CONSTITUTIONAL LAW II

REQUIREMENTS OF FAIR PROCEDURE

ARRESTS, SEARCHES AND SEIZURES, PRIVACY OF COMMUNICATION
_________________________________________________ Republic of the Philippines Supreme Court Manila investigation on March 8, 2005 to verify the allegations of the complaint. However, since the office of Atty. Morales was located at the innermost section of the Docket/Appeals Section of the OCC, DCA Dela Cruz failed to extensively make an observation of the actuations of Atty. Morales. On March 16, 2005, a spot investigation was conducted by DCA Dela Cruz together with four NBI agents, a crime photographer and a support staff. The team was able to access the personal computer of Atty. Morales and print two documents stored in its hard drive, a Petition for Relief from Judgment for the case entitled, Manolo N. Blanquera, et al. v. Heirs of Lamberto N. Blanquera in the name of Atty. Jose P. Icaonapo, Jr. (Atty. Icaonapo) filed with the Court of Appeals, and a Pre-trial Brief for the case entitled, Pentacapital Investment Corp. v. Toyoharu Aoki, et al. also in the name of Atty. Icaonapo, which was filed before Branch 1, Regional Trial Court (RTC), Manila. Atty. Morales's computer was seized and taken to the custody of the OCA.[2] Upon Atty. Morales's motion however, the Court ordered the release of said computer with an order to the Management Information Systems Office of the Supreme Court to first retrieve the files stored therein.[3] erly A.M. OCA IPI No. 05-2155-P) Atty. Morales filed a letter-complaint addressed to then Chief Justice Hilario G. Davide, Jr. against DCA Dela Cruz and his companions for alleged conspiracy and culpable violation of Secs. 1,[4] 2[5] & 3[6] of Art. III of the Constitution relative to the spot investigation. Said letter-complaint was indorsed by the Chief Justice to the Court Administrator on March 31, 2005 for appropriate action.[7] Atty. Morales's wife, Francisca Landicho-Morales also filed a letter-complaint dated February 15, 2005 against Judge Crispin B. Bravo, Presiding Judge of MeTC Branch 16 Manila, Lenin Bravo, former Clerk of the said branch and Judge Cristina Javalera-Sulit, Presiding Judge of MeTC Branch 18, Manila for violations of the law and ethical standards which was indorsed by Chief Justice Davide to the Court Administrator for preliminary inquiry.[8] Although diligent efforts were made to ascertain from the OCA Legal Office the current status of Atty. Morales's case against DCA Dela Cruz, the same however, could not be determined.

REQUIREMENTS OF SEARCH WARRANTS

EN BANC

Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila And

Anonymous Letter-Complaint against Clerk of Court Atty. Henry P. Favorito of the Office of the Clerk of Court, Clerk of Court Atty. Miguel Morales of Branch 17, Clerk of Court Amie Grace Arreolaof Branch 4, Administrative Officer III William Calda of the Office of the Clerk of Court and Stenographer Isabel Siwa of Branch 16, all of the Metropolitan Trial Court, Manila. x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- - -- -- -- -- -- -- -- x

RESOLUTION

Parenthetically, Atty. Favorito, together with more than a hundred employees of the MeTC Manila, wrote an undated letter to Chief Justice Davide assailing the spot investigation conducted by DCA Dela Cruz.[9] Said letter was indorsed by Chief Justice Davide to DCA Dela Cruz on March 28, 2005 for his comment.[10] No comment can be found in the records of herein administrative cases.

AUSTRIA-MARTINEZ, J.: In a 1st Indorsement dated April 14, 2005, then Court Administrator Presbitero J. Velasco, Jr. (now Associate Justice of the Supreme Court) directed Atty. Morales to comment on the undated anonymous letter-complaint.[11]

Before the Court are two anonymous complaints: docketed as A.M. No. P-08-2519 charging Atty. Miguel Morales (Atty. Morales),

Branch Clerk of Court, Branch 17, Metropolitan Trial Court (MeTC) of Manila of misconduct; and A.M. No. P-08-2520 charging Atty. Morales, together with Isabel Siwa (Siwa), Court Stenographer, Branch 16; William Calda (Calda), Administrative Officer III, Office of the Clerk of Court (OCC); Amie Grace Arreola (Arreola), Branch Clerk of Court, Branch 4, and Atty. Henry P. Favorito (Atty. Favorito), Clerk of Court VI, OCC, all of the MeTC, Manila of misconduct, graft and corruption
and moonlighting.

A.M. No. P-08-2519

In his Manifestation which the OCA received on April 27, 2005, Atty. Morales alleged that: the anonymous letter-complaint should not have been given due course as there is no truth to the allegations therein; the OCA took almost a year to act on the anonymous lettercomplaint which did not have the proper indorsement from the Office of the Chief Justice; even though he brought to the OCC his personal computer, such act is not prohibited; he did not use his computer to write pleadings during office hours and neither did he use paper of the OCC; the raid conducted by DCA Dela Cruz without search and seizure orders violated his right to privacy and the articles seized therewith should be considered inadmissible.[12]

In an unsigned and undated letter which the Office of the Court Administrator (OCA) received on February 24, 2005, the writers, who claim to be employees of the OCC-MeTC of Manila, allege that Atty. Morales, then detailed at the OCC, was consuming his working hours filing and attending to personal cases, such as administrative cases against employees in his old sala, using office supplies, equipment and utilities. The writers aver that Atty. Moraless conduct has demoralized them and they resorted to filing an anonymous complaint in fear of retaliation from Atty. Morales.[1]

In a letter dated April 12, 2005, Atty. Morales applied for optional retirement[13] which the Court approved in its Resolution dated October 12, 2005 subject to the withholding of his benefits pending resolution of cases against him, the instant case included.[14]

A.M. No. P-08-2520 Assistant Court Administrator (ACA) now Deputy Court Administrator (DCA) Reuben P. dela Cruz, conducted a discreet

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In another unsigned letter dated April 1, 2004, the writers who claim to be employees of the OCC-MeTC, Manila, charge Atty. Morales, Arreola, Atty. Favorito, Calda andSiwa of the following offenses: Atty. Morales and Arreola, who are both detailed in the OCC, leave the office after logging-in only to return in the afternoon, which acts are allowed by Atty. Favorito; Atty. Morales and Arreola were not given assignments and whenever they are at the office, they do nothing but play computer games; Siwa is also allowed by Atty. Favorito to lend money and rediscount checks during office hours using court premises; many people from different offices go to the OCC because of the business of Siwa; Atty. Favorito also allows two of Siwa's personal maids to use the OCC as their office in rediscounting checks; and Atty. Favorito and Calda charge P50.00 to P500.00 from sureties claiming said amounts to be processing fees without issuing receipts therefor.[15] Calda explains in his letter dated April 25, 2005 that: the fees of P50.00 and P500.00 were charged in connection with the filing of surety and cash bonds pursuant to Rule 141 of the Revised Rules of Court and that corresponding official receipts were issued; at nighttime, he is the one authorized to approve the filing of surety bonds since he is the highest ranking officer of a skeletal force detailed for night court duty; he has been with the MeTC for 16 years, rose in rank, was never involved in any controversy and would never tarnish his reputation.[24]

Arreola asserts that: her record of arrival and departure was always signed by her superiors without question because it reflected the correct entries; she is always in the office even when there is typhoon; and she has proven herself useful in the OCC by answering queries of litigants and verifications from other offices and attending to complaints.[25]

In the same spot investigation conducted by DCA De La Cruz on March 16, 2005, a partly hidden plastic box was discovered containing the amount of P65,390.00 and six commercial checks, which Siwa voluntarily opened to the team. These were also confiscated and turned over to the custody of the OCA.[16]

In a letter to then Chief Justice Davide dated April 12, 2005, Siwa requested that said money and personal belongings that were confiscated be returned to her immediately and that a formal investigation be conducted regarding DCA Dela Cruz's conduct during the spot investigation.[17] The seized items were later returned to Siwa[18]while her letter-complaint was indorsed by the Chief Justice to the Court Administrator on April 18, 2005 for appropriate action.[19] As with the complaint filed by Atty. Morales, however, the status of Siwa's complaint could not be ascertained despite diligent efforts at inquiring about the matter from the OCA Legal Office.

In compliance, Atty. Favorito adopted the comments of Atty. Morales, Calda and Arreola and denied that he committed the acts alluded to in the anonymous letter-complaint.[26] Atty. Favorito also incorporated in his comment a letter of the employees of the OCC-MTC Manila disowning the alleged anonymous complaint.[27]

In a Resolution dated July 27, 2005, the Court, upon recommendation of the OCA, consolidated the two complaints and referred the same to the Executive Judge of theMeTC, Manila for investigation, report and recommendation.[28]

Report of the Investigating Judge In a 1st Indorsement dated April 14, 2005, the OCA directed Atty. Morales, Atty. Favorito, Calda, Arreola and Siwa to comment on the letter-complaint.[20]

Atty. Morales submitted the same Manifestation he submitted in A.M. P-08-2519.

In her Report dated September 1, 2006, MeTC Executive Judge Ma. Theresa Dolores C. Gomez-Estoesta states that discreet observation of the daily working activities of Atty. Morales and Siwa could no longer be done as the two had already availed themselves of their optional retirement; thus, random interviews with employees who had proximate working activities with them were resorted to, as well as perusal of court records.[29]

Siwa in her Comment avers that: the anonymous lettercomplaint should not have been given due course as it contravened Sec. 46(c) of Executive Order No. 292 and the implementing rules; it was not subscribed and sworn to by the complainant and there is no obvious truth to the allegations therein; while she admits that she is involved in the business of rediscounting checks, such is a legitimate endeavor, in fact, there are other employees of the court engaged in the same business; she is also not aware of any rule prohibiting her from engaging in said endeavor; she does not use the OCC to conduct her business and she is mindful of her duties as a government employee; thus, she has a staff to do the encashment of the checks; there were rare occasions when her staff members were stationed at the corridors to lend cash to employees but while said occasions may have occurred during office hours, her staff cannot be blamed for the same since the employees go to them; she has never neglected her duty as a court stenographer -- in fact, her last performance rating was very satisfactory; it is a known fact that because of the meager pay given to government employees, most augment their income by engaging in business; she should not be singled out for being enterprising and industrious; and it is unfair to accuse her of wrongdoing at a time when she has voluntarily retired from government service due to health reasons.[21]

The following employees were interviewed: Rueben Duque, Clerk of Court, Branch 16, MeTC; Beneluz Dumlao, Records Officer I; Marilou Magbag, Clerk III; EstrellaRafael, Records Officer I; Lydia dela Cruz, Records Officer III; Raymundo Bilbao, Clerk III; Marie Joy Valle, Clerk IV, and Ma. Lizabeth Marcelino, Administrative Officer II, all of the OCC; Rosie Jose, freelance bondswoman, and Norberto D. Soriano, authorized representative of the Commonwealth Insurance Company.[30]

After conducting her investigation, Judge Estoesta found:

A month after the incident, Siwa filed for optional retirement[22] which the Court approved in its Resolution[23] dated October 12, 2005, with the proviso that the amount ofP30,000.00 shall be retained from the money value of her earned leave credits pending resolution of the present case.

Insofar as Atty. Morales, Atty. Favorito, Calda and Arreola are concerned, the investigation immediately stumbled into a dead end. No one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against the said personnel. While almost all confirmed that Atty. Morales maintained his own computer and printer at the OCC, nobody could state for certain that what he worked on were pleadings for private cases. Rafael, who was seated right next to Atty. Morales at the OCC merely said that what preoccupied Atty. Morales were his own administrative cases. She did not notice Atty. Morales engage in private work in his computer although she saw Atty. Icaonapo drop by the office every now and then to personally see Atty. Morales. Rafael explained however that this could be because Atty. Icaonapo was the counsel of Atty. Morales in his administrative cases. While documents referring to private cases were found in the hard drive of the computer of Atty. Morales, and while the writing style is similar to that of the Manifestation he filed in this case, still no definite conclusion could be drawn that he has composed the said pleadings at the OCC during

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official working hours. A close examination of the Pre-Trial Brief signed by Atty. Icaonapo and filed with the RTC Branch 1, Manila also revealed that the paper and the printer used were not the same as that used in the office of Atty. Morales.[31] Instead the OCA submits the following findings.

There was also no evidence to support charges of extortion against Atty. Favorito and Calda. Two bondsmen who were randomly interviewed denied that Atty. Favoritoand Calda exacted illegal sums from them. The amounts they charged could actually refer to legal fees.[32]

As to Arreola, the charge against her also has no basis. The interviewees were unanimous in saying that Arreola was always around the office, and that while she fetched her son from a nearby school, she did so during lunch or after office hours. Random checks on Arreola also revealed that she was always at the OCC and at Branch 30 where she was reassigned.[33]

On Atty. Morales: The allegation that Atty. Morales had been using his personal computer to draft pleadings for private counsels was established in the spot inspection onMarch 16, 2005. The hard drive of Atty. Moraless computer yielded a pre-trial brief and a petition for relief from judgment with the name of Atty. Icaonapo. The said pretrial brief was the same pleading that was submitted to RTC Branch 1, Manila by Atty. Icaonapo on February 10, 2003. Atty. Morales in his Manifestation dated April 25, 2005 failed to refute the evidence that emanated from his computer and instead chided the OCA for confiscating the same.

As to Siwa, she candidly admitted that she was engaged in lending and discounting activities at her station, through her own staff which she had maintained for said purpose. Because of her business, a number of employees, even those from other government agencies, usually huddled at her station to hold transactions. Branch Clerk of Court RubenDuque relates that a number of people would often go to their office looking for Siwa for lending and rediscounting. Assuming that Siwa is not prohibited from engaging in said business, still it has distracted her from her duties as a stenographer. A random check on the court records of Branch 16 showed that Siwa had not yet submitted a complete transcription of 7 stenographic notes in 5 cases, 3 of which already had decisions rendered. In one case, the testimonies of two prosecution witnesses had to be re-taken to fill in the gap which not only wasted precious time of the court but also distressed the efforts of the prosecution in the presentation of its case.[34]

On Siwa: While she insisted that the anonymous letter should not have been given due course, she admitted in her April 28, 2005 Manifestation to being involved in the business of rediscounting checks, claiming that she was not the only employee engaged in the same, and that she maintained her own personnel to do the rediscounting which stretched to the premises of the MeTC-OCC where Atty. Favorito is the Clerk of Court.[37]

The OCA concluded that: Atty. Morales and Siwa should be found guilty of gross misconduct. Atty. Morales, for preparing pleadings for private counsels and litigants; andSiwa, for engaging in the business of rediscounting checks during office hours; gross misconduct carries the penalty of dismissal from the service even for the first offense, and while Atty. Morales and Siwa have already left the judiciary, the Court can still direct the forfeiture of their benefits; Atty. Favorito should also be held liable for neglect of duty because as Clerk of Court of the MeTC-OCC, he was negligent in allowing the nefarious activities of Atty. Morales and Siwa to happen right inside the confines of the MeTC-OCC.[38]

Judge Estoesta recommended as follows:

On Arreola and Calda: The OCA agrees with Judge Estoesta that the charges against them should be dismissed for lack of concrete evidence.[39]

1. In OCA IPI No. 05-2155-P [now A.M. No. P-08-2519], with no substantial evidence taken to prove the charges in the anonymous letter-complaint filed against Atty. Miguel C. Morales, it is RECOMMENDED that the same be ordered dismissed;

The OCA then recommended:

2. In OCA IPI No. 05-2156-P [now A.M. No. P-2520], likewise, with no substantial evidence taken to prove the charges in the anonymous letter-complaint filed against Atty. Miguel C. Morales, Atty. Henry P. Favorito, William Calda and Amie Grace Arreola, it is RECOMMENDED that the same be ordered dismissed insofar as said court employees are concerned; and

(a) That (resigned) Clerk of Court Miguel C. Morales, Branch 17, and (retired) Court Stenographer Isabel A. Siwa, Branch 16, both of the Metropolitan Trial Court, Manila be found GUILTY of Gross Misconduct with forfeiture of the benefits due them excluding accrued leave credits;

3. In OCA IPI No. 05-2156-P [now A.M. No. P-08-2520] insofar as it concerns Ms. Isabel Siwa, it is RECOMMENDED that she be directed to explain why she still has stenographic notes pending for transcription despite having already availed of an optional retirement pay.[35]

(b) That Clerk of Court Henry P. Favorito of the MeTC-OCC, Manila be found GUILTY of Simple Neglect of Duty and suspended without pay for a period of one (1) month and one (1) day, with a stern warning that a repetition of the same or similar acts in the future shall be dealt with more severely; and

The report was referred to the OCA for its evaluation, report and recommendation.[36]

(c) That the charges made in the April 1, 2004 anonymous letter against Clerk of Court Amie Grace A. Arreola, Branch 4 and Administrative Officer III William Calda, OCC, both of the MeTC, Manila be DISMISSED for lack of merit.[40]

OCA Report and Recommendation The Court's Ruling. The OCA, through ACA Antonio H. Dujua, in its November 7, 2007 Memorandum, states that it does not entirely concur with the findings and recommendation of JudgeEstoesta.

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The Court partly adopts the findings and recommendations of the OCA with some modifications. Court finds however that such allegation on his part, even with a similar allegation from one of his staff,[48] is not sufficient to make the present case fall under the category of a valid warrantless search.

An anonymous complaint is always received with great caution, originating as it does from an unknown author. Such a complaint, however does not justify outright dismissal for being baseless or unfounded for the allegations therein may be easily verified and may, without much difficulty, be substantiated and established by other competent evidence. Indeed, complainants identity would hardly be material where the matter involved is of public interest.[41]

Liability of Atty. Morales.

The two anonymous letters charge Atty. Morales with the following offenses: attending to personal cases while using official time, office supplies, equipment and utilities, leaving the office after logging-in in the morning only to return in the afternoon, and playing computer games whenever he was at the office.

Consent to a search is not to be lightly inferred and must be shown by clear and convincing evidence.[49] It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion.[50] The burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given lies with the State.[51] Acquiescence in the loss of fundamental rights is not to be presumed and courts indulge every reasonable presumption against waiver of fundamental constitutional rights.[52] To constitute a valid consent or waiver of the constitutional guarantee against obtrusive searches, it must be shown that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right.[53]

It is undisputed that pleadings for private cases were found in Atty. Morales's personal computer in the MeTC-OCC and Atty. Morales could not provide any satisfactory explanation therefor. Such fact, by itself, could already make Atty. Morales liable for simple misconduct for it hints of impropriety on his part. The Court has always stressed that all members of the judiciary should be free from any whiff of impropriety, not only with respect to their duties in the judicial branch but also to their behavior outside the court as private individuals, in order that the integrity and good name of the courts of justice shall be preserved.[42]

In this case, what is missing is a showing that Atty. Morales had an actual intention to relinquish his right. While he may have agreed to the opening of his personal computer and the printing of files therefrom, in the presence of DCA Dela Cruz, his staff and some NBI agents during the March 16, 2005 spot investigation, it is also of record that Atty. Morales immediately filed an administrative case against said persons questioning the validity of the investigation, specifically invoking his constitutional right against unreasonable search and seizure.

While Atty. Morales may have fallen short of the exacting standards required of every court employee, unfortunately, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right.

Atty. Morales, in defense, argues that since the pleadings were acquired from his personal computer which DCA Dela Cruz confiscated without any valid search and seizure order, such evidence should be considered as the fruits of a poisonous tree as it violated his right to privacy.

As the Court has staunchly declared:

Both the Investigating Justice and the OCA failed to discuss this matter. The Court however finds it proper to squarely address such issue, without prejudice to the outcome of the administrative case filed by Atty. Morales against DCA Dela Cruz regarding the same incident. The finding of guilt or exoneration of Atty. Morales hinges on this very crucial question: Are the pleadings found in Atty. Morales's personal computer admissible in the present administrative case against him?

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.

The Court answers in the negative.

The right against unreasonable search and seizure in turn is at the top of the hierarchy of rights, next only to, if not on the same plane as, the right to life, liberty and property, which is protected by the due process clause. This is as it should be for, as stressed by a couple of noted freedom advocates, the right to personal security which, along with the right to privacy, is the foundation of the right against unreasonable search and seizure includes the right to exist, and the right to enjoyment of life while existing.

Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, which is provided for under Section 2, Article III thereof.[43] The exclusionary rule under Section 3(2), Article III of the Constitution also bars the admission of evidence obtained in violation of such right.[44] The fact that the present case is administrative in nature does not render the above principle inoperative. As expounded in Zulueta v. Court of Appeals,[45] any violation of the aforestated constitutional right renders the evidence obtained inadmissible for any purpose in any proceeding.

xxxx

There are exceptions to consented warrantless search.[46]

this

rule

one

of

which

is

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may 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.[54]

DCA Dela Cruz in his report claims that that they were able to obtain the subject pleadings with the consent of Atty. Morales.[47] The

And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to

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hold him administratively liable, the Court has no choice but to dismiss the charges herein against him for insufficiency of evidence. Liability of Siwa. Her argument that her business is a legal endeavor also cannot excuse her from liability. Many moonlighting activities pertain to legal acts that otherwise would be countenanced if the actors were not employed in the public sector. And while moonlighting is not normally considered a serious misconduct, nonetheless, by the very nature of the position held, it amounts to a malfeasance in office.[65]

The Court agrees with the OCA that Siwa should be administratively disciplined for engaging in the business of lending and rediscounting checks.

Siwa admits engaging in the business of lending and rediscounting checks, claiming that it was a legitimate endeavor needed to augment her meager income as a court employee; that she is not aware of any rule prohibiting her from engaging in the business of rediscounting checks; that there are other employees engaged in the same business; and that she employs her own staff to do the encashment of the checks as she always attends to and never neglects her duties as a stenographer.[55]

Siwa conducted her business within the court's premises, which placed the image of the judiciary, of which she is part, in a bad light. Time and again, the Court has held that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat; thus the conduct of a person serving the judiciary must, at all times, be characterized by propriety and decorum, and be above suspicion so as to earn and keep the respect of the public for the judiciary.[66]

Siwa is clearly mistaken.

Officials and employees of the judiciary are prohibited from engaging directly in any private business, vocation, or profession even outside office hours to ensure that full-time officers of the court render full-time service so that there may be no undue delay in the administration of justice and in the disposition of cases.[56] The nature of work of court employees requires them to serve with the highest degree of efficiency and responsibility and the entire time of judiciary officials and employees must be devoted to government service to ensure efficient and speedy administration of justice.[57] Indeed, the Court has always stressed that court employees must strictly observe official time and devote every second moment of such time to public service.[58] And while the compensation may be meager, that is the sacrifice judicial employees must be willing to take.

Siwa's infraction constitutes conduct prejudicial to the best interest of the service which, under Sec. 52 A (20) of Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, carries the penalty of suspension of 6 months and 1 day to 1 year for the first offense and dismissal for the second offense. Since this is her first offense and considering the October 12, 2005 Resolution of the Court in A.M. No. 12096-Ret. which approved Siwa's application for optional retirement, retaining only the amount ofP30,000.00 from the money value of her earned leave credits pending resolution of the instant case, the Court finds she should be imposed the penalty of fine in the amount ofP30,000.00.

Liability of Atty. Favorito.

Association, Inc. v. Cabusao, Jr.:

As pronounced by the Court in Biyaheros Mart Livelihood

There is no evidence to show that Atty. Favorito knows or should have known that Atty. Morales had copies of pleadings for private cases in his personal computer for which Atty. Favorito could be held liable for neglect of duty as supervisor. As to Siwa's lending and rediscounting activities, however, the Court finds that Atty. Favorito was remiss in addressing said matter which activity took place in the court's premises which was under his responsibility.

Government service demands great sacrifice. One who cannot live with the modest salary of a public office has no business staying in the service. He is free to seek greener pastures elsewhere. The public trust character of the office proscribes him from employing the facilities or using official time for private business or purposes.[59]

Clarifications, however, should be made.

The OCA in its Memorandum dated November 7, 2007 stated Siwa's offense is compounded by the fact that she was previously verbally instructed by her superior, MeTC Branch 16 Presiding Judge Crispin B. Bravo, to stop using court premises for her business. But she ignored the same, prompting the latter to issue a written Memorandum dated January 18, 2005 asking her to explain why she was still using the office in transacting/attending to her lending and rediscounting business when she was already verbally instructed to desist therefrom in December 2004.[60] that:

x x x in her April 28, 2005 Manifestation, Siwa admitted to being involved in the business of rediscounting checks, claiming that 'she is not the only employee engaged in the same business.' Respondent [Siwa] even had the audacity to admit that she 'maintained my own personnel' to do the rediscounting which stretched to the premises of the MeTC-OCC, where respondent Favorito is the Clerk of Court.[67] (Emphasis supplied)

Siwa apologized and promised not to let it happen again, in her letter dated January 21, 2005.[61] Siwa also admitted that she was using her house-helper in the rediscounting of checks and allowed the latter to use the court premises in the conduct of the same.[62]

Her allegation that she never neglected her duty as a stenographer is also belied by the findings of the Investigating Judge, who in her random check of records, discovered that Siwa had not yet submitted a complete transcription of 7 stenographic notes in 5 cases (3 criminal and 2 civil cases), in three of which decisions were already rendered.[63] In one case, the testimonies of the prosecution witnesses had to be re-taken.[64] Thus, contrary to Siwa's assertion, she was not able to satisfactorily perform her duties as a court stenographer while engaging in private business.

A review of the records, however, would show that what Siwa submitted is not a Manifestation but a Comment dated April 28, 2005 and there, instead of stating that her rediscounting activities stretched to the premises of the MeTC-OCC, she actually denied that she used the OCC to conduct said business. Pertinent portions of said Comment reads:

4.1. Respondent admits that she is involved in the business of rediscounting checks x x x.

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xxxx Such finding was affirmed by the OCA in its Memorandum dated November 7, 2007 which recommended the dismissal of said charges against Atty. Favorito and Calda for lack of concrete proof.[71]

4.2. Respondent, however, denies that she uses the Office of the Clerk of Court to conduct this business x x x.

Liability of Arreola on absence during office hours. 4.3. There are other occasions when the said staff will be stationed at the corridors to lend emergency cash to employees in need. The said occasions may have occurred during office hours, for which, the respondent's staff may not be blamed since it was the employees themselves who go to them. However, these instances were rare. It should also be emphasized that these transactions occurred outside of the offices and within the common or public areas.[68] (Emphasis supplied)

As with the extortion charges against Atty. Favorito and Calda, the Court finds no sufficient evidence to hold Arreola administratively liable.

As reported by Judge Estoesta: Thus, Siwa never admitted that her business stretched to the premises of the OCC-MeTC but only claimed that her staff used corridors which were common or public areas for their transactions. x x x the charge against Ms. Amie Grace Arreola regarding her habit of leaving the office after logging-in found no concrete corroboration.

Still, Atty. Favorito failed to address such matter and to prevent such activities from taking place, even if they were conducted in the corridors, since such areas are still part of the court's premises. As Clerk of Court of the OCC, it is Atty. Favorito's duty to plan, direct, supervise and coordinate the activities of all divisions/sections/units in the OCC.[69] He should therefore be reprimanded for his failure to duly supervise and prevent such activities from happening within his area of responsibility.

The interviewees were actually unanimous in saying that Ms. Arreola was not prone to such habit as she is always around the office. Ms. Arreola may have been known to fetch her son at a nearby school but she has always done so during lunch hours and after office hours.

Liability of Atty. Favorito and Calda on the extortion charges.

On the claim that Atty. Favorito and Caldo extorted money from sureties without issuing receipts therefor, the Court finds no cogent reason to deviate from the findings of the Investigating Judge and the OCA.

As a matter of fact, at a time when the MeTC was stricken by a debilitating brown-out schedule in the afternoon sometime [in] July 2006, Ms. Arreola was still around, having been one of the skeletal force who volunteered to stay on. The undersigned has personally seen her around 5:30 p.m. of the same day.

Investigating Judge Estoesta found that:

As a matter of fact, several random checks on Ms. Arreola by the undersigned herself revealed that she has always been around at the OCC and at Branch 30 where she was re-assigned as Branch Clerk of Court. At times, personal visits were made, interspersed by telephone calls between 8:00 a.m. to 10:30 a.m. where Ms. Arreola proved herself to be always at the office.

x x x the charges of extortion levelled against Atty. Henry P. Favorito and Mr. William Calda x x x suffered from loose ends.

Needless to say, therefore, the charge against Ms. Arreola is certainly without basis.[72]

Random interviews with two (2) bondsmen denied that Atty. Favorito and Mr. Calda exacted such amounts.

The OCA agreed with the said finding and likewise recommended the dismissal of the charges against Arreola.[73]

The P50.00 and P500.00 specified to as processing fee could actually refer to the Legal Fees mandated under Section 8 (o) and Section 21 (c) of Rule 141, as follows x x x

Here, it is obvious that the anonymous letter-complainant has no understanding whatsoever of the legal fees charged by Office of the Clerk of Court.

It is well-settled that in administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The complainant has the burden of proving, by substantial evidence, the allegations in the complaint. That is, in the absence of evidence to the contrary, what will prevail is that respondent has regularly performed his or her duties.[74] Reliance on mere allegations, conjectures and suppositions will leave an administrative complaint with no leg to stand on, and charges based on mere suspicion and speculation cannot be given credence.[75]

This actually hints of the fact that said anonymous lettercomplainant may not be a personnel of the Office of the Clerk of Court after all.

Since there is no proof, apart from the allegations of the lettercomplaint, to hold Atty. Favorito, Calda and Arreola liable for the aforestated charges against them, the Court deems it proper to dismiss said charges for lack of merit.

The extortion charge slapped against Atty. Favorito and Mr. Calda, therefore, rings empty.[70]

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Other matters. PEOPLE OF THE PHILIPPINES, Appellee, vs. RAUL NUEZ y REVILLEZA, Appellant. DECISION QUISUMBING, J.: This petition for certiorari seeks the reversal of the Decision1 dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420. The appellate court affirmed the Decision2 dated February 11, 2002 of the Regional Trial Court (RTC) of Calamba, Laguna, Branch 36, which convicted appellant in Criminal Case No. 8614-01-C for violation of Section 16, Article III of Republic Act No. 6425, also known as the Dangerous Drugs Act of 1972, as amended by Rep. Act No. 7659.3 On June 25, 2001, Raul R. Nuez was formally charged with violation of Section 16, Article III of Rep. Act No. 6425, as amended. The Information reads: That at around 6:00 oclock in the morning of the 24th day of April 20014 at Brgy. San Antonio, Municipality of Los Ba[]os, Province of Laguna and within the jurisdiction of the Honorable Court, the abovenamed accused, without any authority of law, and in a search conducted at his residence as stated above, did then and there willfully, unlawfully and feloniously have in his possession, control and custody thirty[-]one (31) heat sealed transparent plastic sachets containing methamp[h]etamine hydrochloride otherwise known as "shabu", a regulated drug, with a total weight of 233.93 grams in violation of the aforementioned provision of law. CONTRARY TO LAW.5 The facts are as follows: Atty. Henry P. Favorito, Clerk of Court of the Office of the Clerk of Court is REPRIMANDED for his failure to supervise the lending and rediscounting activites of Siwawhich took place in the court's premises. The extortion charges against him are DISMISSED for lack of merit. At 6:00 a.m. on April 26, 2001, operatives of the Sta. Cruz, Laguna Police Detectives in coordination with the Los Baos Police Station (LBPS) and IID Mobile Force conducted a search in the house of Raul R. Nuez based on reports of drug possession. The group, led by Commanding Officer Arwin Pagkalinawan, included SPO1 Odelon Ilagan, SPO3 Eduardo Paz, PO1 Ronnie Orfano, PO2 Gerry Crisostomo, PO2 Alexander Camantigue, PO2 Joseph Ortega and Senior Inspector Uriquia. Before proceeding to appellants residence in Barangay San Antonio, the group summoned Barangay Captain Mario Mundin and Chief Tanod Alfredo Joaquin to assist them in serving the search warrant. Upon arriving at appellants house, Mundin called on appellant to come out. Thereafter, Commanding Officer Pagkalinawan showed Nuez the warrant. SPO1 Ilagan and PO2 Crisostomo then surveyed appellants room in his presence while his family, PO2 Ortega and the two barangay officials remained in the living room. SPO1 Ilagan found thirty-one (31) packets of shabu, lighters, improvised burners, tooters, and aluminum foil with shabu residue and a ladys wallet containing P4,610 inside appellants dresser. The group also confiscated a component, camera, electric planer, grinder, drill, jigsaw, electric tester, and assorted carpentry tools on suspicion that they were acquired in exchange for shabu. Following the search, SPO1 Ilagan issued a Receipt for Property Seized6 and a Certification of Orderly Search7 which appellant signed. In a Decision dated February 11, 2002, the RTC convicted appellant and sentenced him as follows: WHEREFORE, this court finds the accused guilty, beyond reasonable doubt for Violation of Republic Act 6425 as amended and is hereby sentenced to suffer the penalty of reclusion perpetua and all its accessory penalties under the law. Accused is ordered to pay the fine of two million pesos. SO ORDERED.8 Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 177148 June 30, 2009 Appellant elevated the case to this Court on appeal, but the case was transferred to the Court of Appeals on May 2, 2006, pursuant to our ruling in People v. Mateo.9 On January 19, 2007, the Court of Appeals rendered its decision affirming appellants conviction. The appellate court dismissed appellants defense of frame-up and upheld the credibility of SPO1 Ilagan and PO2 Ortega. It observed that the inconsistencies in their testimony were minor at best, and did not relate to the elements of the crime. The appellate court in its decision decreed as follows:

In view of the initial findings of Investigating Judge Estoesta that Siwa was remiss in her duty of transcribing stenographic notes assigned to her, the OCA is hereby directed to conduct an audit investigation on Siwa's transcription of stenographic notes to determine the full extent of the notes she failed to transcribe on time. If warranted, such matter shall be treated as a separate case to be given a new docket number and assigned to another ponente for evaluation.

