefore,
lawful and the two cellophane bags of marijuana seized were admissible in evidence, being the fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same inadmissible in
evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section
2 which provides:
"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purposes 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."
An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons or
anything which may be used as proof of the commission of an offense. 11 It may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of
marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said
exceptions.
In the case of People v.  Lua, 12 this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court correctly
ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search
was lawful, the warrantless search made inside the appellant's house became unlawful since the police
operatives were not armed with a search warrant. Such search cannot fall under "search made
incidental to a lawful arrest," the same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the means of committing violence or
of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested.
Hence, it can hardly be said that the inner portion of his house was within his reach or control."
The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a
lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana

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became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the
reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8,
in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is
six years and one day to twelve years and a fine ranging from six thousand to twelve thousands pesos. With the passage
of Republic Act No. 7659, with took effect on December 31, 1993, the imposable penalty shall now depend on the quantity
of drugs recovered. Under the provisions of Republic Act No. 7659, Section 20, and as interpreted
in People v.  Simon 13 and People v.  Lara, 14 if the quantity of marijuana involved is less than 750 grams, the imposable
penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual
delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams,
the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating nor aggravating
circumstances, the imposable penalty shall be  prision correccional in its medium period. Applying the Indeterminate
Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional,which is two (2) years,
four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty
next lower in degree, which is one (1) month and one (1) day six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No.
13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to
suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor,as minimum of TWO (2) years,
FOUR (4) months and ONE (1) day of  prision correccional,as minimum.
SO ORDERED.
|||  (Espano v. Court of Appeals, G.R. No. 120431, [April 1, 1998], 351 PHIL 798-809)

THIRD DIVISION

[G.R. No. 109633. July 20, 1994.]

THE PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. NORMANDO DEL ROSARIO Y
LOPEZ, accused-appellant.

DECISION
MELO, J  p:

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth Judicial Region
stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in Criminal Case No. 236-91 and Illegal Sale
of Regulated Drugs in Criminal Case No. 237-91, under two informations reading, respectively, as follows:
Criminal Case No. 236-91
That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, did,
then and there, willfully, unlawfully, feloniously and knowingly have in his possession and control a
homemade (paltik) caliber 22 revolver with three (3) live ammunition. cdrep
Contrary to law.
Criminal Case No. 237-91
That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, did,
then and there, willfully, unlawfully, feloniously and knowingly sell to a poseur buyer and aluminum foil
containing Methamphetamine Hydrochloride also known as "Shabu", a regulated drug.
Contrary to law.
(pp. 20-21, Rollo.)

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 Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the two cases, the
court a quo rendered a decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds the accused Normando del Rosario y
Lopez guilty beyond reasonable doubt in the above-entitled cases and he is hereby sentenced to
undergo imprisonment: in Crim. Case No. 236-91 for Violation of P.D. 1866 of Seventeen (17) years,
Four (4) months and One (1) day of reclusion temporal, as minimum to Twenty (20) years of reclusion
temporal, as maximum and in Crim. Case No. 237-91 for a Violation of Section 15, Article III of  Republic
Act 6425, as amended of life imprisonment and to pay a fine of P30,000.00, without subsidiary
imprisonment in case of insolvency and to pay the costs in both cases.
The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered confiscated
in favor of the government.
(pp. 28-29, Rollo.)
From said decision, the instant appeal has been interposed.
The prosecution's version of the case, as set forth in appellee's brief, is as follows:
Upon application of SPO3 Raymundo Untiveros of the Philippine National Police (PNP) of
Cavite City, Regional Trial Court Judge Arturo de Guia issued in the morning of September 4, 1991 a
search warrant (Exh. T, p. 50, Rec. Crim. Case No. 237-91) authorizing the search and seizure of an
"undetermined quantity of Methamphetamine Hydrocholoride commonly known as shabu and its
paraphernalias" in the premises of appellant's house located at 828 R. Basa St., San Roque, Cavite
City. However, the search warrant was not implemented immediately due to the lack of police personnel
to form the raiding team (pp. 4, 7, tsn., Feb. 4, 1992). cdrep
At about 9 o'clock in the evening of that day, a raiding team was finally organized. SPO3
Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1 Eduardo Novero, SPO3
Reynaldo de la Cruz, PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as members (pp. 5, 10,
tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).
In the final briefing of the raiding team at the police station, it was agreed upon that PO1
Venerando Luna will buy shabu from appellant and after his return from appellant's house, the raiding
team will implement the search warrant (p. 10, tsn., Feb. 4, 1992; p. 17-18, tsn., Dec. 11, 1991). A
marked money consisting of a P100 bill bearing serial no. PQ 329406 (Exh. P, p. 51, Rec.) was given
by the Station Commander to PO1 Luna and entered in the police logbook (p. 12, Feb. 4, 1992). PO1
Luna with a companion proceeded to appellant's house to implement the search warrant. Barangay
Capt. Maigue, Norma del Rosario and appellant witnessed the search at appellant's house (p. 10, tsn.,
Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister containing shabu, an
aluminum foil, plastik .22 caliber (Exh. O) atop the TV set, three used ammunition in a cup and three
wallets (Exhs. Q, R, S), one containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1991).
SPO1 Novero found inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11,
1992). SPO3 de la Cruz turned over the wallet containing the marked money to PO3 Onrubio (p. 8, tsn.,
Jan. 7, 1992). The seized items were photographed thereat by Fred Agana and then turned over to
PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs.  V, V-1, pp. 53-54,
Rc.) for the seized items with Barangay Capt. Maigue and appellant's sister Norma as signing
witnesses. He also made a return (Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155, tsn.,
Feb. 18, 1992).
At police station, the seized items were taped and initialed by SPO3 de la Cruz (p. 33, tsn., Jan.
7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded to NBI Forensic Chemist Mary
Ann Aranas for laboratory analysis the aluminum foil (Exhs. A, J, pp. 37, 46, Rec.) containing suspected
shabu bought by PO1 Luna from appellant in the buy-bus operation as well as the aluminum foils (Exhs.
G, K, pp. 43, 47, Rec.) containing suspected marijuana which were confiscated by virtue of the search
warrant.
The findings of NBI Forensic Chemist Aranas disclosed that all the specimen submitted to her
for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave positive results for Methamphetamine
Hydrocholoride (pp. 2-9, tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).
(pp. 102-105, Rollo.)

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 Carefully evaluation the evidence on record, we believe that the prosecution has failed to prove the guilt of
accused-appellant. Much is to be desired in the manner the police authorities effected the arrest of accused-appellant and
the same observation may be made with regard to the way the prosecution conducted its case. Cdpr
Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1 Verando Luna,
the alleged poseur-buyer. There is, thus, a total absence of evidence to establish the purported sale of shabu by accused-
appellant to Venerando Luna, the supposed poseur-buyer. The omission to present the poseur-buyer casts serious
doubts that an illegal sale of a dangerous drug actually took place.
The trial court gave much weight to the testimonies of the police members of the buy-bust
operation. However, the prosecution did not present as witness the supposed poseur-buyer. Such
omission casts serious doubt on appellant's guilt because without the testimony of the poseur-buyer,
there is not convincing evidence to show that appellant sold marijuana. The testimonies of the rest of
the buy-bust operation are hearsay in view of the fact that the poseur-buyer was never presented at the
trial. There was even no testimony that when the accused-appellant handed the stuff to the poseur-
buyer that the latter in turn handed the marked money. The failure of the prosecution to present the
alleged buyer of the marijuana was a fatal flaw in the case against the accused.
(People  vs. Fulgarillas, 212 SCRA 76, 80 [1992])
The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged poseur-buyer,
bought shabu from accused-appellant was derived solely from what Luna supposedly told him (pp. 19-20, tsn., December
11, 1991) and, therefore, is patently hearsay evidence, without any evidentiary weight whatsoever. Likewise, the
statements of prosecution witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as
to the alleged sale of shabu are hearsay, without weight, as all of them were not present during the alleged sale.
According to the version of the prosecution, during the alleged buy-bust operation, accused-appellant handed
over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna in turn paid accused-appellant a
marked 100 bill and then returned to the police station and informed the raiding team that he had already bought the
shabu from accused-appellant. Thereupon, the raiding team proceeded to the house of accused-appellant to implement
the search warrant. The version of the prosecution is highly incredible. The record is devoid of any reason why the police
officers did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu to Veneracion Luna
who was accompanied by another police officer. That was the opportune moment to arrest accused-appellant. The
version foisted by the prosecution upon this Court is contrary to human experience in the ordinary course of human
conduct. The usual procedure in a buy-bust operation is for the police officers to arrest the pusher of drugs at the very
moment he hands over the dangerous drug to the poseur-buyer. That is the every reason why such a police operation is
called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the pusher and "bust" (arrests) him
the moment the pusher hands over the drug to the police officer.
We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated
at the residence of accused-appellant. in consequence, the manner the police officers conducted the subsequent and
much-delayed search is highly irregular. Upon barging into the residence of accused-appellant, the police officers found
him lying down and they immediately arrested and detained him in the living room while they searched the other parts of
the house. Although they fetched two persons to witness the search, the witnesses were called in only after the policemen
had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen
had more than ample time to plant the shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the
Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and each and
every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People  vs. Constante, 12
SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that
accused-appellant is innocent.
At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a canister and
allegedly seized at his house, for the charge against him was for selling shabu with the information alleging that the
"accused, without legal authority did . . . sell to a poseur buyer an aluminum foil containing Methamphetamine
Hydrocholoride . . .". Sale is totally different from possession. Article 1458 of the Civil Code defines sale as a contract
whereby "one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing,
and the other to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing or the
enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be convicted of a crime which
is not charged in the information for to do so would deny him the due process of law ( People vs. Despavellador, 2 SCRA
205 [1961]; People vs. Mori, 55 SCRA 382 [1974]). LLpr

