G.R. No.

L-45950 June 20, 1938 The important question presented is whether upon the facts and under the circumstances of the
LEONA PASION VIUDA DE GARCIA, petitioner,
vs.
DIEGO LOCSIN, Judge of First Instance of Tarlac,
FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents.
LAUREL, J.:
This is a petition for mandamus presented to secure the annulment of a search warrant and two
orders of the respondent judge, and the restoration of certain documents alleged to have been
illegally seized by an agent of the Anti-Usuary Board.
It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-Usuary Board,
obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding any
officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for "certain
books, lists, chits, receipts, documents and other papers relating to her activities as usurer." The
search warrant was issued upon an affidavit given by the said Almeda "that he has and there (is) just
and probable cause to believe and he does believe that Leona Pasion de Garcia keeps and conceals
in her house and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, and other
papers relating to her activities as usurer, all of which is contrary to the statute in such cases made
and provided." On the same date, the said Mariano G. Almeda, accompanied by a captain of the
Philippine Constabulary, went to the office of the petitioner in Victoria, Tarlac and, after showing the
search warrant to the petitioner's bookkeeper, Alfredo Salas, and, without the presence of the
petitioner who was ill and confined at the time, proceeded with the execution thereof. Two packages
of records and a locked filing cabinet containing several Papers and documents were seized by
Almeda and a receipt therefor issued by him to Salas. The papers and documents seized were kept
for a considerable length of time by the Anti-Usury Board and thereafter were turned over by it to the
respondent fiscal who subsequently filed, in the Court of First Instance of Tarlac, six separate criminal
cases against the herein petitioner for violation of the Anti-Usury Law. On several occasions, after
seizure, the petitioner, through counsel, demanded from the respondent Anti-Usury Board the return
of the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of the search
warrant was challenged by counsel for the petitioner in the six criminal cases and the devolution of
the documents demanded. By resolution of October 5, 1937, the respondent Judge of First Instance
denied the petitioner's motion of June 4 for the reason that though the search warrant was illegal,
there was a waiver on the part of the petitioner. "En el caso presente," declared the respondent
judge, "teniendo en cuenta que la acusada Por si o por medio de su representante, no presento
protests alguna contra el registro de autos, at verificarse el mismo, o despues de un tiempo
rezonable, el juzgado declare que la citada con su silencio y conducta, ha renunciado
implicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que no le es
pemitido quejarse despues, puesto que cualquier defecto queha adolecido lo expedicion de la orden
de registro y su ejecucion, ha quidado implilcitamente subsanado ." A motion for reconsideration was
presented but was denied by order of January 3, 1938. Petitioner registered her exception. The
resolution of October 5, 1937 and the order of January 3, 1938 are sought, together with the search
warrant, Exhibit B, to be nullified in these proceedings.
Paragraph 3, section 1 of the bill of right of our Constitution provides as follows:
present case, there has been a waiver by the petitioner of her constitutional immunity against
unreasonable searches and seizures. While the Solicitor-General admits that, in the light of decisions
of this court, the search warrant was illegally issued, he maintains "(1) that the petitioner had waived
her constitutional right by her acquiescence after the search and seizure, and (2) that the application
for the return of the documents illegally seized was made after an unreasonable length of time after
the date of seizure." Doubtless, the constitutional immunity against unreasonable searches and
seizures is a personal right which may be waived. (People vs. Kagui Malasugui, 34 Off. Gaz., pp.
2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs. Villamiel, supra.) The waiver may be either
express or implied (67 C.J., p. 304). No express waiver has been made in the case before us. It is
urged, however, that there has been a waiver by implication. It is well-settled that to constitute a
waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons
involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that
said person had an actual intention to relinquish the right. (67 C. J., 299.) It is true that the petitioner
did not object to the legality of the search when it was made. She could not have objected because
she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the
constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be
waived by anyone except the person whose rights are invaded or one who is expressly authorized to
do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to know later of the
seizure of some of her papers and documents. But this was precisely the reason why she sent her
attorneys to the office of the Anti-Usuary Board to demand the return of the documents seized. In any
event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution
of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley
observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the
constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place
the citizen in the position of either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.
(56 C.J., pp. 1180, 1181.)
As a general proposition, it may be admitted that waiver may be the result of a failure to object within
a reasonable time to a search and seizure illegally made. It must be observed, however, that the
petitioner, on several occasions, and prior to the filing of criminal actions against her, had demanded
verbally, through counsel, the return by the Anti-Usuary Board of the properties seized. This is
admitted by Adolfo N. Feliciano, acting chief of the board, who said that the demand was refused
simply because no habiamos terminado con nuestra investigacion. (T.s.n., pp. 24-25.) On July 7,
1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again the return of
the documents withheld. And in connection with the criminal cases pending against the petitioner,
similar demands were made on January 7, 1937 and on June 4, 1937. In the light of these
circumstances, we find that the petitioner did not waive her constitutional right. The delay in making
demand for the return of the documents seized is not such as to result in waiver by implication.
In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby
declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the respondent
judge are set aside; and the respondents Anti-Usuary Board and the provincial fiscal of Tarlac or those
acting in their behalf, are hereby ordered to return and restore to the petitioner all the properties,
documents, papers and effects illegally seized from her, within forty-eight (48) hours from the time this
decision becomes final. Without costs. So ordered.

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 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.

Freedom from unreasonable searches and seizures is declared a popular right and for a search
warrant to be valid, (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. These requirements are complemented by the
Code of Criminal Procedure (G. O. No. 58), particularly with reference to the duration of the validity of
the search warrant and the obligation of the officer seizing the property to deliver the same to the
corresponding court (secs. 102-104). On more than one occasion, since the approval of the
Constitution, we had emphasized the necessity of adherence to the constitutional requirements on
this subject (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz.,
1183; People vs. Sy Juco [1937], G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328;
and Molo vs. Yatco [1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has
been said or observed in these cases.

In the instant case the existence of probable cause was determined not by the judge himself but by
the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did
not decide for himself. It does not appear that he examined the applicant and his witnesses, if any.
Even accepting the description of the properties to be seized to be sufficient and on the assumption
that the receipt issued is sufficiently detailed within the meaning of the law, the properties seized were
not delivered to the court which issued the warrant, as required by law. (See, secs. 95 and 104, G. O.
No. 58.) instead, they were turned over to the respondent provincial fiscal and used by him in building
up cases against the petitioner. Considering that at the time the warrant was issued there was no
case pending against the petitioner, the averment that the warrant was issued primarily for exploration
purposes is not without basis. The lower court is, therefore, correct in reaching the conclusion that the
search warrant (Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac.