The OCA should also report on the status of the complaint filed by Atty. Morales which the Court received on March 31, 2005, the complaint of Isabel Siwa dated April 12, 2005, and the letter-complaint of Atty. Favorito together with other MeTC employees which the Court received on March 28, 2005, against DCA Dela Cruz, regarding the spot investigation conducted on March 16, 2005 regarding this case.

WHEREFORE, the Court finds Isabel Siwa, Court Stenographer of Branch 16, Metropolitan Trial Court, Manila, GUILTY of conduct prejudicial to the best interest of the service and is FINED in the amount of P30,000.00 to be deducted from the money value of her leave credits which was set aside per Resolution dated October 12, 2005 in A.M No. 12096-Ret. entitled Application for Retirement Benefits under Section 13-

A of R.A. No. 8291 of Ms. Isabel A. Siwa, Court Stenographer II, MeTC, Manila, Branch 16.

The charges against Atty. Miguel Morales, former Branch Clerk of Court, Branch 17, are DISMISSED for insufficiency of evidence. Deputy Court Administrator Reuben de la Cruz is advised to be more circumspect in the performance of his duties.

The charges against William Calda, Administrative Officer of the Office of the Clerk of Court, and Amie Grace Arreola, formerly Branch Clerk of Court of Branch 4 now Clerk of Court of Branch 30, both of the Metropolitan Trial Court of Manila, are DISMISSED for lack of merit.

The Office of the Court Administrator is DIRECTED to conduct an audit investigation on Isabel Siwa's transcription of stenographic notes in view of the finding of Judge Ma. Theresa Dolores C. GomezEstoesta in her Investigation Report dated September 1, 2006 in A.M. No. P-08-2519 and A.M. P-08-2520 (formerly A.M. OCA IPI No. 05-2155P and A.M. OCA IPI No. 05-2156-P) that Siwa has not submitted a complete transcription of stenographic notes in several cases assigned to her. Said matter shall be treated as a separate case, to be given a new docket number and assigned to a new ponente for final resolution.

SO ORDERED.

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WHEREFORE, premises considered, the assailed Decision dated February 11, 2002 of the Regional Trial Court, Branch 36, Calamba, Laguna is hereby AFFIRMED. SO ORDERED.10 From the appellate courts decision, appellant timely filed a notice of appeal. This Court required the parties to submit supplemental briefs if they so desire. However, both the Office of the Solicitor General (OSG) and the appellant manifested that they are adopting their briefs before the appellate court. In his brief, appellant contends that I. THE TRIAL COURT ERRED IN ACCORDING GREATER WEIGHT TO THE EVIDENCE ADDUCED BY THE PROSECUTION AND DISREGARDING THE DEFENSE OF FRAME-UP INTERPOSED BY [THE] ACCUSEDAPPELLANT. II. THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE IMPUTED CRIME DESPITE THE INHERENT WEAKNESS OF THE PROSECUTIONS EVIDENCE.11 Simply, the issue is whether appellant is guilty beyond reasonable doubt of Possession of Regulated Drugs under the Dangerous Drugs Act of 1972. Appellant insists that the shabu found in his room was planted. He points out variances in the testimonies of the prosecution witnesses which cast doubt on his culpability: first, SPO1 Ilagan testified that they picked up the barangay officials before going to appellants house but PO2 Ortega claimed that Chief Tanod Joaquin was already with them when they left the police station; second, while SPO1 Ilagan confirmed the presence of the accused during the search, PO2 Ortega related otherwise. More importantly, appellant assails the validity of the search warrant as it did not indicate his exact address but only the barangay and street of his residence. He maintains that none of the occupants witnessed the search as they were all kept in the living room. Finally, appellant questions why the prosecution did not call the barangay officials as witnesses to shed light on the details of the search. Conversely, the OSG argues that appellants guilt has been proven beyond reasonable doubt. It agrees with the trial court that appellant failed to overcome the presumption that the law enforcement agents regularly performed their duties. Further, the OSG brands the testimonies of appellant, his wife and their child as self-serving, absent ill-motives ascribed to the search team. It brushes aside appellants protest, on the validity of the search warrant, for having been belatedly made. After considering carefully the contentions of the parties and the records of this case, we are in agreement that appellants petition lacks merit. Appellant was indicted for possession of regulated drugs under Section 16 of Rep. Act No. 6425 as amended which provides: SEC. 16. Possession or Use of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. To be liable for the crime, the following elements must concur: (a) the accused is found in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and (c) the accused has knowledge that the said drug is a regulated drug.12 All these were found present in the instant case. While appellant interposes the defense of frame-up, we view such claim with disfavor as it can easily be fabricated and is commonly used as a facile refuge in drug cases.13 In cases involving violations of the Dangerous Drugs Act, credence is given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.14 In this case, SPO1 Ilagan found shabu in appellants room; but appellant retorts that it was planted. The latters daughter, Liezel Nuez, testified on the alleged planting of evidence as follows: xxxx Q: While you were walking towards the direction of your bath room at that time have you notice anything which catches your attention? A: I saw a man inside the room taking a plastic from his bag, sir. Q: Did you also notice, what did that man do with that plastic in the bag? A: He put under the bed fronting the door, sir. xxxx Q: Can you describe to this Honorable Court what was that something that the man took out from his bag and placed the same underneath your parents bed? A: It is a plastic containing like a tawas, sir. Q: Have you noticed Miss Witness about how many plastic bag (sic) did the man take from his bag? A: Only one, sir.15 [Emphasis supplied.] xxxx Assuming arguendo that an officer placed a sachet of shabu under appellants bed, appellant had not advanced any reason to account for the thirty-one (31) packets of shabu and drug paraphernalia collected from the dresser in his room. Instead, he readily signed the Receipt for Property Seized and the Certification of Orderly Search. Neither did appellants daughter identify the police officer who allegedly planted evidence. Absent any compelling proof why SPO1 Ilagan would falsely testify against appellant, the presumption of regularity in the performance of official duty stands and we agree that his testimony is worthy of full faith and credit.16 In a further effort to impeach the credibility of the policemen, appellant questions the non-presentation of the barangay officials who purportedly observed the search. The matter of presentation of witnesses, however, is neither for accused nor even for the trial court to decide. Discretion belongs to the prosecutor as to how the State should present its case. The prosecutor has the right to choose whom he would present as witness.17 It bears stressing that by no means did the barangay officials become part of the prosecution when they were asked to witness the search. Hence, even the accused could have presented them to testify thereon. Appellant alleges that SPO1 Ilagan verified his presence inside the room during the search in contrast to PO2 Ortegas account. The records, however, disclose otherwise. On direct examination, PO2 Ortega recounted: FISCAL: Q: What did you do next? WITNESS: A: Capt. Mundin together with Raul and then the three of us went to the room of Raul Nuez, sir. xxxx Q: So, among the group that went to the room of Raul Nuez who went inside? A: It was Raul Nuez, Sgt. Ilagan, Crisostomo who are inside the room. I stayed near the door along with Brgy. Capt. Mundin and Chief Tanod who were looking at what was going on, sir.18 [Emphasis supplied.] On cross-examination, PO2 Ortega did not falter: xxxx Q: Who among you went inside the room of Raul Nuez?

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A: Sgt. Ilagan, Crisostomo, Raul Nuez, myself, Chief Tanod Alfredo and Capt. Mundin, sir.19 [Emphasis supplied.] Besides, any objection to the legality of the search warrant and the admissibility of the evidence obtained thereby was deemed waived when no objection was raised by appellant during trial. For sure, the right to be secure from unreasonable searches and seizures, like any other right, can be waived and the waiver may be made expressly or impliedly.20 As regards the contradiction in the testimonies of SPO1 Ilagan and PO2 Ortega as to whether they picked up Chief Tanod Joaquin at the barangay hall, the same is inconsequential. After all, the witnesses testimonies need only corroborate one another on material details surrounding the actual commission of the crime.21 Here, we find the testimonies of SPO1 Ilagan and PO2 Ortega believable and consistent on material points: appellant was shown the search warrant; the search was conducted in the latters presence; and SPO1 Ilagan found shabu in appellants dresser. It has been ruled that an affirmative testimony coming from credible witnesses without motive to perjure is far stronger than a negative testimony. Records show that appellant and the police officers were strangers to each other. Hence, there is no reason to suggest that the police officers were ill-motivated in apprehending appellant.22 Turning to the objects which may be confiscated during the search, Section 3, Rule 126 of the Rules of Court is pertinent: SEC. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or intended to be used as the means of committing an offense. As a rule, only the personal properties described in the search warrant may be seized by the authorities.23 In the case at bar, Search Warrant No. 4224 specifically authorized the taking of methamphetamine hydrochloride (shabu) and paraphernalia(s) only. By the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statement which would repel such inference.25 Thus, we are here constrained to point out an irregularity in the search conducted. Certainly, the ladys wallet, cash, grinder, camera, component, speakers, electric planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not encompassed by the word paraphernalia as they bear no relation to the use or manufacture of drugs. In seizing the said items then, the police officers exercised their own discretion and determined for themselves which items in appellants residence they believed were "proceeds of the crime" or "means of committing the offense." This is, in our view, absolutely impermissible.26 The purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is to limit the things to be taken 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 should seize. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to confiscate any and all kinds of evidence or articles relating to a crime.27 Accordingly, the objects taken which were not specified in the search warrant should be restored to appellant.1avvphi1 Lastly, we find the penalty imposed by the trial court as affirmed by the appellate court proper. Under Section 20(3)28 of Rep. Act No. 6425 as amended by Rep. Act No. 7659, possession of 200 grams or more of shabu (methamphetamine hydrochloride) renders the accused liable to suffer the maximum penalty under Section 16 of Rep. Act No. 6425, which is reclusion perpetua to death and a fine ranging from P500,000 to P10,000,000. In the case at bar, appellant was found in possession of 233.93 grams of shabu. Hence there being no modifying circumstance proven, the penalty of reclusion perpetua with its accessory penalties, and P2,000,000 fine which the Court of Appeals meted on appellant is in order. WHEREFORE, the Decision dated January 19, 2007 of the Court of Appeals in CA G.R. CR. H.C. No. 02420 isAFFIRMED, with the MODIFICATION that the official custodian of the objects taken during the search which are not otherwise regulated drugs or drug paraphernalia, is ORDERED to return them to appellant.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 180595 March 5, 2010

ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO, Petitioners, vs. HELLENOR D. DONATO, JR. and RAFAEL V. GONZAGA, Respondents. DECISION ABAD, J.: This case is about the need for plaintiff to state the facts constituting his cause of action and the correct forum for actions for damages arising from alleged wrongful procurement and enforcement of a search warrant issued in connection with an alleged criminal violation of the intellectual property law. The Facts and the Case On January 23, 2002 Philip Morris Products, Inc. (Philip Morris) wrote the National Bureau of Investigation (NBI), requesting assistance in curtailing the proliferation of fake Marlboro cigarettes in Angeles City, Pampanga. After doing surveillance work in that city, respondent Hellenor Donato, Jr., the NBI agent assigned to the case, succeeded in confirming the storage and sale of such fake cigarettes at the house at 51 New York Street, Villasol Subdivision, Angeles City, that belonged to petitioner Alexander del Rosario. On March 5, 2002 respondent Donato applied for a search warrant with Branch 57 of the Regional Trial Court (RTC) of Angeles City to search the subject premises. But it took a week later or on March 12, 2002 for the RTC to hear the application and issue the search warrant. Although Donato felt that the delayed hearing compromised the operation, the NBI agents led by respondent Rafael V. Gonzaga proceeded to implement the warrant. Their search yielded no fake Marlboro cigarettes. Subsequently, petitioners Alexander and Arthur del Rosario (the Del Rosarios) filed a complaint for P50 million in damages against respondents NBI agents Donato and Gonzaga and two others before the RTC of Angeles City, Branch 62, in Civil Case 10584. On August 6, 2003 respondents NBI agents answered the complaint with a motion to dismiss on the grounds of: a) the failure of the complaint to state a cause of action; b) forum shopping; and c) the NBI agents immunity from suit, they being sued as such agents. The RTC denied the motion on March 25, 2003. The NBI agents filed a motion for reconsideration but the RTC denied the same on June 27, 2003. Dissatisfied, respondents NBI agents filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 79496. On June 29, 2007 the latter court granted the petition and annulled the RTCs orders, first, in alleging merely that the NBI agents unlawfully procured the search warrant without stating the facts that made the procurement unlawful, the complaint failed to state a cause of action; and second, the Del Rosarios were guilty of forum shopping in that they should have filed their claim for damages against the NBI agents through a motion for compensation with the court that issued the search warrant. The Del Rosarios sought reconsideration of the decision but the CA denied it on November 19, 2007, prompting them to file this petition for review. The Issues Presented

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The petition presents two issues: 1. Whether or not the CA correctly ruled that the complaint of the Del Rosarios did not state a cause of action; and 2. Whether or not the CA correctly ruled that the Del Rosarios were guilty of forum shopping. The Courts Rulings One. The CA held that the Del Rosarios complaint before the RTC failed to state a cause of action against respondents NBI agents. Such complaint said that the NBI agents unlawfully procured and enforced the search warrant issued against the Del Rosarios but it failed to state the ultimate facts from which they drew such conclusion. The test of sufficiency of a complaint is whether or not, assuming the truth of the facts that plaintiff alleges in it, the court can render judgment granting him the judicial assistance he seeks.1 And judgment would be right only if the facts he alleges constitute a cause of action that consists of three elements: (1) the plaintiffs legal right in the matter; (2) the defendants corresponding obligation to honor or respect such right; and (3) the defendants subsequent violation of the right. Absent any of these, the complaint would have failed to state a cause of action.2 According to the Del Rosarios, the following allegations in their complaint state a cause or causes of action against respondents NBI agents: 2.4 On 12 March 2002, elements of the [NBI] x x x led by Defendant Rafael I. Gonzaga x x x entered by force the premises belonging to Plaintiff Alexander del Rosario situated at No. 51 New York Street, Villasol Subdivision, Angeles City, pursuant to a Search Warrant unlawfully obtained from the [RTC] of Angeles City, Branch 57 x x x. xxxx 2.6 Contrary to the sworn statements given before the court by defendants Hellenor D. Donato Jr. x x x and contrary to the allegation in Search Warrant No. 02-09A, no fake Marlboro cigarettes and their packaging were found at No. 51 New York Street, Villasol Subdivision, Angeles City x x x. 2.7 The inclusion of Plaintiff Arthur del Rosario in Search Warrant No. 02-09 had no factual basis considering that the premises searched is the property solely of Plaintiff Alexander del Rosario. 2.8 Worse the enforcement of Searched [sic] Warrant No. 02-09 was just part of the series of raids and searches that was conducted in Angeles City and Pampanga, which was done with much publicity in the community and had tended to include the Plaintiffs in the same category as other persons and entities who were in fact found to be dealing with fake Marlboro cigarettes. xxxx 3.2 The baseless sworn allegations that Plaintiffs had under their control and possession counterfeit Marlboro cigarettes and packaging to obtain a search warrant, and the malicious service of the such warrant at the residential premises of Plaintiff Alexander del Rosario in full and plain view of members of the community, as part of the series of raids and operations conducted within Angeles City and Pampanga during that period, has tainted irreversibly the good names which Plaintiffs have painstakingly built and maintained over the years. xxxx 3.4 Plaintiffs were subjected to so much humiliation and embarrassment by the raid conducted on the subject residential premises, and subjected them to much unwarranted speculation of engaging in the sale of fake merchandise. Essentially, however, all that the Del Rosarios allege is that respondents NBI agents used an unlawfully obtained search warrant against them, evidenced by the fact that, contrary to the sworn statements used to get such warrant, the NBI agents found no fake Marlboro cigarettes in petitioner Alexander del Rosarios premises. But a judicially ordered search that fails to yield the described illicit article does not of itself render the courts order "unlawful." The Del Rosarios did not allege that respondents NBI agents violated their right by fabricating testimonies to convince the RTC of Angeles City to issue the search warrant. Their allegation that the NBI agents used an unlawfully obtained search warrant is a mere conclusion of law. While a motion to dismiss assumes as true the facts alleged in the complaint, such admission does not extend to conclusions of law.3 Statements of mere conclusions of law expose the complaint to a motion to dismiss on ground of failure to state a cause of action.4 Further, the allegation that the search warrant in this case was served in a malicious manner is also not sufficient. Allegations of bad faith, malice, and other related words without ultimate facts to support the same are mere conclusions of law.5 The Del Rosarios broad assertion in their complaint that the search was conducted "in full and plain view of members of the community" does not likewise support their claim that such search was maliciously enforced. There is nothing inherently wrong with search warrants being enforced in full view of neighbors. In fact, when the respondent or his representative is not present during the search, the rules require that it be done in the presence of two residents of the same locality. These safeguards exist to protect persons from possible abuses that may occur if searches were done surreptitiously or clandestinely. Two. Invoking Section 21 of this Courts Administrative Matter (A.M.) 02-1-06-SC (not A.O. 01-1-06-SC as cited), the CA held that, rather than file a separate action for damages, the Del Rosarios should have filed their claim for compensation in the same proceeding and with the same court that issued the writ of search and seizure. The Del Rosarios were thus guilty of forum shopping. A.M. 02-1-06-SC, the Rule on Search and Seizure in Civil Actions for Infringement of Intellectual Property Rights, provides: SEC. 21. Claim for damages. Where the writ [of search and seizure] is discharged on any of the grounds provided in this Rule, or where it is found after trial that there has been no infringement or threat of infringement of an intellectual property right, the court, upon motion of the alleged infringing defendant or expected adverse party and after due hearing, shall order the applicant to compensate the defendant or expected adverse party upon the cash bond, surety bond or other equivalent security for any injury or damage the latter suffered by the issuance and enforcement of the writ. Should the damages exceed the amount of the bond, the applicant shall be liable for the payment of the excess. When a complaint is already filed in court, the motion shall be filed with the same court during the trial or before appeal is perfected or before judgment becomes executory, with due notice to the applicant, setting forth the facts showing the defendants right to damages and the amount thereof. The award of damages shall be included in the judgment in the main case. Where no complaint is filed against the expected adverse party, the motion shall be filed with the court which issued the writ. In such a case, the court shall set the motion for summary hearing and immediately determine the expected adverse partys right to damages. A judgment in favor of the applicant in its principal claim should not necessarily bar the alleged infringing defendant from recovering damages where he suffered losses by reason of the wrongful issuance or enforcement of the writ. The damages provided for in this section shall be independent from the damages claimed by the defendant in his counterclaim. But the subject search warrant was not issued under A.M. 02-1-06-SC, which governed the issuance of a writ of search and seizure in a civil action for infringement filed by an intellectual property right owner against the supposed infringer of his trademark or name. Philip Morris, the manufacturer of Marlboro cigarettes, did not go by this route. Philip Morris did not file a civil action for infringement of its trademark against the Del Rosarios before the RTC of Angeles City. Instead, Philip Morris sought assistance from the NBI for the apprehension and criminal prosecution of those reportedly appropriating its trademark and selling fake Marlboro cigarettes. In turn, the NBI instituted a police action that included applying for a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule 126 of the Rules of Criminal Procedure (not under the provisions of A.M. 021-06-SC) against the Del Rosarios upon the belief that they were storing and selling fake Marlboro cigarettes in violation of the penal provisions of the intellectual property law.

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The proceeding under Rule 126, a limited criminal one, does not provide for the filing of counterclaims for damages against those who may have improperly sought the issuance of the search warrant. Consequently, the Del Rosarios had the right to seek damages, if the circumstances warranted, by separate civil action for the wrong inflicted on them by an improperly obtained or enforced search warrant. Unfortunately, their complaint, as worded, failed to state a proper cause of action.1avvphi1 Petitioner Arthur del Rosario claims that respondents NBI agents wrongfully included him as respondent in their application for a search warrant since he neither owned the house at 51 New York Street nor resided in it. But the rules do not require respondents in search warrant proceedings to be residents of the premises to be searched. If this were the case, criminals in possession of illegal articles could simply use other peoples residence for storing such articles to avoid being raided and searched. The Del Rosarios raise a number of procedural issues: a) the supposed failure of respondents NBI agents to file their motion for reconsideration of the RTC order denying their motion to dismiss within 15 days of receipt of the order; b) their resort to a special civil action of certiorari to challenge the RTCs denial of their motion to dismiss; c) the propriety of their inclusion of a motion to dismiss in their answer; d) the CAs grant to them in 2003 of a 15-day extension to file a petition for certiorari after the lapse of 60 days when the Court did not yet come out with a ruling that barred such extension; and e) their being represented by private counsel rather than by the Office of the Solicitor General. With the Courts rulings in the principal issues raised in this case, it finds no sufficient reason to further dwell on the lesser issues that the Del Rosarios raise above. Besides, the Court finds no error in the CAs disposition of the same. WHEREFORE, the Court DENIES the petition and AFFIRMS the Decision of the Court of Appeals in CA-G.R. SP 79496 dated June 29, 2007 and its Resolution dated November 19, 2007 for the reasons stated in this Decision, with the MODIFICATION that Civil Case 10584 is DISMISSED without prejudice. SO ORDERED. That on or about 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control the following, to wit: a) Nine (9) bricks of dried Marijuana leaves with an approximate total weight of 18.750 kgs., and b) One (1) plastic bag containing dried Marijuana leaves weighing approximately .3 kg. without any authority of law to do so in violation of the above-cited provision of law.3 Criminal Case No. 17620-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF PRESIDENTIAL DECREE 1866, AS AMENDED (Illegal Possession of Firearm), committed as follows: That on or about the 24th day of January 2000, at Barangay Gabriela Silang, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully and unlawfully have in her possession, custody, and control one (1) Cal. .357 S & W revolver, a high-powered firearm, without any license, permit or authority duly issued by the government to possess or keep the same in violation of the above-cited law.4 Upon her arraignment on April 18, 2000, accused-appellant, assisted by her counsel de parte, pleaded "NOT GUILTY" to both charges.5 Pretrial and trial proper then ensued. During trial, the prosecution presented four witnesses: Senior Police Officer (SPO) 1 Modesto F. Carrera (Carrera), Police Officer (PO) 2 Jaime Chavez (Chavez), SPO2 Fernando Fernandez (Fernandez), and Forensic Chemist II Marina Carina Madrigal (Madrigal). The events, as recounted by the prosecution, are as follows: At around nine oclock in the morning on January 24, 2000, two male informants namely, Jerry Tudlong (Tudlong) and Frank Lad-ing (Lading) arrived at the office of the 14th Regional CIDG (Criminal Investigation and Detention Group) at DPS Compound, Marcoville, Baguio City, and reported to SPO2 Fernandez, Chief of the Station Drug Enforcement Unit (SDEU), that a certain "Estela Tuan" had been selling marijuana at Barangay Gabriela Silang, Baguio City. Present at that time were Police Superintendent Isagani Neres, Regional Officer of the 14th Regional CIDG; Chief Inspector Reynaldo Piay, Deputy Regional Officer; and other police officers.6 SPO2 Fernandez set out to verify the report of Tudlong and Lad-ing. At around one oclock in the afternoon of the same day, he gave Tudlong and Lad-ing P300.00 to buy marijuana, and then accompanied the two informants to the accused-appellants house. Tudlong and Lad-ing entered accused-appellants house, while SPO2 Fernandez waited at the adjacent house. After thirty minutes, Tudlong and Lad-ing came out of accused-appellants house and showed SPO2 Fernandez the marijuana leaves they bought. After returning to the CIDG regional office, SPO2 Fernandez requested the laboratory examination of the leaves bought from accused-appellant. When said laboratory examination yielded positive results for marijuana, SPO2 Fernandez prepared an Application for Search Warrant for accused-appellants house. SPO2 Fernandez, together with Tudlong and Lad-ing, filed the Application for a Search Warrant before Judge Iluminada CabatoCortes (Judge Cortes) of the Municipal Trial Court in Cities (MTCC), Baguio City, Branch IV, at about one oclock in the afternoon on January 25, 2000. Two hours later, at around three oclock, Judge Cortes personally examined SPO2 Fernandez, Tudlong, and Lad-ing, after which, she issued a Search Warrant, being satisfied of the existence of probable cause. The Search Warrant read: TO ANY PEACE OFFICER: GREETINGS: It appearing to the satisfaction of the undersigned of the existence of facts upon which the application for Search Warrant is based, after personally examining by searching questions under oath SPO2 Fernando V. Fernandez of the CAR Criminal Investigation and Detection Group with office address at DPS Compound, Utility Road,

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 176066 August 11, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ESTELA TUAN y BALUDDA, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: For review is the Decision1 dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00381, which affirmed with modification the Decision2 dated April 9, 2002 of the Regional Trial Court (RTC), Branch 6, Baguio City, finding accused-appellant Estela Tuan y Baludda guilty in Criminal Case No. 17619-R, of illegal possession of marijuana under Article II, Section 8 of Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972," as amended; and in Criminal Case No. 17620-R, of violating Presidential Decree No. 1866, otherwise known as the "Illegal Possession of Firearms," as amended. On April 5, 2000, two separate Informations were filed before the RTC against accused-appellant for illegal possession of marijuana and illegal possession of firearm. The Informations read: Criminal Case No. 17619-R The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the crime of VIOLATION OF SEC. 8, ART. II OF REPUBLIC ACT 6425, AS AMENDED (Illegal Possession of Marijuana), committed as follows:

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Baguio City and his witnesses namely: Frank Lad-ing of Happy Hallow, Baguio City and Jerry Tudlong, of Barangay Kitma, Baguio City, after having been duly sworn to, who executed sworn statements and deposition as witneses, that there is a probable cause to believe that a Violation of R.A. 6425 as amended by R.A. 7659 has been committed and that there are good and sufficient reasons to believe that Estela Tuan, has in her possession and control at her resident at Brgy. Gabriela Silang, Baguio City, the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish xxxx which are subject of the offense which should be seized and brought to the undersigned. You are hereby commanded to make an immediate search at anytime in the day the house of the accused Estela Tuan at Brgy. Gabriela Silang, Baguio City, and forthwith seize and take possession of the following: - Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish x x x nothing follows x x x and bring said items to the undersigned to be dealt with as the law directs. This Search Warrant shall be valid for ten (10) days from date of issue, thereafter, it shall be void. The officers must conduct the search and seize the above-mentioned personal items in the presence of the lawful occupant thereof or any member of her family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. The officers seizing the items must give a detailed receipt for the same to the lawful occupant of the house in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of the 2 witnesses mentioned, leave a receipt in the place in which the seized items were found; thereafter, deliver the items seized to the undersigned judge together with a true inventory thereof duly verified under oath. Baguio City, Philippines, this 25th day of January, 2000. (SGD)ILUMINADA Executive Judge MTCC, Branch IV7 Upon receipt of the Search Warrant, SPO2 Fernandez, his team supervisor Police Senior Inspector Rodolfo Castel, SPO1 Carrera, Police Senior Inspector Ricarte Marquez and PO2 Chavez implemented the warrant. Before going to the accused-appellants house, SPO2 Fernandez invited barangay officials to be present when the Search Warrant was to be served, but since no one was available, he requested one Eliza Pascual (Pascual), accused-appellants neighbor, to come along. The CIDG team thereafter proceeded to accused-appellants house. Even though accused-appellant was not around, the CIDG team was allowed entry into the house by Magno Baludda (Magno), accusedappellants father, after he was shown a copy of the Search Warrant. SPO2 Fernandez and Police Senior Inspector Ricarte Marquez guarded the surroundings of the house,8 while SPO1 Carrera and PO2 Chavez searched inside. SPO1 Carrera and PO2 Chavez began searching the rooms on the first floor in the presence of Magno and Pascual. They continued their search on the second floor. They saw a movable cabinet in accusedappellants room, below which they found a brick of marijuana and a firearm. At around six oclock that evening, accused-appellant arrived with her son. The police officers asked accused-appellant to open a built-in cabinet, in which they saw eight more bricks of marijuana.9 PO2 Chavez issued a receipt for the items confiscated from accused-appellant10 and a certification stating that the items were confiscated and recovered from the house and in accused-appellants presence. CABATO-CORTES The nine bricks of marijuana were brought to the National Bureau of Investigation (NBI) for examination. The defense, on the other hand, had an entirely different version of what transpired that day. It presented four witnesses, namely, accused-appellant herself; Beniasan Tuan (Beniasan), accusedappellants husband; Magno, accused-appellants father; and Mabini Maskay (Maskay), the Barangay Captain of Barangay Gabriela Silang.1avvphi1 In her testimony, accused-appellant declared that she worked as a vendor at Hangar Market. Sometime in January 2000, while she was selling vegetables at Hangar Market, her son arrived with two police officers who asked her to go home because of a letter from the court.11 At about six oclock in the afternoon, she and her husband Beniasan reached their residence and found a green paper bag with marijuana in their sala. According to the police officers, they got the bag from a room on the first floor of accused-appellants house. Accused-appellant explained that the room where the bag of marijuana was found was previously rented by boarders. The boarders padlocked the room because they still had things inside and they had paid their rent up to the end of January 2000.12 The police officers also informed accused-appellant that they got a gun from under a cabinet in the latters room, which accused-appellant disputed since her room was always left open and it was where her children play.13 Accusedappellant alleged that a Search Warrant was issued for her house because of a quarrel with her neighbor named Lourdes Estillore (Estillore). Accused-appellant filed a complaint for the demolition of Estillores house which was constructed on the road.14 Beniasan supported the testimony of his wife, accused-appellant. He narrated that he and accused-appellant were at their Hangar Market stall when two police officers came and asked them to go home. Beniasan and accused-appellant arrived at their residence at around six oclock in the evening and were shown the marijuana the police officers supposedly got from the first floor of the house. The police officers then made Beniasan sign a certification of the list of items purportedly confiscated from the house.15 Magno testified that he resided at the first floor of accused-appellants residence. He was present when the search was conducted but denied that the Search Warrant was shown to him.16 He attested that the confiscated items were found from the vacant room at the first floor of accused-appellants house which was previously occupied by boarders. Said room was padlocked but was forced open by the police officers. In the course of the police officers search, they pulled something from under the bed that was wrapped in green cellophane, but Magno did not know the contents thereof.17 The police officers also searched the rooms of accused-appellant and her children at the second floor of the house, during which they allegedly found a gun under the cabinet in accused-appellants room. Magno claimed that he did not personally witness the finding of the gun and was merely informed about it by the police officers.18 Maskay, the Barangay Captain of Barangay Gabriela Silang, Baguio City, was the last to testify for the defense. He corroborated accusedappellants allegation that the latter had a quarrel with Estillore, and this could be the reason behind the filing of the present criminal cases. He further remembered that the members of the CIDG went to his office on January 24, 2000 to ask about the location of accusedappellants house.19 The RTC, in its Decision dated April 9, 2002, found accused-appellant guilty as charged and adjudged thus: WHEREFORE, judgment is hereby rendered as follows: 1. In Criminal Case No. 17619-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of marijuana (nine [9] bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and the one [1] plastic bag containing the dried marijuana weighing about .3 kilograms) in violation of Section 8, Article II of Republic Act No. 6425 as amended by Section 13 of Republic Act 7659 as charged in the information and sentences her to the penalty of reclusion perpetua and to pay a fine ofP500,000.00 without subsidiary imprisonment in case of insolvency. The nine (9) bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms and one (1) plastic bag containing dried marijuana leaves weighing approximately .3 kilograms (Exhibit F, F-1, F-1-A to F-1-J) are ordered confiscated and forfeited in favor of the State to be destroyed immediately in accordance with law.