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 Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The search warrant
implemented by the raiding party authorized only the search and seizure of ". . . the described quantity of
Methamphetamine Hydrochloride commonly known as shabu and its paraphernalia" (Exh. O, p. 50, original record). Thus,
the raiding party was authorized to seize only shabu and paraphernalia for the use thereof and no other. A search warrant
is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and
all kinds of evidence or articles relating to a crime. The Constitution itself (Section 2, Article III) and the  Rules of Court
(Section 3, Rule 126) specifically mandate that the search warrant must particularly describe the things to be seized.
Thus, the search warrant was no authority for the police officers to seize the firearm which was not mentioned, much less
described with particularly, in the search warrant. Neither may it be maintained that the gun was seized in the course of an
arrest, for as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having been
illegally seized, the same is not admissible in evidence (Stonehill  vs. Diokno, 20 SCRA 383 [1967]). The Constitution
expressly ordains the exclusion in evidence of illegally seized articles.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
(Section 3 [2], Article III, Constitution of the Republic of the Philippines).
With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of evidence to
support the charge of illegal possession of firearm, against accused-appellant. Cdpr
The same way may be said of the charge of illegal possession of ammunition.
WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby ACQUITTED
in Criminal Case No. 236-91 and Criminal Case No. 237-91.
The immediate release of accused-appellant is hereby ordered unless there exists of pending valid cause against
him. Cdpr
The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of the
government.
SO ORDERED.
|||  (People v. Del Rosario y Lopez, G.R. No. 109633, [July 20, 1994], 304 PHIL 418-428)

EN BANC

[G.R. No. 81567. July 9, 1990.]

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.

DECISION

PER CURIAM p:

These are eight (8) petitions 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. LexLib
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.

115
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 en 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. cdphil
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.

116
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 continue 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
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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. LLpr
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 M1 6A1 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. 5.56mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transceiver 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 Constantino 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
Constantino, 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 in 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.

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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. Accordingly, the petition for habeas corpus filed on his behalf is now moot and
academic. Only the petition of Amelia Roque remains for resolution. LLjur
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 Constantino, 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 Constantino 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 "KaTed", 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 and 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.

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 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 adduce 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 an 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 armed 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 Rules 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 P15,000.00 on
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. LexLib
The Solicitor General, in his Consolidated Memorandum, aptly observes:

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 ". . . 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 Constantino'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 petitioners' 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 that they
were up to a sinister plot, involving utmost secrecy and comprehensive conspiracy.".
VI
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. cdll
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 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,
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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 in to 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 Press 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 sympathizers 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 ang
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 Nazareno that
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 Regala who was
arrested by the police on 28 December 1988. Upon questioning, Regala pointed to Narciso Nazareno as one 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. cdphil
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

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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 or judge, and that the court or judge had jurisdiction to issue the process or make the order, or  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 not 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 or convicted of an offense in the Philippines or of a person suffering
imprisonment under lawful judgment." (emphasis supplied)
At this point, we refer to petitioners' plea for the Court to 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 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 petitioner 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. LLpr
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.
|||  (Umil v. Ramos, G.R. No. 81567, 84581-82, 84583-84, 83162, 85727, 86332, [July 9, 1990], 265 PHIL 325-365)

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 SECOND DIVISION

[G.R. No. 121234. August 23, 1995.]

HUBERT J. P. WEBB, petitioner,vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the

Regional Trial Court of Parañaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the
Presiding Judge of the Regional Trial Court of Parañaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,ROBERTO LAO,
PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA
G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Parañaque, Branch
274,  respondents, LAURO VIZCONDE,intervenor.

DECISION
PUNO,J  p:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and
mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the
Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal
Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case;
and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1984, the National Bureau of Investigation (NBI)
filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio

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J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice
formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencito R. Zuño to conduct the
preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde, 4 her
mother Estrellita Nicolas-Vizconde, 5 and sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St.,
BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22,
1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the
sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and
Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal  who alleged that on March 9, 1991 he was a
passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether
petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar;  9 (5) the
sworn statements of Belen Dometita and  Teofilo Minoza,two of the Vizconde maids, and the sworn statements
of Normal White,a security guard and Manciano Gatmaitan,an engineer. The autopsy reports of the victims were also
submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19) 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production and
Examination of Evidence and Documents for the NBI to produce the following:
"(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and
stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan,
M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7,
1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated
September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro
(other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;
(h) Transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged."
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the
original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099
in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said
sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr.,produced a copy of
said original in compliance with a subpoena duces tecum.The original was then submitted by petitioner Webb to the
DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI
the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he
went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was
corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo
Ventura and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he
bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the
State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter
dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to
confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines
Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter
Estrada, Miguel Rodriguez and Gerardo Biong — submitted sworn statements, responses, and a motion to dismiss
denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong"
Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In
his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock

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in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang
Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents
for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-
respondents. 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused
with the Regional Trial Court of Parañaque. The case was docketed as Criminal Case No. 95-404 and raffled to
Branch 258 presided by respondent Judge Zosimo V. Escano. It was, however, the respondent Judge Raul de Leon,
pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge
Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his
employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by
Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August
11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan,
Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions
before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused
their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them;
(2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with
the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their
preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge
Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn
statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies
between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of
petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for
the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that
a preliminary investigation should determine "...whether there is a sufficient ground to engender a well-grounded
belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably
guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a
preliminary investigation, thus:
"SECTION 3. Procedure.— Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary
investigation having been first conducted in the following manner:
(a) The complaint shall state the known address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well as other supporting documents, in such number
of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be
sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the
respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents.
Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other
supporting documents. He shall have the right to examine all other evidence submitted by the
complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall
also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be
furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall base his resolution on the
evidence presented by the complainant.

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 (e) If the investigating officer believes that there are matters to be clarified, he may set a
hearing to propound clarificatory questions to the parties or their witnesses, during which the parties
shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the
parties so desire, they may submit questions to the investigating officer which the latter may propound
to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall
resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating
officer shall determine whether or not there is sufficient ground to hold the respondent for trial."
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall
prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record,
an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to
believe that a crime has been committed and that the accused is probably guilty thereof ...."
The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be
secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ."  20 An arrest without
a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be
intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing
accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other
jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The
terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a
judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of
which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an
abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion
when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds:
(a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material
inconsistencies in her two (2) sworn statements, thus: 26
"xxx xxx xxx
"To illustrate, the following are some examples of inconsistencies in the two sworn statements
of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: 'I met her in a party sometime in February, 1991.'
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night. She just said 'on
the following day I read in the newspaper that there were three persons who were killed ....'
Second Affidavit: 'I peeped through the first door on the left. I saw two bodies on top of
the bed, bloodied, and in the floor, I saw Hubert on top of Carmela.'
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb 'with bare buttocks, on top of Carmela and
pumping, her mouth gagged and she was moaning and I saw tears on her eyes.'
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: 'by jumping over the fence, which was only a little more than a meter
high.'
Second Affidavit: They 'entered the gate which was already open.'
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.