[G.R. No. 45358. January 29, 1937.]
NARCISO ALVAREZ, Petitioner, v. THE COURT OF FIRST INSTANCE OF TAYABAS and THE
ANTI-USURY BOARD, Respondents.
Godofredo Reyes for Petitioner.
Adolfo N. Feliciano for respondent Anti-Usury Board.
No appearance for other Respondent.
SYLLABUS
1. CRIMINAL PROCEDURE; SEARCH WARRANT; DEFINITION. A search warrant is an order in
writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of
the peace, and directed to a peace officer, commanding him to search for personal property and bring
it before the court (section 95, General Orders, No. 58, as amended by section 6 of Act No. 2886).
2. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES. Of all the rights of a citizen, few are of
greater importance or more essential to his peace and happiness than the right of personal security,
and that involves the exemption of his private affairs, books, and papers from the inspection and
scrutiny of others (In re Pacific Railway Commission, 32 Fed., 241; Interstate Commerce Commn. v.
Brimson, 38 Law. ed., 1047; Boyd v. U.S., 29 Law. ed., 746; Carroll v. U. S., 69 Law. ed., 543, 549).
While the power to search and seize is necessary to the public welfare, still it must be exercised and
the law enforced without transgressing the constitutional rights of citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic principles of government (People
v. Elias, 147 N. E., 472).
3. ID.; ID. As the protection of the citizen and the maintenance of his constitutional rights is one of
the highest duties and privileges of the court, these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon,
or gradual depreciation of, the rights secured by them (State v. Custer County, 198 Pac., 362; State v.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule
that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose v.
St. Clair, 28 Fed. [2d], 189; Leonard v. U. S., 6 Fed. [2d], 353; Perry v. U. S., 14 Fed. [2d], 88; Cofer v.
State, 118 So., 613).
4. ID.; ID.; OATH. In its broadest sense, an oath includes any form of attestation by which a party
signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes
defined as an outward pledge given by the person taking it that his attestation or promise is made
under an immediate sense of his responsibility to God (Bouviers Law Dictionary; State v. Jackson,
137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S. ], 7; Pumphrey v. State, 122 N. W., 19; Priest v.
State, 6 N. W., 468; State v. Jones, 154 Pac., 378; Atwood v. State, 111 So., 865). The oath required
must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the individual making the
affidavit and seeking the issuance of the warrant, of the existence of probable cause (U. S. v.
Tureaud, 20 Fed., 621; U. S. v. Michalski, 265 Fed., 839; U. S. v. Pitotto, 267 Fed., 603; U. S. v. Lai
Chew, 298 Fed., 652.) The true test of sufficiency of an affidavit to warrant issuance of a search
warrant is whether it has been drawn in such a manner that perjury could be charged thereon and
affiant be held liable for damages caused (State v. Roosevelt County 20th Jud. Dis. Ct., 244 Pac. 280;
State v. Quartier, 236 Pac., 746).
5. ID.; UNREASONABLE SEARCH AND SEIZURE. Unreasonable searches and seizures are a
menace against which the constitutional guaranties afford full protection. The term "unreasonable
search and seizure" is not defined in the Constitution or in General Orders, No. 58, and it is said to
have no fixed, absolute or unchangeable meaning, although the term has been defined in general
language. All illegal searches and seizures are unreasonable while lawful ones are reasonable. What
constitute a reasonable or unreasonable search or seizure in any particular case is purely a judicial
question, determinable from a consideration of the circumstances involved, including the purpose of
the search, the presence or absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing
Co., v. U.S., 75 Law. ed., 374; Peru v. U. S., 4 Fed. [2d], 881; U.S., v. Vatune, 229 Fed., 497; Agnello
v. U. S., 70 Law. ed., 145; Lambert v. U. S. 282 Fed., 413; U. S. v. Bateman, 278 Fed., 231; Mason v.
Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
6. ID.; ID.; NECESSITY OF TAKING THE AFFIDAVITS OF THE WITNESSES. Neither the
Constitution nor General Orders, No 58 provides it of imperative necessity to take the depositions of
the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter.
The purpose of both in requiring the presentation of depositions is nothing else than to satisfy the
committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or
complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the
affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal
but merely hearsay, it was the duty of the judge to require the affidavit of one or more witnesses for
the purpose of determining the existence of probable cause to warrant the issuance of the search
warrant. When the affidavit of the applicant or complainant contains sufficient if the judge is satisfied
that there exists probable cause; when the applicants knowledge of the facts is mere hearsay, the
affidavit of one or more witnesses having personal knowledge of the facts is necessary. We conclude,
therefore, that the warrant issued is likewise illegal because it was based only on the affidavit of the
agent who had no personal knowledge of the facts.
7. CRIMINAL PROCEDURE; SEARCH WARRANT; SERVICE AT NIGHT. Section 101 of General
Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the
affidavit that the property is on the person or in the place ordered to be searched. As we have
declared the affidavit insufficient and the warrant issued exclusively upon it illegal, our conclusion is
that the contention is equally well founded and that the search could not legally be made at night.
8. ID.; ID.; DESCRIPTION OF ARTICLES. Section 1, paragraph (3) of Article III of the Constitution,
and section 97 of General Orders, No. 58 provide that the affidavit to be presented, which shall serve
as the basis for determining whether probable cause exists and whether the warrant should be
issued, must contain a particular description of the place to be searched and the person or thing to be
seized. These provisions are mandatory and must be strictly complied with (Munch v. U. S., 24 Fed.
[2d], 518; U. S. v. Boyd, 1 Fed. [2d], 1019; U. S. v. Carlson, 292 Fed., 463; U. S. v. Borkowski, 268
Fed., 408; In re Tri- State Coal & Coke Co., 253 Fed., 605; People v. Mayen, 188 Cal., 237; People v.
Kahn, 256 Ill. A., 415); but where, by the nature of the goods to be seized, their description must be
rather general, it is not required that a technical description be given, as this would mean that no
warrant could issue (People v. Rubio, 57 Phil., 384; People v. Kahn, supra).
9. ID.; ID.; ID. The only description of the articles given in the affidavit presented to the judge was
as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and
other papers used by him in connection with his activities as money- lender, charging a usurious rate
of interest, in violation of the law." Taking into consideration the nature of the articles so described, it is
clear that no other more adequate and detailed description could be given, particularly because it is
difficult to give a particular description of the contents thereof. The description so made substantially
complies with the legal provisions because the officer of the law who executed the warrant was
thereby placed in a position enabling him to identify the articles in question, which he did.
10. CONSTITUTIONAL LAW; SEARCHES AND SEIZURES; SEIZURE OF BOOKS AND
DOCUMENTS TO BE USED AS EVIDENCE IN CRIMINAL PROCEEDINGS AGAINST THE OWNER
OR POSSESSOR THEREOF. At the hearing of the incidents of the case raised before the court, it
clearly appeared that the books and documents had really been seized to enable the Anti-Usury
Board to conduct an investigation and later use all or some of the articles in question as evidence
against the petitioner in the criminal cases that may be filed against him. The seizure of books and
documents by means of a search warrant, for the purpose of using them as evidence in a criminal
case against the person in whose possession they were found, is unconstitutional because it makes
the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting
the compulsion of an accused to testify against himself (Uy Kheytin v. Villareal, 42 Phil., 886; Brady v.
U. S., 266 U. S., 620; Temperani v. U. S., 299 Fed., 365; U. S. v. Madden, 297 Fed., 679; Boyd v. U.
S., 116 U. S., 616; Carroll v. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the
documents in question were seized for the purpose of using them as evidence against the petitioner
in the criminal proceeding or proceedings for violation of the Anti-Usury Law, which it is attempted to
institute against him, we hold that the search warrant issued is illegal and that the documents should
be returned to him.
11. ID.; ID.; WAIVER OF THE CONSTITUTIONAL GUARANTEES. The Anti- Usury Board
insinuates in its answer that the petitioner cannot now question the validity of the search warrant or
the proceedings had subsequent to the issuance thereof, because he has waived his constitutional
rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading
the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first,
because the petitioner has emphatically denied the offer of compromise and, second, because if there
was a compromise it referred not to the search warrant and the incidents thereof but to the institution
of criminal proceedings for violation of the Anti-Usury Law. The waiver would have been a good
defense for the respondents had the petitioner voluntarily consented to the search and seizure of the
articles in question, but such was not the case because the petitioner protested from the beginning
and stated his protest in writing in the insufficient inventory furnished him by the agents.
12. CIVIL PROCEDURE; MANDAMUS; WHEN IT LIES. Section 222 of the Code of Civil Procedure
in fact provides that mandamus will not issue when there is another plain, speedy and adequate
remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders
would not in this case be a plain, speedy and adequate remedy for the petitioner because a long time
would have to elapse before he recovers possession of the documents and before the rights, for
which he has been unlawfully deprived, are restored to him (Fajardo v. Llorente, 6 Phil., 426; Manotoc
v. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban v. McMicking, 14 Phil., 641; Lamb v.
Phipps, 22 Phil., 456).
DECISION
IMPERIAL, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas,
ordering the search of his house and the seizure, at any time of the day or night, of certain accounting
books, documents and papers belonging to him in his residence situated in Infanta, Province of
Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain
the articles seized, be declared illegal and set aside, and prays that all the articles in question be
returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of
First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept
in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him
in connection with his activities as a money-lender, charging usurious rates of interest in violation of
the law. In his oath at the end of the affidavit, the chief of the secret service stated that his answers to
the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his
statements upon his own knowledge of the facts but upon the information received by him from a
reliable person. Upon the affidavit in question the judge, on said date, issued the warrant which is the
subject matter of the petition, ordering the search of the petitioners house at any time of the day or
night, the seizure of the books and documents above-mentioned and the immediate delivery thereof
to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-
Usury Board entered the petitioners store and residence at seven oclock on the night of June 4,
1936, and seized and took possession of the following articles: internal revenue licenses for the years
1933 to 1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four check
stubs, two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases
of copra, two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of
stubs of purchases of copra, two packages of correspondence, one receipt book belonging to Luis
Fernandez, fourteen bundles of invoices and other papers, many documents and loan contracts with
security and promissory notes, 504 chits, promissory notes and stubs of used checks of the
Hongkong & Shanghai Banking Corporation. The search for and seizure of said articles were made
with the opposition of the petitioner who stated his protest below the inventories on the ground that
the agents seized even the originals of the documents. As the articles had not been brought
immediately to the judge who issued the search warrant, the petitioner, through his attorney, filed a
motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered
immediately to deposit all the seized articles in the office of the clerk of court and that said agent be
declared guilty of contempt for having disobeyed the order of the court. On said date the court issued
an order directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the
receipt of notice thereof and giving him a period of five (5) days within which to show cause why he
should not be punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez,
representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set
aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of thirty
(30) days for the necessary investigation. The attorney for the petitioner, on June 20th, filed another
motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-Usury
Board had failed to deposit the articles seized by them and praying that a search warrant be issued,
that the sheriff be ordered to take all the articles into his custody and deposit them in the clerks office,
and that the officials of the Anti-Usury Board be punished for contempt o court. Said attorney, on June
24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited some
documents and papers in the office of the clerk of court, he had so far failed to file an inventory duly
verified by oath of all the documents seized by him, to return the search warrant together with the
affidavit presented in support thereof, or to present the report of the proceedings taken by him; and
prayed that said agent be directed to file the documents in question immediately. On the 25th of said
month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant
and the affidavit in the court, together with the proceedings taken by him, and to present an inventory
duly verified by oath of all the articles seized. On July 2d of said year, the attorney for the petitioner
filed another petition alleging that the search warrant issued was illegal and that it had not yet been
returned to date together with the proceedings taken in connection therewith, and praying that said
warrant be cancelled, that an order be issued directing the return of all the articles seized to the
petitioner, that the agent who seized them be declared guilty of contempt of court, and that charges
be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding:
that the search warrant was obtained and issued in accordance with the law, that it had been duly
complied with and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not
commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-
Usury Board in Manila to show cause, if any, within the unextendible period of two (2) days from the
date of notice of said order, why all the articles seized appearing in the inventory, Exhibit 1, should not
be returned to the petitioner. The assistant chief of the Anti-Usury Board of the Department of Justice
filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for
the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the
petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th,
issued an order requiring the Anti-Usury Board to specify the time needed by it to examine the
documents and papers seized and which of them should be retained, granting it a period of five (5)
days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a
motion praying that he be granted ten (10) days to comply with the order of September 25th and that
the clerk of court be ordered to return to him all the documents and papers together with the inventory
thereof. The court, in an order of October 2d of said year, granted him the additional period of ten (10)
days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official
again filed another motion alleging that he needed sixty (60) days to examine the documents and
papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26,
27, 30, 31 , 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of
sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60) days to
investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the
respondents, that these nineteen (19) documents continue in the possession of the court, the rest
having been returned to said petitioner.
I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands,
signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to
search for personal property and bring it before the court (section 95, General Orders, No. 58, as
amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or
more essential to his peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re
Pacific Railway Commission, 32 Fed., 241; Interstate Commerce Commn. v. Brimson, 38 Law. ed.,
1047; Boyd v. U. S., 29 Law. ed., 746; Carroll v. U. S., 69 Law. ed., 543, 549). While the power to
search and seize is necessary to the public welfare, still it must be exercised and the law enforced
without transgressing the constitutional rights of citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government (People v. Elias, 147
N. E., 472).
II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the court, these constitutional guaranties should be given a liberal
construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon,
or gradual depreciation of, the rights secured by them (State v. Custer County, 198 Pac., 362; State v.
McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule
that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose v.
St. Clair, 28 Fed. [2d], 189; Leonard v. U. S., 6 Fed. [2d], 353; Perry v. U. S., 14 Fed. [2d], 88; Cofer v.
State, 118 So., 613).
III. The petitioner claims that the search warrant issued by the court is illegal because it has been
based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no
personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but
that he had knowledge thereof through mere information secured from a person whom he considered
reliable. To the question "What are your reasons for applying for this search warrant", appearing in the
affidavit, the agent answered: "It has been reported to me by a person whom I consider to be reliable
that there are being kept in said premises, books, documents, receipts, lists, chits, and other papers
used by him in connection with his activities as a money- lender, charging a usurious rate of interest,
in violation of the law" and in attesting the truth of his statements contained in the affidavit, the said
agent stated that he found them to be correct and true to the best of his knowledge and belief.
Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The
right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to
be determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or
things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not
issue except for probable cause and upon application supported by oath particularly describing the
place to be searched and the person or thing to be seized." It will be noted that both provisions
require that there be not only probable cause before the issuance of a search warrant but that the
search warrant must be based upon an application supported by oath of the applicant and the
witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a
party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is
sometimes defined as an outward pledge given by the person taking it that his attestation or promise
is made under an immediate sense of his responsibility to God (Bouviers Law Dictionary; State v.
Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S. ], 7; Pumphrey v. State, 122 N. W., 19;
Priest v. State, 6 N. W., 468; State v. Jones, 154 Pac., 378; Atwood v. State, 111 So., 865). The oath
required must refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not the individual
making the affidavit and seeking the issuance of the warrant, of the existence of probable cause (U.
S. v. Tureaud, 20 Fed., 621; U. S. v. Michalski, 265 Fed., 839; U. S. v. Pitotto, 267 Fed., 603; U. S. v.
Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search
warrant is whether it has been drawn in such a manner that perjury could be charged thereon and
affiant be held liable for damages caused (State v. Roosevelt County 20th Jud. Dis. Ct., 244 Pac.,
280; State v. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits
unreasonable searches and seizures. Unreasonable searches and seizures are a menace against
which the constitutional guaranties afford full protection. The term "unreasonable search and seizure"
is not defined in the Constitution or in General Orders, No. 58, and it is said to have no fixed, absolute
or unchangeable meaning, although the term has been defined in general language. All illegal
searches and seizures are unreasonable while lawful ones are reasonable. What constitutes a
reasonable or unreasonable search or seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved, including the purpose of the search,
the presence or absence of probable cause, the manner in which the search and seizure was made,
the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. v. U. S.,
75 Law. ed., 374; Peru v. U. S., 4 Fed., [2d], 881; U. S. v. Vatune, 292 Fed., 497; Agnello v. U. S., 70
Law. ed., 145; Lambert v. U. S., 282 Fed., 413; U. S. v. Bateman, 278 Fed., 231; Mason v. Rollins, 16
Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which
served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of
the manner in which the oath was made, and therefore, it is hereby held that the search warrant in
question and the subsequent seizure of the books, documents and other papers are illegal and do not
in any way warrant the deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and
cancelled is that it was not supported by other affidavits aside from that made by the applicant. In
other words, it is contended that the search warrant cannot be issued unless it be supported by
affidavits made by the applicant and the witnesses to be presented necessarily by him. Section 1,
paragraph 3, of Article III of the Constitution provides that no warrants shall issue but upon probable
cause, to be determined by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 98 of General Orders, No. 58 provides that the judge or
justice must, before issuing the warrant, examine under oath the complainant and any witnesses he
may produce and take their depositions in writing. It is the practice in this jurisdiction to attach the
affidavit of at least the applicant or complainant to the application. It is admitted that the judge who
issued the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano G.
Almeda and that he did not require nor take the deposition of any other witness. Neither the
Constitution nor General Orders, No. 58 provides that it is of imperative necessity to take the
depositions of the witnesses to be presented by the applicant or complainant in addition to the
affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more
than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit
of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses.
Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts
was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more
witnesses for the purpose of determining the existence of probable cause to warrant the issuance of
the search warrant. When the affidavit of the applicant or complainant contains sufficient facts within
his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable
cause; when the applicants knowledge of the facts is mere hearsay, the affidavit of one or more
witnesses having a personal knowledge of the facts is necessary. We conclude, therefore, that the
warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no
personal knowledge of the facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant
and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General
Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the
affidavit that the property is on the person or in the place ordered to be searched. As we have
declared the affidavit insufficient and the warrant issued exclusively upon it illegal, our conclusion is
that the contention is equally well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was
issued illegally is the lack of an adequate description of the books and documents to be seized.
Section 1, paragraph 3, of Article III of the Constitution, and section 97 of General Orders, No. 58
provide that the affidavit to be presented, which shall serve as the basis for determining whether
probable cause exists and whether the warrant should be issued, must contain a particular description
of the place to be searched and the person or thing to be seized. These provisions are mandatory and
must be strictly complied with (Munch v. U. S., 24 Fed. [2d], 518; U. S. v. Boyd, 1 Fed. [2d], 1019; U.
S. v. Carlson, 292 Fed., 463; U. S. v. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253
Fed., 605; People v. Mayen, 188 Cal., 237; People v. Kahn, 256 Ill. App., 415); but where, by the
nature of the goods to be seized, their description must be rather general, it is not required that a
technical description be given, as this would mean that no warrant could issue (People v. Rubio, 57
Phil., 284; People v. Kahn, supra). The only description of the articles given in the affidavit presented of the respondent court authorizing the retention of the books and documents, are declared illegal and
to the judge was as follows: "that there are being kept in said premises books, documents, receipts, are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas
lists, chits and other papers used by him in connection with his activities as money-lender, charging a direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to
usurious rate of interest, in violation of the law." Taking into consideration the nature of the articles so 4 of the inventory by Nos. 5, 10, 16, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45,
described, it is clear that no other more adequate and detailed description could have been given, without special pronouncement as to costs. So ordered.
particularly because it is difficult to give a particular description of the contents thereof. The
description so made substantially complies with the legal provisions because the officer of the law
who executed the warrant was thereby placed in a position enabling him to identify the articles, which
he did.

VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was
obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself
with evidence to be used by it in the criminal case or cases which might be filed against him for
violation of the Anti-Usury Law. At the hearing of the incidents of the case raised before the court, it
clearly appeared that the books and documents had really been seized to enable the Anti-Usury
Board to conduct an investigation and later use all or some of the articles in question as evidence
against the petitioner in the criminal cases that may be filed against him. The seizure of books and
documents by means of a search warrant, for the purpose of using them as evidence in a criminal
case against the person in whose possession they were found, is unconstitutional because it makes
the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting
the compulsion of an accused to testify against himself (Uy Kheytin v. Villareal , 42 Phil., 886; Brady v.
U. S., 266 U. S., 620; Temperani v. U. S., 299 Fed., 365; U. S. v. Madden, 297 Fed., 679; Boyd v. U.
S., 116 U. S., 616; Carroll v. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the
documents in question were seized for the purpose of using them as evidence against the petitioner
in the criminal proceeding or proceedings for violation of the Anti-Usury Law, which it is attempted to
institute against him, we hold that the search warrant issued is illegal and that the documents should
be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of
the search warrant or the proceedings had subsequent to the issuance thereof, because he has
waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200
for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there
was no such waiver, first, because the petitioner has emphatically denied the offer of compromise
and, second, because if there was a compromise it referred not to the search warrant and the
incidents thereof but to the institution of criminal proceedings for violation of the Anti- Usury Law. The
waiver would have been a good defense for the respondents had the petitioner voluntarily consented
to the search and seizure of the articles in question, but such was not the case because the petitioner
protested from the beginning and stated his protest in writing in the insufficient inventory furnished him
by the agents.