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The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code; and 2. In Criminal Case No. 17620-R, the Court finds the accused Estela Tuan guilty beyond reasonable doubt of the offense of illegal possession of firearms (one [1] caliber .357 S & W revolver), a high powered firearm, without any license, permit or authority issued by the Government to keep the same in violation of Section 1, Republic Act No. 8294 which amended Section 1 of PD 1866 as charged in the information and hereby sentences her, applying the Indeterminate Sentence Law, to imprisonment ranging from 4 years 9 months and 10 days of prision correccional in its maximum period as Minimum to 6 years and 8 months of prision mayor in its minimum period as Maximum and a fine of P30,000.00 without subsidiary imprisonment in case of insolvency. The firearm caliber .357 S & W revolver without serial number is ordered forfeited in favor of the State to be disposed of immediately in accordance with law. The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of her preventive imprisonment in the service of her sentence in accordance with Article 29 of the Revised Penal Code.20 The records of the two criminal cases were forwarded to this Court by the RTC, but the Court issued a Resolution21 dated October 13, 2004 transferring said records to the Court of Appeals pursuant to People v. Mateo.22 On September 21, 2006, the Court of Appeals promulgated its Decision. The Court of Appeals held that the contested search and consequent seizure of the marijuana bricks were done pursuant to the Search Warrant validly issued by the MTCC. There was no showing of procedural defects or lapses in the issuance of said Search Warrant as the records support that the issuing judge determined probable cause only after conducting the searching inquiry and personal examination of the applicant and the latters witnesses, in compliance with the requirements of the Constitution. Hence, the appellate court affirmed the conviction of accused-appellant for illegal possession of marijuana. The Court of Appeals, however, modified the appealed RTC judgment by acquitting accused-appellant of the charge for illegal possession of firearm. According to the appellate court, the records were bereft of evidence that the gun supposedly confiscated from accused-appellant was unlicensed. The absence of a firearm license was simply presumed by the police officers because the gun was a defective paltik with no serial number. That the said condition of the gun did not dispense with the need for the prosecution to establish that it was unlicensed through the testimony or certification of the appropriate officer from the Board of the Firearms and Explosives Bureau of the Philippine National Police. In the end, the Court of Appeals decreed: WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED. The assailed Decision of the RTC of Baguio City, Branch 6, dated April 9, 2002, is hereby MODIFIED such that the conviction of accused-appellant for Violation of Section 8, Art. II, RA 6425, as amended, is AFFIRMED while her conviction for Violation of PD 1866, as amended, is REVERSED and SET ASIDE. Accused-appellant is accordingly ACQUITTED of the latter offense.23 In its Resolution dated October 20, 2006, the Court of Appeals gave due course to accused-appellants Partial Notice of Appeal and accordingly forwarded the records of the case to this Court. This Court then issued a Resolution24 dated February 28, 2007 directing the parties to file their respective supplemental briefs, if they so desired, within 30 days from notice. Accused-appellant25 opted not to file a supplemental brief and manifested that she was adopting her arguments in the Appellants Brief since the same had already assiduously discussed her innocence of the crime charged. The People26 likewise manifested that it would no longer file a supplemental brief as the issues have all been addressed in its Appellees Brief. Accused-appellant raised the following assignment of errors in her Brief: 27 THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE INCREDIBLE AND CONTRADICTORY TESTIMONIES OF THE POLICE OFFICERS. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIMES CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT. THE TRIAL COURT ERRED IN NOT CONSIDERING AS VOID THE SEARCH WARRANT ISSUED AGAINST THE ACCUSED-APPELLANT. Given that accused-appellant was already acquitted of the charge of violation of Presidential Decree No. 1866 on the ground of reasonable doubt in Criminal Case No. 17620-R, her instant appeal relates only to her conviction for illegal possession of prohibited or regulated drugs in Criminal Case No. 17619-R. The Court can no longer pass upon the propriety of accused-appellants acquittal in Criminal Case No. 17620-R because of the rule that a judgment acquitting the accused is final and immediately executory upon its promulgation, and that accordingly, the State may not seek its review without placing the accused in double jeopardy. Such acquittal is final and unappealable on the ground of double jeopardy whether it happens at the trial court or on appeal at the Court of Appeals.28 In a prosecution for violation of the Dangerous Drugs Law, such as Criminal Case No. 17619-R, a case becomes a contest of credibility of witnesses and their testimonies. In such a situation, this Court generally relies upon the assessment by the trial court, which had the distinct advantage of observing the conduct or demeanor of the witnesses while they were testifying. Hence, its factual findings are accorded respect even finality absent any showing that certain facts of weight and substance bearing on the elements of the crime have been overlooked, misapprehended or misapplied.29 The Court finds no reason to deviate from the general rule in the case at bar. Illegal possession of prohibited or regulated drugs is committed when the following elements concur: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses the said drug.30 All the foregoing elements were duly proven to exist in Criminal Case No. 17619-R. The search conducted by SPO1 Carrera and PO2 Chavez in accused-appellants house yielded nine bricks of marijuana. Marijuana is a prohibited drug, thus, accused-appellants possession thereof could not have been authorized by law in any way. Accusedappellant evidently possessed the marijuana freely and consciously, even offering the same for sale. The bricks of marijuana were found in accused-appellants residence over which she had complete control. In fact, some of the marijuana were found in accused-appellants own room. Accused-appellant challenges the judgment of the RTC, affirmed by the Court of Appeals, finding her guilty of illegal possession of marijuana, by pointing out certain inconsistencies in the testimonies of prosecution witnesses that supposedly manifested their lack of credibility, i.e., the date of the test buy and the manner by which the doors of the rooms of the house were opened. These alleged inconsistencies and contradictions pertain to minor details and are so inconsequential that they do not in any way affect the credibility of the witnesses nor detract from the established fact of illegal possession of marijuana by accused-appellant at her house. The Court has previously held that discrepancies and inconsistencies in the testimonies of witnesses referring to minor details, and not in actuality touching upon the central fact of the crime, do not impair their credibility. Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence.31 Inconsistencies as to minor details and collateral matters do not affect the credibility of the witnesses nor the veracity or weight of their testimonies. Such minor inconsistencies may even serve to strengthen their credibility as they negate any suspicion that the testimonies have been rehearsed.32 Accused-appellant further questions the non-presentation as witnesses of Lad-ing and Tudlong, the informants, and Pascual, the neighbor who supposedly witnessed the implementation of the Search Warrant, during the joint trial of Criminal Case Nos. 17619-R and 17620-R

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before the RTC. This Court though is unconvinced that such nonpresentation of witnesses is fatal to Criminal Case No. 17619-R. The prosecution has the exclusive prerogative to determine whom to present as witnesses. The prosecution need not present each and every witness but only such as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with if they are merely corroborative in nature. The Court has ruled that the non-presentation of corroborative witnesses does not constitute suppression of evidence and is not fatal to the prosecutions case.33 Although Criminal Case No. 17619-R involves illegal possession of marijuana, the following pronouncement of this Court in People v. Salazar,34 relating to the illegal sale of the same drug, still rings true: Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer who pointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact of the sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-presentation of the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. (Emphasis ours.) Lastly, accused-appellant insists that the items allegedly seized from her house are inadmissible as evidence because the Search Warrant issued for her house was invalid for failing to comply with the constitutional and statutory requirements. Accused-appellant specifically pointed out the following defects which made said Search Warrant void: (1) the informants, Lad-ing and Tudlong, made misrepresentation of facts in the Application for Search Warrant filed with the MTCC; (2) Judge Cortes of the MTCC failed to consider the informants admission that they themselves were selling marijuana; and (3) the Search Warrant failed to particularly describe the place to be searched because the house was a two-storey building composed of several rooms. The right of a person against unreasonable searches and seizure is recognized and protected by no less than the Constitution, particularly, Sections 2 and 3(2) of Article III which provide: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. SEC. 3. x x x (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. (Emphases ours.) Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal Procedure laid down the following requisites for the issuance of a valid search warrant: SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except 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 which may be anywhere in the Philippines. SEC. 5. 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 the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Therefore, the validity of the issuance of a search warrant rests upon the following factors: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized.35 There is no dispute herein that the second and third factors for a validly issued search warrant were complied with, i.e., personal determination of probable cause by Judge Cortes; and examination, under oath or affirmation, of SPO2 Fernandez and the two informants, Lad-ing and Tudlong, by Judge Cortes. What is left for the Court to determine is compliance with the first and fourth factors, i.e., existence of probable cause; and particular description of the place to be searched and things to be seized. In People v. Aruta,36 the Court defined probable cause as follows: Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown 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. A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.37 Such substantial basis exists in this case. Judge Cortes found probable cause for the issuance of the Search Warrant for accused-appellants residence after said judges personal examination of SPO2 Fernandez, the applicant; and Lad-ing and Tudlong, the informants. SPO2 Fernandez based his Application for Search Warrant not only on the information relayed to him by Lad-ing and Tudlong. He also arranged for a test buy and conducted surveillance of accusedappellant. He testified before Judge Cortes: COURT: Q. You are applying for a Search Warrant and you alleged in your application that Estela Tuan of Brgy. Gabriela Silang, Baguio City, is in possession of dried marijuana leaves and marijuana hashish, how did you come to know about this matter? A. Through the two male persons by the name of Frank Lad-ing and Jerry Tudlong, Your Honor. Q. When did these two male persons report to your office? A. January 22, Your Honor. Q. This year? A. Yes, your honor. Q. To whom did they report? A. To me personally, Your Honor. Q. How did they report the matter?

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A. They reported that a certain Estela Tuan is selling dried Marijuana leaves and marijuana hashish, Your Honor. Q. What else? A. She is not only selling marijuana but also selling vegetables at the Trading Post in La Trinidad, Your Honor. Q. They just told you, she is selling marijuana and selling vegetables, that is already sufficient proof or sufficient probable cause she is in possession of marijuana, what else did they report? A. That they are also selling marijuana in large volume at their house. Q. What did you do when you asked them regarding that matter? A. They had a test buy and they were able to buy some commodities yesterday, Your honor. Q. Who bought? A. Tudlong and Lad-ing, Your Honor. Q. How did you go about it? A. I accompanied the said persons and kept watch over them and gave them money after which, they were able to purchase and when they purchased the said items or drugs, they were even informed that if you wanted to sell then you could come and get. Your Honor. COURT: Q. Where is that P300.00? A. It is with them, Your Honor. Q. You did not entrap her? A. No, Your Honor, because it is only a test buy. Q: And that was January 22. Why did you not apply immediately for search warrant? A: Because we still have to look at the area and see to it that there are really some buyers or people who would go and leave the place, Your Honor. Q: What did you observe? A: Well, there are persons who would go inside and after going inside, they would come out bringing along with them something else. Q: Did you not interview these people? A: No, Your Honor. We did not bother.38 Lad-ing and Tudlong affirmed before Judge Cortes that they were the ones who informed SPO2 Fernandez that accused-appellant was keeping and selling marijuana at her house, and that they took part in the test buy. Lad-ing narrated: COURT: Q: Mr. Lad-ing, you said that you are working at the Trading Post. What kind of work do you have there? A: I am a middleman of the vegetable dealers, Your Honor. COURT: Q: Did you come to know of this person Estela Tuan? A: Yes, Your Honor, because there was an incident wherein we were conducting our line of business when they came and joined us and we became partners, Your Honor. Q: You said, they, how many of you? A: A certain Jerry Tudlong, Estela Tuan and myself, Your Honor. A: Yes, Your Honor. Q: Where did she go, if you know? A: Because at the sala, there is a certain room located at the side that is the place where she got the same, Your Honor. Q: Where is this house of Estela Tuan located, is it along the road or inside the road or what? A: It is near the road but you have to walk in a little distance, Your Honor. Q: Will you describe the place where Estela Tuan is residing? A: Well, it is a two storey house, the walls are made of galvanized iron Sheets, Your Honor. COURT: Q: Do you know who are staying there? A: I do not know who is living with her, however, that is her residence, Your Honor. Q: How many times did you go there? A: It was my second time to go at that time we were sent by PO Fernandez to purchase marijuana, Your Honor. Q: Where is the marijuana now? A: It is in the possession of PO Fernandez, Your Honor. Q: Where is the marijuana placed? A: In a newspaper, Your Honor. Q: What happened next? A: We handed to her the amount of P300.00, your Honor. Q: And she gave you that marijuana? A: Yes, Your Honor. A: While we then sitted ourselves at the sala, she told us that if we wanted to earn some more, she told us that she has in her possession marijuana which could be sold, Your Honor. Q: And so, what happened? A: After which, she showed the marijuana, Your Honor. Q: Where was the marijuana? A: It was placed in a cellophane, in a newspaper, Your Honor. Q: How big? A: A dimension of 10 x 4 inches, Your Honor. Q: With that size, where did she show you the box of this cellophane? A: At the place where we were sitted at the receiving room, Your Honor. Q: In other words, she went to get it and then presented or showed it to you? Q: In other words, Estela Tuan went with you and later on she became your partner in that business? A: Yes, Your Honor. Q: And so what happened when she became a partner of your business? A: When we were about to divide our profit, we then went at their residence at Gabriela Silang, Baguio City, Your Honor. Q: What happened?

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xxxx Q: How many rooms are there in the first floor of the house of Estela Tuan? A: Three rooms, Your Honor, it has a dining room and beside the place is the receiving room where we sitted ourselves, Your Honor. Q: When you already bought marijuana from her, what did she tell you, if any? A; Well, if we would be interested to buy more, I still have stocks here, Your Honor.39 Tudlong recounted in more detail what happened during the test buy: COURT: Q: My question is, when she told you that she has some substance for sale for profit and you mentioned marijuana, did you talk immediately with Frank or what did you do? A: We reported the matter to the Criminal Investigation and Detection Group, your Honor. xxxx Q: What time? A: We went to the office at 9:00 9:30 oclock in the morning, Your Honor. Q: When you went there, what did you do? A: The amount of P300.00 was given to Frank and we were instructed to purchase, Your Honor. Q: Did you go? A: Yes, Your Honor. xxxx Q: Will you tell what happened when you went to the house of the woman? A: Well, we were allowed to go inside the house after which, we were made to sit down at the receiving area or sala, Your Honor. Q: When you went there, you were allowed to enter immediately? A: Yes, Your Honor. Q: Who allowed you to enter? A: The female person, Your Honor. Q: What happened when you were asked to be sitted? A: During that time, Frank and the female person were the ones conferring, Your Honor. Q: Did you hear what they were talking about? A: That Frank was purchasing marijuana, Your Honor. Q: What did the woman tell you? A: After we handed the money, a plastic which was transparent, was then handed to Frank, it was a plastic and there was a newspaper inside, Your Honor. xxxx Q: So, you did not actually see what is in the newspaper? A: No, Your Honor, however, I know that that is marijuana. Q: Why? A: Because that was our purpose, to buy marijuana, Your Honor. Accused-appellants contention that MTCC Judge Cortes failed to consider the informants admission that they themselves were selling marijuana is utterly without merit. First, even after carefully reviewing the testimonies of Lad-ing and Tudlong before Judge Cortes, this Court did not find a categorical admission by either of the two informants that they themselves were selling marijuana. In fact, Tudlong expressly denied that he and Lad-ing sold the marijuana, having only bought the same from the accused-appellant for the test buy. Moreover, even if the informants were also selling marijuana, it would not have affected the validity of the Search Warrant for accusedappellants house. The criminal liabilities of accused-appellant and the informants would be separate and distinct. The investigation and prosecution of one could proceed independently of the other. Equally without merit is accused-appellants assertion that the Search Warrant did not describe with particularity the place to be searched. A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness.41 In the case at bar, the address and description of the place to be searched in the Search Warrant was specific enough. There was only one house located at the stated address, which was accusedappellants residence, consisting of a structure with two floors and composed of several rooms. In view of the foregoing, the Court upholds the validity of the Search Warrant for accused-appellants house issued by MTCC Judge Cortes, and any items seized as a result of the search conducted by virtue thereof, may be presented as evidence against the accused-appellant. Since it is beyond any cavil of doubt that the accused-appellant is, indeed, guilty of violation of Article II, Section 8 of Republic Act No. 6425, as amended, the Court shall now consider the appropriate penalty to be imposed upon her. Article II, Section 8, in relation to Section 20(3), of Republic Act No. 6425, as amended, provides: Q: Where did Estela Tuan get the newspaper placed in a transparent plastic? A: She got it from a room because were then made to wait at the sala, Your Honor. Q: Did she tell you how much she can sell marijuana? A: She told us, Your Honor. Q: What? A: Well, the marijuana that we purchased was worth P300.00[.] However, we could divide it into two small packs and we could sell it at P20.00 per piece so that you can also have some gain. COURT: Q: After that, to whom did you sell? A: We did not sell the marijuana, Your Honor. Q: I thought you are going to sell marijuana and so you went there? A: We were just instructed by PO Fernandez to verify what we are telling him was true, Your Honor.40 Q: And you have not gotten marijuana without Estela Tuan informing you? A: Yes, Your Honor. Q: Will you tell us what kind of materials were used in the house of Estela Tuan? A: Two storey, the walls are made of GI sheets, Your Honor.\ Q: Is the house beside the road or do you have to walk? A: It is near the road. Upon reaching the road, you still have to walk a short distance, Your Honor.

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SEC. 8. Possession or Use of Prohibited Drugs.- The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of Section 20 hereof. (As amended by R.A. 7659) Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: 1. 40 grams or more of opium; 2. 40 grams or more of morphine; 3. 200 grams or more of shabu or methylamphetamine hydrochloride; 4. 40 grams or more of heroin; 5. 750 grams or more of Indian hemp or marijuana; 6. 50 grams or more of marijuana resin or marijuana resin oil; 7. 40 grams or more of cocaine or cocaine hydrocholoride; or 8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements, as determined and promulgated by the Dangerous Drugs Board, after public consultations/hearings conducted for the purpose. (Emphasis supplied.) Pursuant to Article II, Section 8 of Republic Act No. 6425, as amended, illegal possession of 750 grams or more of the prohibited drug marijuana is punishable by reclusion perpetua to death. Accusedappellant had in her possession a total of 19,050 grams of marijuana, for which she was properly sentenced to reclusion perpetua by the RTC, affirmed by the Court of Appeals. In the same vein, the fine of P500,000.00 imposed upon accusedappellant by the RTC, affirmed by the Court of Appeals, is also correct, as the same is still within the range of fines imposable on any person who possessed prohibited drugs without any authority, under Article II, Section 8 of Republic Act No. 6425, as amended. WHEREFORE, premises considered, the Decision dated September 21, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00381, is hereby AFFIRMED in toto. No costs. SO ORDERED. WHEREFORE, upon proof of guilt beyond reasonable doubt, this court sentences accused Olive Rubio Mamaril to suffer an indeterminate prison term of twelve (12) years and one (1) day as minimum to twenty (20) years as maximum and a fine of P300,000 for violation of Section 11, Article II, of R.A. 91655. The facts as presented by the prosecution before the appellate court follow: On 25 March 2003, at 9:30 oclock in the evening, SPO4 Alexis Gotidoc, along with the members of Intel Operatives of Tarlac City Police Station and Philippine Drug Enforcement Agency (PDEA), implemented Search Warrant No. 144C dated 18 March 2003 issued by Judge Alipio Yumul of Branch 66, Regional Trial Court, Capas, Tarlac against the appellant in her residence at Zone 1, Barangay Maliwalo, Tarlac City, Province of Tarlac.6 Prior to the search, the police team invited Barangay Kagawad Oscar Tabamo of Barangay Maliwalo to witness the conduct of the search and seizure operation in the appellants house. With Barangay Kagawad Tabamo, the police team presented the search warrant to appellant and informed her of the purpose of the search and her constitutional rights.7 Afterwards, SPO4 Gotidoc, the designated searcher, started searching the appellants house, in the presence of the appellant and Kagawad Tabamo. During his search, he found on the top cover of the refrigerator one (1) plastic sachet containing white crystalline substance. Thereafter he prepared a Certificate of Good Search and Confiscation Receipt which the appellant refused to sign.8 The plastic sachet was brought to the Tarlac Provincial Crime Laboratory located at Tarlac Provincial Hospital for qualitative examination. The examination conducted by Engr. Marcene G. Agala, the Forensic Chemist who tested the white crystalline substance, yielded positive results for 0.055 gram of Methamphetamine Hydrochloride, commonly known as shabu, a dangerous drug.9 The factual version presented by the defense is: On 25 March 2003, at 9:30 o clock in the evening the police officers arrived at appellants house and showed her a search warrant. Thereafter, the policemen searched her house but found nothing. Then a certain Police Officer Pangilinan asked her where she was sleeping. When she replied that she was inside the hut, the police officers proceeded to and searched the place and found the plastic sachet containing the shabu.10 Thereafter, she was brought to the sub-station at Maliwalo and was told, particularly by SPO4 Gotidoc and a certain Maam Dulay that in exchange of P20,000.00, no case would be filed against her. When she told them that she did not have money, she was detained.11 However, on cross-examination, the appellant admitted that the alleged extortion of P20,000.00 was not reported to the higher ranking police officers.12 Appellant claims that the police officers framed her up and planted the shabu inside her house because of her refusal to give them money.13 Eventually, an Information was filed against the appellant which reads: That on March 25, 2003 at around 9:30 oclock in the evening at Tarlac City and within the jurisdiction of this Honorable Court, accused, did then and there willfully, unlawfully and criminally have in her possession and control Methamphetamine Hydrochloride known as Shabu, a dangerous drug, weighing more or less 0.055 gram, without being authorized by law. CONTRARY TO LAW14 Upon arraignment, the appellant, assisted by the de-officio counsel, entered a plea of not guilty. On 21 April 2004, the trial court found the accused-appellant guilty of violation of Section 11, Article II, of R.A. 9165.15 On appeal, the Court of Appeals ruled that the evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a regulated drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug.16

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 171980 October 6, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. OLIVE RUBIO MAMARIL, Accused-Appellant. DECISION PEREZ, J.: For review through this appeal1 is the Decision2 dated 31 August 2005 of the Court of Appeals in CA-G.R. CR. No. 28482 which affirmed the conviction of herein accused-appellant OLIVE RUBIO MAMARIL of possession of dangerous drugs in violation of Section 11, Article II3 of Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The dispositive portion of the assailed decision reads: WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The challenged judgment of the court a quo is hereby AFFIRMED.4 The affirmed disposition reads:

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Centered on the conduct of the search of appellants house that yielded the prohibited substance, the Court of Appeals upheld the trial court on the finding that "after a careful evaluation and analysis of the arguments presented by the prosecution and the defense, we hold that the search conducted by the INTEL Operatives of Tarlac City Police Station, in coordination with the PDEA, on the residence of the accused-appellant on 25 March 2003 at Zone 1, Barangay Maliwalo, Tarlac City and the seizure therein of one (1) plastic pack of white crystalline substance of methamphetamine hydrochloride or "shabu" weighing 0.055 gram are legal. As a consequence of the legal search, the said methamphetamine hydrochloride or "shabu" seized on the occasion thereof, is admissible in evidence against the accusedappellant."17 In this appeal, accused-appellant, through her new counsel from the Public Attorneys Office, goes further back, presenting new arguments, that (1) the search warrant was not based on probable cause, hence, the evidence allegedly obtained through it may not be admitted to support the accused-appellants conviction;18 and (2) the presumption of regularity in the performance of official functions by public officers cannot prevail over the presumption of innocence.19 We first deal with the original position of the accused which, in this petition, begins with the contention of non-compliance with all the requisites of illegal possession of dangerous drugs. We agree with the rulings of the trial court and the Court of Appeals that there was indeed full satisfaction of the requisites for the conviction of the accused. The trial court found that the evidence presented by the prosecution was not adequately defeated. Re-stating that in illegal possession of prohibited drugs, there are only three (3) elements to secure conviction: (1) accused is in possession of the prohibited drugs; (2) such possession is not authorized by law; and (3) accused consciously and freely possessed the prohibited drugs,20 the trial court held that all these were established beyond doubt. It determined that appellant failed to proffer evidence enough to discredit the prosecution and render doubtful his guilt.21 The Court of Appeals found no reason to overturn the finding of the trial court. It held that: After a careful evaluation and analysis of the arguments presented by the prosecution and the defense, we hold that the search by the INTEL Operatives of Tarlac City Police Station, in coordination with the PDEA, on the residence of the accused-appellant on March 25, 2003 at Zone 1, Barangay Maliwalo, Tarlac City and the seizure therein of one (1) plastic pack of white crystalline substance of methamphetamine hydrochloride or "shabu" weighing 0.055 gram are legal. As a consequence of the legal search, the said methamphetamine hydrochloride or "shabu" seized on the occasion thereof, is admissible in evidence against the accused-appellant.22 We will not reverse this holding. The repeated contentions of frame-up of the accused-appellant23 and that the dangerous drug of methamphetamine hydrochloride was planted by the police officers do not deserve further considerations by this Court. While We are aware that in some cases, law enforcers resort to the practice of planting evidence in order that to, inter alia, harass, nevertheless the defense of frame-up in drug cases requires strong and convincing evidence because of the presumption that the police officers performed their duties regularly and that they acted within the bounds of their authority.24 Frame-up, like alibi, is generally viewed with caution by the Court because it is easy to contrive and difficult to disprove. It is a common and standard line of defense in prosecutions of violations of the Dangerous Drugs Act.25And so is the likewise repeated referral to the primacy of the constitutional presumption of innocence over the presumption of regularity in the performance of public functions,26 the contention being that the frame-up argument is supported by the constitutional presumption of innocence. The argument is without merit. Indeed it is a constitutional mandate27 that in all criminal prosecutions, the accused shall be presumed innocentuntil the contrary is proved and that on the other hand, it is in the Rules of Court28 that. "The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: "xxx "m. That official duty has been regularly performed; (Emphasis supplied) xxx" In the case at hand, the so-called frame-up was virtually pure allegation bereft of credible proof. The narration29of the police officer who implemented the search warrant, was found after trial and appellate review as the true story. It is on firmer ground than the selfserving statement of the accused-appellant of frame-up.30 The defense cannot solely rely upon the constitutional presumption of innocence for, while it is constitutional, the presumption is not conclusive. Notably, the accused-appellant herself stated in her brief that31 "no proof was proffered by the accused-appellant of the police officers alleged ill motive." Stated otherwise, the narration of the incident by law enforcers, buttressed by the presumption that they have regularly performed their duties in the absence of convincing proof to the contrary, must be given weight.32 We now deal with the late submission about the validity of the search warrant. A party cannot change his theory on appeal nor raise in the appellate court any question of law or of fact that was not raised in the court below or which was not within the issue raised by the parties in their pleadings.33 In a long line of cases, this Court held that points of law, theories, issues and arguments not adequately brought to the attention of the trial court ordinarily will not be considered by a reviewing court as they cannot be raised for the first time on appeal because this would be offensive to the basic rules of fair play, justice and due process.34 We opt to get out of the ordinary in this case. After all, technicalities must serve, not burden the cause of justice. It is a prudent course of action to excuse a technical lapse and afford the parties a review of the case on appeal to attain the ends of justice. 35 We thus allow the new arguments for the final disposition of this case. The contention of the accused-appellant, as asserted through the Public Attorneys Office, is that the issued search warrant was not based on probable cause.36 The accused-appellant relied heavily on its argument that SPO4 Gotidoc, as the applicant of the search warrant, did not testify on facts personally known to him but simply relied on stories that the accused- appellant was peddling illegal drugs.37 The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized.38 On the other hand, probable cause means 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.39 Based on the records, the Court is convinced that the questioned search warrant was based on a probable cause. A portion of the direct testimony of SPO4 Gotidoc is hereby quoted: Q: What is your basis for applying for search warrant against the accused? A: Because there were many persons who were going to her place and weve been hearing news that she is selling prohibited drugs and some of them were even identified, sir. Q: But you did not conduct any surveillance before you applied for search warrant? A: Prior to the application for search warrant, we conducted surveillance already. Q: Because personally you heard that the accused was dealing prohibited drugs and that was the basis for you to apply for search warrant with Branch 66?

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A: Yes, sir. 40(Emphasis supplied) xxx On August 6, 2010, respondents filed their Reply. Section 6, Rule 126 of the Rules on Criminal Procedure provides that: If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (Emphasis supplied) There is no general formula or fixed rule for the determination of probable cause since the same must be decided in light of the conditions obtaining in given situations and its existence depends to a large degree upon the findings or opinion of the judge conducting the examination.41 It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrates determination of a probable cause for the issuance of a search warrant is paid with great deference by a reviewing court, as long as there was substantial basis for that determination.42 The defenses reliance of the quoted testimony of the police officer alone, without any other evidence to show that there was indeed lack of personal knowledge, is insufficient to overturn the finding of the trial court. The accused-appellant, having failed to present substantial rebuttal evidence to defeat the presumption of regularity of duty of the issuing judge, will not be sustained by this Court. WHEREFORE, the instant appeal is DENIED. Accordingly, the decision of the Court of Appeals in CA-G.R. CR. No. 28482 is hereby AFFIRMED. Costs against the appellant. SO ORDERED. On September 8, 2010, this Court issued a Resolution4 wherein respondents were required to submit a certified true copy of the Order of the RTC dated November 14, 2008, which granted their motion to withdraw the information. On October 22, 2010, respondents complied with the Courts directive and submitted a certified true copy of the Order.5 In granting the motion to withdraw the Information, the RTC took into consideration the Amended Decision of the Court of Appeals (CA) in CA-G.R. SP No. 90368 dated August 29, 2006, which affirmed the findings of the City Prosecutor of Manila and the Secretary of Justice that the elements of Robbery, i.e., unlawful taking with intent to gain, with force and intimidation, were absent. Thus, there was lack of probable cause, warranting the withdrawal of the Information.6 The RTC also considered that the said pronouncements of the CA were affirmed by no less than this Court in G.R. No. 177829 in the Resolution7 dated November 12, 2007. Accordingly, the RTC granted respondents motion to withdraw the information without prejudice, the dispositive portion of which reads: WHEREFORE, the motion to withdraw information is hereby GRANTED and the case is DISMISSED without prejudice. SO ORDERED. Consequently, in view of the withdrawal of the Information for Robbery, the quashal of the subject search warrants and the determination of the issue of whether or not there was probable cause warranting the issuance by the RTC of the said search warrants for respondents alleged acts of robbery has been rendered moot and academic. Verily, there is no more reason to further delve into the propriety of the quashal of the search warrants as it has no more practical legal effect.8 Furthermore, even if an Information for Qualified Theft be later filed on the basis of the same incident subject matter of the dismissed case of robbery, petitioner cannot include the seized items as part of the evidence therein. Contrary to petitioners contention, he cannot use the items seized as evidence in any other offense except in that in which the subject search warrants were issued. Section 4, Rule 126 of the Revised Rules of Court provides: Section 4. Requisites for issuing search warrant. A search warrant shall not issue except 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 things to be seized which may be anywhere in the Philippines.1avvphi1 Thus, a search warrant may be issued only if there is probable cause in connection with only one specific offense alleged in an application on the basis of the applicants personal knowledge and his or her witnesses. Petitioner cannot, therefore, utilize the evidence seized by virtue of the search warrants issued in connection with the case of Robbery in a separate case of Qualified Theft, even if both cases emanated from the same incident. Moreover, considering that the withdrawal of the Information was based on the findings of the CA, as affirmed by this Court, that there was no probable cause to indict respondents for the crime of Robbery absent the essential element of unlawful taking, which is likewise an essential element for the crime of Qualified Theft, all offenses which are necessarily included in the crime of Robbery can no longer be filed, much more, prosper. Based on the foregoing, the Court resolves to Grant the motion. WHEREFORE, premises considered, the Motion for Reconsideration filed by the respondents is GRANTED. The Decision of this Court dated February 17, 2010 is RECONSIDERED and SET ASIDE. The petition filed by Romer Sy Tan is DENIED for being MOOT and ACADEMIC. SO ORDERED. court, the items seized by virtue of the subject search warrants will be used as evidence therein.

Republic of the Philippines SUPREME COURT Manila SPECIAL THIRD DIVISION G.R. No. 174570 December 15, 2010

ROMER SY TAN, Petitioner, vs. SY TIONG GUE, FELICIDAD CHAN SY, SY CHIM, SY TIONG SAN, SY YU BUN, SY YU SHIONG, SY YU SAN, and BRYAN SY LIM, Respondents. RESOLUTION PERALTA, J.: On February 17, 2010, this Court rendered a Decision1 in G.R. No. 174570 entitled Romer Sy Tan v. Sy Tiong Gue, et al., the decretal portion of which reads, as follows: WHEREFORE, premises considered, the petition is GRANTED. The Decision and Resolution dated December 29, 2005 and August 18, 2006, respectively, of the Court of Appeals in CA-G.R. SP No. 81389 are REVERSED and SET ASIDE. The Orders of the RTC dated September 1, 2003 and October 28, 2003 are REINSTATED. The validity of Search Warrant Nos. 03-3611 and 03-3612 is SUSTAINED. On March 22, 2010, respondents filed a Motion for Reconsideration2 wherein respondents informed this Court, albeit belatedly, that the Regional Trial Court (RTC) granted their motion for the withdrawal of the Information filed in Criminal Case No. 06241375. As such, respondents prayed that the decision be reconsidered and set aside and that the quashal of the subject search warrants be rendered moot and academic on the basis of the dismissal of the criminal case. In his Comment3 dated July 7, 2010, petitioner maintains that the motion is a mere reiteration of what respondents have previously alleged in their Comment and which have been passed upon by this Court in the subject decision. Petitioner alleges that he also filed with the Office of the City Prosecutor of Manila a Complaint for Qualified Theft against the respondents based on the same incidents and that should the Information for Qualified Theft be filed with the proper

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 182147 December 15, 2010 On the same day of the filing of the application for search warrants on April 28, 2004, the RTC, Branch 167 in Pasig City issued Search Warrants No. 262417 and 2625.18 The NBI served the warrants the next day or on April 29, 2004 resulting in the seizure of several items from Omnis premises duly itemized in the NBIs Receipt/Inventory of Property/Item Seized.19 On May 25, 2004, Agent De Jemil filed his Consolidated Return of Search Warrants with Ex-Parte Motion to Retain Custody of the Seized Items20 before the RTC Pasig City. Subsequently, Agent De Jemil filed before the Department of Justice (DOJ) his Complaint-Affidavits against petitioners for: (1) Violation of

ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, and ALVIN TY, Petitioners, vs. NBI SUPERVISING AGENT MARVIN E. DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and TOTALGAZ DEALERS ASSOCIATION, Respondents. DECISION VELASCO, JR., J.: The Case In this Petition for Review on Certiorari under Rule 45, petitioners seek the reversal of the Decision1 dated September 28, 2007 of the Court of Appeals (CA) in CA-G.R. SP No. 98054, which reversed and set aside the Resolutions dated October 9, 20062 and December 14, 20063 of the Secretary of Justice, and reinstated the November 7, 2005 Joint Resolution4 of the Office of the Chief State Prosecutor. Petitioners assail also the CA Resolution5 dated March 14, 2008, denying their motion for reconsideration. The Facts Petitioners are stockholders of Omni Gas Corporation (Omni) as per Omnis General Information Sheet6 (GIS) dated March 6, 2004 submitted to the Securities and Exchange Commission (SEC). Omni is in the business of trading and refilling of Liquefied Petroleum Gas (LPG) cylinders and holds Pasig City Mayors Permit No. RET-04001256 dated February 3, 2004. The case all started when Joaquin Guevara Adarlo & Caoile Law Offices (JGAC Law Offices) sent a letter dated March 22, 2004 7 to the NBI requesting, on behalf of their clients Shellane Dealers Association, Inc., Petron Gasul Dealers Association, Inc., and Totalgaz Dealers Association, Inc., for the surveillance, investigation, and apprehension of persons or establishments in Pasig City that are engaged in alleged illegal trading of petroleum products and underfilling of branded LPG cylinders in violation of Batas Pambansa Blg. (BP) 33,8 as amended by Presidential Decree No. (PD) 1865.9 Earlier, the JGAC Law Offices was furnished by several petroleum producers/brand owners their respective certifications on the dealers/plants authorized to refill their respective branded LPG cylinders, to wit: (1) On October 3, 2003, Pilipinas Shell Petroleum Corporation (Pilipinas Shell) issued a certification10 of the list of entities duly authorized to refill Shellane LPG cylinders; (2) on December 4, 2003, Petron Corporation (Petron) issued a certification11 of their dealers in Luzon, Visayas, and Mindanao authorized to refill Petron Gasul LPG cylinders; and (3) on January 5, 2004, Total (Philippines) Corporation (Total) issued two certifications12 of the refilling stations and plants authorized to refill their Totalgaz and Superkalan Gaz LPG cylinders. Agents De Jemil and Kawada attested to conducting surveillance of Omni in the months of March and April 2004 and doing a test-buy on April 15, 2004. They brought eight branded LPG cylinders of Shellane, Petron Gasul,Totalgaz, and Superkalan Gaz to Omni for refilling. The branded LPG cylinders were refilled, for which the National Bureau of Investigation (NBI) agents paid PhP 1,582 as evidenced by Sales Invoice No. 9004013 issued by Omni on April 15, 2004. The refilled LPG cylinders were without LPG valve seals and one of the cylinders was actually underfilled, as found by LPG Inspector Noel N. Navio of the Liquefied Petroleum Gas Industry Association (LPGIA) who inspected the eight branded LPG cylinders on April 23, 2004 which were properly marked by the NBI after the test-buy. The NBIs test-buy yielded positive results for violations of BP 33, Section 2(a) in relation to Secs. 3(c) and 4, i.e., refilling branded LPG cylinders without authority; and Sec. 2(c) in relation to Sec. 4, i.e., underdelivery or underfilling of LPG cylinders. Thus, on April 28, 2004, Agent De Jemil filed an Application for Search Warrant (With Request for Temporary Custody of the Seized Items)14 before the Regional Trial Court (RTC) in Pasig City, attaching, among others, his affidavit15 and the affidavit of Edgardo C. Kawada,16 an NBI confidential agent.