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 Second Affidavit: 'I proceeded to the iron grill gate leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent ruling, viz.: 27
 
"xxx xxx xxx
"As regards the admissibility of Alfaro's statements, granting for purposes of argument merely
that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as
evidence to show the probability of the co-conspirator's participation in the commission of the crime
(see People  vs. Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct
evidence of prior agreement to commit the crime. Indeed, 'only rarely would such a prior agreement be
demonstrable since, in the nature of things, criminal undertakings are only rarely documented by
agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during
and after the commission of the crime, showing that the several accused had acted in concert or in
unison with each other, evincing a common purpose or design.' (Angelo vs. Court of Appeals,210
SCRA 402 [1992],citations omitted; People vs. Molleda,86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn
statements. In Angelo,the Court refused to discredit the testimony of a witness accusing therein
petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in
his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the
witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the
witness.
On August 7, 1995, another counsel for respondent Webb submitted his memorandum
suggesting that the instant complaint 'should not be decided within the month to give time to the NBI to
coordinate with FBI on the latter's inquiry into the whereabouts of Hubert Webb ...and to check on our
U.S.-based witnesses.'
In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among
others. This is untenable. As held in Angelo:
'There is no rule of law which prohibits a court from crediting part of the testimony of a
witness as worthy of belief and from simultaneously rejecting other parts which the court may
find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let
alone a general rule of law which is universally applicable. It is not a legal presumption either. It
is merely a latinism describing the conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that the court deemed proper.'
In the case before us, complainant reasoned out that Alfaro was then having reservations when
she first executed the first statement and held back vital information due to her natural reaction of
mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements
have been sufficiently explained especially so where there is no showing that the inconsistencies were
deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves
full faith and credit. As it has been often noted, ex parte statements are generally incomplete because
they are usually executed when the affiant's state of mind does not give her sufficient and fair
opportunity to comprehend the import of her statement and to narrate in full the incidents which
transpired (People vs. Sarellana, 233 SCRA 31 [1994];Angelo vs. Court of Appeals, supra).In the case
of bar, there is no dispute that a crime has been committed and what is clear before us is that the
totality of the evidence submitted by the complainant indicate a prima facie  case that respondents
conspired in the perpetration of the imputed offense."
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six
(6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In
addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former
housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour
of Gerardo Biong. The Panel assayed their statements as follows: 29
"xxx xxx xxx

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 "According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991,
between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two
male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to
bring them three glasses of juice. It was the last time she saw Hubert and was later told by then
Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served as a
laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30,
1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of
the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered
Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he
was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the
clothes of the other members of the family to the laundry area. After taking her breakfast, she began
washing the clothes of the Webbs. As she was washing the clothes of Hubert  Webb, she noticed fresh
bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling
uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the
said stockroom, there is a small door going to Hubert's room and in that door there is a small opening
where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite
irritated, uneasy, and walked to and from inside his room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back
at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It
was the last time that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal, alleged that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United
Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then
Congressman Freddie Webb with a male companion. He greeted him and Webb answered: 'Mabuti
naman, at ito, ihahatid ko ang anak ko papuntang Florida.' He knew Freddie  Webb because he often
watched him then in a television show 'Chicks to Chicks.' He observed that the man whom
Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair
complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped
white jacket. When he and his children were already inside the plane, he did not see Freddie anymore,
but he noticed his son was seated at the front portion of the economy class. He never noticed
Freddie Webb's son upon their arrival in San Francisco. He claims that while watching the television
program 'DONG PUNO LIVE' lately, he saw the wife of Freddie Webb with her lawyer being
interviewed, and when she described Hubert as 'moreno' and small built, with a height of five feet and
seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts
because such description does not fit the physical traits of the son of Freddie, who left with him for
United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for
almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their
relationship started in February, 1991 until she broke up with him in September 1993. She recalls that
on June 29, 1991, at around 6:00 p.m.,Biong invited her to play mahjong at the canteen of a certain
Aling Glo located at the back of the Parañaque Municipal Hall.
At about 2:30 in the early morning of June 30, 1991, the radio operator of the Parañaque police
told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him
over and after somebody won the game, she followed Biong at the radio room where she overheard
him uttering, 'Ano?,Saan?,Mahirap yan, Paano, o sige, aantayin kita, O ano?,dilaw na taxi, o sige.'
When he put the phone down, Biong told her, 'Mayroon lang akong rerespondehan, ikaw muna ang
maupo' and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later,
a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the
canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside
the driver and then, they left. She was not able to recognize the male passenger because the window of
the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he
immediately washed his hands and face, and took his handkerchief from his pocket which he threw at
the trash can. She asked him why he threw his handkerchief and he answered, 'Hmp ... amoy tae.' She
inquired what happened in BF Homes and he replied, 'Putang inang mga batang iyon, pinahirapan nila
ako.'

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 Biong later invited her for breakfast, but they first went to his office where she observed him
doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another
policeman of Parañaque, arrived and said, 'Oy Biong, may tatlong patay sa BF, imbestigahan mo' to
which Biong answered, 'Oo susunod na ako.' Biong went to the office of Capt. Don Bartolome who
offered to accompany him and with whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked Biong if he knew the exact address and
the latter immediately responded, 'Alam ko na yon.' She was surprised because Galvan never told him
the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to
contact the victim's relatives, while the security guard fetched the barangay chairman and the president
of the Homeowners Association. When all these persons were already in the house, Biong started
recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the
jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the
room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a
shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove
the chain lock; asked the keys from the housemaid and it was only then that the main door was opened.
Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go
inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual.
Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being broken. At the garage,
Biong also noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together with the
Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket
the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a
crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the
jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for
P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Parañaque. The next
day, she saw Biong took from his locker at the Parañaque Police Station an imported brown leather
jacket, which the latter claimed to have been given to him by the person who called him up in the early
morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She
observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact,
when Biong and this group picked up Mike Gatchalian and brought him to the Parañaque Police
Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating
while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and
instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she
remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30
"xxx xxx xxx
"The voluminous number of exhibits submitted by respondent Webb to support his defense of
denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records,
believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over
the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in
the face of positive identification especially so where the claim of alibi is supported mainly by friends
and relatives (People vs. Apolonia,235 SCRA 124 [1994];People vs. Lucas,181 SCRA 316 and a long
line of cases).
Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight
than the declaration of a credible witness who testified on affirmative matters. (People vs. Carizo, 233
SCRA 687 [1994].Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed
against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62
[1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed
was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and
could not have been at or near the area of the Vizconde residence at the time of the alleged
commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi.
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 xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form
of documents tending to show that he was thousands of miles away when the incident occurred. We
have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his
absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to
exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While
respondent Webb may have submitted proof tending to show that he was issued a California driver's
license on June 14, 1991, there is no showing that he could not have been in the country on the dates
above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a
bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2)
househelps of the Webb family who testified that he was here in the country on said dates. Additionally,
the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the
name appearing thereon was the actual buyer of the merchandise."
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not
gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs
only to rest on evidence showing that more likely than not a crime has been committed and was committed by the
suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As
well put in Brinegar  v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less
than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also
hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need
not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined
in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his
innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish
probable cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioner that respondent Judge Raul de Leon and, later, respondent Judge
Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination.
Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of
few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were
incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was
included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners
postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents"
on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of the Constitution provides:
"SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce and particularly describing the place to be searched and the persons or
things to be seized."
The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of
arrest and search warrants. The similarities and differences of their requirements ought to be educational. Some of them
are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is
required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a
showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In
search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by
virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also
necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a
crime has been committed and that the person to be arrested committed it, which of course can exist without any showing
131
that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not
provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to
warrants of arrest, Section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more
defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
"xxx xxx xxx
"SECTION 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in
connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

SECTION 4. Examination of complainant; record.— The judge must, before issuing the warrant, personally examine in
the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.