Said board alleges as another defense that the remedy sought by the petitioner does not lie because
he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section
222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is
another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion,
however, that an appeal from said orders would not in this case be a plain, speedy and adequate
remedy for the petitioner because a long time would have to elapse before he recovers possession of
the documents and before the rights, of which he has been unlawfully deprived, are restored to him
(Fajardo v. Llorente, 6 Phil., 426; Manotoc v. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de
Lukban v. McMicking, 14 Phil., 641; Lamb v. Phipps, 22 Phil., 456).

Summarizing the foregoing conclusions, we hold:chanrob1es virtual 1aw library

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure,
should be given a liberal construction in favor of the individual in order to maintain the constitutional
guaranties whole and in their full force;

2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they
should be strictly construed;

3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant
was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts
necessary to determine the existence or non-existence of probable cause, and (b) because the
warrant was issued for the sole purpose of seizing evidence which would later be used in the criminal
proceedings that might be instituted against the petitioner, for violation of the Anti- Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in the
affidavit that the articles were in the possession of the petitioner and in the place indicated, neither
could the search and seizure be made at night;

5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or
complainant in cases where the latter has personal knowledge of the facts, when the applicants or
complainants knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits
of other witnesses so that he may determine whether probable cause exists;

6. That a detailed description of the person and place to be searched and the articles to be seized is
necessary, but where, by the nature of the articles to be seized, their description must be rather
general, it is not required that a technical description be given, as this would mean that no warrant
could issue;

7. That the petitioner did not waive his constitutional rights because the offer of compromise or
settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and
seizure; and