Section 2(a), in relation to Sections 3(c) and 4, of B.P. Blg. 33, as amended by P.D. 1865;21 and (2) Violation of Section 2(c), in relation to Section 4, of B.P. Blg. 33, as amended by P.D. 1865,22docketed as
I.S. Nos. 2004-616 and 2004-618, respectively. During the preliminary investigation, petitioners submitted their Joint Counter-Affidavit,23 which was replied24 to by Agent De Jemil with a corresponding rejoinder25 from petitioners. The Ruling of the Office of the Chief State Prosecutor in I.S. No. 2004-616 and I.S. No. 2004-618

On November 7, 2005, the 3rd Assistant City Prosecutor Leandro C. Catalo of Manila issued a Joint Resolution,26later approved by the Chief State Prosecutor Jovencito R. Zuo upon the recommendation of the Head of the Task Force on Anti-Intellectual Property Piracy (TFAIPP), Assistant Chief State Prosecutor Leah C. Tanodra-Armamento, finding probable cause to charge petitioners with violations of pertinent sections of BP 33, as amended, resolving as follows: WHEREFORE, premises considered, it is hereby recommended that two (2) Informations for violations of Section 2 [a] (illegal trading in petroleum and/or petroleum products) and Section 2 [c] (underfilling of LPG cylinders), both of Batas Pambansa Bilang 33, as amended, be filed against respondents [herein petitioners] ARNEL TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY and ALVIN TY.27 Assistant City Prosecutor Catalo found the existence of probable cause based on the evidence submitted by Agent De Jemil establishing the fact that Omni is not an authorized refiller of Shellane, Petron Gasul, Totalgaz andSuperkalan Gaz LPG cylinders. Debunking petitioners contention that the branded LPG cylinders are already owned by consumers who are free to do with them as they please, the law is clear that the stamped markings on the LPG cylinders show who are the real owners thereof and they cannot be refilled sans authority from Pilipinas Shell, Petron or Total, as the case may be. On the underfilling of one LPG cylinder, the findings of LPG Inspector Navio of the LPGIA were uncontroverted by petitioners. Petitioners motion for reconsideration,28 was denied through a Resolution29 by the Office of the Chief State Prosecutor issued on May 3, 2006. In time, petitioners appealed to the Office of the Secretary of Justice.30 The Ruling of the DOJ in I.S. No. 2004-616 and I.S. No. 2004-618 Secretary

On October 9, 2006, the Office of the Secretary of Justice issued a Resolution31 reversing and setting aside the November 7, 2005 Joint Resolution of the Office of the Chief State Prosecutor, the dispositive portion of which reads: WHEREFORE, the assailed resolution is hereby REVERSED and SET ASIDE. The Chief State Prosecutor is directed to cause the withdrawal of the informations for violations of Sections 2(a) and 2(c) of B.P. Blg. 33, as amended by P.D. 1865, against respondents Arnel Ty, Mari Antonette Ty, Jason Ong, Willy Dy and Alvin Ty and report the action taken within ten (10) days from receipt hereof. SO ORDERED.32 The Office of the Secretary of Justice viewed, first, that the underfilling of one of the eight LPG cylinders was an isolated incident and cannot give rise to a conclusion of underfilling, as the phenomenon may have been caused by human error, oversight or technical error. Being an isolated case, it ruled that there was no showing of a clear pattern of deliberate underfilling. Second, on the alleged violation of refilling branded LPG cylinders sans written authority, it found no sufficient basis to hold petitioners responsible for violation of Sec. 2 (c) of BP 33, as amended, since there was no proof that the branded LPG cylinders seized from Omni belong to another company or firm, holding that the

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simple fact that the LPG cylinders with markings or stamps of other petroleum producers cannot by itself prove ownership by said firms or companies as the consumers who take them to Omni fully owned them having purchased or acquired them beforehand. Agent De Jemil moved but was denied reconsideration33 through another Resolution34 dated December 14, 2006 prompting him to repair to the CA via a petition for certiorari35 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98054. The Ruling of the CA The Office of the Solicitor General (OSG), in its Comment36 on Agent De Jemils appeal, sought the dismissal of the latters petition viewing that the determination by the Office of the Secretary of Justice of probable cause is entitled to respect owing to the exercise of his prerogative to prosecute or not. On August 31, 2007, Petron filed a Motion to Intervene and to Admit Attached Petition-in-Intervention37 and Petition-in-Intervention38 before the CA in CA-G.R. SP No. 98054. And much earlier, the Nationwide Association of Consumers, Inc. (NACI) also filed a similar motion. On September 28, 2007, the appellate court rendered the assailed Decision39 revoking the resolutions of the Office of the Secretary of Justice and reinstated the November 7, 2005 Joint Resolution of the Office of the Chief State Prosecutor. The fallo reads: WHEREFORE, the instant petition is GRANTED. The assailed resolutions dated October 9, 2006 and December 14, 2006 are hereby REVERSED and SET ASIDE. The Joint Resolution dated November 7, 2005 of the Office of the Chief State Prosecutor finding probable cause against private respondents Arnel Ty, Marie Antonette Ty, Jason Ong, Willy Dy, and Alvin Ty is hereby REINSTATED. SO ORDERED.40 Citing Sec. 1 (1) and (3) of BP 33, as amended, which provide for the presumption of underfilling, the CA held that the actual underfilling of an LPG cylinder falls under the prohibition of the law which does not require for the underfilling to be substantial and deliberate. Moreover, the CA found strong probable violation of "refilling of another companys or firms cylinders without such companys or firms written authorization" under Sec. 3 (c) of BP 33, as amended. The CA relied on the affidavits of Agents De Jemil and Kawada, the certifications from various LPG producers that Omni is not authorized to refill their branded LPG cylinders, the results of the test-buy operation as attested to by the NBI agents and confirmed by the examination of LPG Inspector Navio of the LPGIA, the letteropinion41 of the Department of Energy (DOE) to Pilipinas Shell confirming that branded LPG cylinders are properties of the companies whose stamp markings appear thereon, and Department Circular No. 2000-05-00742 of the DOE on the required stamps or markings by the manufacturers of LPG cylinders. After granting the appeal of Agent De Jemil, however, the motions to intervene filed by Petron and NACI were simply noted by the appellate court. Petitioners motion for reconsideration was rebuffed by the CA through the equally assailed March 14, 2008 Resolution.43 Thus, the instant petition. The Issues I. WHETHER OR NOT RESPONDENTS WERE ENTITLED TO THE SPECIAL CIVIL ACTION OF CERTIORARI IN THE COURT OF APPEALS. II. WHETHER OR NOT UNDER THE CIRCUMSTANCES THERE WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(A) OF BATAS PAMBANSA BLG. 33, AS AMENDED. III. WHETHER OR NOT UNDER THE CIRCUMSTANCES THERE WAS PROBABLE CAUSE TO BELIEVE THAT PETITIONERS VIOLATED SECTION 2(C) OF BATAS PAMBANSA BLG. 33, AS AMENDED. IV. WHETHER OR NOT PETITIONERS CAN BE HELD LIABLE UNDER BATAS PAMBANSA BLG. 33, AS AMENDED, FOR BEING MERE DIRECTORS, NOT ACTUALLY IN CHARGE OF THE MANAGEMENT OF THE BUSINESS AFFAIRS OF THE CORPORATION.44 The foregoing issues can be summarized into two core issues: first, whether probable cause exists against petitioners for violations of Sec. 2 (a) and (c) of BP 33, as amended; and second, whether petitioners can be held liable therefor. We, however, will tackle at the outset the sole procedural issue raised: the propriety of the petition for certiorari under Rule 65 availed of by public respondent Agent De Jemil to assail the resolutions of the Office of the Secretary of Justice. Petrons Comment-in-Intervention On April 14, 2009, Petron entered its appearance by filing a Motion for Leave to Intervene and to Admit Comment-in-Intervention45 and its Comment-in-Intervention [To petition for Review on Certiorari dated 13 May 2008].46 It asserted vested interest in the seizure of several Gasul LPG cylinders and the right to prosecute petitioners for unauthorized refilling of its branded LPG cylinders by Omni. Petitioners duly filed their Comment/Opposition47 to Petrons motion to intervene. It is clear, however, that Petron has substantial interest to protect in so far as its business relative to the sale and refilling of Petron Gasul LPG cylinders is concerned, and therefore its intervention in the instant case is proper. The Courts Ruling We partially grant the petition. Procedural Issue: Petition for Certiorari under Rule 65 Proper Petitioners raise the sole procedural issue of the propriety of the legal remedy availed of by public respondent Agent De Jemil. They strongly maintain that the Office of the Secretary of Justice properly assumed jurisdiction and did not gravely abuse its discretion in its determination of lack of probable causethe exercise thereof being its sole prerogativewhich, they lament, the appellate court did not accord proper latitude. Besides, they assail the non-exhaustion of administrative remedies when Agent De Jemil immediately resorted to court action through a special civil action for certiorari under Rule 65 before the CA without first appealing the resolutions of the Office of the Secretary of Justice to the Office of the President (OP). We cannot agree with petitioners. For one, while it is the consistent principle in this jurisdiction that the determination of probable cause is a function that belongs to the public prosecutor48 and, ultimately, to the Secretary of Justice, who may direct the filing of the corresponding information or move for the dismissal of the case;49 such determination is subject to judicial review where it is established that grave abuse of discretion tainted the determination. For another, there is no question that the Secretary of Justice is an alter ego of the President who may opt to exercise or not to exercise his or her power of review over the formers determination in criminal investigation cases. As aptly noted by Agent De Jemil, the determination of probable cause by the Secretary of Justice is, under the doctrine of qualified political agency, presumably that of the Chief Executive unless disapproved or reprobated by the latter.

Chan v. Secretary of Justice50 delineated the proper remedy from the

determination of the Secretary of Justice. Therein, the Court, after expounding on the policy of non-interference in the determination of the existence of probable cause absent any showing of arbitrariness on the part of the public prosecutor and the Secretary of Justice, however, concluded, citing Alcaraz v. Gonzalez51 and Preferred Home Specialties, Inc. v. Court of Appeals,52 that an aggrieved party from the resolution of the Secretary of Justice may directly resort to judicial review on the ground of grave abuse of discretion, thus: x x x [T]he findings of the Justice Secretary may be reviewed through a petition for certiorari under Rule 65 based on the allegation that he acted with grave abuse of discretion. This remedy is available to the aggrieved party.53 (Emphasis supplied.) It is thus clear that Agent De Jemil, the aggrieved party in the assailed resolutions of the Office of the Secretary of Justice, availed of and pursued the proper legal remedy of a judicial review through a petition for certiorari under Rule 65 in assailing the latters finding of lack of probable cause on the ground of grave abuse of discretion. First Core Issue: Existence of Probable Cause Petitioners contend that there is no probable cause that Omni violated Sec. 2 (a), in relation to Secs. 3 (c) and 4 of BP 33, as amended,

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prohibiting the refilling of another companys or firms LPG cylinders without its written authorization. First, the branded LPG cylinders seized were not traded by Omni as its representative annotated in the NBI receipt of seized items that the filled LPG cylinders came from customers trucks and the empty ones were taken from the warehouse or swapping section of the refilling plant and not from the refilling section. Second, the branded LPG cylinders are owned by end-user customers and not by the major petroleum companies, i.e., Petron, Pilipinas Shell and Total. And even granting arguendo that Omni is selling these LPG cylinders, still there cannot be a prima facie case of violation since there is no proof that the refilled branded LPG cylinders are owned by another company or firm. Third, granting that Petron, Total and Pilipinas Shell still own their respective branded LPG cylinders already sold to consumers, still such fact will not bind third persons, like Omni, who is not privy to the agreement between the buying consumers and said major petroleum companies. Thus, a subsequent transfer by the customers of Petron, Total and Pilipinas Shell of the duly marked or stamped LPG cylinders through swapping, for example, will effectively transfer ownership of the LPG cylinders to the transferee, like Omni. Fourth, LPG cylinder exchange or swapping is a common industry practice that the DOE recognizes. They point to a series of meetings conducted by the DOE for institutionalizing the validity of swapping of all and any kind of LPG cylinders among the industry players. The meetings resulted in a draft Memorandum of Agreement (MOA) which unfortunately was not signed due to the withdrawal of petroleum major players Petron, Total and Pilipinas Shell. Nonetheless, the nonsigning of the MOA does not diminish the fact of the recognized industry practice of cylinder exchange or swapping. Relying on Republic Act No. (RA) 8479,54 petitioners maintain that said law promotes and encourages the entry of new participants in the petroleum industry such as Omni. And in furtherance of this mandate is the valid practice of cylinder exchange or swapping in the LPG industry. We are not persuaded by petitioners strained rationalizations. Probable violation of Sec. 2 (a) of BP 33, amended First. The test-buy conducted on April 15, 2004 by the NBI agents, as attested to by their respective affidavits, tends to show that Omni illegally refilled the eight branded LPG cylinders for PhP 1,582. This is a clear violation of Sec. 2 (a), in relation to Secs. 3 (c) and 4 of BP 33, as amended. It must be noted that the criminal complaints, as clearly shown in the complaint-affidavits of Agent De Jemil, are not based solely on the seized items pursuant to the search warrants but also on the test-buy earlier conducted by the NBI agents. Second. The written certifications from Pilipinas Shell, Petron and Total show that Omni has no written authority to refill LPG cylinders, embossed, marked or stamped Shellane, Petron Gasul, Totalgaz and Superkalan Gaz. In fact, petitioners neither dispute this nor claim that Omni has authority to refill these branded LPG cylinders. Third. Belying petitioners contention, the seized items during the service of the search warrants tend to show that Omni illegally refilled branded LPG cylinders without authority. On April 29, 2004, the NBI agents who served the search warrants on Omni seized the following: Quantity/Unit 7 1 1 29 Description LPG cylinders Totalgaz, 11.0 kg [filled] LPG cylinder Petron Gasul, 11.0 kg [filled] LPG cylinder Shellane, 11.0 kg [filled] LPG cylinders Superkalan [empty] 8 LPG cylinders as Omnigas with Shell emboss, [empty] Marked 11.0 kg

LPG cylinders Marked as Omnigas with Totalgaz emboss, 11.0 kg [empty] LPG cylinders Shellane, 11.0 kg [empty] LPG cylinders as Omnigas with Gasul emboss, [empty] Marked 11.0 kg

23 3

21

LPG cylindersTotalgaz, 11.0 kg [empty]

The foregoing list is embodied in the NBIs Receipt/Inventory of Property/Item Seized55 signed by NBI Agent Edwin J. Roble who served and implemented the search warrants. And a copy thereof was duly received by Atty. Allan U. Ty, representative of Omni, who signed the same "under protest" and made the annotation at the bottom part thereon: "The above items/cylinders were taken at customers trucks and the empty cylinders taken at the warehouse (swapping section) of the company."56 Even considering that the filled LPG cylinders were indeed already loaded on customers trucks when confiscated, yet the fact that these refilled LPG cylinders consisting of nine branded LPG cylinders, specifically Totalgaz,Petron Gasul and Shellane, tends to show that Omni indeed refilled these branded LPG cylinders without authorization from Total, Petron and Pilipinas Shell. Such a fact is bolstered by the test-buy conducted by Agent De Jemil and NBI confidential agent Kawada: Omnis unauthorized refilling of branded LPG cylinders, contrary to Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended. Said provisos provide: Sec. 2. Prohibited Acts.The following acts are prohibited and penalized: (a) Illegal trading in petroleum and/or petroleum products; xxxx Sec. 3. Definition of terms.For the purpose of this Act, the following terms shall be construed to mean: Illegal trading in petroleum and/or petroleum products xxxx (c) Refilling of liquefied petroleum gas cylinders without authority from said Bureau, or refilling of another companys or firms cylinders without such companys or firms written authorization; (Emphasis supplied.) As petitioners strongly argue, even if the branded LPG cylinders were indeed owned by customers, such fact does not authorize Omni to refill these branded LPG cylinders without written authorization from the brand owners Pilipinas Shell, Petron and Total. In Yao, Sr. v. People,57 a case involving criminal infringement of property rights under Sec. 155 of RA 8293,58 in affirming the courts a quos determination of the presence of probable cause, this Court held that from Sec. 155.159 of RA 8293 can be gleaned that "mere unauthorized use of a container bearing a registered trademark in connection with the sale, distribution or advertising of goods or services which islikely to cause confusion, mistake or deception among the buyers/consumers can be considered as trademark infringement."60 The Court affirmed the presence of infringement involving the unauthorized sale of Gasul andShellane LPG cylinders and the unauthorized refilling of the same by Masagana Gas Corporation as duly attested to and witnessed by NBI agents who conducted the surveillance and test-buys. Similarly, in the instant case, the fact that Omni refilled various branded LPG cylinders even if owned by its customers but without authority from brand owners Petron, Pilipinas Shell and Total shows palpable violation of BP 33, as amended. As aptly noted by the Court in Yao, Sr. v. People, only the duly authorized dealers and refillers

Gaz,

2.7

kg

17

LPG cylinders Petron Gasul, 11.0 kg [emptly]

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ofShellane, Petron Gasul and, by extension, Total may refill these branded LPG cylinders. Our laws sought to deter the pernicious practices of unscrupulous businessmen. Fourth. The issue of ownership of the seized branded LPG cylinders is irrelevant and hence need no belaboring. BP 33, as amended, does not require ownership of the branded LPG cylinders as a condition sine qua non for the commission of offenses involving petroleum and petroleum products. Verily, the offense of refilling a branded LPG cylinder without the written consent of the brand owner constitutes the offense regardless of the buyer or possessor of the branded LPG cylinder. After all, once a consumer buys a branded LPG cylinder from the brand owner or its authorized dealer, said consumer is practically free to do what he pleases with the branded LPG cylinder. He can simply store the cylinder once it is empty or he can even destroy it since he has paid a deposit for it which answers for the loss or cost of the empty branded LPG cylinder. Given such fact, what the law manifestly prohibits is the refilling of a branded LPG cylinder by a refiller who has no written authority from the brand owner. Apropos, a refiller cannot and ought not to refill branded LPG cylinders if it has no written authority from the brand owner.1avvphi1 Besides, persuasive are the opinions and pronouncements by the DOE: brand owners are deemed owners of their duly embossed, stamped and marked LPG cylinders even if these are possessed by customers or consumers. The Court recognizes this right pursuant to our laws, i.e., Intellectual Property Code of the Philippines. Thus the issuance by the DOE Circular No. 2000-05-007,61 the letter-opinion62 dated December 9, 2004 of then DOE Secretary Vincent S. Perez addressed to Pilipinas Shell, the June 6, 2007 letter63 of then DOE Secretary Raphael P.M. Lotilla to the LPGIA, and DOE Department Circular No. 2007-10000764 on LPG Cylinder Ownership and Obligations Related Thereto issued on October 13, 2007 by DOE Secretary Angelo T. Reyes. Fifth. The ownership of the seized branded LPG cylinders, allegedly owned by Omni customers as petitioners adamantly profess, is of no consequence. The law does not require that the property to be seized should be owned by the person against whom the search warrants is directed. 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.65 Petitioners cannot deny that the seized LPG cylinders were in the possession of Omni, found as they were inside the Omni compound. In fine, we also note that among those seized by the NBI are 16 LPG cylinders bearing the embossed brand names of Shellane, Gasul and Totalgaz but were marked as Omnigas. Evidently, this pernicious practice of tampering or changing the appearance of a branded LPG cylinder to look like another brand violates the brand owners property rights as infringement under Sec. 155.1 of RA 8293. Moreover, tampering of LPG cylinders is a mode of perpetrating the criminal offenses under BP 33, as amended, and clearly enunciated under DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis for each violation. Foregoing considered, in the backdrop of the quantum of evidence required to support a finding of probable cause, we agree with the appellate court and the Office of the Chief State Prosecutor, which conducted the preliminary investigation, that there exists probable cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP 33, as amended. Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.66 After all, probable cause need not be based on clear and convincing evidence of guilt, as the investigating officer acts upon reasonable beliefprobable cause implies probability of guilt and requires more than bare suspicion but less than evidence which would justify a conviction.67 Probable violation of Sec. 2 (c) of BP 33, as amended Anent the alleged violation of Sec. 2 (c) in relation to Sec. 4 of BP 33, as amended, petitioners strongly argue that there is no probable cause for said violation based upon an underfilling of a lone cylinder of the eight branded LPG cylinders refilled during the test-buy. Besides, they point out that there was no finding of underfilling in any of the filled LPG cylinders seized during the service of the search warrants. Citing DOEs Bureau of Energy Utilization Circular No. 85-3-348, they maintain that some deviation is allowed from the exact filled weight. Considering the fact that an isolated underfilling happened in so many LPG cylinders filled, petitioners are of the view that such is due to human or equipment error and does not in any way constitute deliberate underfilling within the contemplation of the law. Moreover, petitioners cast aspersion on the report and findings of LPG Inspector Navio of the LPGIA by assailing his independence for being a representative of the major petroleum companies and that the inspection he conducted was made without the presence of any DOE representative or any independent body having technical expertise in determining LPG cylinder underfilling beyond the authorized quantity. Again, we are not persuaded. Contrary to petitioners arguments, a single underfilling constitutes an offense under BP 33, as amended by PD 1865, which clearly criminalizes these offenses. In Perez v. LPG Refillers Association of the Philippines, Inc.,68 the Court affirmed the validity of DOE Circular No. 2000-06-010 which provided penalties on a per cylinder basis for each violation, thus: B.P. Blg. 33, as amended, criminalizes illegal trading, adulteration, underfilling, hoarding, and overpricing of petroleum products. Under this general description of what constitutes criminal acts involving petroleum products, the Circular merely lists the various modes by which the said criminal acts may be perpetrated, namely: no price display board, no weighing scale, no tare weight or incorrect tare weight markings, no authorized LPG seal, no trade name, unbranded LPG cylinders, no serial number, no distinguishing color, no embossed identifying markings on cylinder, underfilling LPG cylinders, tampering LPG cylinders, and unauthorized decanting of LPG cylinders. These specific acts and omissions are obviously within the contemplation of the law, which seeks to curb the pernicious practices of some petroleum merchants.69 (Emphasis supplied.) Moreover, in denying the motion for reconsideration of the LPG Refillers Association of the Philippines, Inc., the Court upheld the basis of said DOE Circular No. 2000-06-010 on the imposition of penalties on a per cylinder basis, thus: Respondents position is untenable. The Circular is not confiscatory in providing penalties on a per cylinder basis. Those penalties do not exceed the ceiling prescribed in Section 4 of B.P. Blg. 33, as amended, which penalizes "any person who commits any act [t]herein prohibited." Thus, violation on a per cylinder basis falls within the phrase "any act" as mandated in Section 4. To provide the same penalty for one who violates a prohibited act in B.P. Blg. 33, as amended, regardless of the number of cylinders involved would result in an indiscriminate, oppressive and impractical operation of B.P. Blg. 33, as amended. The equal protection clause demands that "all

persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed."70

The Court made it clear that a violation, like underfilling, on a per cylinder basis falls within the phrase of any actas mandated under Sec. 4 of BP 33, as amended. Ineluctably, the underfilling of one LPG cylinder constitutes a clear violation of BP 33, as amended. The finding of underfilling by LPG Inspector Navio of the LPGIA, as aptly noted by Manila Assistant City Prosecutor Catalo who conducted the preliminary investigation, was indeed not controverted by petitioners. On the issue of manifest bias and partiality, suffice it to say that aside from the allegation by petitioners, they have not shown that LPG Inspector Navio is neither an expert nor qualified to determine underfilling. Besides, it must be noted that the inspection by LPG Inspector Navio was conducted in the presence of NBI agents on April 23, 2004 who attested to that fact through their affidavits. Moreover, no rules require and petitioners have not cited any that the inspection be conducted in the presence of DOE representatives. Second Core Issue: Petitioners Liability for Violations Sec. 4 of BP 33, as amended, provides for the penalties and persons who are criminally liable, thus: Sec. 4. Penalties. Any person who commits any act herein prohibited shall, upon conviction, be punished with a fine of not less than twenty thousand pesos (P20,000) but not more than fifty thousand pesos (P50,000), or imprisonment of at least two (2) years but not more than five (5) years, or both, in the discretion of the court. In cases of second and subsequent conviction under this Act, the penalty shall be both fine and imprisonment as provided herein.

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Furthermore, the petroleum and/or petroleum products, subject matter of the illegal trading, adulteration, shortselling, hoarding, overpricing or misuse, shall be forfeited in favor of the Government: Provided, That if the petroleum and/or petroleum products have already been delivered and paid for, the offended party shall be indemnified twice the amount paid, and if the seller who has not yet delivered has been fully paid, the price received shall be returned to the buyer with an additional amount equivalent to such price; and in addition, if the offender is an oil company, marketer, distributor, refiller, dealer, subdealer and other retail outlets, or hauler, the cancellation of his license. Trials of cases arising from this Act shall be terminated within thirty (30) days after arraignment. When the offender is a corporation, partnership, or other juridical person, the president, the general manager, managing partner, or such other officer charged with the management of the business affairs thereof, or employee responsible for the violation shall be criminally liable; in case the offender is an alien, he shall be subject to deportation after serving the sentence. If the offender is a government official or employee, he shall be perpetually disqualified from office. (Emphasis supplied.) Relying on the third paragraph of the above statutory proviso, petitioners argue that they cannot be held liable for any perceived violations of BP 33, as amended, since they are mere directors of Omni who are not in charge of the management of its business affairs. Reasoning that criminal liability is personal, liability attaches to a person from his personal act or omission but not from the criminal act or negligence of another. Since Sec. 4 of BP 33, as amended, clearly provides and enumerates who are criminally liable, which do not include members of the board of directors of a corporation, petitioners, as mere members of the board of directors who are not in charge of Omnis business affairs, maintain that they cannot be held liable for any perceived violations of BP 33, as amended. To bolster their position, they attest to being full-time employees of various firms as shown by the Certificates of Employment71 they submitted tending to show that they are neither involved in the day-to-day business of Omni nor managing it. Consequently, they posit that even if BP 33, as amended, had been violated by Omni they cannot be held criminally liable thereof not being in any way connected with the commission of the alleged violations, and, consequently, the criminal complaints filed against them based solely on their being members of the board of directors as per the GIS submitted by Omni to SEC are grossly discriminatory. On this point, we agree with petitioners except as to petitioner Arnel U. Ty who is indisputably the President of Omni. It may be noted that Sec. 4 above enumerates the persons who may be held liable for violations of the law, viz: (1) the president, (2) general manager, (3) managing partner, (4) such other officer charged with the management of the business affairs of the corporation or juridical entity, or (5) the employee responsible for such violation. A common thread of the first four enumerated officers is the fact that they manage the business affairs of the corporation or juridical entity. In short, they are operating officers of a business concern, while the last in the list is self-explanatory. It is undisputed that petitioners are members of the board of directors of Omni at the time pertinent. There can be no quibble that the enumeration of persons who may be held liable for corporate violators of BP 33, as amended, excludes the members of the board of directors. This stands to reason for the board of directors of a corporation is generally a policy making body. Even if the corporate powers of a corporation are reposed in the board of directors under the first paragraph of Sec. 2372 of the Corporation Code, it is of common knowledge and practice that the board of directors is not directly engaged or charged with the running of the recurring business affairs of the corporation. Depending on the powers granted to them by the Articles of Incorporation, the members of the board generally do not concern themselves with the day-to-day affairs of the corporation, except those corporate officers who are charged with running the business of the corporation and are concomitantly members of the board, like the President. Section 2573 of the Corporation Code requires the president of a corporation to be also a member of the board of directors. Thus, the application of the legal maxim expressio unius est exclusio alterius, which means the mention of one thing implies the exclusion of another thing not mentioned. If a statute enumerates the thing upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect.74 The fourth officer in the enumerated list is the catch-all "such other officer charged with the management of the business affairs" of the corporation or juridical entity which is a factual issue which must be alleged and supported by evidence. A scrutiny of the GIS reveals that among the petitioners who are members of the board of directors are the following who are likewise elected as corporate officers of Omni: (1) Petitioner Arnel U. Ty (Arnel) as President; (2) petitioner Mari Antonette Ty as Treasurer; and (3) petitioner Jason Ong as Corporate Secretary. Sec. 4 of BP 33, as amended, clearly indicated firstly the president of a corporation or juridical entity to be criminally liable for violations of BP 33, as amended. Evidently, petitioner Arnel, as President, who manages the business affairs of Omni, can be held liable for probable violations by Omni of BP 33, as amended. The fact that petitioner Arnel is ostensibly the operations manager of Multi-Gas Corporation, a family owned business, does not deter him from managing Omni as well. It is wellsettled that where the language of the law is clear and unequivocal, it must be taken to mean exactly what it says.75 As to the other petitioners, unless otherwise shown that they are situated under the catch-all "such other officer charged with the management of the business affairs," they may not be held liable under BP 33, as amended, for probable violations. Consequently, with the exception of petitioner Arnel, the charges against other petitioners must perforce be dismissed or dropped. WHEREFORE, premises considered, we PARTIALLY GRANT the instant petition. Accordingly, the assailed September 28, 2007 Decision and March 14, 2008 Resolution of the Court of Appeals in CA-G.R. SP No. 98054 are AFFIRMED with MODIFICATION that petitioners Mari Antonette Ty, Jason Ong, Willy Dy and Alvin Ty are excluded from the two Informations charging probable violations of Batas Pambansa Bilang 33, as amended. The Joint Resolution dated November 7, 2005 of the Office of the Chief State Prosecutor is modified accordingly. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner, vs. CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION, Respondents. DECISION VILLARAMA, JR., J.: This case involves a search of office computer assigned to a government employee who was charged administratively and eventually dismissed from the service. The employees personal files stored in the computer were used by the government employer as evidence of misconduct. Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal. The factual antecedents:

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Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of the CSC. On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given directly to Chairperson David. The letter-complaint reads: The Civil Service Batasan Hills, Quezon City Dear Madam Chairwoman, Belated Merry Christmas and Advance Happy New Year! As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused govt employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office. I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted. Concerned Govt employee3 Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4After some briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson Davids directive. The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair. The text messages received by petitioner read: "Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better." "All PCs Of PALD and LSD are being backed up per memo of the chair." "CO IT people arrived just now for this purpose. We were not also informed about this. "We cant do anything about it its a directive from chair." "Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5 Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned Chairwoman Commission over to Chairperson David. The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice. Evaluating the subject documents obtained from petitioners personal files, Chairperson David made the following observations: Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSCNCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.9 Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10 On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner was directed to submit his answer under oath within five days from notice and indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007. Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain persons whom he permitted, at one time or another, to make use of his computer out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU

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and Atty. Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioners answer. On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14 On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation exparte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of petitioner and/or his counsels non-appearance.17 This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing officer, in indirect contempt.18 On June 12, 2007, the CSC issued Resolution No. 071134 19 denying petitioners motion to set aside the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch. In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was deemed to have waived his right to the formal investigation which then proceeded ex parte. On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads: WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.21 On the paramount issue of the legality of the search conducted on petitioners computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the private files of an employee stored in the computer assigned to him for his official use, in the course of initial investigation of possible misconduct committed by said employee and without the latters consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case of OConnor v. Ortega22 as authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons23 which declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though the Court therein recognized that such policy did not, at the same time, erode the respondents legitimate expectation of privacy in the office in which the computer was installed, still, the warrantless search of the employees office was upheld as valid because a government employer is entitled to conduct a warrantless search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception and scope. With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable expectation of privacy with regard to the computer he was using in the regional office in view of the CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view that the search of petitioners computer successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its capacity as government employer and that it was undertaken in connection with an investigation involving work-related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioners dismissal from the service with all its accessory penalties. In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for reconsideration. By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA. His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that I THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521; II THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION; III THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL

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HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION; IV THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26 Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to privacy. The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27 which provides: 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 constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches and seizures.28 But to fully understand this concept and application for the purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the Court declared in People v. Marti29 : Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows: "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1[3], Article III) was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.30 In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as reasonable (objective).32 In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with other union officials, even as the latter or their guests could enter the office. The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by police." That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of OConnor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving his private patients under the state medical aid program, searched his office and seized personal items from his desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer."35 A plurality of four Justices concurred that the correct analysis has two steps: first, because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplace" in order to determine whether an employees Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy expectation, an employers intrusion on that expectation "for noninvestigatory, workrelated purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."36 On the matter of government employees reasonable expectations of privacy in their workplace, OConnor teaches: x x x Public employees expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employees expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others such as fellow employees, supervisors, consensual visitors, and the general public may have frequent access to an individuals office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted; emphasis supplied.) On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal correspondence and other private items in his own office while those work-related files (on physicians in residency training) were stored outside his office, and there being no evidence that the hospital had established any reasonable regulation or policy discouraging employees from storing personal papers and effects in their desks or file cabinets (although the absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38 Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the OConnor plurality decision discussed the following principles: Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "searchwas not a reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches

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requires "balanc[ing] the nature and quality of the intrusion on the individuals Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees legitimate expectations of privacy against the governments need for supervision, control, and the efficient operation of the workplace. xxxx In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employees office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x xxxx The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employees desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agencys work, and ultimately to the public interest. x x x xxxx In sum, we conclude that the "special needs, beyond the normal need for law enforcement make theprobable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of workrelated misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct,should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: "Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether theaction was justified at its inception, x x x ; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place," x x x Ordinarily, a search of an employees office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory workrelated purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.) Since the District Court granted summary judgment without a hearing on the factual dispute as to the character of the search and neither was there any finding made as to the scope of the search that was undertaken, the case was remanded to said court for the determination of the justification for the search and seizure, and evaluation of the reasonableness of both the inception of the search and its scope. In OConnor the Court recognized that "special needs" authorize warrantless searches involving public employees for work-related reasons. The Court thus laid down a balancing test under which government interests are weighed against the employees reasonable expectation of privacy. This reasonableness test implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40 OConnor was applied in subsequent cases raising issues on employees privacy rights in the workplace. One of these cases involved a government employers search of an office computer, United States v. Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing child pornography. Simons was provided with an office which he did not share with anyone, and a computer with Internet access. The agency had instituted a policy on computer use stating that employees were to use the Internet for official government business only and that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the users Internet access as deemed appropriate. CIA agents instructed its contractor for the management of the agencys computer network, upon initial discovery of prohibited internet activity originating from Simons computer, to conduct a remote monitoring and examination of Simons computer. After confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of Simons computer were copied from a remote work station. Days later, the contractors representative finally entered Simons office, removed the original hard drive on Simons computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrants and searched Simons office in the evening when Simons was not around. The search team copied the contents of Simons computer; computer diskettes found in Simons desk drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and Simons was found guilty as charged. Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons computer and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search remains valid under the OConnor exception to the warrant requirement because evidence of the crime was discovered in the course of an otherwise proper administrative inspection. Simons violation of the agencys Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the capacity and interests of an employer. The warrantless entry into Simons office was reasonable under the Fourth Amendment standard announced in OConnor because at the inception of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was already aware that Simons had misused his Internet access to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a reasonable

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expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard to the files in his computer. x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x xxxx x x x We conclude that the remote searches of Simons computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons Fourth Amendment rights were not violated by FBIS retrieval of Simons hard drive from his office. Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment. xxxx The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office. xxxx In the final analysis, this case involves an employees supervisor entering the employees government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy equipment that the employer knew contained evidence of crimes committed by the employee in the employees office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employers policy and the conduct that violated the criminal law. We consider that FBIS intrusion into Simons office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.) This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutors office with certain offenses, have also recognized the fact that there may be such legitimate intrusion of privacy in the workplace. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees privacy interest in an office is to a large extent circumscribed by the companys work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.) Applying the analysis and principles announced in OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider include "(1) the employees relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.44 Thus, where the employee used a password on his computer, did not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located therein must comply with the Fourth Amendment.45 We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is negated by the presence of policy regulating the use of office computers, as in Simons. Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides: POLICY 1. The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes. 2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs. 3. Use of the Computer Resources is a privilege that may be revoked at any given time. xxxx No Expectation of Privacy 4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system. The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes. 5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that theCSC may use human or automated means to monitor the use of its Computer Resources. 6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or

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operated by other users. However, he is accountable therefor and must insure its care and maintenance. xxxx Passwords 12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another Users password or account. 13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular Users password. Only members of the Commission shall authorize the application of the said global passwords. x x x x47 (Emphasis supplied.) The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means. This implies that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes. One of the factors stated in OConnor which are relevant in determining whether an employees expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable expectation of privacy in his computer files where the universitys computer policy, the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told that computer files, including e-mail, can be searched when the university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of his computer for work-related materials.49 As to the second point of inquiry on the reasonableness of the search conducted on petitioners computer, we answer in the affirmative. The search of petitioners computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit: 8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties; 9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation; 10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV; 11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division; x x x x50 A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agencys computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography. In that case, the defendant employees computer hard drive was first remotely examined by a computer information technician after his supervisor received complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed that defendant had used his computer to access the prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks were taken and examined. A formal administrative investigation ensued and later search warrants were secured by the police department. The initial remote search of the hard drive of petitioners computer, as well as the subsequent warrantless searches was held as valid under the OConnor ruling that a public employer can investigate work-related misconduct so long as any search is justified at inception and is reasonably related in scope to the circumstances that justified it in the first place.52 Under the facts obtaining, the search conducted on petitioners computer was justified at its inception and scope. We quote with approval the CSCs discussion on the reasonableness of its actions, consistent as it were with the guidelines established by OConnor: Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollos computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the abovediscussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it. Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation. Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer. All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its

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operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.53 Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in his contention that OConnor and Simons are not relevant because the present case does not involve a criminal offense like child pornography. As already mentioned, the search of petitioners computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in administrative searches defined in OConnor. The Court is not unaware of our decision in Anonymous LetterComplaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty. Morales personal computer and print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the exacting standards required of every court employee, the Court cannot use the evidence obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter immediately filed an administrative case against the persons who conducted the spot investigation, questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but to dismiss the charges against him for insufficiency of evidence. The above case is to be distinguished from the case at bar because, unlike the former which involved a personal computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a government-issued computer, hence government property the use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office computer assigned to him. Having determined that the personal files copied from the office computer of petitioner are admissible in the administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the petitioner guilty of the charges and dismissing him from the service. Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55 The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it presented during the formal investigation. According to the CSC, these documents were confirmed to be similar or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances. We hold that the CSCs factual finding regarding the authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on record, thus: It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak. Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer. To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted. At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperationOr at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended. Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?56 Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint: Rule II Disciplinary Cases

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SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath. No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment. xxxx We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own fact-finding investigation and information-gathering -- found a prima facie case against the petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of Appeals57 -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.) As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner Buenaflors previous memo expressing his dissent to the actions and disposition of the Commission in this case. According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of the Commission, the practice had been to issue a memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.59 In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED. With costs against the petitioner. SO ORDERED.

2. VALID INSTANCES OF WARRANTLESS SEARCHES AND SEIZURES A.) SEARCH OF MOVING VEHICLES

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Republic of the Philippines SUPREME COURT Manila EN BANC Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829 directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and petitioner to show cause why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881. 8 On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well as the filing of the information in court. 9 On 23 April 1992, the COMELEC denied petitioner's motion for reconsideration. 10 Hence, this recourse. Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away with the requirement of final conviction before the commission of certain offenses; that instead, it created a presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering it fatally defective. But, the issue on the disqualification of petitioner from running in the 11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for public office. However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him on the basis of the evidence gathered from the warrantless search of his car. Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11 Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the criminal information would violate his constitutional right to due process. Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office during the election period from employing or availing himself or engaging the services of security personnel or bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to Congress, as he did, the firearms in compliance with the directive of its Sergeant-atArms pursuant to the "Gun Ban," thus, no law was in fact violated. 12 On 25 June 1992, we required COMELEC to file its own comment on the petition 13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed instead to be excused from filing the required comment. 14

G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner, vs. COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.: PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases. The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police organizations, and organization or maintenance of reaction forces during the election period. 1Subsequently, on 26 December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints. 2 On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives, wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle Verde and return them to Congress. Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of Representatives. Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered the release of Arellano after finding the latter's sworn explanation meritorious. 4 On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was petitioner's driver, not a security officer nor a bodyguard. 5 On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed. 6

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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 Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding. It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's right to question the reasonableness of the search of the vehicle and the seizure of the firearms. While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made to ensure that no infringement of civil and political rights results from the implementation of this authority," and that "the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323." 28 The facts show that PNP installed the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the motorist and to conduct an extensive search of his vehicle. In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen conducting the operation, 29 driver Arellano being alone and a mere employee of petitioner could not have marshalled the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the "implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of due process which requires that the procedure established by law should be obeyed. 30 COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense. 31 Due process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals, 33 we held that While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process. Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's explanation. Petitioner then was made to believe that he was not a party

for as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely limited to a visual search. 18

Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim. The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction. An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or probable cause to believe before the search that either the motorist was a law offender or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The existence of probable cause justifying the warrantless search is determined by the facts of each case. 20 Thus, we upheld the validity of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. 21 We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a sizeable volume of marijuana would be transported along the route where the search was conducted and appellants were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and other identification papers; 24 where the physical appearance of the accused fitted the description given in the confidential information about a woman transporting marijuana; 25 where the accused carrying a bulging black leather bag were suspiciously quiet and nervous when queried about its contents; 26 or where the identity of the drug courier was already established by police authorities who received confidential information about the probable arrival of accused on board one of the vessels arriving in Dumaguete City. 27 In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report leading them to reasonably believe that certain motorists matching the description furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen.

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respondent in the case, so that his written explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not apprised that he was himself a respondent when he appeared before the City Prosecutor. Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation. WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the Constitution is SET ASIDE. The temporary restraining order we issued on 5 May 1992 is made permanent. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 148117 March 22, 2007 The evidence for the prosecution shows that at around 2:30 p.m. of September 6, 1998, SPO2 Alberto Ngina of the Philippine National Police (PNP) Tublay Station received an information from a confidential agent that a jeepney with Plate No. AYB 117 at Km. 96, Atok, Benguet was loaded with Benguet pine lumber. SPO2 Ngina immediately relayed the information to SPO4 Rentao Quitoriano and SPO1 Domingo Pulig. They then swiftly established a checkpoint in Acop, Tublay, Benguet. At around 4:00 p.m. of the same day, the PNP operatives spotted the jeepney heading toward La Trinidad. They flagged it down but it did not stop. Hence, they chased the vehicle up to Shilan, La Trinidad where it finally halted. The police saw five persons inside the jeepney then loaded with assorted vegetables, like womboc3 and chili. When SPO4 Quitoriano lifted a womboc, he found some pieces of lumber under it. The driver and his companions admitted they have no permit to transport the lumber. The police immediately arrested and investigated petitioners, Marso Insiong Dumpit, Armando Palasi, and Ben Arinos. Only petitioners were charged with violation of Section 68 of the Revised Forestry Code. After the prosecution presented its evidence, petitioners, through counsel, filed a "Motion to Suppress Evidence of the Prosecution" on the ground that the pieces of Benguet pine lumber were illegally seized. In a Resolution4 dated July 26, 1999, respondent judge denied the motion. Petitioners then filed a motion for reconsideration. Likewise, it was denied in a Resolution dated September 27, 1999. Subsequently, petitioners filed with the Court of Appeals a petition for certiorari and prohibition, docketed as CA-G.R. SP No. 55684 assailing the said Resolutions of the trial court. On September 15, 2000, the Court of Appeals rendered its Decision dismissing the petition, holding that respondent judge did not commit grave abuse of discretion tantamount to lack or excess of jurisdiction; that the search conducted without warrant by the police officers is valid; and that the confiscated pieces of lumber are admissible in evidence against the accused. Petitioners filed a motion for reconsideration of the Decision. However, it was denied in a Resolution5 dated April 11, 2001. Hence, the instant petition raising the sole issue of whether the police officers have a probable cause to believe that the subject vehicle was loaded with illegal cargo and that, therefore, it can be stopped and searched without a warrant. In this jurisdiction, the fundamental law of the land recognizes and protects the right of a person to privacy against unreasonable intrusions by the agents of the State. This right to undisturbed privacy is guaranteed by Section 2, Article III of the Constitution which provides: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3(2), also of Article III, provides that any evidence obtained in violation of the above provision shall be inadmissible for any purpose in any proceeding. Hence, as a general rule, a search and seizure must be carried through with judicial warrant, otherwise, such search and seizure constitutes derogation of a constitutional right.6 The above rule, however, is not devoid of exceptions. In People v. Sarap,7 we listed the exceptions where search and seizure may be conducted without warrant, thus: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of the evidence in plain view; (5) search

MABINI EPIE, JR. and RODRIGO PALASI, Petitioners, vs. THE HON. NELSONIDA T. ULAT-MARREDO, Presiding Judge, Regional Trial Court, Branch 10, La Trinidad, Benguet and THE PEOPLE OF THE PHILIPPINES, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: Assailed in this Petition for Review on Certiorari is the Decision1 of the Court of Appeals dated September 15, 2000 in CA-G.R. SP No. 55684. The facts of the case as gleaned from the records are: In an Information dated September 22, 1998, the Office of the Provincial Prosecutor of Benguet Province charged Mabini Epie, Jr. and Rodrigo Palasi, petitioners, with violation of Section 68 of Presidential Decree No. 705,2 as amended. The Informtion reads: That on or about the 6th day of September 1998, along the Halsema National Highway at Acop, Municipality of Tublay, Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating, and mutually aiding each other and without any authority of law or without any license or permit granted by the Department of Environment and Natural Resources (DENR), and with intent of gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously possess and transport 870 bd. ft. of Benguet Pine lumber having a total market value of TWENTY FOUR THOUSAND THREE HUNDRED SIXTY PESOS (P24,360.00), Philippine Currency, belonging to the REPUBLIC OF THE PHILIPPINES, to the damage and prejudice of the GOVERNMENT in the actual sum aforesaid. CONTRARY TO LAW. The case was raffled to the Regional Trial Court, Branch 10, La Trinidad, Benguet (presided by respondent Judge Nelsonida T. UlatMarredo), docketed as Criminal Case No. 98-CR-3138. When arraigned, both petitioners, with the assistance of counsel de parte, pleaded not guilty to the charge. Trial then ensued.

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when the accused himself waives his right against unreasonable searches and seizures; (6) stop and frisk; and (7) exigent and emergency circumstances. The only requirement in these exceptions is the presence of probable cause. Probable cause is the existence of 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 to be searched.8 In People v. Aruta,9 we ruled that in warrantless searches, probable cause must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. There is no hard and fast rule or fixed formula in determining probable cause for its determination varies according to the facts of each case. Here, the search involved a moving vehicle, an instance where a warrantless search and seizure may be conducted by peace officers. The only issue we should determine is whether there was probable cause to justify such warrantless search and seizure. We recall that at around 2:30 p.m. of September 6, 1998, a confidential informer disclosed to SPO2 Ngina that a passenger jeepney with Plate No. AYB 117 loaded with Benguet pine lumber was at Km. 96, Atok, Benguet. The lumber was covered with assorted vegetables. A PNP roadblock was then placed in Acop, Tublay, Benguet to intercept the jeepney. At around 4:00 p.m. of that same day, the police spotted the vehicle. They flagged it down but it did not stop, forcing the police to chase it until it reached Shilan, La Trinidad. A search of the vehicle disclosed several pieces of Benguet pine lumber. Petitioners could not produce the required DENR permit to cut and transport the same. In People v. Vinecarao,10 we ruled that where a vehicle sped away after noticing a checkpoint and even after having been flagged down by police officers, in an apparent attempt to dissuade the police from proceeding with their inspection, there exists probable cause to justify a reasonable belief on the part of the law enforcers that the persons on board said vehicle were officers of the law or that the vehicle contained objects which were instruments of some offense. This ruling squarely applies to the present case. Verily, the Court of Appeals did not err in holding that respondent judge did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when she ruled that the warrantless search is valid and that the lumber seized is admissible in evidence against petitioners. WHEREFORE, we DENY the petition and AFFIRM the assailed Decision of the Court of Appeals in CA-G.R. SP No. 55684. Costs against petitioners. SO ORDERED. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 175783 September 3, 2007 Expectedly, appellant presented a vastly different account of the events that led to his indictment. According to him, he used to work as a caretaker of "Curacha," a beer house/videoke bar located along Circumferential Road, Marville II Subdivision and owned by a certain Bong Reyes. On 6 March 1999, he reported for work at six oclock in the evening. Later that night, unidentified men walked up to him. One of these men asked him regarding the ownership of the car parked outside the bar. He allegedly accompanied the men outside so he could confirm the identity of the owner of the car that the men were inquiring about. Thereupon, the men pointed to him a green colored Isuzu Gemini car which according to him was driven by his employer, Reyes. After revealing this information to the unidentified men, the latter purportedly pointed guns at him and ordered him to board an owner-type jeepney. The men allegedly asked him regarding the whereabouts of Reyes and threatened to include him in whatever trouble Reyes was in. A few hours passed and he was then brought to the police headquarters where he was asked regarding his address and the name of his employer. After two days, he was allegedly forced to admit that he was in fact the owner of the Gemini car as well as of the shabu and the gun recovered from said vehicle. He learned later on that he was charged with violations of Republic Act No. 6425 for illegal possession of shabuand Presidential Decree No. 1866 for illegal possession of firearm. The latter case was eventually dismissed. At the end of his direct examination, appellant reiterated that he should not have been the one charged with illegal possession of shabu, but Reyes who was driving the Gemini car. regulated drug, did then and there willfully, unlawfully and feloniously have in his possession, custody and control seven (7) heat-sealed transparent plastic bags each containing 97.92 grams, 95.46 grams, 40.47 grams, 5.36 grams, 5.41 grams, 2.95 grams and 3.17 grams for a total weight of 250.74 grams of white crystalline substance, which after the corresponding laboratory examination conducted gave positive result to the test for methylamphetamine hydrochloride also known as "shabu" a regulated drug, in violation of the above-cited law.4 Upon arraignment, appellant, duly assisted by counsel de oficio, pleaded not guilty.5 The prosecutions version of the case relied heavily on the testimony of PO3 Glenon Bueno (PO3 Bueno) who testified that in the morning of 7 March 1999, the Antipolo City Police Station received through telephone, a confidential information that a Gemini car bearing plate number PFC 4116 would deliver an unspecified amount ofshabu in Marville Subdivision, Antipolo City. Acting on said tip, Antipolo City Chief of Police Major Rene Quintana dispatched a team of policemen to the area to conduct a surveillance. When the team arrived in Marville Subdivision, they saw the said Gemini car and immediately flagged it down. The driver of the car pulled to a stop and opened a window of said vehicle giving the policemen the opportunity to identify themselves as members of the Antipolo City Police Station. It was then that PO1 Manuel Padlan (PO1 Padlan) saw a gun tucked on appellants waist. PO1 Padlan inquired about the gun and appellant allegedly replied it did not belong to him nor could he produce any pertinent document relating to said firearm. This prompted PO3 Bueno to order appellant to get down from the car. As soon as appellant stepped down from the vehicle, PO3 Bueno saw five plastic sachets on the drivers seat, the contents of which appellant allegedly admitted to be shabu. Appellant was thereafter immediately brought to the police station. In the Joint Affidavit executed by PO3 Bueno and PO1 Padlan, it was stated that when they frisked appellant, they discovered "2 big plastic bag (sic) and 5 medium size plastic (sic) and a 9 mm. pistol marked Parabellum bearing serial number C-9890 with one loaded magazine with eleven ammunition."7 The white crystalline substance confiscated from appellant was then forwarded to the Philippine National Police Crime Laboratory in Camp Crame, Quezon City for examination. The test conducted on the specimen turned over to the crime laboratory yielded the following: FINDINGS: Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x. CONCLUSION: Specimens A-1 through A-7 contains Hydrochloride, a regulated drug. x x x.8 Methylamphetamine

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDO TUAZON Y NICOLAS, accused-appellant. DECISION CHICO-NAZARIO, J.: For Review is the Decision1 of the Court of Appeals promulgated on 31 July 2006 in CA-G.R. CR-HC No. 01799 entitled, "People of the Philippines v. Bernardo Tuazon y Nicolas," affirming the Decision2 dated 14 October 2002 of the Regional Trial Court (RTC), Antipolo City, Branch 71, in Criminal Case No. 99-16114, finding accused-appellant guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425,3 as amended. The Information filed against appellant alleged: The undersigned State Prosecutor accuses BERNARDO TUAZON y NICOLAS of the crime of Violation of Section 16, Article III, R.A. 6425, as amended, committed as follows: That, on or about the 7th day of March, 1999, in the City of Antipolo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess any

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The trial court found the evidence presented by the prosecution sufficient to support a guilty verdict and imposed upon appellant the penalty of reclusion perpetua and to pay a fine of P500,000.00.9 On 17 September 2003, we resolved to accept the appeal interposed by appellant, the records of the case having been forwarded to this Court by the RTC, Antipolo City, Branch 71. We also required the parties to file their respective briefs.10 In addition to the required brief, appellant filed a supplementary pleading in which he questioned the validity of his arrest and the admissibility of the evidence presented against him. He contends that at the time of his warrantless arrest, he was merely driving within Marville Subdivision. He had not committed, was not committing, and was not about to commit any crime which could have justified his apprehension. He goes on to argue that even if he had waived the issue regarding the validity of his arrest by his failure to raise the matter before entering his plea, such waiver did not affect the unlawfulness of the search and seizure conducted by the police. Appellant claims that as the confidential informant had been cooperating with the police for three weeks prior to his arrest, the authorities were already informed of his identity and his alleged illegal activities. They should have conducted a prior surveillance and then sought a search warrant from the court. Absent said warrant, the shabu seized from him should be excluded from evidence. 11 On 23 February 2005, we ordered the transfer of this case to the Court of Appeals conformably with our decision in People v. Mateo, which modified the pertinent provisions of the Rules of Court with respect to direct appeals from the RTCs to this Court of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.12 The Court of Appeals affirmed the findings and conclusion of the court a quo. The dispositive portion of the Court of Appeals Decision states: WHEREFORE, the October 14, 2002 Decision of the Regional Trial Court, Branch 71, Antipolo City, in Criminal Case No. 99-16114, is hereby AFFIRMED.13 In sustaining the trial court, the Court of Appeals found PO3 Buenos testimony to be "clear and unequivocal"14and should therefore prevail over appellants defense of denial.15 The Court of Appeals likewise brushed aside appellants contention that he was a victim of frame-up as this defense has been viewed with disfavor and has become a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act.16 It also took note of appellants failure to give any credible reason why the police singled him out considering that they were strangers to one another prior to the date of the incident.17 Appellant is again before this Court pleading his innocence by making a lone assignment of error THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR VIOLATION OF SECTION 16, ARTICLE III, REPUBLIC ACT 6425, AS AMENDED.18 Appellant contends that the trial courts reliance on the prosecutions evidence was erroneous considering that he, as a mere grade school graduate, could not have concocted his narration of the events that led to his arrest.19 He also maintains that he was an easy target of police operatives, since he was a new employee in the videoke bar and was therefore unfamiliar with the people who frequented said establishment. In addition, he insists that the prosecution failed to meet the exacting test of moral certainty required for conviction and that the trial court should not have applied the presumption of regularity in the performance of duties on the part of the police officers. 20 Appellant likewise points out the trial courts supposed failure to substantiate the factual and legal bases for his conviction. He notes that the court a quos evaluation of the facts and evidence was contained in only two paragraphs and was utterly lacking in substantial discussion, in contravention of this Courts edict that the decisions must distinctly and clearly express their factual and legal bases.21 On 19 February 2007, we required the parties to file their respective supplemental briefs, if they so desired. On 17 April 2007, appellant filed a Manifestation stating that he would no longer file a supplemental brief as all relevant matters for his defense were already discussed in his previous pleadings.22 The Office of the Solicitor General likewise manifested that it would no longer file a supplemental brief.23 The appeal must fail. In insisting that the trial court should not have given credence to the testimony of PO3 Bueno, appellant is basically making an issue about a witnesss credibility. In this regard, we reiterate the rule that appellate courts will generally not disturb factual findings of the trial court since the latter has the unique opportunity to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying.24 Thus, unless attended with arbitrariness or plain disregard of pertinent facts or circumstances, the factual findings are accorded the highest degree of respect on appeal.25 Our careful review of the records of this case reveals that the trial court did not err in relying on the testimony of PO3 Bueno. In open court, PO3 Bueno recounted their encounter with appellant as follows: PROS. LUNA: Thank you, your honor. Q: Mr. Witness, where were you assigned as police officer sometime in the month of March 1999? WITNESS: A: At the Antipolo Police Station, sir. Q: Mr. Witness, do you know accused Bernardo Tuazon? A: Yes, sir. Q: How did you come to know him? A: Because we arrested Bernardo Tuazon. Q: If the accused in this case is present before this Court, will you please point him out? A: He is that person wearing yellow T-shirt. LEGAL RESEARCHER ACTING AS INTERPRETER: The witness is pointing to a male person inside the courtroom when confronted give his name as Bernardo Tuazon. PROS. LUNA: Q: Do you recall where were you at about 12:10 in the morning of March 7, 1999? WITNESS: A: At the Antipolo Police Station, sir. Q: What were you doing then at that time? A: We were doing our duty as police investigator, sir. Q: Who were your companions at that time? A: PO1 Manuel Padlan, and CA Ronald Naval, sir. Q: While performing your functions, do you remember any unusual incident at that time? A: One of our confidential agents gave an information thru telephone, sir. Q: About what? A: About delivery of shabu of undetermined amount in the area of Marville Subdivision, Antipolo City, sir. Q: Do you know that person involved or who is the person supposed to deliver an undetermined amount of "shabu"? A: The asset did not say who will deliver the shabu but he only said on the telephone that the car is a Gemini bearing plate number PFC 411 who will deliver at said place. Q: Upon receipt of said information what did you do next? A: We informed our Chief of Police Major Rene Quintana, sir.

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Q: What was the reaction of Major Quintana? A: Our Chief of Police told us to do surveillance in the area. Q: What did you do next? A: We immediately recorded the dispatch and we boarded a marked vehicle and proceeded to the area in Marville Subdivision, sir. Q: Where is this located? A: In Barangay San Roque fronting along the highway in Antipolo City. Q: Upon reaching that place what happened? A: When we arrived in the subdivision we saw a Gemini car with plate number PFC 411, sir. Q: If a picture of that car would be shown to you would you be able to identify it? A: Yes, sir. Q: I am showing to you a picture already marked as Exhibit B,. B-1 and B-2. What relation has this to the one you mentioned? A: This is the car where the accused was then on board, sir. Q: Upon seeing the car what did you do? A: We immediately conduct a check point, sir. Q: Specifically, what did you do? A: We flagged down the vehicle, sir. Q: What happened after flagging down the car? A: When we flagged down the vehicle, we identified ourselves as police officers, sir. Q: What was the reaction of the driver of the vehicle? A: The driver opened the window and we identified ourselves as members of the Antipolo City Police Station, sir. Q: What was the reaction of the driver? A: When he opened the window, PO1 Padlan saw a gun tucked on his waist. Q: What did you do next? In your case what did you do? A: We identified ourselves as policem[e]n. COURT: Q: Did you know what Padlan did? WITNESS: A: Yes, sir. Q: What did he do? A: He questioned his gun and it turned out that there is no pertinent document for his gun. Q: What do you mean "he was asked"? Who was asked? A: The driver, Bernardo Tuazon, sir. PROS. LUNA: Q: What was the reaction of Bernardo Tuazon? WITNESS: A: He said that the gun is not his. Q: Upon hearing that the gun was not owned by Bernardo Tuazon what did you do as police officer? A: I ordered him to get down from the car. COURT: Q: After he got down from the car, what happened? WITNESS: A: I saw five (5) plastic bags on the drivers seat. Q: Upon seeing that plastic bag what did you do? A: I asked him the contents of that plastic and he replied that it contained shabu, sir. Q: What did you do upon hearing the answer of the accused? A: We immediately brought him to the headquarters together with the evidence, sir. Q: What did you do with the "shabu"? A: We brought it to the PNP Crime Laboratory for examination, sir. Q: What was the result of the examination, if you know? A: It gave positive result to the tests for methylamphetamine hydrochloride sir.26 We agree with the Court of Appeals that the foregoing testimony of PO3 Bueno establishes beyond reasonable doubt appellants culpability. His testimony regarding the circumstances that occurred in the early hours of 7 March 1999 from the moment their office received a confidential tip from their informer up to the time they accosted appellant deserved to be given significance as it came from the mouth of a law enforcement officer who enjoys the presumption of regularity in the performance of his duty. Police officers are presumed to have acted regularly in the performance of their official functions in the absence of clear and convincing proof to the contrary or that they were moved by ill-will.27 Appellants bare-faced defense of denial cannot surmount the positive and affirmative testimony offered by the prosecution. It is well-settled that positive declarations of a prosecution witness prevail over the bare denials of an accused.28 A defense of denial which is unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserving no weight in law and cannot be given greater evidentiary value over convincing, straightforward and probable testimony on affirmative matters.29 Denial is an inherently weak defense which must be supported by strong evidence of nonculpability to merit credibility.30 We shall now resolve the issue raised by appellant regarding the admissibility of the physical evidence presented against him. No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2 of the Constitution which states: 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. Complementing this provision is the so-called exclusionary rule embodied in Section 3(2) of the same article (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. It is recognized, however, that these constitutional provisions against warrantless searches and seizures admit of certain exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.31

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In the case of People v. Lo Ho Wing,32 this Court had the occasion to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of search warrant, thus: [T]he rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that "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." Nevertheless, the exception from securing a search warrant when it comes to moving vehicles does not give the police authorities unbridled discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could amount to outright harassment. Surely, the policy consideration behind the exemption of search of moving vehicles does not encompass such arbitrariness on the part of the police authorities. In recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in order to justify the warrantless search of a vehicle.33 In Caballes v. Court of Appeals,34 the term "probable cause" was explained to mean [A] reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of the case. When a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.35 In this case, we hold that the police had probable cause to effect the warrantless search of the Gemini car driven by appellant. A confidential informer tipped them off that said car was going to deliver shabu at Marville Subdivision. Pursuing said lead, the Antipolo City police sent a team to Marville Subdivision to monitor said vehicle. The information provided by the informer turned out to be correct as, indeed, the Gemini car was spotted in the place where it was said to be bringing shabu. When they stopped the car, they saw a gun tucked in appellants waist. Appellant did not have any document to support his possession of said firearm which all the more strengthened the polices suspicion. After he was told to step out of the car, they found on the drivers seat plastic sachets containing white powdery substance. These circumstances, taken together, are sufficient to establish probable cause for the warrantless search of the Gemini car and the eventual admission into evidence of the plastic packets against appellant. In any case, appellant failed to timely object to the admissibility of the evidence against him on the ground that the same was obtained through a warrantless search. His failure amounts to a waiver of the objection on the legality of the search and the admissibility of the evidence obtained by the police. It was only proper for the trial court to admit said evidence. 36 Appellant also faults the trial court for its failure to abide by the Constitutional requirement that "(n)o decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based."37 Again, we disagree. Faithful adherence to the aforementioned constitutional provision is a vital component of due process and fair play.38 The rule takes an even more important significance for the losing party who is entitled to know why he lost so that he may appeal to a higher court, if permitted, should he believe that the decision needs to be reversed. A decision that does not clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.39 In this case, we find that the assailed decision of the trial court substantially complied with the requirements of the Constitution. The decision contained a summary of the facts of the case as presented by the prosecution and by the defense. It likewise contained an explanation as to why it found appellant guilty as charged. Admittedly, the decision is brief but to our mind, it sufficiently informed appellant as regards the bases for his conviction. It readily informs appellant that the trial court disregarded his defense of bare denial in favor of the presumption of regularity in the performance of duties enjoyed by police officers. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01799 dated 31 July 2006, finding appellant Bernardo Tuazon y Nicolas guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425, as amended, is AFFIRMED. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 188611 June 16, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. BELEN MARIACOS, Appellant. DECISION NACHURA, J.: Before this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02718, which affirmed the decision2 of the Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002. The facts of the case, as summarized by the CA, are as follows: Accused-appellant Belen Mariacos was charged in an Information, dated November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as follows: "That on or about the 27th day of October, 2005, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the necessary permit or authority from the proper government agency or office. CONTRARY TO LAW." When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the pre-trial, the following were stipulated upon: "1. Accused admits that she is the same person identified in the information as Belen Mariacos; 2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union; 3. That at the time of the arrest of the accused, accused had just alighted from a passenger jeepney; 4. That the marijuana allegedly taken from the possession of the accused contained in two (2) bags were submitted for examination to the Crime Lab; 5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for examination gave positive result for the presence of marijuana;