SECTION 5. Issuance and form of search warrant.— If the judge is thereupon satisfied of the facts upon which the
application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be
substantially in the form prescribed by these Rules."

We discussed the difference in the procedure of issuing warrants of arrest and search warrants in  Soliven  vs.
Makasiar, 33 thus:
"xxx xxx xxx
"The second issue, raised by Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:
'Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.'
The addition of the word 'personally' after the word 'determined' and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to 'other responsible officers as may be authorized
by law,' has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.
What the  Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of
probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine
the complainant and his witnesses.Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis hereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on hearing
and deciding cases filed before their courts."
Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that
respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest
against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a
warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements
of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the
petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report
satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that
before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an
accused. In doing so, judges do not conduct a de  novo hearing to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported

132
 by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and
hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination
of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the
case. 36
Petitioners' reliance on the case of Allado  vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the
utter failure of the evidence to show the existence of probable cause. Not even the  corpus delicti of the crime was
established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record,
we stressed the necessity for the trial judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants
of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the
various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause
against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed
crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former
maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the
complainant and their witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and violation of their right to
an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They
also assail the prejudicial publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them.
The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz:
"Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be
heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial
hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for
Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition),a "Reply to
the Compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence"
on July 5, 1995, (p. 6, Petition),a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition),his
"Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995.
Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting
the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's
whereabouts during the material period (Annexes "L","L-1" and "L-2" of the Supplemental Petition dated
August 14, 1995).In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces
tecum to Atty. Arturo L. Mercader, Jr.,petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said
Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4,
Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel
the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2)
conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy
of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as
Annex "F."
It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary
investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to
conduct further proceedings, e.g., comparison of the photo-copies of the submitted documents with the
originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by
accused Miguel Rodriguez on July 18, 1995. (p. 17, Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before the resolution of the case. (p. 8,
Petition) From the time the panel declared the termination of the preliminary investigation on July 14,
1995,  twenty-seven (27) days elapsed before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Parañaque on August 10, 1995. This notwithstanding the
directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ
Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study
the evidence submitted more fully. This directly disputes the allegation of the petitioners that the
resolution of the preliminary investigation was done with indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and
present additional evidence before the DOJ Panel.
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 Verily, petitioners cannot now assert that they were denied due process during the conduct of
the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and
filed the Information in court against them."
Petitioners cannot also assail as premature the filing of the Information in court against them for rape with
homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of
Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June
25, 1993. We quote its pertinent sections, viz:
"SECTION 4. Non-Appealable Cases; Exceptions. — No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding
probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding
the showing of manifest error or grave abuse of discretion no appeal shall be entertained where the
appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal,
said appeal shall be dismissed motu proprio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall
not hold the filing of the information in court.
SECTION 2. When to Appeal.— The appeal must be filed within a period of fifteen (15) days
from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted
only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and
shall continue to run from the time the resolution denying the motion shall have been received by the
movant or his counsel." (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of
the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's
recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other
Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:
"xxx xxx xxx
"SECTION 10. State Witness.— Any person who has participated in the commission of a crime
and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the
Department, shall be admitted into the Program whenever the following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C.
or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense
committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that he
may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may
upon his petition be admitted to the Program if he complies with the other requirements of this Act.
Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness
under Rule 119 of the Revised Rules of Court."
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal
Complaint or Information, thus:
"xxx xxx xxx
SECTION 12. Effect of Admission of a State Witness into the Program.  — The certification of
admission into the Program by the Department shall be given full faith and credit by the provincial or city
prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR
INFORMATION  and if included therein, to petition the court for his discharge in order that he can be
utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from
the information.
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 Admission into the Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used and all the rights
and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an
intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to
discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38 which gives the court the
prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies
on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and
beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that our laws are faithfully executed. A
necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute
vests the prosecutor with a wide range of discretion — the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that
it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the program and who shall be granted immunity from
prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state
witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the
Rules of Court have never been interpreted to be beyond change by legislation designed to improve the
administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government
in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the
law is well put by the Department of Justice, viz: "Witnesses, for fear of reprisal and economic dislocation, usually
refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal,
criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain
rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary
investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The
argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary
investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide
for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of
Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material
evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in
court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare
for trial. 43
This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a
person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary
investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the
suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and
property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation.
Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be
fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary
investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of
incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A preliminary
investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential
accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand
from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report
during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to
the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be
operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3) (a) of Rule
112 which requires during the preliminary investigation the filing of a sworn complaint which shall "...state the known

135
address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents ...."
In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963
watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence
favorable to an accused upon request violates due process where the evidence is material to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of  Mooney  v.
Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure
conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the
defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 —
"society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not
treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not
prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could
have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the
NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It
explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to
obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No.
951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a
part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their
preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel
still found probable cause to charge them despite the alleged material discrepancies between the first and second
sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as
done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of
petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence
presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial
publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to
their liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the
conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to
a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be
struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as
the tumult of the time and the welfare of the people dictate. The dance of the balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases
can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar.
Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the
public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case — the
NBI, the respondents, their lawyers and their sympathizers — have participated in this media blitz. The possibility of
media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and the public. In the seminal case of Richmond Newspapers, Inc.  v. Virginia, 53 it was wisely held:
"xxx xxx xxx
"(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both
here and in England had long been presumptively open, thus giving assurance that the proceedings
were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or
decisions based on secret bias or partiality. In addition, the significant community therapeutic value of
public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public
protest often follows, and thereafter the open processes of justice serve an important prophylactic
purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is
important that society's criminal process 'satisfy the appearance of justice,' Offutt v. United States,348
US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very nature of a

136
 criminal trial under this Nation's system of justice, Cf.,e.g.,Levine  v. United States,362 US 610, 4 L Ed
2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters relating
to the functioning of government. In guaranteeing freedoms such as those of speech and press, the
First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning
to those explicit guarantees; the First Amendment right to receive information and ideas means, in the
context of trials, that the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public
place where the people generally — and representatives of the media — have a right to be present, and
where their presence historically has been thought to enhance the integrity and quality of what takes
place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have
been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal
trials is implicit in the guarantees of the First Amendment, without the freedom to attend such trials,
which people have exercised for centuries, important aspects of freedom of speech and of the press
could be eviscerated."
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al.  vs. Alejandro, et al., 54 we held that
to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the
sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial
publicity.
It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to
undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity
may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial.
Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it
behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to
the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue
in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting
the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice
shall be done and is done — and that is the only way for the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part
of the respondents. Costs against petitioners.
SO ORDERED.

THIRD DIVISION

[G.R. No. 93239. March 18, 1991.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. EDISON SUCRO,  accused-appellant.

137
 DECISION

GUTIERREZ, JR., J  p:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under an
Information which reads:
"That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo,
Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, acting as a pusher or broker in the business of selling, administering, delivery,
giving away to another and - or distributing prohibited drugs, did then and there wilfully, unlawfully and
feloniously and without authority of law have in his possession and control nineteen (19) pieces of
marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from
him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana
leaves to a customer." (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the offense charged. Trial
ensued and a judgment of conviction was rendered, the pertinent portion of which reads:
"WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited
drug under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer
the penalty of life imprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit
in the service of his sentence with the period for which he has undergone preventive imprisonment to
the date of promulgation of this judgment. All the items of marijuana confiscated in this case are
declared forfeited in favor of the State." (Rollo, p. 41)
From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errors
allegedly committed by the court a quo, to wit:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS
"E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE,
THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST
SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF
HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE
OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT
AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE
OF P20,000.00. (Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as follows:
"On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt.
Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant
Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6,
TSN, May 2, 1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio positioned himself under the house of a
certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away,
was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned
out later to be marijuana from the compartment of a cart found inside the chapel, and then return to the
street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the
chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, ibid). It
was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on P/Lt.
Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M., Pat.
Fulgencio again called up Seraspi to report that a third buyer later identified as Ronnie Macabante, was
transacting with appellant. (pp. 18-19, ibid)