8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an
effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for
mandamus filed by him lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders
SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding
Judge of the City Court of Ormoc, BERNARDO GOLES and REYNALDO
MAYOTE, Respondents.
Valeriano R. Ocubillo for Petitioner.
The Solicitor General for Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND
SEIZURE; REQUISITES FOR ISSUANCE OF SEARCH WARRANT. Under the Constitution "no
search warrant shall issue but upon probable cause to be determined by the Judge or such other
responsible officer as may be authorized by law after examination under oath or affirmation of the
complainant and the witnesses he may produce." More emphatic and detailed is the implementing
rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge must before
issuing the warrant personally examine on oath or affirmation the complainant and any witnesses he
may produce and take their depositions in writing, and attach them to the record, in addition to any
affidavits presented to him.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS WITNESSES IN
THE CASE AT BAR. Before issuing a search warrant, the examining Judge has to take depositions
in writing of the complainant and the witnesses he may produce and to attach them to the record.
Such written deposition is necessary in order that the Judge may be able to properly determine the
existence or non-existence of the probable cause, and to hold liable for perjury the person giving it if it
will be found later that his declarations are false. Mere affidavits of the complainant and his witnesses
are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF CASE IN CASE
AT BAR. The judges insistence that she examined the complainants under oath has become
dubious by petitioners claim that at the particular time when he examined all the relevant papers
connected with the issuance of the questioned search warrant, after he demanded the same from the
lower court since they were not attached to the records, he did not find any certification at the back of
the joint affidavit of the complainants. Before he filed his motion to quash the search warrant and for
the return of the articles seized, he was furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true copies do not bear any certification at the back.
Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset of this
case does not show also the certification of respondent judge. This doubt becomes more confirmed
by respondent Judges own admission, while insisting that she did examine thoroughly the applicants,
that "she did not take the deposition of Mayote and Goles because to have done so would be to hold
a judicial proceeding which will be open and public", such that, according to her, the persons subject
of the intended raid will just disappear and move his illegal operations somewhere else. Could it be
that the certification was made belatedly to cure the defect of the warrant? Be that as it may, there
was no "deposition in writing" attached to the records of the case in palpable disregard of the statutory
prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. The searching questions propounded to the
applicants of the search warrant and his witnesses must depend to a large extent upon the discretion
of the Judge just as long as the answers establish a reasonable ground to believe the commission of
a specific offense and that the applicant is one authorized by law, and said answers particularly
describe with certainty the place to be searched and the persons or things to be seized. The
examination or investigation which must be under oath may not be in public. It may even be held in
the secrecy of his chambers. Far more important is that the examination or investigation is not merely
routinary but one that is thorough and elicit the required information. To repeat, it must be under oath
and must be in writing.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. Nothing can justify the
issuance of the search warrant but the fulfillment of the legal requisites. Thus, in issuing a search
warrant the Judge must strictly comply with the requirements of the Constitution and the statutory
provisions. In the case at bar, the search warrant is tainted with illegality by the failure of the Judge to
conform with essential requisites of taking the depositions in writing and attaching them to record,
rendering the search warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE AT BAR.
While the search warrant is illegal, the return of the things seized cannot be ordered. In Castro v.
Pabalan (70 SCRA 478), it was held that the illegality of the search warrant does not call for the return
of the things seized, the possession of which is prohibited.
DECISION
DE CASTRO, J.:
The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by
petitioner for its alleged failure to comply with the requisites of the Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent Judge was based merely
on the application for search warrant and a joint affidavit of private respondents which were wrongfully
it is alleged subscribed, and sworn to before the Clerk of Court of respondent Judge. Furthermore,
there was allegedly a failure on the part of respondent Judge to attach the necessary papers pertinent
to the issuance of the search warrant to the records of Criminal Case No. 4298-CC wherein petitioner
is accused under PD 810, as amended by PD 1306, the information against him alleging that Soriano
Mata offered, took and arranged bets on the Jai Alai game by "selling illegal tickets known as Masiao
tickets without any authority from the Philippine Jai Alai & Amusement Corporation or from the
government authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of
the said case could be found the search warrant and other pertinent papers connected to the
issuance of the same, so that he had to inquire from the City Fiscal its whereabouts, and to which
inquiry respondent Judge replied, "it is with the court." The Judge then handed the records to the
Fiscal who attached them to the records.chanrobles.com : virtual law library
This led petitioner to file a motion to quash and annul the search warrant and for the return of the
articles seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of
Court. The motion was denied by respondent Judge on March 1, 1979, stating that the court has
made a thorough investigation and examination under oath of Bernardo U. Goles and Reynaldo T.
Mayote, members of the Intelligence Section of 352nd PC Co./Police District II INP; that in fact the
court made a certification to that effect; and that the fact that documents relating to the search warrant
were not attached immediately to the record of the criminal case is of no moment, considering that the
rule does not specify when these documents are to be attached to the records. 2 Petitioners motion
for reconsideration of the aforesaid order having been denied, he came to this Court, with the instant
petition, praying, among others, that this Court declare the search warrant to be invalid and all the
articles confiscated under such warrant as inadmissible as evidence in the case, or in any
proceedings on the matter.
We hold that the search warrant is tainted with illegality for being violative of the Constitution and the
Rules of Court.
Under the Constitution "no search warrant shall issue but upon probable cause to be determined by
the Judge or such other responsible officer as may be authorized by law after examination under oath
or affirmation of the complainant and the witnesses he may produce." More emphatic and detailed is
the implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the
judge must before issuing the warrant personally examine on oath or affirmation the complainant and
any witnesses he may produce and take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has
to take depositions in writing of the complainant and the witnesses he may produce and to attach
them to the record. Such written deposition is necessary in order that the Judge may be able to
properly determine the existence or non-existence of the probable cause, to hold liable for perjury the
person giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to
conform with the essential requisites of taking the depositions in writing and attaching them to the
record, rendering the search warrant invalid.chanroblesvirtualawlibrary
The judges insistence that she examined the complainants under oath has become dubious by
petitioners claim that at the particular time when he examined all the relevant papers connected with
the issuance of the questioned search warrant, after he demanded the same from the lower court
since they were not attached to the records, he did not find any certification at the back of the joint
affidavit of the complainants. As stated earlier, before he filed his motion to quash the search warrant
and for the return of the articles seized, he was furnished, upon his request, certified true copies of
the said affidavits by the Clerk of Court but which certified true copies do not bear any certification at
the back. Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset
of this case does not show also the certification of respondent judge. This doubt becomes more
confirmed by respondent Judges own admission, while insisting that she did examine thoroughly the
applicants, that "she did not take the deposition of Mayote and Goles because to have done so would
be to hold a judicial proceeding which will be open and public", 3 such that, according to her, the
persons subject of the intended raid will just disappear and move his illegal operations somewhere
else.
Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it
may, there was no "deposition in writing" attached to the records of the case in palpable disregard of
the statutory prohibition heretofore quoted.
Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every
man, woman and child, and even the lowliest laborer who could hardly make both ends meet justifies
her action. She claims that in order to abate the proliferation of this illegal "masiao" lottery, she
thought it more prudent not to conduct the taking of deposition which is done usually and publicly in
the court room.
Two points must be made clear. The term "depositions" is sometimes used in a broad sense to
describe any written statement verified by oath; but in its more technical and appropriate sense the
meaning of the word is limited to written testimony of a witness given in the course of a judicial
proceeding in advance of the trial or hearing upon oral examination. 4 A deposition is the testimony of
a witness, put or taken in writing, under oath or affirmation before a commissioner, examiner or other
judicial officer, in answer to interlocutory and cross interlocutory, and usually subscribed by the
witnesses. 5 The searching questions propounded to the applicants of the search warrant and his
witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers
establish a reasonable ground to believe the commission of a specific offense and that the applicant is
one authorized by law, and said answers particularly describe with certainty the place to be searched
and the persons or things to be seized. The examination or investigation which must be under oath
may not be in public. It may even be held in the secrecy of his chambers. Far more important is that
the examination or investigation is not merely routinary but one that is thorough and elicit the required
information. To repeat, it must be under oath and must be in writing.cralawnad
The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the
legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc.
v. Herrera:jgc:chanrobles.com.ph
"It has been said that of all the rights of a citizen, few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves the exemption of his
private affairs, books, and papers from inspection and scrutiny of others. While the power to search
and seize is necessary to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government." 6

Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the
Constitution. 7 No presumption of regularity are to be invoked in aid of the process when an officer
undertakes to justify it. 8

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro v. Pabalan, 9 it was held that the illegality of the search warrant does not call for the return of
the things seized, the possession of which is prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to
annul the search warrant as well as the order of March 21, 1979 denying the motion for
reconsideration are hereby reversed, the search warrant, being declared herein as illegal.
Notwithstanding such illegality, the things seized under such warrant, such as stock of "masiao"
tickets; "masiao" issue tickets; bet money; control pad or "masiao" numbers; stamping pad with rubber
stamp marked Ormoc City Jai-Alai," cannot be returned as sought by petitioner. No costs.

SO ORDERED.