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6. That the drugs allegedly obtained from the accused contained (sic) and submitted for examination weighed 7,030.3 grams; 7. The Prosecutor admits the existence of a counter-affidavit executed by the accused; and 8. The existence of the affidavits executed by the witnesses of the accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino." During the trial, the prosecution established the following evidence: On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La Union, conducted a checkpoint near the police station at the poblacion to intercept a suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2 Pallayoc"), the Chief of Police, and other policemen. When the checkpoint did not yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay Balbalayang to conduct surveillance operation (sic). At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret agent of the Barangay Intelligence Network who informed him that a baggage of marijuana had been loaded on a passenger jeepney that was about to leave for the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc then boarded the said jeepney and positioned himself on top thereof. While the vehicle was in motion, he found the black backpack with an "O.K." marking and peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then asked the other passengers on top of the jeepney about the owner of the bag, but no one knew. When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other passengers. Unfortunately, he did not notice who took the black backpack from atop the jeepney. He only realized a few moments later that the said bag and three (3) other bags, including a blue plastic bag, were already being carried away by two (2) women. He caught up with the women and introduced himself as a policeman. He told them that they were under arrest, but one of the women got away. PO2 Pallayoc brought the woman, who was later identified as herein accused-appellant Belen Mariacos, and the bags to the police station. At the police station, the investigators contacted the Mayor of San Gabriel to witness the opening of the bags. When the Mayor arrived about fifteen (15) minutes later, the bags were opened and three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper, were recovered. Thereafter, the investigators marked, inventoried and forwarded the confiscated marijuana to the crime laboratory for examination. The laboratory examination showed that the stuff found in the bags all tested positive for marijuana, a dangerous drug. When it was accused-appellants turn to present evidence, she testified that: On October 27, 2005, at around 7:00 in the morning, accusedappellant, together with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang ("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded on top of the jeepney. At first, accused-appellant refused, but she was persuaded later when she was told that she would only be carrying the bags. When they reached the poblacion, Lao-ang handed accusedappellant and her companion, Lani Herbacio, the bags, and then Laoang suddenly ran away. A few moments later, PO2 Pallayoc was upon them, arresting them. Without explanation, they were brought to the police station. When they were at the police station, Lani Herbacio disappeared. It was also at the police station that accused-appellant discovered the true contents of the bags which she was asked to carry. She maintained that she was not the owner of the bags and that she did not know what were contained in the bags. At the police station (sic) she executed a Counter-Affidavit.3 On January 31, 2007, the RTC promulgated a decision, the dispositive portion of which states: WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of P500,000.00. The 7,030.3 grams of marijuana are ordered confiscated and turned over to the Philippine Drug Enforcement Agency for destruction in the presence of the Court personnel and media. SO ORDERED.4 Appellant appealed her conviction to the CA. She argued that the trial court erred in considering the evidence of the prosecution despite its inadmissibility.5 She claimed that her right against an unreasonable search was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a search warrant and with no permission from her. She averred that PO2 Pallayocs purpose for apprehending her was to verify if the bag she was carrying was the same one he had illegally searched earlier. Moreover, appellant contended that there was no probable cause for her arrest.6 Further, appellant claimed that the prosecution failed to prove the corpus delicti of the crime.7 She alleged that the apprehending police officers violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. The said regulation directs the apprehending team having initial custody and control of the drugs and/or paraphernalia, immediately after seizure or confiscation, to have the same physically inventoried and photographed in the presence of appellant or her representative, who shall be required to sign copies of the inventory. The failure to comply with this directive, appellant claimed, casts a serious doubt on the identity of the items allegedly confiscated from her. She, likewise, averred that the prosecution failed to prove that the items allegedly confiscated were indeed prohibited drugs, and to establish the chain of custody over the same. On the other hand, the People, through the Office of the Solicitor General (OSG), argued that the warrantless arrest of appellant and the warrantless seizure of marijuana were valid and legal,8 justified as a search of a moving vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that appellant had committed the crime of delivering dangerous drugs based on reliable information from their agent, which was confirmed when he peeked into the bags and smelled the distinctive odor of marijuana.9 The OSG also argued that appellant was now estopped from questioning the illegality of her arrest since she voluntarily entered a plea of "not guilty" upon arraignment and participated in the trial and presented her evidence.10 The OSG brushed aside appellants argument that the bricks of marijuana were not photographed and inventoried in her presence or that of her counsel immediately after confiscation, positing that physical inventory may be done at the nearest police station or at the nearest office of the apprehending team, whichever was practicable.11 In a Decision dated January 19, 2009, the CA dismissed appellants appeal and affirmed the RTC decision in toto.12 It held that the prosecution had successfully proven that appellant carried away from the jeepney a number of bags which, when inspected by the police, contained dangerous drugs. The CA ruled that appellant was caught in flagrante delicto of "carrying and conveying" the bag that contained the illegal drugs, and thus held that appellants warrantless arrest was valid. The appellate court ratiocinated: It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags when he was aboard the jeep. He saw the bricks of marijuana wrapped in newspaper. That said marijuana was on board the jeepney to be delivered to a specified destination was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of accused-appellant. xxxx Firstly, this Court opines that the invocation of Section 2, Article III of the Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of the suspicious bags, there was no identified owner. He asked the other passengers atop the jeepney but no one knew who owned the bags. Thus, there could be no violation of the right when no one was entitled thereto at that time.

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Secondly, the facts of the case show the urgency of the situation. The local police has been trying to intercept the transport of the illegal drugs for more than a day, to no avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as possible the tip and check the contents of the bags. Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of a moving vehicle has been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of the locality or jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to secure a search warrant in order to check the contents of the bags which were loaded on top of the moving jeepney. Otherwise, a search warrant would have been of no use because the motor vehicle had already left the locality.13 Appellant is now before this Court, appealing her conviction. Once again, we are asked to determine the limits of the powers of the States agents to conduct searches and seizures. Over the years, this Court had laid down the rules on searches and seizures, providing, more or less, clear parameters in determining which are proper and which are not.1avvphi1 Appellants main argument before the CA centered on the inadmissibility of the evidence used against her. She claims that her constitutional right against unreasonable searches was flagrantly violated by the apprehending officer. Thus, we must determine if the search was lawful. If it was, then there would have been probable cause for the warrantless arrest of appellant. Article III, Section 2 of the Philippine 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. Law and jurisprudence have laid down the instances when a warrantless search is valid. These are: 1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence; 2. Seizure of evidence in "plain view," the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent[;] and; (d) "plain view" justified mere seizure of evidence without further search. 3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and Emergency Circumstances.14 Both the trial court and the CA anchored their respective decisions on the fact that the search was conducted on a moving vehicle to justify the validity of the search. Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions to the Constitutional mandate that no search or seizure shall be made except by virtue of a warrant issued by a judge after personally determining the existence of probable cause.15 In People v. Bagista,16 the Court said: The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view. With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought. This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched. It is well to remember that in the instances we have recognized as exceptions to the requirement of a judicial warrant, it is necessary that the officer effecting the arrest or seizure must have been impelled to do so because of probable cause. The essential requisite of probable cause must be satisfied before a warrantless search and seizure can be lawfully conducted.17 Without probable cause, the articles seized cannot be admitted in evidence against the person arrested.18 Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched.19 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.20 Over the years, the rules governing search and seizure have been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge a requirement which borders on the impossible in instances where moving vehicle is used to transport contraband from one place to another with impunity.21 This exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.22 Given the discussion above, it is readily apparent that the search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination. It is well to remember that on October 26, 2005, the night before appellants arrest, the police received information that marijuana was to be transported from Barangay Balbalayang, and had set up a checkpoint around the area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay Intelligence Network, who informed him that a baggage of

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marijuana was loaded on a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages allegedly containing illegal drugs. This Court has also, time and again, upheld as valid a warrantless search incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides: SEC. 13. Search incident to lawful arrest.A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.23 For this rule to apply, it is imperative that there be a prior valid arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of Court provides the exceptions therefor, to wit: 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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (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 is 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) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.24 Be that as it may, we have held that a search substantially contemporaneous with an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search.25 Given that the search was valid, appellants arrest based on that search is also valid. Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states: SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions. In her defense, appellant averred that the packages she was carrying did not belong to her but to a neighbor who had asked her to carry the same for him. This contention, however, is of no consequence. When an accused is charged with illegal possession or transportation of prohibited drugs, the ownership thereof is immaterial. Consequently, proof of ownership of the confiscated marijuana is not necessary.26 Appellants alleged lack of knowledge does not constitute a valid defense. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum, as in this case.27 Mere possession and/or delivery of a prohibited drug, without legal authority, is punishable under the Dangerous Drugs Act.28 Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against particular individuals, but against public order.29 Jurisprudence defines "transport" as "to carry or convey from one place to another."30 There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act.31 The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is immaterial whether or not the place of destination is reached.32 Moreover, appellants possession of the packages containing illegal drugs gave rise to the disputable presumption33 that she is the owner of the packages and their contents.34 Appellant failed to rebut this presumption. Her uncorroborated claim of lack of knowledge that she had prohibited drug in her possession is insufficient. Appellants narration of facts deserves little credence. If it is true that Bennie Lao-ang merely asked her and her companion to carry some baggages, it is but logical to first ask what the packages contained and where these would be taken. Likewise, if, as appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant and her companion should have ran after him to give him the bags he had left with them, and not to continue on their journey without knowing where they were taking the bags. Next, appellant argues that the prosecution failed to prove the corpus delicti of the crime. In particular, she alleged that the apprehending police officers failed to follow the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of that crime.35 Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and disposition of seized dangerous drugs, to wit: Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a

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copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. PO2 Pallayoc testified that after apprehending appellant, he immediately brought her to the police station. At the station, the police requested the Mayor to witness the opening of the bags seized from appellant. When the Mayor arrived, he opened the bag in front of appellant and the other police officers. The black bag yielded three bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles of marijuana and two bricks of marijuana fruiting tops.36 PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then marked the same. Then the seized items were brought to the PNP Crime Laboratory for examination. It is admitted that there were no photographs taken of the drugs seized, that appellant was not accompanied by counsel, and that no representative from the media and the DOJ were present. However, this Court has already previously held that non-compliance with Section 21 is not fatal and will not render an accuseds arrest illegal, or make the items seized inadmissible. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items.37 Based on the testimony of PO2 Pallayoc, after appellants arrest, she was immediately brought to the police station where she stayed while waiting for the Mayor. It was the Mayor who opened the packages, revealing the illegal drugs, which were thereafter marked and sent to the police crime laboratory the following day. Contrary to appellants claim, the prosecutions evidence establishes the chain of custody from the time of appellants arrest until the prohibited drugs were tested at the police crime laboratory. While it is true that the arresting officer failed to state explicitly the justifiable ground for non-compliance with Section 21, this does not necessarily mean that appellants arrest was illegal or that the items seized are inadmissible. The justifiable ground will remain unknown because appellant did not question the custody and disposition of the items taken from her during the trial.38 Even assuming that the police officers failed to abide by Section 21, appellant should have raised this issue before the trial court. She could have moved for the quashal of the information at the first instance. But she did not. Hence, she is deemed to have waived any objection on the matter. Further, the actions of the police officers, in relation to the procedural rules on the chain of custody, enjoyed the presumption of regularity in the performance of official functions. Courts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties regularly, absent any convincing proof to the contrary.39 In sum, the prosecution successfully established appellants guilt. Thus, her conviction must be affirmed. WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED. SO ORDERED. A. SEARCH INCIDNET TO A VALID ARREST REYES and BRION,** JJ. Promulgated: September 26, 2008 x--------------------------------------------------x DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision1 dated 31 August 2007 of the Court of Appeals in CA-G.R. CR No. 01994 entitled, People of the Philippines v. Narciso Agulay y Lopez, affirming the Decision2 rendered by the Regional Trial Court (RTC) of Quezon City, Branch 103, in Criminal Case No. Q-02-111597, finding accused-appellant Narciso Agulay y Lopez guilty of illegal sale and illegal possession of methamphetamine hydrochloride more popularly known as "shabu." On 26 August 2002, accused-appellant was charged in an Information before the RTC of Quezon City with violation of Section 5, Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002. The Information reads: That on or about the 24th day of August, 2002 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully, and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point twenty five (0.25) gram of methylamphetamine hydrochloride a dangerous drug.3 When arraigned on 23 September 2002, accused-appellant pleaded not guilty.4 Thereafter, trial ensued. During the trial, the prosecution presented the testimonies of Police Officer (PO) 2 Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust team), and Forensic Analyst Leonard M. Jabonillo. The prosecutions version of the events are narrated as follows: On 24 August 2002, at around 6:30 in the evening, an informant arrived at Police Station 5 and reported to the Chief of the Station Drug Enforcement Unit (SDEU) that a certain "Sing" had been selling shabu at Brgy. Sta. Lucia, in Novaliches, Quezon City. A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer and was given aP100.00 bill, which he marked "RH," his initials. A pre-operation report bearing control No. 24-SDEU-02 was made and signed by Police Inspector (P/Insp.) Palaleo Adag dated 24 August 2002. The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City. PO2 Herrera and his informant stepped down from their vehicle and walked. The informant pointed the target pusher to PO2 Herrera. They approached and after being introduced to Sing, PO2 Herrera bought shabu using the marked P100.00 bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his head as a signal. The other police companions of PO2 Herrera, who were deployed nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked him. PO2 Herrera recovered two (2) plastic sachets from Sings pocket. He also got the marked money from Sing. The following specimens were submitted to the Philippine National Police (PNP) Crime Laboratory of the Central Police District in Quezon City for chemical analysis: G.R. No. 181747 Present: TINGA,* CHICO-NAZARIO, Acting Chairperson, VELASCO,* Three (3) heat-sealed transparent plastic sachets each containing white crystalline substance having the following markings and recorded net weights: (A) (RH1-RG1) = 0.07 gm (B) (RH2-RG2) = 0.09 gm (C) (RH3-RG3) = 0.09 gm5

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-appellee, - versus NARCISO AGULAY y LOPEZ, Accused-Appellant.

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Chemistry Report No. D-1020-2002 dated 25 August 2002 and prepared and presented in court by Forensic Analyst Leonard M. Jabonillo (of the PNP Crime Laboratory of the Central Police District of Quezon City) yielded the following results FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for Methylamphetamine Hydrochloride, a regulated drug. x x x. CONCLUSION: Specimen A, B and C contain Methylamphetamine Hydrochloride, a regulated drug.6 The defense, on the other hand, had an entirely different version of what transpired that night. It presented three witnesses: accusedappellant Narciso Agulay, Benjamin Agulay (brother of Narciso), and Bayani de Leon. Accused-appellant Narciso Agulay narrated that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, he was manning his store when a car stopped in front of it. The passengers of said vehicle opened its window and poked a gun at him. The passengers alighted from the car, approached him and put handcuffs on him. Accusedappellant asked what violation he had committed or if they had a search warrant with them, but the arresting team just told him to go with them. Accused-appellant requested that he be brought to the barangay hall first, but this request was left unheeded. Instead, he was immediately brought to the police station. Upon reaching the police station, PO2 Herrera handed something to PO1 Riparip. Thereafter, PO2 Herrera and PO1 Riparip approached and punched him on the chest. They removed his shorts and showed him a plastic sachet. Later that night, the arresting officers placed him inside the detention cell. After about 30 minutes, PO1 Riparip and PO2 Herrera approached him. PO2 Herrera told him that if he would not be able to give them P50,000.00, they would file a case against him, to which he answered, "I could not do anything because I do not have money."7 Benjamin Agulay, brother of accused-appellant, testified that at around 8:30 to 9:00 oclock in the evening of 24 August 2002, while he was smoking in their compound, a group of armed men in civilian clothes entered the place and arrested his brother, who was then manning a store. He tried asking the arresting officers what the violation of accused-appellant was but he was ignored. They then took accusedappellant to the police station. On the other hand, the testimony of Bayani de Leon (a police asset of SPO1 Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1 Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car while conducting a follow-up operation regarding a hold-up incident. When the car they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a compound. They saw accused-appellant and arrested him as he was allegedly involved in a hold-up incident, not with drug pushing. Accusedappellant was taken to Police Station 5. On 17 February 2006, the RTC found accused-appellant guilty of the offense charged, and meted out to him the penalty of Life Imprisonment. The dispositive portion of the RTC Decision is as follows: Accordingly, judgment is rendered finding the accused NARCISO AGULAY Y LOPEZ GUILTY beyond reasonable doubt of the crime of violation of Section 5 of R.A. 9165 as charged (for drug pushing) and he is hereby sentenced to suffer a jail term of LIFE IMPRISONMENT and to pay a fine of P500,000.00. The methylamphetamine hydrochloride (in 3 sachets) involved in this case is ordered transmitted to the PDEA thru DDB for proper disposition.8 Accused-appellant filed his Notice of Appeal with Motion to Litigate as Pauper Litigant on 7 March 2006. Accused-appellant filed his appellants brief9 with the Court of Appeals on 22 September 2006. On 31 August 2007, the Court of Appeals issued its Decision denying accused-appellants appeal as follows: WHEREFORE, finding no reversible error in the Decision appealed from, the appeal is DENIED. The Decision of the RTC dated February 17, 2006 is AFFIRMED.10 Petitioner elevated the case to this Court via Notice of Appeal11 dated 21 September 2007. In its Resolution dated 2 April 2008, this Court resolved to: (3) Notify the parties that they may file their respective supplemental briefs, if they so desire, within thirty (30) days from notice. To avoid a repetition of the arguments, accused-appellant opted to adopt his appellants brief dated 22 September 2006 while plaintiffappellee adopted its appellees brief dated 22 January 2007, instead of filing their respective supplemental briefs. The issues raised are the following: I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED AND AS SUCH, THE SACHETS OF SHABU ALLEGEDLY RECOVERED FROM HIM ARE INADMISSIBLE IN EVIDENCE. II. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. III. ACCUSED-APPELLANT CANNOT BE HELD LIABLE FOR THE CONSUMMATED CRIME OF ILLEGAL SALE OF SHABU BECAUSE OF THE FAILURE OF THE PROSECUTION TO ESTABLISH ALL OF ITS ESSENTIAL ELEMENTS. Accused-appellant maintains that his arrest was illegal, and that the subsequent seizure of shabu allegedly taken from him is inadmissible as evidence against him. He also claims that the prosecution failed to prove his guilt beyond reasonable doubt, since the prosecution failed to show all the essential elements of an illegal sale of shabu. From the foregoing issues raised by accused-appellant, the basic issue to be resolved hinges on whether accused-appellant was arrested in a legitimate "buy-bust" operation. The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. Whether the degree of proof has been met is largely left for the trial courts to determine. Consistent with the rulings of this Court, it is a fundamental and settled rule that factual findings of the trial court and its calibration of the testimonies of the witnesses and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. The exception is when it is established that the trial court ignored, overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will change the outcome of the case. Considering that what is at stake here is the liberty of accused-appellant, we have carefully reviewed and evaluated the records of the RTC and the Court of Appeals. On evaluation of the records, this Court finds no justification to deviate from the lower courts findings and conclusion that accused-appellant was arrested in flagrante delicto selling shabu. In order to successfully prosecute an accused for illegal sale of drugs, the prosecution must be able to prove the following elements: (1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.12 The testimonies of the prosecution witnesses proved that all the elements of the crime have been established: that the buy-bust operation took place, and that the shabu subject of the sale was brought to and identified in court. Moreover, PO2 Herrera, the poseurbuyer, positively identified accused-appellant as the person who sold to him the sachet containing the crystalline substance which was confirmed to be shabu.13 He narrated the events which took place the night accused-appellant was apprehended: FIS. JURADO:

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You said that you are stationed at Police Station 5, what were your duties there? WITNESS: That mean(sic) Raul Herrera sir. As an operative sir. FIS. JURADO: FIS. JURADO: What was your tour of duty on August 24, 2002? WITNESS: Broken hour sir. FIS. JURADO: FIS. JURADO: Will you please show that to this Honorable Court? But at around 6:30 in the evening, you are on duty? WITNESS: Yes, sir. FIS. JURADO: FIS. JURADO: While you are on duty at that time and place, will you please inform this Honorable Court if there was an operation? WITNESS: Yes, sir. FIS JURADO: What is that operation all about? WITNESS: Buy bust operation sir. FIS. JURADO: FIS. JURADO: Regarding what? WITNESS: Narcotic sir. FIS. JURADO: What is this all about? When you arrived in that place, what happened there? WITNESS: Alias Sing at Sta. Lucia sir. FIS. JURADO: How did you prepare for that buy-bust operation? WITNESS: WITNESS: An informant arrived and we reported to our Chief of SDEU and the Chief gave us P100.00 and I acted as poseur-buyer sir. FIS. MJURADO: Aside from that what else? WITNESS: I put my markings sir. FIS. JURADO: What is that markings (sic)? WITNESS: R.H. sir. FIS. JURADO: Yes sir along the street sir. FIS. JURADO: Where? WITNESS: J.P. Rizal St., Sta. Lucia, Novaliches, Quezon City, sir. FIS. JURADO: After your confidential informant found this Sing, what happened next? WITNESS: Our confidential informant asked me to go with him to see Sing to buy drug(s) sir. WITNESS: We asked our confidential informant to look for Sing, sir. FIS. JURADO: Did the confidential informant locate the said Sing? How did you proceed to the place of Sta. Lucia? WITNESS: We rode in a tinted vehicles (sic) one space wagon and Besta van, sir. FIS. JURADO: After you prepared the buy bust money, what else did you do? WITNESS: We proceeded to the target location, sir. FIS. JURADO: You said "we" who were with you? WITNESS: P/Insp. Addag, Rosario, SPO1 El Valdez, SPO2 Rey Valdez, Nogoy, Riparip and the confidential informant sir. WITNESS: Here sir. xxxx Do you have said money with you? WITNESS: Yes sir. What is the significance of this R.H.? WITNESS:

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FIS. JURADO: Where is (sic) the transaction took (sic) place? WITNESS: Along the street sir. FIS. JURADO: What happened there? WITNESS: This one sir. I was introduced by the confidential informant to Sing as buyer sir. FIS. JURADO: FIS. JURADO: How did you come to know that this is the one? What happened next? WITNESS: I bought from him worth one hundred peso (sic) of shabu, sir. xxxx FIS. JURADO: FIS. JURADO: What (sic) Sing do, if any? Aside from that, what happened next? WITNESS: Sing gave me one small plastic sachet sir. FIS JURADO: After that what did you do next? WITNESS: I executed our pre-arranged signal sir. FIS. JURADO: For whom you executed this pre-arranged signal? WITNESS: To my companions sir. FIS. JURADO: Where are (sic) your companions at that time? WITNESS: On board at (sic) Besta and Space Wagon sir. FIS. JURADO: What was the pre-arranged signal? WITNESS: I scratched my head sir. FIS. JURADO: After scratching your head, what happened next? WITNESS: My back-up rushed to our place, sir. FIS. JURADO: After that what did you do next? WITNESS: I grabbed Sing and arrested him sir. FIS. JURADO: WITNESS: When I frisked Sing, I was able to recover from him two (2) more plastic sachets sir. FIS. JURADO: Where did you get that plastic sachet? WITNESS: Right side pocket sir. FIS. JURADO: Short or pant? WITNESS: Short sir. FIS. JURADO: Where are these two plastic sachets that you are mentioning? WITNESS: Here sir. FIS. JURADO: How did you come to know that these are the two plastic sachets? WITNESS: I put my markings sir RH. xxxx COURT: After that what happened next? WITNESS: We brought him to our Police Station, sir. FIS. JURADO: You mentioned Sing if this Sing is inside this courtroom, will you be able to identify him? WITNESS: WITNESS: I have my initial(sic) R.H. sir. How about the money? WITNESS: I recovered the buy bust money from Sing, sir. FIS. JURADO: You mentioned plastic sachet, I am showing to you three (3) plastic sachets, which of these three was taken or sold to you? WITNESS:

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Yes sir that man. INTERPRETER: Witness pointing to a man who identified himself as Narciso Agulay and his nickname is "Sing."14 His testimony was corroborated on material points by PO1 Riparip, one of the back-up operatives in the buy-bust operation that night, to wit: FIS. JURADO: Who was the poseur-buyer? You said that you are a police officer, where were you assigned on August 24, 2002? WITNESS: I was assigned at Police Station 5 for drug(sic) sir. FIS. JURADO: What was your tour of duty at that time? WITNESS: Broken hour sir. FIS. JURADO: FIS. JURADO: You were on duty on August 24, 2002 at 6:30 in the evening? WITNESS: Yes sir. FIS. JURADO: What was your functions(sic) as such? WITNESS: To conduct follow up operation on drugs and other crimes sir. FIS. JURADO: Did you conduct operation on that day? WITNESS: Yes sir we conducted Narcotic operation sir. FIS. JURADO: You said you conducted narcotic operation, where? WITNESS: Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir. FIS. JURADO: To whom this Narcotic operation conducted? WITNESS: To certain Alias Sing, sir. FIS. JURADO: Who were with you at that time? WITNESS: Valdez, Rosario, Herrera, Addag and other(sic) sir. FIS. JURADO: What was your participation in the said operation? WITNESS: I acted as back up sir. When we (sic) rushed to the target place what happened next? WITNESS: Herrera frisked Sing and we brought him to the police station sir.15 Accused-appellant contends his arrest was illegal, making the sachets of shabu allegedly recovered from him inadmissible in evidence. Accused-appellants claim is devoid of merit for it is a well-established rule that an arrest made after an entrapment operation does not require a warrant inasmuch as it is considered a valid "warrantless arrest," in line with the provisions of Rule 113, Section 5(a) of the Revised Rules of Court, to wit: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. A buy-bust operation is a form of entrapment which in recent years has been accepted as a valid and effective mode of apprehending drug pushers. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense.16 If carried out with due regard for constitutional and legal safeguards, a buy-bust operation deserves judicial sanction.17 There are eight (8) instances when a warrantless search and seizure is valid, to wit: (1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels and aircraft for violation of immigration, customs, and drug laws; (4) searches of moving vehicles; (5) searches of automobiles at borders or constructive borders; (6) where the prohibited articles are in "plain view;" (7) searches of buildings and premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk" operations. Considering that the legitimacy of the buy-bust operation is beyond question, the subsequent warrantless arrest and warrantless search and seizure, were permissible. The search, clearly being incident to a lawful arrest, needed no warrant for its validity. Thus, contrary to accused-appellant's contention, the contraband seized from him, having been obtained as a result of the buy-bust operation to which the defense failed to impute any irregularity, was correctly admitted in evidence. Noteworthy is the fact that prior to the dispatch of the entrapment team, a pre-operation report18 was made bearing Control No. 24-SDEU-02 dated 24 August 2005. The pre-operation report stated that an Anti-Narcotic Operation was to be conducted at Barangay Sta. Lucia in Novaliches, Quezon City, and indicated the police officers involved, including the vehicles to be used. This only bolsters the testimony of PO2 Herrera and PO1 Riparip as to the legitimacy of the buy-bust operation. WITNESS: Herrera sir. FIS. JURADO: What did you see? WITNESS: The poseur buyer executed the pre-arranged signal and we rushed to his position and arrested the target person Sing sir. FIS. JURADO: As back up, what did you do? WITNESS: We position ourselves to a certain distance and where we can see the poseur-buyer sir. FIS. JURADO:

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The defense contends there is a clear doubt on whether the specimens examined by the chemist and eventually presented in court were the same specimens recovered from accused-appellant. The prosecutions failure to submit in evidence the required physical inventory and photograph of the evidence confiscated pursuant to Section 21,19 Article II of Republic Act No. 9165 will not discharge accusedappellant from his crime. Non-compliance with said section is not fatal and will not render an accuseds arrest illegal or the items seized/confiscated from him inadmissible. In People v. Del Monte,20this Court held that what is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, we find the integrity of the drugs seized intact, and there is no doubt that the three sachets of drugs seized from accused-appellant were the same ones examined for chemical analysis, and that the crystalline substance contained therein was later on determined to be positive for methylamphetamine hydrochloride (shabu). The defense, in fact, admitted the existence and authenticity of the request for chemical analysis and the subsequent result thereof: FIS. JURADO: Chemist Engr. Jabonillo is present your honor. COURT: Any proposal for stipulation? FIS. JURADO: That there is letter request for examination of white crystalline substance marked as follows: A (pH1); B (pH2) and C (pH3)? ATTY. QUILAS: Admitted your honor. FIS. JURADO: As a result of the said qualitative examination chemist issued a chemistry report No. D-1020-2002? ATTY. QUILAS: Admitted your honor. FIS. JURADO: In view of the admission your honor, may we request that Letter request dated August 25, 2002 be marked as Exhibit D and Chemistry Report No. D-1020-2002 as Exhibit E your honor. COURT: Mark it. In view of the presence of the Chemist, Engr. Jabonillo, He is being called to the witness stand for cross examination of the defense counsel.21 On cross-examination by the defense, Forensic Analyst Jabonillo stated that the drugs presented in court were the same drugs examined by him and submitted to him on 25 August 2002: ATTY. QUILAS: In this particular case, you received three plastic sachets? WITNESS: Yes sir. ATTY. QUILAS: When you receive these three plastic sachets were these already segregated or in one plastic container? WITNESS: I received it as is sir. xxxx ATTY. QUILAS: How sure you were (sic) that three plastic sachet (sic) containing methylamphetamine hydrochloride were the same drug (sic) submitted to you on August 25, 2002. WITNESS: I personally place (sic) my marking sir. ATTY. QUILAS: You want to impress before this Honorable Court these were the same items that you received on August 25, 2002? WITNESS: Yes sir.22 On cross-examination by the defense, the same witness testified, to wit: ATTY. DE GUZMAN: I understand you are Chemical Engineer, am I correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And that you have been (sic) worked as a Chemist in the PNP for several years? WITNESS: Since March, 200 (sic), sir. ATTY. DE GUZMAN: What would be your practice when specimen submitted for you to examine, was it already pre-marked by the person who submit for examination? WITNESS: Normally, sir. ATTY. DE GUZMAN: What do you mean normally, you also put the marking? WITNESS: Yes, sir. ATTY. DE GUZMAN: So everything has pre-mark? WITNESS: Yes, sir. ATTY. DE GUZMAN: And then when pre-mark specimen is submitted to you, you merely analyze the same is that correct? WITNESS: Yes, sir. ATTY. DE GUZMAN: And you do not change any marking there? WITNESS:

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Yes, sir. ATTY. DE GUZMAN: Now in the marking that we have it appearing that Exhibits A, B, and C are PH, am I correct? WITNESS: RH sir, not PH. ATTY. DE GUZMAN: Because it shows in the zerox (sic) copy that it is RH because of that slant. Now when this specimen was submitted to you was it three specimens submitted to you or only one specimen A, B, C were ranking to one? WITNESS: No sir, three (3) specimens.23 It is significant to note that accused-appellant stated in his demurrer to evidence that the specimens submitted for laboratory examination were not the three plastic sachets that were allegedly recovered by the poseur-buyer PO2 Raul Herrera, which may thus be construed to be an implied admission.24 Accused-appellants allegation that he is a victim of a frame-up, which has been held as a shop-worn defense of those accused in drugrelated cases, is viewed by the Court with disfavor. Like the defense of alibi, frame-up is an allegation that can easily be concocted.25 For this claim to prosper, the defense must adduce clear and convincing evidence to overcome the presumption of regularity of official acts of government officials.26 Absent any proof of motive to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over that of the accused-appellant.27 Apart from his defense that he is a victim of a frame-up and extortion by the police officers, accused-appellant could not present any other viable defense. Again, while the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity. This, it failed to do. Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accused-appellant vis-vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buy-bust operation was conducted. It is also highly suspect and unusual that accused-appellant never mentioned that he was taken as a carnapping suspect if indeed this were the case, considering it would have been his ticket to freedom. To recall, on direct examination by the defense counsel, Bayani de Leon testified as follows: ATTY. CONCEPCION: Mr. Witness, were you able to talk to Narciso Agulay that time he was arrested? WITNESS: Yes maam, when Narciso Agulay was put inside a room at Station 5 and in that room, I, Riparip and Herrera entered. ATTY. CONCEPCION: What was the conversation all about? WITNESS: He was being asked if he was one of those who held up a taxi maam. ATTY. CONCEPCION: What was the response of Narciso Agulay? WITNESS: Narciso Agulay was crying and at the same time denying that he was with that person. When we told him that the person we arrested with the firearm was pointing to him, he said that he does not know about that incident and he does not know also that person who pointed him maam.28 Witness Bayani de Leons testimony is dubious and lacks credence. From the testimony of Bayani de Leon, it is apparent that accusedappellant would necessarily have known what he was being arrested for, which was entirely inconsistent with accused-appellants previous testimony. Such inconsistency further diminished the credibility of the defense witness. It would seem that Bayani de Leons testimony was but a mere afterthought. Moreover, Bayani de Leon testified that he allegedly came to know of the fact that accused-appellant was being charged under Republic Act No. 9165 when he (Bayani de Leon) was also detained at the city jail for robbery with homicide, testifying as follows: FIS. ARAULA: And you only knew that Narciso Agulay was charged of Section 5, R.A. 9165 when you were detained at the City Jail? WITNESS: Yes sir. FIS. ARAULLA: In fact, you were talking with each other? WITNESS: Yes sir, and I asked what is the case filed against him. FIS. ARAULLA: And that is the time you know that Narciso Agulay was charged of (sic) Section 5? WITNESS: Yes sir.29 This Court, thus, is in agreement with the trial court in finding that: Bayani himself appears to be a shady character. By his admission he is a bata or agent of PO Vasquez. As far as the court knows, such characters are used by the police because they are underworld character (sic).30 Finally, the testimony of accused-appellants brother, Benjamin Agulay, is not convincing. Benjamin, being accused-appellants brother, we find him to be unreliable. Suffice it to say that, having been given by a relative of the accused-appellant, his testimony should be received with caution. On this premise, this Court has laid down the "objective" test in scrutinizing buy-bust operations. In People v. Doria,31 we said: We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buybust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. x x x. It bears to point out that prosecutions of cases for violation of the Dangerous Drugs Act arising from buy-bust operations largely depend on the credibility of the police officers who conducted the same, and unless clear and convincing evidence is proffered showing that the members of the buy-bust team were driven by any improper motive or were not properly performing their duty, their testimonies on the operation deserve full faith and credit.32