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 At that point, the team of P/Lt Seraspi proceeded to the area and while the police officers were at the
Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/
Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front
of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which
turned out to be a tea bag of marijuana. (pp 6-8, TSN, June 19, 1989) When confronted, Macabante
readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6,
TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C.
Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart
inside the chapel and another teabag from Macabante. The teabags of marijuana were sent to the PC-
INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to
"G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 4-7, TSN, Sept. 4, 1989)"
(Appellee's Brief, pp. 3-6)
As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of the accused is
lawful and consequently, whether or not the evidence resulting from such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under Section 2, Artilce
III of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search and
arrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two days
before March 21, 1989, the date of his arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is
considered lawful. The rule states:
"Arrest without warrant, when lawful. — A peace officer or private person may, without warrant, arrest a
person:
 
(a) When in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating
that the person to be arrested has committed it;" (Emphasis supplied).
An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an
arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created
thereby and proceeds at once to the scene thereof (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil.
516 [1910]).
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the activities of the
accused who was earlier reported to be selling marijuana at a chapel two (2) meters away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to some persons,
go inside the chapel, and return to them and exchange some things. These, Sucro did three times during the time that he
was being monitored. Fulgencio would then relay the on-going transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught throwing the
marijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates
that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which the
police officers had personal knowledge, being members of the team which monitored Sucro's nefarious activity. cdphil
The court earlier indicated in the case of People  v. Bati (G.R. No. 87429, August 27, 1990) that police officers have
personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the
accused. Thus, it stated:
"When Luciano and Caraan reached the place where the alleged transaction would take place and
while positioned at a street corner, they saw appellant Regalado Bati and Warner Marquez by the side
of the street about forty to fifty meters away from them (the public officers). They saw Marquez giving
something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object

139
 inside the front of his pants infront of his abdomen while Bati, on his part, placed the thing given to him
inside his pocket. (p. 2)
xxx xxx xxx
. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based
on their actual and personal knowledge of the events that took place leading to appellant's arrest. They
may not have been within hearing distance, specially since conversation would expectedly be carried
on hushed tones, but they were certainly near enough to observe the movements of the appellant and
the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to
have regularly performed their duties in the absence of proof to the contrary (People  v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew
of Sucro's activities even prior to the former s joining the police force. Fulgencio reported  Sucro's activities only three days
before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that after Fulgencio
joined the police force, he told the accused-appellant not to sell drugs in their locality. Hence, it is possible that because of
this friendship, Fulgencio hesitated to report his childhood friend and merely advised him not to engage in such activity.
However, because of reliable information given by some informants that selling was going on everyday, he was
constrained to report the matter to the Station Commander.
On the other hand, the failure of the police officers to secure a warrant stems from the fact that their knowledge acquired
from the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount is
that probable cause existed. Thus, it has been held in the case of People  v. Lo Ho Wing, et al. (G.R. No. 88017, January
21, 1991):
"In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in contraband and
transport it within the country. The belief was based on intelligence reports gathered from surveillance
activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this,
they were also certain as to the expected date and time of arrival of the accused from China. But such
knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search
warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless
search, which must still be present in such a case."
As the Solicitor General has pointed out:
"There are several instances when a warrantless search and seizure can be effected without
necessarily being preceded by an arrest provided the same is effected on the basis of probable cause
(e.g. stop and search without warrant at checkpoints). Between warrantless searches and seizures at
checkpoints and in the case at bar the latter is more reasonable considering that unlike in the former, it
was effected on the basis of probable cause. Under the circumstances (monitoring of transactions)
there existed probable cause for the arresting officers, to arrest appellant who was in fact selling
marijuana and to seize the contraband."
That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr.  v. Sandiganbayan,
143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under  Sec. 12, Rule
126 of the Rules on Criminal Procedure, which provides that 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. (People  v.
Castiller, G.R. No. 87783, August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant, it follows that the evidence obtained
therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of a
warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in evidence. LLpr
Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying could be merely
to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:

140
 "The non-filing of a complaint against him for possession of marijuana may have been the reason of
(sic) his willingness to testify in court against the accused. But this does not necessarily taint the
evidence that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information
against drug pushers are usually their customers, especially if as in this case, there is no other direct
evidence of the selling except the testimony of the buyer. We accept this observation as a realistic
appraisal of a situation in which drug users are, and should be employed by law enforcement authorities
to bolster the drive against pushers who are the real felons in our society. We have observed the
demeanor of the witness in court, and found him to be straightforward, unhesitating, and spontaneous
in his declarations, so that we are satisfied as to his intention and disposition to tell the truth" (Rollo, p.
40)
Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed
on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being
acknowledged that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate
their testimonies (People  v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People  v. Alvarez, 163 SCRA 745
[1988]; People  v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970])
Furthermore, the testimony of Macabante was corroborated on material points by public officers Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their
mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their
duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on
Evidence; People v. Castiller, supra citing People  v. Natipravat, 145 SCRA 483 [1986])
The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items seized were all
positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailing
considering that he was positively identified by Macabante to be the person from whom he bought marijuana.
Sucro alleges that he could not have committed the crime since he was with his uncle and cousin distributing handbills for
his Auntie's candidacy. The fact, however, remains that it does not preclude the possibility that he was present in the
vicinity as established by his admission that he moved a lot and even had the occasion to meet Macabante on the street.
It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the
prohibited substances. (People  v. Khan, 161 SCRA 406 [1988]; and People  v. Paco, 170 SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the offense charged. The
trial court's decision must be upheld.
 
WHEREFORE, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
|||  (People v. Sucro, G.R. No. 93239, [March 18, 1991], 272-A PHIL 362-371)

SECOND DIVISION

[G.R. No. 95902. February 4, 1992.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. DON RODRIGUEZA,  accused-appellant.

DECISION

REGALADO, J p:

141
On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding accused-appellant
Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of
1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of life imprisonment and to pay a fine
of P20,000.00 and costs. 1
However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal cases, recommends
the acquittal of appellant for the reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed with the
Court. We have reviewed and analyzed the testimonial and documentary evidence in this case and we find said
recommendation to be well taken. cdrep
The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel Segovia and Antonio
Lonceras, with allegedly having in their custody and possession 100 grams of marijuana leaves and for selling, in a buy-
bust operation, said 100 grams of dried marijuana leaves for a consideration of P200.00. 2
During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial, the prosecution and the
defense presented several witnesses after which the court a quo rendered judgment acquitting Samuel Segovia and
Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore stated.
The following facts are culled from the decision of the trial court and the evidence presented by the prosecution.
At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their headquarters at the Office of the
Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Moliñawe, CIC Leonardo B.
Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a confidential informer arrived and told them
that there was an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to
conduct a buybust operation, which team was given P200.00 in different denominations to buy marijuana. These bills
were treated with ultraviolet powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Moliñawe gave the
money to Taduran who acted as the poseur buyer. He was told to look for a certain Don, the alleged seller of prohibited
drugs. Taduran went to Tagas alone and, while along the road, he met Samuel Segovia. He asked Segovia where he
could find Don and where he could buy marijuana. Segovia left for a while and when he returned, he was accompanied by
a man who was later on introduced to him as Don, herein appellant. 3
 
After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle driven by Antonio
Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don gave Taduran "a certain object
wrapped in a plastic" which was later identified as marijuana, and received payment therefor. Thereafter, Taduran
returned to the headquarters and made a report regarding his said purchase of marijuana. 4
Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the suspects. In the
evening of the same date, CIC Galutan and S/Sgt. Moliñawe proceeded to Regidor Street, Daraga, Albay and arrested
appellant, Antonio Lonceras and Samuel Segovia. The constables were not, however, armed with a warrant of arrest
when they apprehended the three accused. The arrestees were brought to the headquarters for investigation. 5
Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio  Rodrigueza, father
of appellant. Taduran did not go with them. During the raid, they were able to confiscate dried marijuana leaves and a
plastic syringe, among others. The search, however, was not authorized by any search warrant. 6
The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was detained. An affidavit,
allegedly taken from and executed by him, was sworn to by him before the assistant city prosecutor. Appellant had no
counsel when his sworn statement was taken during that custodial investigation. The arrestees were also examined by
personnel of the PCCL and were found positive for ultraviolet powder. 7
The three accused presented different versions of their alleged participations.
Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the radio. Later, he ate his
merienda and then went out to buy cigarettes from the store. While he was at the store, a jeep stopped behind him.
Several armed men alighted therefrom and ordered him to get inside the jeep. He refused but he was forced to board the
vehicle. He was even hit by the butt of a gun. 8
He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly asked regarding the
whereabouts of Rodrigueza. He was manhandled by the NARCOM agents and was detained while inside the camp. He
was then made to hold a P10.00 bill treated with ultraviolet powder. When he was taken to the PCCL and examined, he
was found positive of the ultraviolet powder. He was also made to sign some papers but he did not know what they were
all about. 9