G.R. No. 82870 December 14, 1989
DR. NEMESIO E. PRUDENTE, petitioner,
vs.
THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila, Branch 33 and PEOPLE OF
THE PHILIPPINES, respondents.
PADILLA, J.:
This is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March
1988 which denied the petitioner's motion to quash Search Warrant No. 87-14, as well as his order
dated 20 April 1988 denying petitioner's motion for reconsideration of the earlier order.
It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special
Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court (RTC)
of Manila, Branch 33, presided over by respondent Judge Abelardo Dayrit, now Associate Justice of
the Court of Appeals. an application 1 for the issuance of a search warrant, docketed therein as
SEARCH WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms,
etc.) entitled "People of the Philippines, Plaintiff, versus Nemesis E. Prudente, Defendant." In his
application for search warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows:
1. That he has been informed and has good and sufficient reasons to believe that NEMESIO
PRUDENTE who may be found at the Polytechnic University of the Philippines, Anonas St. Sta. Mesa,
Sampaloc, Manila, has in his control or possession firearms, explosives handgrenades and
ammunition which are illegally possessed or intended to be used as the means of committing an
offense which the said NEMESIO PRUDENTE is keeping and concealing at the following premises of
the Polytechnic University of the Philippines, to wit:
a. Offices of the Department of Military Science and Tactics at the ground floor and other rooms at the
ground floor;
b. Office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second
floor;
2. That the undersigned has verified the report and found it to be a fact, and therefore, believes that a
Search Warrant should be issued to enable the undersigned or any agent of the law to take
possession and bring to this Honorable Court the following described properties:
a. M 16 Armalites with ammunitions;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and handgrenades; and,
d. assorted weapons with ammunitions.
In support of the application for issuance of search warrant, P/Lt. Florenio C. Angeles, OIC of the
Intelligence Section of (ISAD) executed a "Deposition of Witness" dated 31 October 1987, subscribed
and sworn to before respondent Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia,
as follows:
Q: Do you know P/Major Alladin Dimagmaliw, the applicant for a Search Warrant?
A: Yes, sir, he is the Chief, Intelligence and Special Action Division, Western Police District.
Q: Do you know the premises of Polytechnic University of the Philippines at Anonas St., Sta. Mesa,
Sampaloc, Manila
A: Yes, sir, the said place has been the subject of our surveillance and observation during the past
few days.
Q: Do you have personal knowledge that in the said premises is kept the following properties subject
of the offense of violation of PD No. 1866 or intended to be used as a means of committing an
offense:
a. M 16 Armalites with ammunitions;
b. .38 and 45 Caliber handguns and pistols;
c. explosives and handgrenades; and d. Assorted weapons with ammunitions?
A: Yes sir.
Q: Do you know who is or who are the person or persons who has or have control of the above-
described premises?
A: Yes sir, it is Dr. Nemesio Prudente, President of the Polytechnic University of the Philippines.
Q: How do you know that said property is subject of the offense of violation of Pres. Decree No. 1866
or intended to be used as the means of committing an offense?
A: Sir, as a result of our continuous surveillance conducted for several days, we gathered information
from verified sources that the holder of said firearms and explosives as well as ammunitions aren't
licensed to possess said firearms and ammunition. Further, the premises is a school and the holders
of these firearms are not students who were not supposed to possess firearms, explosives and
ammunition.
On the same day, 31 October 1987, respondent Judge issued Search Warrant No. 87-14, 3 the
pertinent portions of which read as follows:
It appearing to the satisfaction of the undersigned, after examining under oath applicant ALLADIN M.
DIMAGMALIW and his witness FLORENIO C. ANGELES that there are good and sufficient reasons to
believe (probable cause) that NEMESIO PRUDENTE has in his control in the premises of Polytechnic
University of the Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are subject
of the above offense or intended to be used as the means of committing the said offense.
You are hereby commanded to make an immediate search at any time in the day or night of the
premises of Polytechnic University of the Philippines, more particularly (a) offices of the Department of
Military Science and Tactics at the ground floor and other rooms at the ground floor; (b) office of the
President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second floor, and
forthwith seize and take possession of the following personal properties, to wit:
a. M 16 Armalites with ammunition;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and hand grenades; and
d. assorted weapons with ammunitions.
and bring the above described properties to the undersigned to be dealt with as the law directs.
On 1 November 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200
WPD operatives led by P/Col. Edgar Dula Torre, Deputy Superintendent, WPD, and P/Major Romeo
Maganto, Precinct 8 Commander.
In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of the searching team,
alleged that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a
bulging brown envelope with three (3) live fragmentation hand grenades separately wrapped with old
newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1) pc.M33 Fragmentation hand
grenade (live); (b) one (11) pc.M26 Fragmentation hand grenade (live); and (c) one (1) pc.PRB
423 Fragmentation hand grenade (live).
On 6 November 1987, petitioner moved to quash the search warrant. He claimed that (1) the
complainant's lone witness, Lt. Florenio C. Angeles, had no personal knowledge of the facts which
formed the basis for the issuance of the search warrant; (2) the examination of the said witness was
not in the form of searching questions and answers; (3) the search warrant was a general warrant, for
the reason that it did not particularly describe the place to be searched and that it failed to charge one
specific offense; and (4) the search warrant was issued in violation of Circular No. 19 of the Supreme
Court in that the complainant failed to allege under oath that the issuance of the search warrant on a
Saturday was urgent. 5
The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and Legal Affairs Division,
WPD, opposed the motion. 6 After petitioner had filed his reply 7 to the opposition, he filed a
supplemental motion to quash. 8
Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the petitioner's motion and
supplemental motion to quash. Petitioner's motion for reconsideration 10 was likewise denied in the
order 11 dated 20 April 1988.
Hence, the present recourse, petitioner alleging that respondent Judge has decided a question of
substance in a manner not in accord with law or applicable decisions of the Supreme Court, or that
the respondent Judge gravely abused his discretion tantamount to excess of jurisdiction, in issuing
the disputed orders.
For a valid search warrant to issue, there must be probable cause, which is 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. 12 The probable cause must be in connection with one specific offense 13 and the
judge must, before issuing the warrant, personally examine in the form of searching questions and
answers, in writing and under oath, the complainant and any witness he may produce, on facts
personally known to them and attach to the record their sworn statements together with any affidavits
submitted. 14
The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances
which would lead a reasonably discreet arid prudent man to believe that an offense has been
committed, and that objects sought in connection with the offense are in the place sought to be
searched." 15 This probable cause must be shown to be within the personal knowledge of the
complainant or the witnesses he may produce and not based on mere hearsay. 16
Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it was issued on the
basis of facts and circumstances which were not within the personal knowledge of the applicant and
his witness but based on hearsay evidence. In his application for search warrant, P/Major Alladin
Dimagmaliw stated that "he has been informed" that Nemesio Prudente "has in his control and
possession" the firearms and explosives described therein, and that he "has verified the report and
found it to be a fact." On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles
declared that, as a result of their continuous surveillance for several days, they "gathered informations
from verified sources" that the holders of the said fire arms and explosives are not licensed to
possess them. In other words, the applicant and his witness had no personal knowledge of the facts
and circumstances which became the basis for issuing the questioned search warrant, but acquired
knowledge thereof only through information from other sources or persons.
While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he
verified the information he had earlier received that petitioner had in his possession and custody the t
there is nothing in the record to show or indicate how and when said applicant verified the earlier
information acquired by him as to justify his conclusion that he found such information to be a fact. He
might have clarified this point if there had been searching questions and answers, but there were
none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said
applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major
Dimagmaliw's application, and the said deposition is based on hearsay. For, it avers that they
(presumably, the police authorities) had conducted continuous surveillance for several days of the
suspected premises and, as a result thereof, they "gathered information from verified sources" that
the holders of the subject firearms and explosives are not licensed to possess them.
In Alvarez vs. Court of First Instance, 17 this Court laid the following test in determining whether the
allegations in an application for search warrant or in a supporting deposition, are based on personal
knowledge or not
The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is
whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held
liable for damage caused. The oath required must refer to the truth of the facts within the personal
knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported
by a person whom one considers to be reliable.
Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his deposition, do not
come up to the level of facts of his personal knowledge so much so that he cannot be held liable
for perjury for such allegations in causing the issuance of the questioned search warrant.
In the same Alvarez case, 18 the applicant stated that his purpose for applying for a search warrant
was that: "It had been reported to me by a person whom I consider to be reliable that there are being
kept in said premises books, documents, receipts, lists, chits and other papers used by him in
connection with his activities as a money lender, challenging usurious rate of interests, in violation of
law." The Court held that this was insufficient for the purpose of issuing a search warrant.
In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had been a report to
the affiant by a person whom lie considered reliable that in said premises were "fraudulent books,
correspondence and records," this was likewise held as not sufficient for the purpose of issuing a
search warrant. Evidently, the allegations contained in the application of P/ Major Alladin Dimagmaliw
and the declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis for the
issuance of a valid search warrant. As held in the Alvarez case:
The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or
his witnesses, because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the existence of probable
cause.
Besides, respondent Judge did not take the deposition of the applicant as required by the Rules of
Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the complainant and his witnesses are thus
not sufficient. The examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and attach them to the record."
Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief and short.
Respondent Judge did not examine him "in the form of searching questions and answers." On the
contrary, the questions asked were leading as they called for a simple "yes" or "no" answer. As held
in Quintero vs. NBI," 21 the questions propounded by respondent Executive Judge to the applicant's
witness are not sufficiently searching to establish probable cause. Asking of leading questions to the
deponent in an application for search warrant, and conducting of examination in a general manner,
would not satisfy the requirements for issuance of a valid search warrant."
Manifestly, in the case at bar, the evidence failed to show the existence of probable cause to justify
the issuance of the search warrant. The Court also notes post facto that the search in question
yielded, no armalites, handguns, pistols, assorted weapons or ammunitions as stated in the
application for search warrant, the supporting deposition, and the search warrant the supporting hand
grenades were itself Only three (3) live fragmentation found in the searched premises of the PUP,
according to the affidavit of an alleged member of the searching party.
The Court avails of this decision to reiterate the strict requirements for determination of "probable
cause" in the valid issuance of a search warrant, as enunciated in earlier cases. True, these
requirements are stringent but the purpose is to assure that the constitutional right of the individual
against unreasonable search and seizure shall remain both meaningful and effective.
Petitioner also assails the validity of the search warrant on the ground that it failed to particularly