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The law presumes that an accused in a criminal prosecution is innocent until the contrary is proved.33This presumption of innocence of an accused in a criminal case is consistent with a most fundamental constitutional principle, fleshed out by procedural rules which place on the prosecution the burden of proving that an accused is guilty of the offense charged by proof beyond reasonable doubt. This constitutional guarantee is so essential that the framers of the constitution found it imperative to keep the provision from the old constitution to emphasize the primacy of rights that no person shall be held to answer for a criminal offense without due process of law.34 In his dissent, Justice Brion focused on the conviction that the buybust operation and the consequent seizure of the prohibited substance either did not take place or has not been proven beyond reasonable doubt because of a gap in the prosecutions evidence. Convinced that under the proven facts of the present case, the dissent maintains that the prosecution has not proven that a crime had been committed through proof beyond reasonable doubt -- that the three plastic sachets that were admitted into evidence during the trial were in fact the same items seized from the accused-appellant when he was arrested. The guilt of accused-appellant was established beyond reasonable doubt. Contrary to the dissents claim, the totality of the evidence would indicate that the sale of the prohibited drug had taken place, and that the sale was adequately established and the prosecution witnesses clearly identified accused-appellant as the offender. Moreover, the seized items, proven positive to be shabu, were properly identified and presented before the court. To reiterate, in prosecutions for illegal sale of regulated or prohibited drugs, conviction is proper if the following elements are present: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug.35 The term corpus delicti means the actual commission by someone of the particular crime charged. The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21 (a), paragraph 1 of Article II of Republic Act No. 9165, to wit: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads: (a) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officers/team, shall not render void and invalid such seizures of and custody over said items. The above provision further states that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. The evident purpose of the procedure provided for is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt of or innocence of the accused. On the chain of custody of the seized drugs The dissent agreed with accused-appellants assertion that the police operatives failed to comply with the proper procedure in the chain of custody of the seized drugs. It premised that non-compliance with the procedure in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 creates an irregularity and overcomes the presumption of regularity accorded police authorities in the performance of their official duties. This assumption is without merit. First, it must be made clear that in several cases[36] decided by the Court, failure by the buy-bust team to comply with said section did not prevent the presumption of regularity in the performance of duty from applying. Second, even prior to the enactment of R.A. 9165, the requirements contained in Section 21(a) were already there per Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite the presence of such regulation and its noncompliance by the buy-bust team, the Court still applied such presumption.37 We held: The failure of the arresting police officers to comply with said DDB Regulation No. 3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case for the reason that the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established and the prosecution thereof is not undermined by the failure of the arresting officers to comply with the regulations of the Dangerous Drugs Board. While accused-appellant contends in his appellants brief that the police operatives did not submit the required inventory of the seized items pursuant to the provisions of Section 21 (a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, the records belie this claim. On cross-examination by the defense, Police Officer (PO) 2 Herrera testified on making an inventory of the seized items. PO2 Herrera testified as follows: Q: When you arrested the suspect in this case, you confiscated two (2) items from him? A: Yes sir. Q: And you said that it is part of your procedure when you confiscated items from the suspect you made an inventory of the item confiscated? A: Yes sir. Q: Did you make inventory of the confiscated items? A: Yes sir it is with the police investigator.38 Moreover, non-compliance with the procedure outlined in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. Consistent with this Courts pronouncements in People v. Bano39 and in People v. Miranda,40 contrary to appellants claim, there is no showing of a broken chain in the custody of the seized items, later on determined to be shabu, from the moment of its seizure by the entrapment team, to the investigating officer, to the time it was brought to the forensic chemist at the PNP Crime Laboratory for laboratory examination. It was duly established by documentary, testimonial, and object evidence, including the markings on the plastic sachets containing the shabu that the substance tested by the forensic chemist, whose laboratory tests were well-documented, was the same as that taken from accused-appellant. The records of the case indicate that after his arrest, accusedappellant was taken to the police station and turned over to the police investigator. PO2 Herrera testified that he personally41 made the markings "RH" (representing his initials) on the three sachets, the inventory42 of which was delivered to the police investigator. After the arrest, the seized items which had the markings "RH" alleged to contain shabu were brought to the crime laboratory for examination.43 The request for laboratory examination and transfer of the confiscated sachets to the PNP crime laboratory was prepared by another officer, PO2 Gulferic, the designated officer-on-case.44 It was signed as well by the Chief of Office/Agency (SDEU/SIIB) Police Chief Inspector Leslie Castillo Castillo. The request indicated that the seized items were delivered by PO2 Gulferic and received by Forensic Chemist Jabonillo.45 The three heat-sealed transparent plastic sachets each

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containing white crystalline substance were later on determined to be positive for Methylamphetamine Hydrochloride or shabu. When the prosecution presented the marked sachets in court, PO2 Herrera positively identified the plastic sachets containing shabu which he bought from accused-appellant in the buy-bust operation. The sachets containing shabu had the markings "RH" as testified by Forensic Chemist Jabonillo. PO2 Herrera positively identified in court that he put his initials "RH" on the sachets. Thus, the identity of the drugs has been duly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The accused-appellant in this case bears the burden to make some showing that the evidence was tampered or meddled with to overcome a presumption of regularity in the handling of exhibits by public officers and a presumption that public officers properly discharged their duties.46 PO2 Herrera identified the sachets in court, and more importantly, accused-appellant had the opportunity to cross-examine him on this point. This Court, thus, sees no doubt that the sachets marked "RH" submitted for laboratory examination and which were later on found to be positive for shabu, were the same ones sold by accused-appellant to the poseur-buyer PO2 Herrera during the buy-bust operation. There is no question, therefore, that the identity of the prohibited drug in this case was certainly safeguarded. The dissent maintains that the chain of custody rule "would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence x x x." This means that all persons who came into contact with the seized drugs should testify in court; otherwise, the unbroken chain of custody would not be established. We disagree. Not all people who came into contact with the seized drugs are required to testify in court. There is nothing in the New Drugs Law or in any rule implementing the same that imposes such a requirement. As long as the chain of custody of the seized substance was clearly established not to have been broken and that the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness stand. In People v. Zeng Hua Dian,47 we held: After a thorough review of the records of this case, we find that the chain of custody of the seized substance was not broken and that the prosecution did not fail to identify properly the drugs seized in this case. The non-presentation of witnesses of other persons such as SPO1 Grafia, the evidence custodian, and PO3 Alamia, the officer on duty, is not a crucial point against the prosecution. The matter of presentation of witneses by the prosecution is not for the court to decide. The prosecution has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses. In connection with this, it must not be forgotten that entries in official records made by a public officer in the performance of his duty are prima facie evidence of the facts therein stated.48 If it is now a requirement that all persons who came into contact with the seized drugs should testify in court, what will now happen to those public officers (e.g., person who issued request for examination of drugs or those who tested the drugs) who issued documents regarding the seized drugs? Shall they be obligated to testify despite the fact the entries in the documents they issued are prima facie evidence of the facts therein stated? We do not think so. Unless there is proof to the contrary, the entries in the documents areprima facie evidence of the facts therein stated and they need not testify thereon. The dissenting opinion likewise faults the prosecution for failing to disclose the identity of the person who submitted the item that was examined. The answer to this question can easily be seen from the stamp made in the request for drug analysis. There being no question by the accused on this matter, the entry thereon made by the public officer is definitely sufficient, same being an entry in official records. On the credibility of the witnesses Prosecutions involving illegal drugs depend largely on the credibility of the police officers who conduct the "buy-bust" operation.49 In cases involving violations of the Dangerous Drugs Law, appellate courts tend to heavily rely upon the trial court in assessing the credibility of witnesses, as it had the unique opportunity, denied to the appellate courts, to observe the witnesses and to note their demeanor, conduct, and attitude under direct and cross-examination.50 This Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of the witnesses, presented to it.51 Thus, this Court will not interfere with the trial courts assessment of the credibility of witnesses considering there is nothing on record that shows some fact or circumstance of weight and influence which the trial court has overlooked, misappreciated, or misinterpreted. Unless compelling reasons are shown otherwise, this Court, not being a trier of facts itself, relies in good part on the assessment and evaluation by the trial court of the evidence, particularly the attestations of witnesses, presented to it. As this Court has held in a long line of cases, the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial. Accused-appellant casts suspicion on the means or methods by which the police officers conducted the operation and claims to be the victim of a frame-up. According to accused-appellant, the trial court relied heavily on the police officers testimonies that what had actually transpired was a buy-bust operation, which resulted in his arrest. In almost every case involving a buy-bust operation, the accused put up the defense of frame-up. Such claim is viewed with disfavor, because it can easily be feigned and fabricated. In People v. Uy, the Court reiterated its position on the matter, to wit: We are not unaware that in some instances law enforcers resort to the practice of planting evidence to extract information or even to harass civilians. However, like alibi, frame-up is a defense that has been invariably viewed by the Court with disfavor as it can easily be concocted [and] hence commonly used as a standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act. We realize the disastrous consequences on the enforcement of law and order, not to mention the well being of society, if the courts x x x accept in every instance this form of defense which can be so easily fabricated. It is precisely for this reason that the legal presumption that official duty has been regularly performed exists. x x x 52 In the case at bar, the testimonies of the prosecution witnesses are positive and convincing, sufficient to sustain the finding of the trial court and the Court of Appeals that accused-appellants guilt had been established beyond reasonable doubt. First, the testimony of PO2 Raul Herrera was spontaneous, straightforward and categorical. Second, PO1 Reyno Riparip, the back-up police operative of PO2 Herrera, corroborated the latters testimony on material points. Appellants defense of frame-up and self-serving assertion that he was mistakenly picked up by the police operatives for a carnapping case cannot prevail over the positive and straight-forward testimonies of the police operatives who have performed their duties regularly and in accordance with law, and have not been shown to have been inspired by any improper motive or to have improperly performed their duty.53 To reiterate, Bayani de Leons testimony that the accused was being taken as a carnapping suspect only further weakened the defense, considering it was totally out of sync with the testimony of accusedappellant vis--vis the positive testimonies of the police officers on the events that transpired on the night of 24 August 2002 when the buybust operation was conducted. The arrest of accused-appellant was made in the course of an entrapment, following a surveillance operation, normally performed by police officers in the apprehension of violators of the Dangerous Drugs Act. The Court so holds that in the absence of proof of any odious intent on the part of the police operatives to falsely impute such a serious crime, as the one imputed against accused-appellant, it will not allow their testimonies to be overcome by the self-serving claim of frame-up. Even assuming arguendo that the presumption of regularity in the performance of official duty has been overcome because of failure to comply with Section 21(a), same will not automatically lead to the exoneration of the accused. Said presumption is not the sole basis for the conviction of the accused. His conviction was based not solely on said presumption but on the documentary and real evidence, and more importantly, on the oral evidence by prosecution witnesses whom we found to be credible. It is to noted that one witness is sufficient to prove the corpus delicti that there was a consummated sale between the poseur buyer and the accused -- there being no quantum of proof

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as to the number of witnesses to prove the same. In the case at bar, the selling of drugs by accused was established. The dissent likewise argues that the ponencia cannot impose on the defense the burden of proving that the police had an improper motive in charging him because of the absence of the presumption of regularity. We find this untenable. It is settled that if the testimonies of the prosecution witnesses are not impugned, full faith and credit shall be accorded them. One impugns the testimony of witness during crossexamination. Did the defense satisfactorily impugn the testimonies of the prosecution witnesses when he said that he was a victim of hulidap and that the policemen were extorting money from him? Said declaration is definitely not sufficient to impugn the testimonies of the prosecution witnesses. His mere say so that he was victimized without clear and convincing evidence to support such claim does not suffice. If what he claims was indeed committed by the policemen, he should have sued or charged them. This, he did not do. Such inaction runs counter to the normal human conduct and behavior of one who feels truly aggrieved by the act complained of.54 From the foregoing, We are fully convinced that the accused is guilty as charged. We thus hold that accused-appellants guilt has been established beyond reasonable doubt. This Court shall now determine the proper penalties to be imposed on him. An examination of the Information reveals that accused-appellant was charged with the unauthorized sale and delivery of dangerous drugs consisting of twenty-five hundredths (0.25) gram of methylamphetamine hydrochloride (shabu). From the testimonies of the prosecution witnesses, only one sachet55 was sold and delivered to the poseur-buyer, PO2 Herrera. The two other sachets56 were not sold or delivered, but were found by PO2 Herrera inside the right pocket of accused-appellants pair of shorts upon frisking, after the latter was caught in flagrante delicto during the buy-bust operation. Accused-appellant could have been charged with the possession of dangerous drugs57 on account of the second and third sachets. This was not done. He cannot then be convicted of possession of dangerous drugs, without being properly charged therewith, even if proved. Accused-appellant, however, is still guilty, as charged in the Information, of selling and delivering one sachet to the poseur-buyer. Under Republic Act No. 9165, the unauthorized sale of shabu carries with it the penalty of life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00). Pursuant, however, to the enactment of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in the Philippines," only life imprisonment and fine, instead of death, shall be imposed. We, therefore, find the penalty imposed by the trial court, as affirmed by the Court of Appeals life imprisonment and a fine of P500,000.00 to be proper. WHEREFORE, premises considered, the Court of Appeals Decision in CA-G.R. CR No. 01994 dated 31 August 2007 is AFFIRMED. SO ORDERED. For review is the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01798 dated 3 August 2006,1 affirming with modifications the Decision of the Quezon City Regional Trial Court (RTC), Branch 107, in Criminal Cases No. Q-99-87053, Q-99-87054, and Q-99-87055 dated 4 August 2004,2 convicting accused-appellant William Ching of three counts of rape committed against his minor daughter, AAA.3 The factual antecedents are as follows: On 1 October 1999, three separate informations4 were filed with the RTC against appellant for qualified rape allegedly committed as follows: CRIMINAL CASE NO. Q-99-87053 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87054 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87055 That in or about the year of 1996, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. Subsequently, these informations were consolidated for joint trial. When arraigned on 6 March 2000, appellant, with the assistance of counsel de oficio, pleaded "Not Guilty" to each of the charges in the informations.5Thereafter, trial on the merits ensued. The prosecution presented as witnesses AAA, AAAs mother, BBB, PO3 Jesus Deduque (PO3 Deduque), PO3 Melba Baldeswis (PO3 Baldeswis), and Dr. Angel Cordero (Dr. Cordero). Their testimonies, taken together, present the following narrative: AAA is the third child in a brood of eight children born to appellant and BBB. She was 12 years of age in the year 1996 when the alleged incidents of rape took place. Sometime in the year 1996, at around 5:00 in the afternoon, she and her younger siblings, namely, CCC, DDD, EEE and FFF, were left at their house with appellant, while BBB was at the market buying food. Appellant told CCC, DDD and EEE to play outside the house. AAA was then cooking rice when appellant instructed her to go inside the bedroom. When AAA was already inside the room, appellant ordered her to lie down on the cemented floor. When she did, appellant placed himself on top of her and removed her shorts and panty. She screamed "Tulungan po ninyo ako!" and resisted, but to no avail because appellant pressed his feet against hers. Appellant then removed his shorts and brief and thereafter inserted his penis into her vagina. AAA felt pain but she could not move because appellant held both her hands above her head. Appellant told her, "Wag kang maingay, papatayin kita." After satisfying his lust, appellant stood up and left the bedroom. AAA proceeded to the house of BBBs kumare, Aling Leony, to forget and recover from the incident. She did not inform BBB of the incident because of her fear that appellant would make good his threats to kill her. For the second time, one evening of May 1998, AAA and her younger siblings were sleeping on the cemented floor inside the bedroom when appellant entered and lay down beside her. Appellant pulled her left arm and made her lie in a straight body position. He removed his shorts and placed himself on top of her. He then pulled down her shorts and panty, and again inserted his penis into her vagina. Despite

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 177150 November 22, 2007

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIAM CHING, accused-appellant. DECISION CHICO-NAZARIO, J.:

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the pain, AAA did not shout because appellant threatened to kill her. Subsequently, appellant stood up and reiterated his threat to kill her if she would tell anyone what happened. For the third time, in the evening of May 1998, while AAA and her younger siblings were sleeping inside the bedroom, appellant lay down beside her. Appellant pulled her left arm and made her face him. Appellant placed himself on top of her and removed her shorts and panty. Thereafter, he had carnal knowledge of her. She did not shout out of fear. Afterwards, appellant stood up and warned her not to tell anyone of the incident or he would kill her. From June 1998 to February 1999, appellant was arrested and detained for drug pushing. In the meantime, AAA was employed as a house helper. After his release from jail, appellant would go to see AAA at her employers house demanding money and creating a scene when AAA refused to give him any. Fed up, AAA sneaked out of her employers house and proceeded to the nearby barangay hall to report, not just the commotion caused by appellant in front of her employers house when she did not give him money, but also that appellant previously raped her several times. Hence, appellant was arrested by PO3 Deduque and PO3 Baldeswis, and charged with rape.6 BBB was not able to accompany AAA in filing the instant case against appellant because she was also detained for drug pushing and was released only on 5 December 1999. Upon her release from jail, she immediately sought AAA and, when informed of the incident, she fully supported AAA in the instant case against appellant.7 Dr. James Belgira (Dr. Belgira), a physician of the Philippine National Police (PNP) Crime Laboratory, personally examined AAA. His findings, as stated in the medico-legal report, are as follows: FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female subject. Breasts are conical with dark brown areola and nipple from which no secretions could be pressed out. Abdomen is flat and soft. GENITAL: There is scanty growth of pubic hair. Labia majora are full, convex and slightly gaping with an area of erythematous at the middle of the left labium and the dark brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with shallow healed lacerations at 5 and 9 oclock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of physical trauma.8 However, in view of the unavailability of Dr. Belgira to personally appear before the trial court, it was Dr. Cordero, another physician at the PNP crime laboratory, who appeared in court for the purpose of producing and interpreting the medical records of AAA and confirming that the same was conducted in accordance with the protocol of the PNP.9 The prosecution also presented documentary evidence to bolster its version of the events, to wit: (1) Sinumpaang Salaysay of AAA10; (2) marriage contract of BBB and appellant11; (3) the baptismal certificate of AAA with her date of birth entered as 12 August 198312; (4) letter referral of Police Station 4, Novaliches, Quezon City, of the instant case to the Office of the City Prosecutor13; (5) joint sworn affidavit of the arresting officers14; (6) the medico-legal report with regard to AAA issued and signed by Dr. Belgira as the medico-legal officer of the PNP Crime Laboratory15; (7) the routing slip from the PNP Crime Laboratory16; (8) request for laboratory examination forwarded by Police Station 4 to the PNP Crime Laboratory17; (9) the initial laboratory report issued by the PNP Crime Laboratory18; (10) the sexual crime narrative report based on the narration of AAA19; and (11) manifestation of consent executed by AAA as accompanied by PO3 Baldeswis.20 Appellant singly testified in his own behalf and denied the foregoing accusations. He admitted that AAA is his daughter and third child with his wife, BBB. From 1992 to 1996, he worked as a driver, but he was detained for selling drugs in 1997. He was released on 29 March 1998, but he was again imprisoned for robbery and drug cases. While he was in jail, he learned that BBB asked AAA to find a job and that BBB was subsequently detained for drugs. Upon his release from jail in February 1999, appellant immediately went home and found his eldest son taking care of his other children. On several occasions, he would see AAA at her employers house to ask for money. This purportedly irked AAA and the latters employer. It was AAAs employer and BBB who coached AAA to file rape charges against appellant.21 On 27 July 2004, the RTC rendered a Decision convicting appellant of three counts of rape. In Criminal Case No. Q-99-87055, the Court imposed on appellant the penalty of reclusion perpetua. In Criminal Cases No. Q-99-87053and Q-99-87054, appellant was sentenced to death. The dispositive portion of the decision reads: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that the prosecution established the guilt of the accused beyond reasonable doubt and is therefore found guilty of the offenses charged. The accused is hereby sentenced: 1. In Crim. Case No. Q-99-87055: a. To suffer the penalty of reclusion perpetua; b. To indemnify the private complainant of P50,000.00 by way of civil indemnity; AAA the amount

c. To pay the private complainant AAA the amount of P50,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P50,000.00 for moral damages; e. To pay the costs of the suit; 2. In Crim. Case No. Q-99-87053: a. To suffer the penalty of DEATH; b. To indemnify of P75,000.00; the private complainant AAA the amount

c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; f. To pay the costs of the suit; and 3. In Crim. Case No. Q-99-87054: a. To suffer the penalty of DEATH; b. To indemnify of P75,000.00; the private complainant AAA the amount

c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; and e. To pay the costs of the suit. In the event, however, that the accused shall be pardoned by the President, he is, however, forever barred from showing himself to the private complainant. He must not approach the private complainant; he shall never contact the private complainant directly or indirectly either by letters, telephone, cellphone or send text messages or with the use of any electrical devices.22 In view of the penalty imposed upon appellant, the RTC elevated the records of the case directly to the Court of Appeals for review pursuant to our ruling in People v. Mateo.23 On 3 August 2006, the Court of Appeals promulgated its Decision, affirming with modifications the Decision of the RTC, thus:

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WHEREFORE, premises considered, the Decision dated 27 July 2004, promulgated on 04 August 2004, of the Regional Trial Court of Quezon City, Branch 107 convicting accused-appellant William Ching of three (3) counts of qualified rape in Crim. Cases Nos. Q-99-87053, Q-9987054, Q-99-87055 is AFFIRMED with the MODIFICATION that the sentence imposed on appellant is reduced to reclusion perpetua for each count of qualified rape, in lieu of death penalty, by reason of Republic Act No. 9346, and that pursuant to said law, accusedappellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Further, accused-appellant is ordered to pay the victim AAA the amounts ofP75,000.00 for civil indemnity, another P75,000.00 for moral damages and P25,000.00 for exemplary damages for each count of qualified rape.24 Before us, appellant assigns a single error, to wit: THE TRIAL COURT ERRED IN NOT CONSIDERING THE INFORMATIONS CHARGING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR FAILURE OF THE PROSECUTION TO STATE WITH PARTICULARITY THE APPROXIMATE DATE OF THE COMMISSION OF THE ALLEGED RAPES.25 Appellant maintains that the approximate time of the commission of the offense must be stated in the complaint or information; that the informations in the instant case do not state the approximate time of the alleged rapes; that the informations are fatally defective; that the date and time of the alleged rapes are so indefinite thereby depriving appellant of the opportunity to prepare for his defense; and that appellants constitutional right to be informed of the nature and cause of accusation against him was violated.26 The contentions are devoid of merit. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.27 To be considered as valid and sufficient, an information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.28 The purpose of the requirement for the informations validity and sufficiency is to enable the accused to suitably prepare for his defense since he is presumed to have no independent knowledge of the facts that constitute the offense.29 With respect to the date of the commission of the offense, Section 11, Rule 110 of the Revised Rules of Criminal Procedure specifically provides that it is not necessary to state in the information the precise date the offense was committed except when it is a material ingredient of the offense, and that the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. In rape cases, failure to specify the exact dates or times when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. The precise time when the rape took place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission.30 In sustaining the view that the exact date of commission of the rape is immaterial, we held in People v. Purazo31 that: We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. This Court has upheld complaints and informations in prosecutions for rape which merely alleged the month and year of its commission.32 In People v. Magbanua,33 we sustained the validity of the information for rape which merely alleged the year of its commission, thus: Although the information did not state with particularity the dates when the sexual attacks took place, we believe that the allegations therein that the acts were committed "on (sic) the year 1991 and the days thereafter" substantially apprised appellant of the crime he was charged with since all the essential elements of the crime of rape were stated in the information. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the case filed against him. An information can withstand the test of judicial scrutiny as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. There is no cogent reason to deviate from these precedents especially so that all the essential elements of rape were also stated in the informations. Hence, the allegations in the informations which stated that the three incidents of rape were committed in the year 1996 and in May 1998 are sufficient to affirm the conviction of appellant in the instant case. Since the sole issue raised by appellant was resolved by this Court in favor of the validity of the informations filed against him, then the subsequent trial court proceedings and the resulting judgment of conviction against appellant should likewise be affirmed, there being no other questions raised by appellant as to them. We further uphold the penalty imposed on appellant by the Court of Appeals. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, was the law applicable in the year1996, the time the first rape was committed. On the other hand, Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, was the law pertinent to the two rapes committed in May 1998. Both laws state that the death penalty shall be imposed if the rape victim is a minor and the offender is a parent. The qualifying circumstances of minority of the victim and the latters relationship with the offender must be alleged in the complaint or information and proved during the trial to warrant the imposition of the death penalty.34 The informations in Criminal Cases No. Q-99-87053, Q-99-87054 and Q-99-87055 specifically alleged that AAA was a minor at the time she was raped and that the offender, herein appellant, is her father. The prosecution also proved during the trial the presence of the qualifying circumstances of minority and relationship through documentary and testimonial evidence. As a rule, the best evidence to prove the age of the offended party for the purpose of appreciating the qualifying circumstance of minority is an original or certified true copy of the certificate of live birth of such party. However, in the absence of a certificate of live birth, similar authentic documents, such as a baptismal certificate, which show the date of birth of the victim would suffice to prove age.35 In the case at bar, the prosecution was not able to present the birth certificate of AAA because, according to BBB, the birth of AAA was not registered with the appropriate government agencies. BBB testified during the trial that at the time she gave birth to AAA through the assistance of a comadrona, the latter told her that a neighbor known only as comadre volunteered and suggested to register the birth of AAA together with the registration of birth ofcomadres child; that to the best of her knowledge, comadre registered the birth of AAA; that when AAA was about to enroll in school, she went to the Quezon City Hall to secure a birth certificate of AAA but she was told therein that there are no records of birth of AAA; that she talked with comadre because the latter took all the necessary papers relevant to the birth of AAA; and that comadre told her that such papers were lost.36 Nonetheless, BBB submitted AAAs baptismal certificate dated 23 August 2001 issued by Rev. Fr. Romeo M. Castro, SVD, Parish Priest of Sacred Heart Parish, Kamuning, Quezon City.37 The baptismal certificate states that AAA was born on 12 August 1983. This implies that AAA was about 13 years old at the time she was raped by appellant in 1996, and that she was barely 14 years and 9 months old when she was twice raped by appellant in May 1998. The baptismal certificate also states that appellant is the father of AAA. Further, the prosecution adduced the marriage contract of appellant and BBB showing that they were married on 29 February

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1980.38 Appellant admitted that AAA is his daughter and BBB is his wife.39 Given the foregoing considerations, the penalty of death for each of the three counts of rape committed against AAA is proper. However, in view of the effectivity of Republic Act No. 9346 prohibiting the imposition of the death penalty, the penalty to be meted to appellant shall be reclusion perpetua in accordance with Section 2 thereof which reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides: SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. We also sustain the award of damages made by the Court of Appeals in favor of AAA for each of the three rapes. The award of civil indemnity in the amount of P75,000.00 is the correct amount to be awarded if the crime is qualified by circumstances that warrant the imposition of the death penalty. With respect to moral damages, the amount of P75,000.00 is fitting even though it was not pleaded or its basis established by evidence, pursuant to prevailing jurisprudence.40 Further, the award of exemplary damages in the amount of P25,000.00 is authorized due to the presence of the qualifying circumstances of minority and relationship.41 WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 01798 dated 3 August 2006 is hereby AFFIRMED in toto. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 186529 August 3, 2010 Baler, Aurora, anytime of the day wearing a red and white striped Tshirt. The team members then posted themselves along the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier. Having alighted from the bus, appellant stood near the highway and waited for a tricycle that would bring him to his final destination. As appellant was about to board a tricycle, the team approached him and invited him to the police station on suspicion of carrying shabu. Appellant immediately denied the accusation, but as he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.5 The team then brought appellant to the police station for investigation. The confiscated specimen was turned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with appellants name. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride.6 Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for transporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs, the accusatory portions of which read: "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the jurisdiction of this Honorable Court, the said accused, did then and there, unlawfully, feloniously and willfully have in his possession five point zero one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride commonly known as "Shabu", a regulated drug without any permit or license from the proper authorities to possess the same. CONTRARY TO LAW."7 "That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused did then and there, unlawfully, feloniously and willfully transporting or delivering dangerous drug of 5.01 [or 4.54] grams of shabu without any permit or license from the proper authorities to transport the same. CONTRARY TO LAW."8 During the arraignment, appellant pleaded "Not Guilty" to both charges. At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to inform him about their ailing father. He maintained that the charges against him were false and that no shabu was taken from him. As to the circumstances of his arrest, he explained that the police officers, through their van, blocked the tricycle he was riding in; forced him to alight; brought him to Sea Breeze Lodge; stripped his clothes and underwear; then brought him to the police station for investigation.9 On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of Violation of Section 5, Article II, R.A. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00; but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed the RTC decision.11 Hence, the present appeal. In his brief,12 appellant attacks the credibility of the witnesses for the prosecution. He likewise avers that the prosecution failed to establish the identity of the confiscated drug because of the teams failure to mark the specimen immediately after seizure. In his supplemental brief, appellant assails, for the first time, the legality of his arrest and the validity of the subsequent warrantless search. He questions the admissibility of the confiscated sachet on the ground that it was the fruit of the poisonous tree. The appeal is meritorious. We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their testimonies is entitled to great respect and will not be disturbed on appeal. However, this is not a hard and fast rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the case.13

PEOPLE OF THE PHILIPPINES, Appellee, vs. JACK RACHO y RAQUERO, Appellant. DECISION NACHURA, J.: On appeal is the Court of Appeals (CA) Decision1 dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 affirming the Regional Trial Court2 (RTC) Joint Decision3 dated July 8, 2004 finding appellant Jack Racho y Raquero guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic Act (R.A.) No. 9165. The case stemmed from the following facts: On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent later reported the transaction to the police authorities who immediately formed a team composed of member of the Philippine Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the local police force to apprehend the appellant.4 The agent gave the police appellants name, together with his physical description. He also assured them that appellant would arrive in Baler, Aurora the following day. On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on board a Genesis bus and would arrive in

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Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of shabu and, consequently, the admissibility of the sachet. It is noteworthy that although the circumstances of his arrest were briefly discussed by the RTC, the validity of the arrest and search and the admissibility of the evidence against appellant were not squarely raised by the latter and thus, were not ruled upon by the trial and appellate courts. It is well-settled that an appeal in a criminal case opens the whole case for review.1avvphi1 This Court is clothed with ample authority to review matters, even those not raised on appeal, if we find them necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered. This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless his guilt is proven beyond reasonable doubt.14 After a thorough review of the records of the case and for reasons that will be discussed below, we find that appellant can no longer question the validity of his arrest, but the sachet of shabu seized from him during the warrantless search is inadmissible in evidence against him. The records show that appellant never objected to the irregularity of his arrest before his arraignment. In fact, this is the first time that he raises the issue. Considering this lapse, coupled with his active participation in the trial of the case, we must abide with jurisprudence which dictates that appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have waived his right to question the validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of the arrest affects only the jurisdiction of the court over his person. Appellants warrantless arrest therefore cannot, in itself, be the basis of his acquittal. 15 As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not the search which yielded the alleged contraband was lawful.16 The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding.17 Said proscription, however, admits of exceptions, namely: 1. Warrantless search incidental to a lawful arrest; 2. Search of evidence in "plain view;" 3. Search of a moving vehicle; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; and 7. Exigent and emergency circumstances.18 What constitutes a reasonable or unreasonable warrantless search or seizure is 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.19 The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in the act of actually committing a crime or attempting to commit a crime in the presence of the apprehending officers as he arrived in Baler, Aurora bringing with him a sachet of shabu.20 Consequently, the warrantless search was considered valid as it was deemed an incident to the lawful arrest. Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search.21 Thus, given the factual milieu of the case, we have to determine whether the police officers had probable cause to arrest appellant. Although probable cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged.22 The determination of the existence or absence of probable cause necessitates a reexamination of the established facts. On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for the purchase of shabu. The agent reported the transaction to the police authorities who immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00 a.m., appellant called up the agent with the information that he was on board a Genesis bus and would arrive in Baler, Aurora anytime of the day wearing a red and white striped T-shirt. The team members posted themselves along the national highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the person he transacted with, and when the latter was about to board a tricycle, the team approached him and invited him to the police station as he was suspected of carrying shabu. When he pulled out his hands from his pants pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet containing the suspected drug.23 The team then brought appellant to the police station for investigation and the confiscated specimen was marked in the presence of appellant. The field test and laboratory examinations on the contents of the confiscated sachet yielded positive results for methamphetamine hydrochloride. Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest. The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.24 We find no cogent reason to depart from this well-established doctrine. The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v. Nuevas.27 In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the police assembled a team and deployed themselves near the Philippine National Bank (PNB) in Olongapo City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females and a man got off. The informant then pointed to the team members the woman, "Aling Rosa," who was then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When asked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag was found to contain dried marijuana leaves.28 The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao City, received a report from a civilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were complaining that the latter was responsible for the proliferation of marijuana in the area. Reacting to the report, the Intelligence Section conducted surveillance. For five days, they gathered information and learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed the police that Tudtud had headed to Cotabato and would be back later that day with a new stock of marijuana. At around 4:00 p.m. that same day, a team of police officers posted themselves to await Tudtuds arrival. At 8:00 p.m., two men disembarked from a bus and helped each other carry a carton. The police officers approached the suspects and asked if they could see the contents of the box which yielded marijuana leaves.29 In People v. Nuevas, the police officers received information that a certain male person, more or less 54" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would make a delivery of marijuana leaves. While conducting stationary surveillance and monitoring of illegal drug trafficking, they saw the accused who fit the description, carrying a plastic bag. The police accosted the accused and informed him that they were police officers. Upon inspection of the plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks wrapped in a blue cloth. In his bid to escape charges, the accused disclosed where two other male persons would make a delivery of marijuana leaves. Upon seeing the two male persons, later identified as Reynaldo Din and Fernando Inocencio, the police approached them, introduced themselves as police officers, then inspected the bag they were carrying. Upon inspection, the contents of the bag turned out to be marijuana leaves.30