142
Appellant, on the other hand, testified that on said date he was in the house of his aunt in San Roque, Legaspi City. He
stayed there overnight and did not leave the place until the next day when his brother arrived and told him that their father
was taken by some military men the preceding night. Appellant went to Camp Bagong Ibalon and arrived there at around
8:00 o'clock in the morning of July 2, 1987. When he arrived, he was asked if he knew anything about the marijuana
incident, to which question he answered in the negative. Like Segovia, he was made to hold a P10.00 bill and was
brought to the crime laboratory for examination. From that time on, he was not allowed to go home and was detained
inside the camp. He was also tortured in order to make him admit his complicity in the alleged sale of marijuana. 1 0
In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in evidence the sworn
statement of appellant which was obtained in violation of his constitutional rights; (2) convicting appellant of the crime
charged despite the fact that the 100 grams of dried marijuana leaves allegedly bought from him were not properly
identified; (3) convicting appellant of the crime charged despite the fact that the evidence for the prosecution is weak and
not convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale
of the 100 grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the prosecution
to prove his guilt beyond reasonable doubt. 11
We rule for the appellant and approve the recommendation for his acquittal. In disposing of this case, however, we feel
that the issues raised by appellant should properly be discussed seriatim.
1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in  flagrante
delicto. 12 Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught
redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer.
In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. Based on
the very evidence of the prosecution, after the alleged consummation of the sale of dried marijuana leaves, CIC Taduran
immediately released appellant Rodrigueza instead of arresting and taking him into his custody. This act of CIC Taduran,
assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to the natural course of
things and inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant
escape without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of
the law.
2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue and, as correctly
pointed out by the defense, said sworn statement is inadmissible in evidence against appellant.
We have once again to reiterate and emphasize that Article III of the 1987 Constitution provides:
"Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have a competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible
in evidence against him."
An examination of said sworn statement shows that appellant was informed of his constitutional right to remain silent and
to be assisted by counsel during custodial examination. He was also asked if he was waiving his right to be assisted by
counsel and he answered in the affirmative. However, while the rights of a person under custodial investigation may be
waived, such waiver must be made not only voluntarily, knowingly and intelligently but also in the presence and with the
assistance of counsel. 13 In the present case, the waiver made by appellant being without the assistance of counsel, this
omission alone is sufficient to invalidate said sworn statement. 14
3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against appellant the articles
allegedly confiscated during the raid conducted in the house of Jovencio Rodrigueza. cdll
As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly
issued by the proper government authority. 15 True, in some instances, this Court has allowed government authorities to
conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right
against such incursion; 16 when the search is incidental to a lawful arrest; 17 when it is made on vessels and aircraft for
violation of customs laws; 18 when it is made on automobiles for the purpose of preventing violations of smuggling or
immigration laws; 19 when it involves prohibited articles in plain view; 20 or in cases of inspection of buildings and other
premises for the enforcement of fire, sanitary and building regulations, 21 a search may be validly made even without a
search warrant.

143
In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio Rodrigueza was not
authorized by any search warrant. It does not appear, either, that the situation falls under any of the aforementioned
cases. Hence, appellant's right against unreasonable search and seizure was clearly violated. The NARCOM agents
could not have justified their act by invoking the urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put under surveillance for quite some time. Had it been their
intention to conduct the raid, then they should, because they easily could, have first secured a search warrant during that
time.
4. The Court further notes the confusion and ambiguity in the identification of the confiscated marijuana leaves and other
prohibited drug paraphernalia presented as evidence against appellant.
CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried marijuana leaves
wrapped in a plastic bag. Surprisingly, and no plausible explanation has been advanced therefor, what were submitted to
and examined by the PCCL and thereafter utilized as evidence against the appellant were the following items:
"One (1) red and white colored plastic bag containing the following:
Exh. 'A' — Thirty (30) grams of suspected dried marijuana fruiting tops contained inside a transparent
plastic bag.
Exh. 'B' — Fifty (50) grams of suspected dried marijuana leaves and seeds contained inside a white
colored plastic labelled 'Robertson'.
Exh. 'C' — Four (4) aluminum foils each containing suspected dried marijuana fruiting tops having a
total weight of seven grams then further wrapped with a piece of aluminum foil.
 
Exh. 'D' — Five (5) small transparent plastic bags each containing suspected dried marijuana fruiting
tops having a total weight of seventeen grams.
Exh. 'E' — One plastic syringe." 22
Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid in the house of
Jovencio Rodrigueza. The unanswered question then arises as to the identity of the marijuana leaves that became the
basis of appellant's conviction. 23 In People  vs. Rubio, 24 this Court had the occasion to rule that the plastic bag and the
dried marijuana leaves contained therein constitutes the corpus delicti of the crime. As such, the existence thereof must
be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution. cdphil
5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his credibility. It even
enhances such credibility because it only shows that he has not been rehearsed.  25 However, when the inconsistencies
pertain to material and crucial points, the same detract from his overall credibility.
The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the Solicitor General, the
testimonies of the prosecution witnesses are tainted with serious flaws and material inconsistencies rendering the same
incredible. 26
CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place where the buy-bust
operation was to take place. It turned out, however, that he did not even know the exact place and the identity of the
person from whom he was to buy marijuana leaves. Thus:
"FISCAL TOLOSA:
Q What place in Tagas were you able to go (to)?
WITNESS.
A I am not actually familiar in (sic) that place, in Tagas, although we occasionally passed there.
Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been conducted (sic) surveylance (sic)
in the vicinity.
Q Upon arrival in Tagas, were you able to see the suspect?
A By the road, sir.
Q Who was the first person did you see (sic) when you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.
Q Were you able to talk with this Samuel Segovia?
A According to him, we could get some." 27

144
The same findings go for the testimony of witness Galutan. In his direct examination, he declared that they arrested the
three accused all at the same time on the fateful night of July 1, 1987. But, in his cross-examination and as corroborated
by the Joint Affidavit of Arrest 28 submitted by him and Moliñawe, it appeared that Lonceras and Segovia were arrested
on different times and that appellant Don Rodrigueza was not among those who were arrested. Instead, it was
Jovencio Rodrigueza, Don's father, who was picked up at a much later time.
With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony of
appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the weakest defense in
a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth in his testimony. Firstly, the
Joint Affidavit of Arrest corroborates his testimony that he was not among those who were arrested on the night of July 1,
1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when they were apprehended
by the NARCOM agents.
Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed during the trial of
the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified
that Sgt. Moliñawe, who has since been reportedly dismissed from the service, asked for P10,000.00 from each of them in
exchange for the liberty of the accused. 29 This allegation was never refuted by the prosecution. Hence, the rule laid
down by this Court that the statements of prosecution witnesses are entitled to full faith and credit 30 has no application in
the case at bar.
Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution must rely on the
strength of its own evidence and not on the weakness of the defense. 31 As clearly shown by the evidence, the
prosecution has failed to establish its cause. It has not overcome the presumption of innocence accorded to appellant.
This being the case, appellant should not be allowed to suffer for unwarranted and imaginary imputations against him.
WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE and accused-
appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby ordered that he be immediately
released from custody unless he is otherwise detained for some other lawful cause.
SO ORDERED.
|||  (People v. Rodrigueza, G.R. No. 95902, [February 4, 1992], 282 PHIL 829-842)

EN BANC

[G.R. No. 101837. February 11, 1992.]

ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS; THE HON. BENJAMIN V.

PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M.; and PEOPLE OF
THE PHILIPPINES,  respondents.