describe the place to be searched, contending that there were several rooms at the ground floor and
the second floor of the PUP.
The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and Identify the place intended . 22 In the case at bar, the application
for search warrant and the search warrant itself described the place to be searched as the premises
of the Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila
more particularly, the offices of the Department of Military Science and Tactics at the ground floor, and
the Office of the President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at the
second floor. The designation of the places to be searched sufficiently complied with the constitutional
injunction that a search warrant must particularly describe the place to be searched, even if there
were several rooms at the ground floor and second floor of the PUP.
Petitioner next attacks the validity of the questioned warrant, on the ground that it was issued in
violation of the rule that a search warrant can be issued only in connection with one specific offense.
The search warrant issued by respondent judge, according to petitioner, was issued without any
reference to any particular provision of PD No. 1866 that was violated when allegedly P.D. No. 1866
punishes several offenses.
In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that the
natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no specific
offense had been alleged in the applications for a search warrant, and that it would be a legal hearsay
of the highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue Code and Revised Penal Code" without reference to any determinate provision of
said laws and codes.
In the present case, however, the application for search warrant was captioned: "For Violation of PD
No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the
alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As
explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other
words, the search warrant was issued for the specific offense of illegal possession of firearms and
explosives. Hence, the failure of the search warrant to mention the particular provision of PD No. 1-
866 that was violated is not of such a gravity as to call for its invalidation on this score. Besides, while
illegal possession of firearms is penalized under Section 1 of PD No. 1866 and illegal possession of
explosives is penalized under Section 3 thereof, it cannot be overlooked that said decree is a
codification of the various laws on illegal possession of firearms, ammunitions and explosives; such
illegal possession of items destructive of life and property are related offenses or belong to the same
species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No.
1866. As observed by respondent Judge: 24
The grammatical syntax of the phraseology comparative with the title of PD 1866 can only mean that
illegal possession of firearms, ammunitions and explosives, have been codified under Section 1 of
said Presidential Decree so much so that the second and third are forthrightly species of illegal
possession of firearms under Section (1) thereof It has long been a practice in the investigative and
prosecution arm of the government, to designate the crime of illegal possession of firearms,
ammunitions and explosives as 'illegal possession of firearms, etc.' The Constitution as well as the
Rules of Criminal Procedure does not recognize the issuance of one search warrant for illegal
possession of firearms, one warrant for illegal possession of ammunitions, and another for illegal
possession of explosives. Neither is the filing of three different informations for each of the above
offenses sanctioned by the Rules of Court. The usual practice adopted by the courts is to file a single
information for illegal possession of firearms and ammunitions. This practice is considered to be in
accordance with Section 13, Rule 110 of the 1985 Rules on Criminal Procedure which provides that:
'A complaint or information must charge but one offense, except only in those cases in which existing
laws prescribe a single punishment for various offenses. Describably, the servers did not search for
articles other than firearms, ammunitions and explosives. The issuance of Search Warrant No. 87-14
is deemed profoundly consistent with said rule and is therefore valid and enforceable. (Emphasis
supplied)
Finally, in connection with the petitioner's contention that the failure of the applicant to state, under
oath, the urgent need for the issuance of the search warrant, his application having been filed on a
Saturday, rendered the questioned warrant invalid for being violative of this Court's Circular No. 19,
dated 14 August 1987, which reads:
3. Applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken
cognizance of and acted upon by any judge of the court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify and state the facts under oath, to the
satisfaction of the judge, that the issuance is urgent.
it would suffice to state that the above section of the circular merely provides for a guideline,
departure from which would not necessarily affect the validity of an otherwise valid search warrant.
WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned orders dated 9
March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 are hereby ANNULLED and SET
ASIDE.
The three (3) live fragmentation hand grenades which, according to Ricardo Y. Abando, a member of
the searching team, were seized in the washroom of petitioner's office at the PUP, are ordered
delivered to the Chief, Philippine Constabulary for proper disposition.
PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO M. NARVAEZ JR.,
RICARDO G. SANTIAGO, ROBERTO A. DORMENDO, REYDANDE D. AZUCENA, NICEFORO V.
AVILA, FLORENTINO M. MULA, FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C.
CALIXTRO, CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD and HERMINIO V.
VILLAMIL, petitioners, vs. JUDGE MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104,
Regional Trial Court of Quezon City; STATE PROSECUTOR LEO B. DACERA III; and the
SPECIAL OPERATIONS UNIT OF THE PNP TRAFFIC MANAGEMENT COMMAND, respondents.
DECISION
PANGANIBAN, J.:
To preserve and to uphold the constitutional right against unreasonable searches and seizures, the
requisites for the issuance of a search warrant must be followed strictly. Where the judge fails
to personally examine the applicant for a search warrant and the latters witnesses, or where the
witnesses testify on matters not of their own personal knowledge, the search warrant must be struck
down.
The Case
Before us is a Petition for Certiorari and Prohibition[1] praying for (1) the nullification of Search Warrant
No. 799 (95) and the Orders dated March 23, 1993 and August 3, 1995, issued by the Regional Trial
Court (RTC), Branch 104, of Quezon City;[2] and (2) the issuance of a temporary restraining order
(TRO) or an injunction against State Prosecutor Leo B. Dacera III, ordering him to desist from
proceeding with IS No. 95-167.
In its October 23, 1995 Resolution,[3] this Court issued the TRO prayed for and required the
respondents to comment on the said Petition. On December 20, 1995, Respondent PNP Traffic
Management Command filed its 31-page Opposition [4] to the Petition, together with 90 pages of
annexes.[5] On February 22, 1996, the Office of the Solicitor General filed its Comment [6] agreeing with
petitioners that the writs prayed for must be granted. After petitioners filed a Reply to the Opposition, 20 M16 Rifle 5.56 RP171367 (Tampered) Elisco
the Court gave due course to the Petition and required the parties to submit their respective 01 M14Rifle 7.62 1499694 Elisco
memoranda. 02 M14Rifle 7.62 889163 Elisco
In view of the contrary opinion of the Office of the Solicitor General, the Court, in its February 5, 1997 01 BAR Cal. 30 865975 Royal
Resolution,[7] required State Prosecutor Leo B. Dacera to prepare the memorandum for the public 01 Carbine M1 Cal. 30 384181 US Carbin
respondents. After issuing a show-cause order to Dacera on June 23, 1997, [8] the Court in its 02 Carbine M1 Cal. 30 998201 US Carbin
September 24, 1997 Resolution gave him a non-extendible period ending on October 31, 1997 within 01 Garand M1 Cal. 30 1194008 Springfield
which to file the required memorandum. In view of Daceras manifestation that he was only a nominal 02 Garand M1 Cal. 30 3123784 Springfield
party and that he had yet to receive the records of the case from the PNP, the Court, in its December 01 Shotgun 12 Gauge H359704 Omega
8, 1999 Resolution, ordered the Special Operations Unit (SOU) of the PNP Traffic Management 02 Shotgun 12 Gauge 9211 Homemade
Command to file its memorandum within thirty days from notice; otherwise, the petition will be deemed (Paltik)
submitted for decision.[9] Even after the expiration of the said period, the required pleading was not yet MAGAZINE ASSEMBLY QTY.
received by this Court. 01 M16 (long) 29 pcs.
Hence, this Court considered Respondent SOUs refusal/failure to submit its memorandum as a 02 M16 (short) 48 pcs.
waiver of its privilege to do so. 03 Carbine M1 171 pcs.
The Facts
04 BAR 19 pcs.
On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search warrant before LIVE AMMUNITION QTY.
the said RTC of Quezon City, stating:[10] 01 M16 2,023 rounds
1. That the management of Paper Industries Corporation of the Philippines, located at PICOP 03 Carbine M1 276 rounds
compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo 04 M-60 Cal. 7.62 1,800 rounds
G[.] Santiago, is in possession or ha[s] in [its] control high powered firearms, ammunitions, 05 M1 Garand 1,278 rounds
explosives, which are the subject of the offense, or used or intended to be used in committing the 06 Rifle Grenade 11 rounds
offense, and which xxx are [being kept] and conceal[ed] in the premises herein described. 07 Hand Grenade 4 pcs.
2. That a Search Warrant should be issued to enable any agent of the law to take possession and AMMO DAM POST NO. 24
bring to this Honorable Court the following described properties: MAKE/TYPE CALIBER SERIAL NUMBER BRAND
'Seventy (70) M16 Armalite rifles cal. 5.56, ten (10) M16 US rifles, two (2) AK-47 rifle[s], two (2) UZI 01. M16 Rifle 5.56 171425 (Tampered) Gyno Corp.
submachinegun[s], two (2) M203 Grenade Launcher[s] cal.40mm, ten (10) cal.45 pistol[s], ten (10) 02. Machine Pistol .22 651 (Tampered) Landmann
cal.38 revolver[s], two (2) ammunition reloading machine[s], assorted ammunitions for said calibers of MAGAZINE ASSEMBLY QTY.
firearms and ten (10) handgrenades.' 01. M16 (short) 3 pcs.
Attached to the application[11] were the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio 02. M16 (long) 1 pc.
T. Morito,[12] as well as a summary of the information and the supplementary statements of Mario Enad 03. M14 8 pcs.
and Felipe Moreno. 04. Clip M1 Garand 3 pcs.
After propounding several questions to Bacolod, Judge Maximiano C. Asuncion issued the contested 05. Mag Assy. Cal .22 1 pc.
search warrant,[13] the pertinent portion of which reads: LIVE AMMUNITION QTY.
It appearing to the satisfaction of the undersigned, after examining under oath, SPO3 Cicero S. 01. M16 73 rounds
Bacolod, that there is probable cause to believe that the management of Paper Industries Corporation 02. M14 160 rounds
of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig, Surigao del Sur, represented 03. M1 Garand Cal .30 30 rounds
by its Sr. Vice President Ricardo G. Santiago, has in its possession or control the following: 04. Rifle Grenade 1 round
Seventy (70) M16 Armalite rifles cal. 5.56 MANAGEMENT INTEL/INVEST UNIT
Ten (10) M14 US rifles MAKE/TYPE CALIBER SERIAL NUMBER BRAND
Two (2) AK-47 rifle[s] 01. M16 Rifle 5.56 RP 171725 Elisco
Two (2) UZI submachinegun[s] 02. M16 Rifle 5.56 RP 170799 (Tampered) Elisco
Two (2) M203 Grenade Launcher[s] cal. 40mm. 03. M16 Rifle 5.56 RP 132320 Elisco
Ten (10) cal 45 pistol[s] 04. Machine 9 MM 54887 Intratec
Ten (10) cal 38 revolver[s] Pistol
Two (2) ammunition reloading machine[s] 05. Three (3) 12 Gauge Surit-Surit (H)
Assorted ammunitions for said calibers of firearms Shotguns
Ten (10) handgrenades MAGAZINE ASSEMBLY QTY.
in violation of the Provisions of PD 1866 (Illegal Possession of Firearms, Ammunition and Explosives), 01. M16 (long) 3 pcs.
and the same should be seized and brought before this Court. 02. M16 (short) 4 pcs.
NOW, THEREFORE, you are hereby authorized to make an immediate search daytime between 8:00 03. Intratec 1 pc.
a.m. [and] 4:00 p.m. of the aforementioned premises and to seize and bring the articles above- 04. US Carbine (defective) 2 pcs.
described and make an immediate return there[of] [14] LIVE AMMUNITION QTY.
On February 4, 1995, the police enforced the search warrant at the PICOP compound and seized the 01. M16 147 rds.
following:[15] 02. Cal. 30 5 rounds
MAKE/TYPE CALIBER SERIAL NUMBER BRAND 03. 12 gauge Shotgun 7 rounds
01 M16 Rifle 5.56 RP 175636 Elisco 04. Carbine 5 rounds
02 M16 Rifle 5.56 RP 175636 (Tampered) Elisco 05. Rifle grenade (AVA-0051-84/0056-84) 2 rounds
03 M16 Rifle 5.56 RP 171702 Elisco 06. 9MM 30 rounds
04 M16 Rifle 5.56 Defaced Elisco NEW ARMORY POST NO. 16
05 M16 Rifle 5.56 RP174253 (Tampered) Elisco MAKE/TYPE CALIBER SERIAL NUMBER BRAND
06 M16 Rifle 5.56 RP173627 (Tampered) Elisco 01. Shotgun 12 Gauge A359910 Armscor
07 M16 Rifle 5.56 RP171337 Elisco 02. Shotgun 12 Gauge A359716 Armscor
08 M16 Rifle 5.56 RP171114 Elisco 03. Shotgun 12 Gauge A359706 Armscor
09 M16 Rifle 5.56 RP171114 (Tampered) Elisco 04. Shotgun 12 Gauge A359707 Armscor
10 M16 Rifle 5.56 RP171167 (Tampered) Elisco 05. Shotgun 12 Gauge 1036847 Armscor
11 M16 Rifle 5.56 170881 (Tampered) Elisco 06. Shotgun 12 Gauge A359702 Armscor
12 M16 Rifle 5.56 RP170897 Elisco 07. Shotgun 12 Gauge A359732 Armscor
13 M16 Rifle 5.56 RP171509 Elisco 08. Shotgun 12 Gauge A359728 Armscor
(With pending 09. Shotgun 12 Gauge A359708 Armscor
case-Casaway Case) 10. Shotgun 12 Gauge A359711 Armscor
14 M16 Rifle 5.56 RP 171754 Elisco 11. Shotgun 12 Gauge A359723 Armscor
15 M16 Rifle 5.56 RP170881 (Tampered) Elisco 12. Shotgun 12 Gauge A359713 Armscor
16 M16 Rifle 5.56 RP174637 Elisco 13. Shotgun 12 Gauge 1031271 Armscor
17 M16 Rifle 5.56 RP171366 Elisco 14. Shotgun 12 Gauge A262338 SB
18 M16 Rifle 5.56 RP174637 (Tampered) Elisco 15. Shotgun 12 Gauge A261619 SB
19 M16 Rifle 5.56 RP174610 Elisco 16. Shotgun 12 Gauge Defaced Not Indicated