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In all of these cases, we refused to validate the warrantless search precisely because there was no adequate probable cause. We required the showing of some overt act indicative of the criminal design. As in the above cases, appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about to commit an offense. At the time of the arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect and conclude that he was committing or intending to commit a crime. Were it not for the information given by the informant, appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu would not have been confiscated. We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to justify a search incident to a lawful warrantless arrest. As cited in People v. Tudtud, these include People v. Maspil, Jr.,31 People v. Bagista,32 People v. Balingan,33 People v. Lising,34 People v. Montilla,35 People v. Valdez,36 and People v. Gonzales.37 In these cases, the Court sustained the validity of the warrantless searches notwithstanding the absence of overt acts or suspicious circumstances that would indicate that the accused had committed, was actually committing, or attempting to commit a crime. But as aptly observed by the Court, except in Valdez and Gonzales, they were covered by the other exceptions to the rule against warrantless searches.38 Neither were the arresting officers impelled by any urgency that would allow them to do away with the requisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their office received the "tipped information" on May 19, 2003. They likewise learned from the informant not only the appellants physical description but also his name. Although it was not certain that appellant would arrive on the same day (May 19), there was an assurance that he would be there the following day (May 20). Clearly, the police had ample opportunity to apply for a warrant.39 Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding." Without the confiscated shabu, appellants conviction cannot be sustained based on the remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.40 One final note. As clearly stated in People v. Nuevas,41 x x x In the final analysis, we in the administration of justice would have no right to expect ordinary people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security of society, we nevertheless admonish them to act with deliberate care and within the parameters set by the Constitution and the law. Truly, the end never justifies the means.42 WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED for insufficiency of evidence. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his confinement, within ten (10) days from notice. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 191064 October 20, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLANDO ARANETA y ABELLA @ BOTONG and MARILOU SANTOS y TANTAY @ MALOU, Accused-Appellants. DECISION MENDOZA, J.: This is an appeal from the August 29, 2008 Decision1 of the Court of Appeals (CA), in CA-G.R. CR-H.C. No. 02308, which affirmed the March 12, 2004 Decision2 of the Regional Trial Court, Branch 151, Pasig City (RTC),finding the accused guilty beyond reasonable doubt for violating Section 5 and Section 11 of Article II of Republic Act No. 9165, otherwise known as the "Comprehensive Drugs Act of 2002." Criminal informations were filed in the RTC against Rolando Araneta y Abella a.k.a. "Botong" for Violation of Section 8 and Section 16 of R.A. No. 6425 (Dangerous Drugs Act of 1972), as amended, in addition to the Information filed against him and co-accused Marilou Santos y Tantay a.k.a. "Malou" for Violation of Section 15, Article III in relation to Section 21, Article IV of R.A. 6425, as amended. In view of the enactment of R.A. No. 9165 (Comprehensive Drugs Act of 2002), the original informations were amended accordingly. The said Informations read: Criminal Case No. 11491-D People vs. Araneta & Santos (For Violation of Sec. 5 in relation to Sec. 26, Art. II, R.A. 9165) On or about July 5, 2002 in Pasig City, and within the jurisdiction of this Honorable Court, the above accused, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to sell, dispense, transport or distribute any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO2 Danilo S. Damasco, a police poseur buyer, one (1) heat-sealed transparent plastic sachet containing white crystalline substance weighing of (sic) eight (8) centigrams (0.08 gram), which was found positive to the test for metamphetamine hydrochloride, a dangerous drug, in violation of said law. Contrary to Law. Criminal Case No. People vs. (For Violation of Sec. 11, Art. II, R.A. 9165) 11492-D Araneta

On or about July 5, 2002, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, not being lawfully authorized to use or possess any dangerous drug, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) heat-sealed transparent plastic sachet containing 1.22 grams of dried marijuana fruiting tops, which was found positive to the test for marijuana, a dangerous drug, and eight (8) heat-sealed transparent plastic sachets containing white crystalline substance with the following recorded net weight, to wit: 1) Exh. B1 RAA/070502 0.07 gram; 2) Exh. B2 RAA/070502 0.10 gram; 3) Exh. B3 RAA/070502 0.08 gram; 4) Exh. B4 RAA/070502 0.07 gram;

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5) Exh. B5 RAA/070502 0.08 gram; 6) Exh. B6 RAA/070502 0.04 gram; 7) Exh. B7 RAA/070502 0.06 gram; 8) Exh. B8 RAA/070502 0.09 gram or having a total weight of 0.59 gram, which were found positive to the test for methamphetamine hydrochloride, a dangerous drug, in violation of the said law. Contrary to Law. The prosecutions evidence was summarized in the CA decision as follows: On July 5, 2002, between 3:00 and 3:30 oclock in the morning, a confidential informant arrived at the Station Drug Enforcement Unit (SDEU) of the Pasig City Police Station to report to Officer-In-Charge SP04 Numeriano de Lara the alleged peddling of illegal drugs of live-in couple Botong and Malou, later identified as appellants Rolando Araneta y Abella and Marilou Santos y Tantay, at Barangay Putol, Rosario, Pasig City. SPO4 de Lara immediately formed a team composed of SPO2 Dante Zigapan who acted as the team leader, PO2 Danilo Damasco, PO1 Orig, and PO1 Bede Montefalcon, to confirm the veracity of the informants report and conduct a buy-bust operation. Before dispatching the team, SPO4 de Lara briefed them as to the alleged illegal activities of the couple and gave their description. SPO2 Zigapan designated PO2 Damasco as the poseur-buyer giving him a marked P100 bill to be used in the entrapment. The team proceeded to the target area on board two vehicles. SPO2 Zigapan, Montefalcon and the informant were in one vehicle while PO2 Damasco and PO1 Orig were together in the other vehicle. The team arrived at the target place around 4:10 in the morning. They positioned themselves some 20-30 meters from the alley where appellants were allegedly staying. SPO2 Zigapan gave instructions to the informant to locate the appellants. After several minutes, the informant came back and confirmed the presence of appellants at ROTC Street, Putol, Bgy. Rosario, Pasig City. Thereafter, the team proceeded to the said location. PO2 Damasco and the informant went near the appellants who were standing just outside their house. The informant and appellants exchanged greetings. After a short conversation, Botong went inside their house. The informant introduced PO2 Damasco to Malou by saying, "I-score itong kaibigan ko. Baka meron ka dyan." Malou then asked PO2 Damasco, "I-score ka na ba." After Malou asked PO2 Damasco, "Magkano," the latter immediately gave her the marked P100 bill. Malou called Botong and when the latter came out, Malou handed to him the marked money. Botong then gave Malou a plastic sachet which she handed to PO2 Damasco. After examining the plastic sachet, PO2 Damasco immediately gave the pre-arranged signal to the other members of the team who thereafter rushed to the scene. PO2 Damasco arrested Malou while SPO2 Zigapan arrested Botong. SPO2 Zigapan recovered from Botong the marked P100 bill and after frisking him, the police officer found in Botongs pocket one plastic sachet of what looked like marijuana and eight plastic sachets containing white crystalline substance. PO2 Damasco immediately placed "RAA" and the date July 5, 2002 on the plastic sachet he brought from Malou and the plastic sachets confiscated by SPO2 Zigapan from Botong. At the police station, PO2 Damasco prepared the written request for a laboratory examination of the confiscated plastic sachets. Together with the request, the plastic sachets were brought by PO1 Orig to the crime laboratory. The laboratory tests gave a positive result of the presence of methampethamine hydrochloride or what is locally known as shabu on the contents of nine (9) sachets and marijuana on one (1) sachet. The evidence for the accused was summarized by the CA as follows: Between 3:30 to 4:30 oclock in the morning of July 5, 2006, accused Rolando Araneta together with his live-in partner and co-accused Marilou Santos were sleeping on the ground floor of their rented apartment, when they were suddenly awakened by a loud noise coming from the upstairs. Rolando immediately stood up and tried to go up the stairs. That was when he met a man who introduced himself as a policeman. The man likewise pointed a gun to him and told him not to move. He was then instructed to sit down, to which he acceded. Thereafter, the man went near the door of his house and opened the same. Suddenly, four (4) other policemen went inside. One of the policemen went inside the comfort room and looked for somebody. Later, he heard the said policeman utter, "Nobody is here." One of the policemen then approached Rolando and asked him the whereabouts of a certain Teng. Rolando answered that he did not know Teng and that there was no other person inside the house except for him and his wife Marilou. The police operatives searched his house. They however found nothing illegal inside his house. After the search, the police operatives invited Rolando and Marilou to come with them to the precinct to answer some questions. Thereat, the police operatives informed them that they are being charged for their involvement in illegal drug activities, which they vehemently denied. PO2 Damasco, however, told them that if they wanted to be released, Rolando and Marilou must pay P20,000.00 each. When Rolando declined to give said amount, the police operatives filed the instant cases against them. (TSN, June 23, 2003, pp. 2-8) In the early morning of July 5, 2003, accused-appellant Marilou Santos and her live-in partner Rolando were sleeping when they were awakened by a noise coming from the second floor of their house. Rolando tried to go upstairs to find out what happened, but he met a man who instantly poked a gun at him. Marilou tried to stand up but the policeman told her, "Stay there, dont move." Thereafter the police shoved them near the chair. He also asked Rolando the whereabouts of Teng but the former answered that nobody by the name of Teng lived there. While still poking the gun on them, the policeman opened the door of their house. Five (5) policemen then entered and conducted a search. After the search, the policemen brought them to the police station. Thereat, PO2 Damasco asked them several questions. Moments later, the policeman got something from the drawer and told them that those articles belong to them. Marilou denied that the said articles belong to them since the policemen did not recover anything from them during the search. Despite her denial, they were still charged with Violations of Sections 15, 16 and 8 of Republic Act 9165. After a while, PO2 Damasco demanded P20,000.00 from them in exchange for their release. As they were innocent, Marilou refused to give said amount, prompting the police operatives to formally charge them. (TSN, July 23, 2003, p. 3) In the early morning of July 5, 2002, Marian Rodriguez was outside the alley in ROTC, Rosario, Pasig City when she saw both accused going out of the alley accompanied by five (5) men. The accused and the five (5) men passed in front of Marian. She hesitated to follow the group. Since then Marian never saw the accused again. (TSN, September 10, 2003, pp. 3-4). In its March 12, 2004 Decision, the RTC found the accused guilty beyond reasonable doubt and sentenced them accordingly, as follows: WHEREFORE, the Court renders judgment, as follows: 1) In Criminal Case No. 11491-D, the Court finds accused Rolando Araneta y Abella @ Botong and accused Marilou Santos y Tantay A Malou GUILTY beyond reasonable doubt of violation of Sec. 5 in relation to Sec. 26, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon them the penalty of LIFE IMPRISONMENT and to pay a fine P500, 000.00 each; and 2) In Criminal Case No. 11492-D (which absorbed Criminal Case No. 11490-D), the Court finds accused Rolando Araneta y Abella @Botong GUILTY beyond reasonable doubt of violation of Sec. 11, Art. II of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and imposes upon him the penalty of imprisonment of from Twelve (12) years and One (1) day to Twenty (20) years and to pay a fine of P300, 000.00. Considering that the accused is a detention prisoner, he shall be credited with the period of his detention during his preventive imprisonment. xxx xxx xxx

SO ORDERED.

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The RTC ruled that all the elements for the prosecution of the illegal sale of dangerous drugs were present during the buy-bust operation conducted by the police officers. These were: 1) the identity of the buyer and the seller; 2) the object of the sale and the consideration; and 3) the delivery of the thing sold and payment therefor. Furthermore, the RTC held that the defense of denial, frame-up, forcible entry, and extortion could not prevail over the positive identification by the prosecution witnesses. It noted that accused Rolando Araneta was not candid enough to inform the court that no less than eight (8) criminal cases were previously filed against him in different courts for violation of the Dangerous Drugs Law. Nevertheless, out of eight (8) criminal cases filed against him, he admitted that one resulted in a conviction and two other cases were dismissed. The other cases were then still pending trial. Aggrieved, the accused appealed to the CA arguing that: 1) the RTC erred in not finding that they were illegally arrested and, as such, the sachets of shabu allegedly recovered from them were inadmissible in evidence; and 2) the RTC erred in finding them guilty beyond reasonable doubt of the crime charged because the testimonies of the prosecution witnesses were replete with inconsistencies and contradictions. On August 29, 2008, the CA rendered the subject decision affirming the decision of the RTC. In arriving at said determination, the CA applied the "objective test" in buy-bust operations laid down in the case ofPeople v. Doria, 301 SCRA 668, 698-699.3 The CA ruled that the prosecution evidence met the standard for the "objective test" through the testimony of its witness, PO2 Danilo Damasco, who acted as poseur-buyer and who related how the informant introduced him to the accused; how the transaction was consummated through the exchange of marked money and the sachet of shabu; and how the accused was arrested by the entrapment team. The CA noted that the accused were arrested in flagrante delicto and that other contraband materials were recovered from them during the ensuing search. It concluded that the corpus delicti was duly established. Finally, the CA stated that the inconsistencies in the testimonies of the police officers were minor or inconsequential. The accused failed to adduce evidence to overthrow the presumption of regularity in the performance of duty in favor of the police officers. The accused likewise failed to show proof that the police officers did not properly perform their jobs or had ill motives against them. Moreover, their defense of denial and frame-up for extortion purposes was selfserving, negative evidence that was not entitled to be given greater weight than the declaration of credible witnesses who testified on affirmative matters. In due time, the accused filed a motion for reconsideration stressing the inadmissibility of evidence due to their illegal arrest, and the inconsistency in the testimonies of prosecution witnesses. They also pointed out that the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them. Additionally, they claimed that the apprehending team, who had initial custody over the confiscated drug items, failed to make an inventory and to photograph the same in their presence. On August 24, 2009, the CA issued a resolution4 denying their motion for reconsideration. The CA ruled, among others, that the issues on the corpus delicti and the alleged failure of the apprehending team to make an inventory and to photograph the shabu and marijuana in the presence of the accused were new issues not raised in their appeal brief. In their recourse to this Court, the accused presented only one ISSUE WHETHER OR NOT THE ACCUSED-APPELLANTS ARE GUILTY BEYOND REASONABLE DOUBT FOR VIOLATING SECTIONS 5 AND 11 OF ARTICLE II OF R.A. No. 9165, OTHERWISE KNOWN AS THE "COMPREHENSIVE DRUGS ACT OF 2002. The accused argue that the evidence adduced by the prosecution was not able to establish without a doubt, that the dangerous drugs presented in court were the very same ones allegedly sold by them. They insist that the police officers failed to strictly abide by the requirements of the law as regards the proper custody of dangerous drugs seized in the course of the alleged buy-bust operation. The prosecution stands firm by its position that the arrest of the accused and seizure of the shabu and marijuana were lawful and that the testimonies of the prosecution witnesses were truthful. In the absence of any credible evidence to the contrary, the police officers are presumed to have regularly performed their official duty. More importantly, all the elements necessary for the prosecution of the illegal sale of drugs are present, to wit: 1) the identity of the buyer and the seller, the object and consideration; and 2) the delivery of the thing sold and payment therefor. The prosecution asserts that the accused cannot raise for the first time on appeal the issue on the alleged failure of the law enforcers to comply strictly with Section 21 of Republic Act No. 9165. At any rate, the prosecution believes that it has shown that the chain of custody of the seized items was not broken. THE COURTS RULING: After due consideration, the Court finds the evidence on record sufficient enough to sustain the verdict of conviction. It is morally convinced that the accused are guilty beyond reasonable doubt of the offense charged against them. The rule is that factual findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of their probative weight are given high respect if not conclusive effect, unless the trial court ignored, misconstrued, misunderstood or misinterpreted cogent facts and circumstances of substance, which, if considered, will alter the outcome of the case.5 In this case, the CA found no such inculpatory facts and circumstances and this Court has not stumbled upon any either. Doubtless, the prosecution was able to establish all the necessary elements required in the prosecution for illegal sale of dangerous drugs, namely: 1) the identity of the buyer and seller; 2) the identity of the object of the sale and the consideration; and 3) the delivery of the thing sold upon payment. PO2 Danilo Damasco, (PO2 Damasco) the poseur-buyer, clearly and convincingly narrated in detail the entrapment operation they had conducted that led to the arrest of the accused and the seizure of the dangerous drugs. He related on the witness stand that upon receiving information from a confidential informant about the illegal sale of dangerous drugs by the accused, they immediately formed an entrapment team to conduct a buy-bust operation. Upon reaching the area in the early morning of July 5, 2002, he and the confidential informant approached the accused. After a brief introduction and short conversation, accused Botong went inside their house while accused Malou received the marked money from the poseur-buyer. Malou then called Botong who thereafter came out of the house. Malou gave the marked money to Botong who, in turn, gave Malou a plastic sachet containing a white crystalline substance. The plastic sachet was then handed over to PO2 Damasco who examined it and immediately gave the pre-arranged signal to arrest the accused. During the arrest, the marked money was recovered from Rolando and so were several other plastic sachets containing white crystalline substances together with a plastic sachet containing marijuana. Subsequently, the accused were brought to the police station and the seized items were later brought to the Police Crime Laboratory Office for examination. The testimony of PO2 Damasco was corroborated by SPO2 Zipagan, the entrapment team leader, and SPO4 Numeriano De Lara, the entrapment team organizer. Contrary to the posture of the accused, the testimony of PO2 Damasco was clear, consistent and convincing. As correctly assessed by the CA, his testimony passed the "objective test" in buy-bust operations. We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring the

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accuseds predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement.6 [Emphasis supplied] The Court looked into the accuseds defense of denial and accusations of frame-up, planting of evidence, forcible entry and extortion by the police officers but found them inherently weak. Aside from their bare allegations, the accused had nothing more to show that the apprehending police officers did not properly perform their duties or that they had ill motives against them. They failed to substantiate their argument that they were framed-up for extortion purposes. Absent any convincing countervailing evidence, the presumption is that the members of the buy-bust team performed their duties in a regular manner. It was certainly a job well done. Hence, the Court gives full faith and credit to the testimonies of the prosecution witnesses. The Court also holds that the seized items were admissible. A search warrant or warrant of arrest was not needed because it was a buybust operation and the accused were caught in flagrante delicto in possession of, and selling, dangerous drugs to the poseur-buyer. It was definitely legal for the buy-bust team to arrest, and search, them on the spot because a buy-bust operation is a justifiable mode of apprehending drug pushers. A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proven to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken.7 In People v. Villamin, involving an accused arrested after he sold drugs during a buy-bust operation, the Court ruled that it was a circumstance where a warrantless arrest is justified under Rule 113, Sec. 5(a) of the Rules of Court. The same ruling applies to the instant case. When carried out with due regard for constitutional and legal safeguards, it is a judicially sanctioned method of apprehending those involved in illegal drug activities. It is a valid form of entrapment, as the idea to commit a crime comes not from the police officers but from the accused himself. The accused is caught in the act and must be apprehended on the spot. From the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal. The illegal drugs seized were not the "fruit of the poisonous tree" as the defense would like this Court to believe. The seizure made by the buy-bust team falls under a search incidental to a lawful arrest under Rule 126, Sec. 13 of the Rules of Court, which pertinently provides: A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Since the buy-bust operation was established as legitimate, it follows that the search was also valid, and a warrant was likewise not needed to conduct it.81avvphi1 It should also be noted that after the RTC rendered a guilty verdict, the accused filed a motion for reconsideration based on two (2) grounds, to wit: 1) inadmissibility of the seized items; and 2) credibility of the prosecution witnesses. In the CA, they reiterated said grounds. After an unfavorable decision and ruling, the accused added two (2) new arguments in their motion for reconsideration, to wit: 1) the apprehending officers failed to establish that the corpus delicti (sachets of shabu or marijuana) were the very same ones sold by and seized from them; and 2) the apprehending team who had initial custody over the confiscated drug items failed to make an inventory and to photograph the same in their presence. The Court totally agrees with the ruling of the CA that the issues on the corpus delicti and the compliance with Section 21 of RA No. 9165 were issues that were not raised by the accused in their appellants brief, and were only presented in their motion for reconsideration from the decision of the CA. Hence, the Court cannot act, much less, rule on said new points. To do so would violate basic rules on fair play and due process. Thus: We point out the defenses failure to contest the admissibility of the seized items as evidence during trial as this was the initial point in objecting to illegally seized evidence. At the trial, the seized shabu was duly marked, made the subject of examination and cross-examination, and eventually offered as evidence, yet at no instance did the appellant manifest or even hint that there were lapses in the safekeeping of seized items that affected their admissibility, integrity and evidentiary value. In People v. Hernandez, we held that objection to the admissibility of evidence cannot be raised for the first time on appeal; when a party desires the court to reject the evidence offered, he must so state in the form of objection. Without such objection, he cannot raise the question for the first time on appeal.9 WHEREFORE, the August 29, 2008 Decision of the Court of Appeals, in CA-G.R. CR-H.C. No. 02308, isAFFIRMED. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 197788 February 29, 2012

RODEL LUZ y ONG, Petitioner, vs. PEOPLE OF THE PHILIPPINES,1 Respondent. DECISION SERENO, J.: This is a Petition for Review on Certiorari under Rule 45 seeking to set aside the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February 20112 and Resolution dated 8 July 2011. Statement of the Facts and of the Case The facts, as found by the Regional Trial Court (RTC), which sustained the version of the prosecution, are as follows: PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the Naga City Police Station as a traffic enforcer, substantially testified that on March 10, 2003 at around 3:00 oclock in the morning, he saw the accused, who was coming from the direction of Panganiban Drive and going to Diversion Road, Naga City, driving a motorcycle without a helmet; that this prompted him to flag down the accused for violating a municipal ordinance which requires all motorcycle drivers to wear helmet (sic) while driving said motor vehicle; that he invited the accused to come inside their sub-station since the place where he flagged down the accused is almost in front of the said sub-station; that while he and SPO1 Rayford Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed that the accused was uneasy and kept on getting something from his jacket; that he was alerted and so, he told the accused to take out the contents of the pocket of his jacket as the latter may have a weapon inside it; that the accused obliged and slowly put out the contents of the pocket of his jacket which was a nickel-like tin or metal container about two (2) to three (3) inches in size, including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife; that upon seeing the said container, he asked the accused to open it; that after the accused opened the container, he noticed a cartoon cover and something beneath it; and that upon his instruction, the accused spilled out the contents of the container on the table which turned out to be four (4) plastic sachets, the two (2) of which were empty while the other two (2) contained suspected shabu.3 Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of "Not guilty" to the charge of illegal possession of dangerous drugs. Pretrial was terminated on 24 September 2003, after which, trial ensued. During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist testified for the prosecution. On the other hand, petitioner testified for himself and raised the defense of planting of evidence and extortion. In its 19 February 2009 Decision,4 the RTC convicted petitioner of illegal possession of dangerous drugs5committed on 10 March 2003. It found the prosecution evidence sufficient to show that he had been lawfully arrested for a traffic violation and then subjected to a valid search, which led to the discovery on his person of two plastic sachets later found to contain shabu. The RTC also found his defense of

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frame-up and extortion to be weak, self-serving and unsubstantiated. The dispositive portion of its Decision held: WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y ONG GUILTY beyond reasonable doubt for the crime of violation of Section 11, Article II of Republic Act No. 9165 and sentencing him to suffer the indeterminate penalty of imprisonment ranging from twelve (12) years and (1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of Three Hundred Thousand Pesos (P 300,000.00). The subject shabu is hereby confiscated for turn over to the Philippine Drug Enforcement Agency for its proper disposition and destruction in accordance with law. SO ORDERED.6 Upon review, the CA affirmed the RTCs Decision. On 12 September 2011, petitioner filed under Rule 45 the instant Petition for Review on Certiorari dated 1 September 2011. In a Resolution dated 12 October 2011, this Court required respondent to file a comment on the Petition. On 4 January 2012, the latter filed its Comment dated 3 January 2012. Petitioner raised the following grounds in support of his Petition: (i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS INVALID. (ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE. (iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT SPECIMEN HAS BEEN COMPROMISED. (iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND THE REASONABLE DOUBT (sic).7 Petitioner claims that there was no lawful search and seizure, because there was no lawful arrest. He claims that the finding that there was a lawful arrest was erroneous, since he was not even issued a citation ticket or charged with violation of the city ordinance. Even assuming there was a valid arrest, he claims that he had never consented to the search conducted upon him. On the other hand, finding that petitioner had been lawfully arrested, the RTC held thus: It is beyond dispute that the accused was flagged down and apprehended in this case by Police Officers Alteza and Brillante for violation of City Ordinance No. 98-012, an ordinance requiring the use of crash helmet by motorcycle drivers and riders thereon in the City of Naga and prescribing penalties for violation thereof. The accused himself admitted that he was not wearing a helmet at the time when he was flagged down by the said police officers, albeit he had a helmet in his possession. Obviously, there is legal basis on the part of the apprehending officers to flag down and arrest the accused because the latter was actually committing a crime in their presence, that is, a violation of City Ordinance No. 98-012. In other words, the accused, being caught inflagrante delicto violating the said Ordinance, he could therefore be lawfully stopped or arrested by the apprehending officers. x x x.8 We find the Petition to be impressed with merit, but not for the particular reasons alleged. In criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial courts decision based on grounds other than those that the parties raised as errors.9 First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation, he was not, ipso facto and solely for this reason, arrested. Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an offense.10 It is effected by an actual restraint of the person to be arrested or by that persons voluntary submission to the custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is necessary.11 Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure for dealing with a traffic violation is not the arrest of the offender, but the confiscation of the drivers license of the latter: SECTION 29. Confiscation of Driver's License. Law enforcement and peace officers of other agencies duly deputized by the Director shall, in apprehending a driver for any violation of this Act or any regulations issued pursuant thereto, or of local traffic rules and regulations not contrary to any provisions of this Act, confiscate the license of the driver concerned and issue a receipt prescribed and issued by the Bureau therefor which shall authorize the driver to operate a motor vehicle for a period not exceeding seventy-two hours from the time and date of issue of said receipt. The period so fixed in the receipt shall not be extended, and shall become invalid thereafter. Failure of the driver to settle his case within fifteen days from the date of apprehension will be a ground for the suspension and/or revocation of his license. Similarly, the Philippine National Police (PNP) Operations Manual12 provides the following procedure for flagging down vehicles during the conduct of checkpoints: SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile Car. This rule is a general concept and will not apply in hot pursuit operations. The mobile car crew shall undertake the following, when applicable: x x x m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in prolonged, unnecessary conversation or argument with the driver or any of the vehicles occupants; At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner could not be said to have been "under arrest." There was no intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the ticket, the period during which petitioner was at the police station may be characterized merely as waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only reason they went to the police sub-station was that petitioner had been flagged down "almost in front" of that place. Hence, it was only for the sake of convenience that they were waiting there. There was no intention to take petitioner into custody. In Berkemer v. McCarty,13 the United States (U.S.) Supreme Court discussed at length whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered custodial interrogation. The Court held that, such questioning does not fall under custodial interrogation, nor can it be considered a formal arrest, by virtue of the nature of the questioning, the expectations of the motorist and the officer, and the length of time the procedure is conducted. It ruled as follows: It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policemans signal to stop ones car or, once having stopped, to drive away without permission. x x x However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced "to speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorists expectations, when he sees a policemans light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic

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stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. See id., at 451. Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. x x x In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. x x x The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda. xxx xxx xxx to resist," and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies. If it were true that petitioner was already deemed "arrested" when he was flagged down for a traffic violation and while he waiting for his ticket, then there would have been no need for him to be arrested for a second timeafter the police officers allegedly discovered the drugsas he was already in their custody. Second, there being no valid arrest, the warrantless search that resulted from it was likewise illegal. The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii) search of evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) a "stop and frisk" search; and (vii) exigent and emergency circumstances.15 None of the above-mentioned instances, especially a search incident to a lawful arrest, are applicable to this case. It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in "plain view." It was actually concealed inside a metal container inside petitioners pocket. Clearly, the evidence was not immediately apparent.16 Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and convincing evidence.17 It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC found that petitioner was merely "told" to take out the contents of his pocket.18 Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether the defendant was in a public or a secluded location; (3) whether the defendant objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendants belief that no incriminating evidence would be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State that has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given.19 In this case, all that was alleged was that petitioner was alone at the police station at three in the morning, accompanied by several police officers. These circumstances weigh heavily against a finding of valid consent to a warrantless search. Neither does the search qualify under the "stop and frisk" rule. While the rule normally applies when a police officer observes suspicious or unusual conduct, which may lead him to believe that a criminal act may be afoot, the stop and frisk is merely a limited protective search of outer clothing for weapons.20 In Knowles v. Iowa,21 the U.S. Supreme Court held that when a police officer stops a person for speeding and correspondingly issues a citation instead of arresting the latter, this procedure does not authorize the officer to conduct a full search of the car. The Court therein held that there was no justification for a full-blown search when the officer does not arrest the motorist. Instead, police officers may only conduct minimal intrusions, such as ordering the motorist to alight from the car or doing a patdown: In Robinson, supra, we noted the two historical rationales for the "search incident to arrest" exception: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. x x x But neither of these underlying rationales for the search incident to arrest exception is sufficient to justify the search in the present case. We have recognized that the first rationaleofficer safetyis "both legitimate and weighty," x x x The threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a

We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspects freedom of action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121, 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam). (Emphasis supplied.) The U.S. Court in Berkemer thus ruled that, since the motorist therein was only subjected to modest questions while still at the scene of the traffic stop, he was not at that moment placed under custody (such that he should have been apprised of his Miranda rights), and neither can treatment of this sort be fairly characterized as the functional equivalent of a formal arrest. Similarly, neither can petitioner here be considered "under arrest" at the time that his traffic citation was being made. It also appears that, according to City Ordinance No. 98-012, which was violated by petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest need not be issued if the information or charge was filed for an offense penalized by a fine only. It may be stated as a corollary that neither can a warrantless arrest be made for such an offense. This ruling does not imply that there can be no arrest for a traffic violation. Certainly, when there is an intent on the part of the police officer to deprive the motorist of liberty, or to take the latter into custody, the former may be deemed to have arrested the motorist. In this case, however, the officers issuance (or intent to issue) a traffic citation ticket negates the possibility of an arrest for the same violation. Even if one were to work under the assumption that petitioner was deemed "arrested" upon being flagged down for a traffic violation and while awaiting the issuance of his ticket, then the requirements for a valid arrest were not complied with. This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any. Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any statement they might make could be used against them.14 It may also be noted that in this case, these constitutional requirements were complied with by the police officers only after petitioner had been arrested for illegal possession of dangerous drugs. In Berkemer, the U.S. Court also noted that the Miranda warnings must also be given to a person apprehended due to a traffic violation: The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the "inherently compelling pressures" "generated by the custodial setting itself," "which work to undermine the individuals will

CONSTITUTIONAL LAW II

REQUIREMENTS OF FAIR PROCEDURE

custodial arrest. In Robinson, we stated that a custodial arrest involves "danger to an officer" because of "the extended exposure which follows the taking of a suspect into custody and transporting him to the police station." 414 U. S., at 234-235. We recognized that "[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest." Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively brief encounter and "is more analogous to a so-called Terry stop . . . than to a formal arrest." Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) ("Where there is no formal arrest . . . a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence"). This is not to say that the concern for officer safety is absent in the case of a routine traffic stop.1wphi1 It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety in this context may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full fieldtype search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at 414; perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a "Terry patdown" of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981). Nor has Iowa shown the second justification for the authority to search incident to arrestthe need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car. (Emphasis supplied.) The foregoing considered, petitioner must be acquitted. While he may have failed to object to the illegality of his arrest at the earliest opportunity, a waiver of an illegal warrantless arrest does not, however, mean a waiver of the inadmissibility of evidence seized during the illegal warrantless arrest.22 The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.23 Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.24 The subject items seized during the illegal arrest are inadmissible.25 The drugs are the very corpus delicti of the crime of illegal possession of dangerous drugs. Thus, their inadmissibility precludes conviction and calls for the acquittal of the accused.26 WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED and ordered immediately released from detention, unless his continued confinement is warranted by some other cause or ground. SO ORDERED.