145
 DECISION

FELICIANO, J  p:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving
his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it
is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos
Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot
Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was
able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and
there retrieved an empty shell and one round of live ammunition for a 9mm caliber pistol. Verification at the Land
Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they
were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a
facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the
bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan.
Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being
hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the
shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the
police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of
Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the Presence of his
lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the
provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.
 
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the
victim, Eldon Maguan, died of his gunshot wound(s). prcd
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information
for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor
certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of
the provisions of Article 125 of the Revised Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the prosecutor an omnibus motion for
immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful
and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he
be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the
last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond
of P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the
Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date,
approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary
investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had
filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary
investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend
cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July
1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling
the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July
1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself;
(2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and

146
cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was
treated as a petition for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing
the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been
previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in
the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent
Judge. LLphil
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court
of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August
1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit
petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his
refusal to enter a plea, the trial court entered for him a plea of not guilty. The trial court then set the criminal case for
continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November
1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus  12 in the Court of Appeals. He alleged that in view of
public respondents' failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a
month, thus prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition
and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in
the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on
the ground that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the
following grounds:
a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged
had been "freshly committed." His identity had been established through investigation. At the time he
showed up at the police station, there had been an existing manhunt for him. During the confrontation at
the San Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his
right to preliminary investigation by not invoking it properly and seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial
court had the inherent power to amend and control its processes so as to make them conformable to
law and justice.
d. Since there was a valid information for murder against petitioner and a valid commitment order
(issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to
the custody of the Provincial Warden), the petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a
"Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.
On 4 October 1991, the present petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a
Resolution directing respondent Judge to held in abeyance the hearing of the criminal case below until further orders from
this Court.

147
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest
had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively
waived his right to preliminary investigation. We consider these issues seriatim. LLphil
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly
arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been
sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The
Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In
the Matter of the Petition for Habeas Corpus of Roberto Umil, etc. v. Ramos et al., 17 where a majority of the Court upheld
a warrantless arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had
been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court
were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the
Prosecutor was legally justified in filing the information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police
station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been
"just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an
eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantless arrest. Since there had been no lawful warrantless arrest, Section 7, Rule 112 of the Rules of Court which
establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case,
misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of
petitioners made from one (1) to fourteen (14) days after the actual commission of the offenses, upon the ground that
such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization
like the New Peoples Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense
which was obviously commenced and completed at one definite location in time and space. No one had pretended that
the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantless "arrest" or detention of petitioner in the instant case falls within the terms
of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:
 
"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 created 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."
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not
present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the
"arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact
just been committed" within the meaning of Section 5 (b). Moreover, none of the "arresting" officers had any "personal
knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting — one stated that
petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out
to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule
113. It is clear too that Section 7 of Rule 112, which provides:
"Sec. 7. When accused lawfully arrested without 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
148
 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 office 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. Cdpr
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 adduce evidence in his favor in the manner prescribed in
this Rule." (Underscoring supplied).
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into the San Juan Police Station,
accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state
that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon
Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the
Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was
probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceeded under the erroneous supposition that Section 7 of Rule 112 was applicable and required
petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary
investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should
have been accorded him without any conditions. Moreover, since petitioner had not been arrested; with or without a
warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that
petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on
the same day that the information for murder was filed with the Regional Trial Court. Petitioner filed with the prosecutor an
omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that omnibus motion
should have been filed with the trial court and not with the Prosecutor, and that petitioner should accordingly be held to
have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary
investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the
Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the
information for murder had already been filed with the Regional Trial Court; it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In  Crespo v.
Mogul, 19 this Court held:
"The preliminary investigation conducted by the fiscal for the purpose of determining whether a  prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion the
criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation
of the case, at such stage, the permission of the Court must be secured.  After such reinvestigation the
finding and recommendations of the fiscal should be submitted to the Court for appropriate
action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a
criminal case should be filed in court or not, once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must not impair the
substantial rights of the accused, or the right of the People to due process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in Court he cannot impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case before it. . . ." 20 (Citations omitted,
underscoring supplied).
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a
reinvestigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial
court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation
149
 (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the
very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days
later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant
the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition
apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day
reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. LexLib
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right 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. 20 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. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation,
not to speak of expense; the right to an opportunity to avoid a process painful to any one 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.
The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case
considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 21 In the instant case,
petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his
arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking
for a preliminary investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail, petitioner had waived his right to
preliminary investigation. In People v. Selfaison, 22 we did hold that appellants there had waived their right to preliminary
investigation because immediately after their arrest, they filed bail and proceeded to trial " without previously claiming that
they did not have the benefit of a preliminary investigation." 23 In the instant case, petitioner Go asked for release on
recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to
preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release
on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In
fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if
impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while
constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the
validity of the information for murder nor affect the jurisdiction of the trial court. 24
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to
an acknowledgment on the part of the prosecutor that the evidence of guilt then in his hands was not strong. Accordingly,
we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner
to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all —
and certainly no new or additional evidence — had been submitted to respondent Judge that could have justified the recall
of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has
already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to
a preliminary investigation and secondly, petitioner's right to be released on bail? Does he continue to be entitled to have
a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released
on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary
investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance
and a preliminary investigation forthwith accorded to petitioner. 25 It is true that the prosecutor might, in view of the
evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor
conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any
event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due
process. 26 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation,
with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment and
trial, petitioner did so "kicking and screaming," in a manner of speaking. During the proceedings held before the trial court
on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear
petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation.

150
27 So energetic and determined were petitioner's counsel's protest and objection that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with counsel  de oficio. During the trial, just before
the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial
without preliminary investigation; petitioner's counsel made or record his "continuing objection." 28 Petitioner had promptly
gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced
to undergo and the lawfulness of his detention. 29 If he did not walkout on the trial, and if he cross-examined the
Prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the
trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in
the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a
matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the
Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to
the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for
cancellation of bail.
To reach any other conclusion here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were
effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due
process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute
important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner
his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather it would be a
celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination
to respect those rights and liberties.
ACCORDINGLY, the Court Resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17
July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991
hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge
of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from
commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to
await the conclusion of the preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand
Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the
Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
|||  (Go y Tambunting v. Court of Appeals, G.R. No. 101837, [February 11, 1992], 283 PHIL 24-58)

FIRST DIVISION

151
 [G.R. No. 89139. August 2, 1990.]

ROMEO POSADAS y ZAMORA,  petitioner, vs. THE HONORABLE COURT OF APPEALS and THE

PEOPLE OF THE PHILIPPINES,  respondents.

DECISION

GANCAYCO, J p:

The validity of a warrantless search on the person of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra Umpar, both members of
the Integrated National Police (INP) of the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were within the premises of the Rizal Memorial
Colleges they spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP. Petitioner attempted to flee but his
attempt to get away was thwarted by the two notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith & Wesson revolver with
Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber gun,  2 a smoke (tear gas) grenade 3 a and two (2)
live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police station for further investigation. In the
course of the same, the petitioner was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to the Davao Metrodiscom office and the
prohibited articles recovered from him were indorsed to M/Sgt. Didoy, the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of Davao City wherein after a plea of not guilty
and trial on the merits a decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:
"WHEREFORE, in view of all the foregoing, this Court finds the accused guilty beyond reasonable
doubt of the offense charged.
It appearing that the accused was below eighteen (18) years old at the time of the commission of the
offense (Art. 68, par. 2), he is hereby sentenced to an indeterminate penalty ranging from TEN (10)
YEARS and ONE (1) DAY of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11)
days of Reclusion Temporal, and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in favor of the government and the Branch
Clerk of Court is hereby directed to turn over said items to the Chief, Davao Metrodiscom, Davao
City." 5
Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in due course a decision was
rendered on February 23, 1989 affirming in toto the appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest or search and seizure,
the items which were confiscated from the possession of the petitioner are inadmissible in evidence against him. LexLib
The Solicitor General, in justifying the warrantless search of the buri bag then carried by the petitioner, argues that under
Section 12, Rule 126 of the Rules of Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant. It is further alleged that the arrest without
a warrant of the petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
"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;

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 (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)"
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by a peace officer or private
person, among others, when in his presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been committed, and he has personal knowledge of
the facts indicating that the person arrested has committed it.
The Solicitor General argues that when the two policemen approached the petitioner, he was actually committing or had
just committed the offense of illegal possession of firearms and ammunitions in the presence of the police officers and
consequently the search and seizure of the contraband was incidental to the lawful arrest in accordance with  Section 12,
Rule 126 of the 1985 Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended the petitioner as he attempted to flee
they did not know that he had committed, or was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag. They did now know what its contents
were. The said circumstances did not justify an arrest without a warrant. llcd
However, there are many instances where a warrant and seizure can be effected without necessarily being preceded by
an arrest, foremost of which is the "stop and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte vs. de Villa, 7 as follows:
"Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a
search warrant by the military manning the checkpoints, without more, i.e., without stating the details of
the incidents which amount to a violation of his right against unlawful search and seizure, is not
sufficient to enable the Court to determine whether there was a violation of Valmonte's right against
unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable
are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be
resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on
the public fair grounds, or simply looks into a vehicle or flashes a light therein, these do not constitute
unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also
be regarded as measures to thwart plots to destabilize the government in the interest of public security.
In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of
the insurgency movement, so clearly reflected in the increased killings in cities of police and military
men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming
rise in lawlessness and violence in such urban centers, not all of which are reported in media, most
likely brought about by deteriorating economic conditions — which all sum up to what one can rightly
consider, at the very least, as abnormal times. Between the inherent right of the state to protect its
existence and promote public welfare and an individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
 
True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a
peaceful community. (Emphasis supplied)."

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Thus, as between a warrantless search and seizure conducted at military or police checkpoints and the search thereat in
the case at bar, there is no question that, indeed, the latter is more reasonable considering that unlike in the former, it was
effected on the basis of a probable cause. The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall
have obtained a search warrant for the purpose. Such an exercise may prove to be useless, futile and much too late.
In People vs. CFI of Rizal, 8 this Court held as follows:
". . . In the ordinary cases where warrant is indispensably necessary, the mechanics prescribed by the
Constitution and reiterated in the Rules of Court must be followed and satisfied. But We need not argue
that there are exceptions. Thus in the extraordinary events where warrant is not necessary to effect a
valid search or seizure, or when the latter cannot be performed except without warrant, what constitutes
a reasonable or unreasonable search or seizure becomes purely a judicial question, determinable from
the uniqueness of the circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure was made, the
place or thing searched and the character of the articles procured."
The Court reproduces with approval the following disquisition of the Solicitor General: cdphil
"The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose
object is either to determine the identity of a suspicious individual or to maintain the status
quo momentarily while the police officer seeks to obtain more information. This is illustrated in the case
of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly walked past a store window and
returned to a spot where they apparently conferred with a third man. This aroused the suspicion of a
police officer. To the experienced officer, the behavior of the men indicated that they were sizing up the
store for an armed robbery. When the police officer approached the men and asked them for their
names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun him around and
frisked him. Finding a concealed weapon in one, he did the same to the other two and found another
weapon. In the prosecution for the offense of carrying a concealed weapon, the defense of illegal
search and seizure was put up. The United States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner approach a person for the purpose of
investigating possible criminal behavior even though there is no probable cause to make an arrest." In
such a situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime
to occur, to stop a suspicious individual briefly in order to determine his identity or maintain the  status
quo while obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and
hence, the constitutional guarantee against unreasonable searches and seizures has not been
violated." 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
|||  (Posadas y Zamora v. Court of Appeals, G.R. No. 89139, [August 2, 1990], 266 PHIL 306-313)

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 FIRST DIVISION

[G.R. No. 87059. June 22, 1992.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MENGOTE Y

TEJAS, accused-appellant.

DECISION

CRUZ, J  p:

Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen
pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not
admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree.
The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its
seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call
from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in
Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial
by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was
holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried
to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then
searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson
revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted
in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police
headquarters for investigation by the Intelligence Division. LLpr
On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of
Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No.
1866, committed as follows:
That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there
wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to
wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license or permit therefor from the proper authorities.
Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the
subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen
from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted" on him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A, B and C and admitted over the objection
of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal
seizure, no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful
arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also

155
contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been
disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
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.
There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for
any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself
controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the
arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules
of Court reading as follows:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or private person may without a warrant,
arrest a person: Cdpr
(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.
We have carefully examined the wording of this rule and cannot see how we can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was
arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least
attempting to commit an offense, (2) in the presence of the arresting officer.
 
These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-
appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers
themselves. There was apparently no offense that had just been committed or was being actually committed or at least
being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts
"created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had
been committed and that the accused-appellant had committed it." The question is, What offense? What offense could
possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not
exactly forsaken?

156
These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different
if Mengote had been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from
a passenger jeep with his companion. He was not skulking in the shadows but walking in the clear light of day. There was
nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side
to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution
suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves
testified that they were dispatched to that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did
not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. LLpr
In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was
a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind
the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that
we subsequently upheld on the ground that probable cause had been sufficiently established.
The case before us is different because there was nothing to support the arresting officers' suspicion other than
Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in
their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was
unconstitutional. This was effected while he was coming down a vessel, to all appearances no less innocent than the
other disembarking passengers. He had not committed nor was he actually committing or attempting to commit an offense
in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that,
as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has
not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers
had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the
telephone caller, and about a crime that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the
participation therein of the accused-appellant. It was only later, after Danganan had appeared at the police headquarters,
that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal
possession or the firearm found on Mengote's person, the policemen discovered this only after he had been searched and
the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.
Before these events, the peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that
he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or
is about to commit an offense must have personal knowledge of the fact. The offense must also be
committed in is presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime.  A crime must in fact or actually
have been committed first. That a crime has actually been committed is an essential precondition. It is
not enough to suspect that a crime may have been committed. The fact of the commission of the
offense must be undisputed. The test of reasonable ground applies only to the identity of the
perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime
about to be committed, being committed, or just committed, what was that crime? There is no allegation

157
 in the record of such a justification. Parenthetically, it may be observed that under the Revised Rule
113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as
stressed in the recent case of People v. Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his
abdomen, even if it be possibly because of a stomachache, or if a peace officer could clamp handcuffs on any person with
a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply
cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice
on the part of the arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to
sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution
has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on
the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but
also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client.
The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation
even more commendable.
The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of
the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of
them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital
evidence they had invalidly seized. LLpr
This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons
who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by
those who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and
ordered released immediately unless he is validly detained for other offenses. No costs.
SO ORDERED.
|||  (People v. Mengote y Tejas, G.R. No. 87059, [June 22, 1992], 285 PHIL 642-651)

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 FIRST DIVISION

[G.R. No. 74869. July 6, 1988.]

PEOPLE OF THE PHILIPPINES,  plaintiff-appellee, vs. IDEL  AMINNUDIN  y AHNI, defendant-

appellant.

DECISION

CRUZ,  J p:

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. 8 Acting 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, 10 who 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
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spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in
a secret pocket below his belt 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. 1 6 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 follow:
"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 particular
informer, prior to June 25, 1984 we have already reports of the particular operation which was
being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before June 25, 1984 with respect to the
coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence report?
"A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance,
report of illegal gambling operation.
"COURT:
"Q Previous to that particular information which you said two days before June 25, 1984, did you also
receive any report regarding the activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"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.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs?

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 "A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you
many days before you received the intelligence report in writing?
"A Not a report of the particular coming of Aminnudin but his activities.
"Q You only knew that he was coming on June 25, 1984 two days before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know that Aminnudin was coming?
"A Before June 23, 1984, I, in my capacity, did not know that he was coming but on June 23, 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 has already consummated the act of selling and shipping
marijuana stuff.
"COURT:
"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"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?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will yield positive result.
"Q Is that your procedure that whenever it will yield positive result you do not need a search warrant
anymore?
"A Search warrant is not necessary." 23
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 "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 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.

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 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 criminal 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.
Narvasa, Gancayco and Medialdea JJ. concur.
|||  (People v. Aminnudin y Ahni, G.R. No. 74869, [July 6, 1988], 246 PHIL 424-435)

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