LIVE AMMUNITION QTY.
01. 12 GAUGE shotgun 306 rds.
02. M16 2,349 rds.
MAGAZINE ASSEMBLY QTY.
01. Carbine (defective) 76 pcs.
02. Cal. 22 -do- 16 pcs.
03. M16 (long-defective) 2 pcs.
04. M16 (short-defective) 2 pcs.
05. Thompson (defective) 8 pcs.
06. Shotgun 12 Gauge (defective) 17 pcs.
07. BAR (defective) 2 pcs.
Believing that the warrant was invalid and the search unreasonable, the petitioners filed a Motion to
Quash[16] before the trial court. Subsequently, they also filed a Supplemental Pleading to the Motion to
Quash and a Motion to Suppress Evidence. [17]
On March 23, 1995, the RTC issued the first contested Order which denied petitioners motions. [18] On
August 3, 1995, the trial court rendered its second contested Order [19] denying petitioners Motion for
Reconsideration.[20]
Hence, this recourse to this Court on pure questions of law.
Issues
In their Memorandum, petitioners submit the following grounds in support of their cause: [21]
I STENOGRAPHER: (To the witness)
Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has
exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95). Probable cause [has] not
xxx been sufficiently established and partaking as it does of the nature of a general warrant.
II
Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has
exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95) on the ground that it was
unlawfully served or implemented.
III
Petitioners respectfully submit that State Prosecutor Dacera is acting with grave abuse of discretion or
exceeding his jurisdiction in continuing with the proceedings in IS No. 95-167 on the basis of illegally
seized evidence.
In the main, petitioners question the validity of the search warrant. As a preliminary matter, we shall
also discuss respondents argument that the Petition should be dismissed for raising factual questions.
This Courts Ruling
The petition is meritorious.
Preliminary Issue:
Alleged Factual Questions
In their Opposition, respondents argue that the Petition should be dismissed for raising questions of
fact, which are not proper in a petition for certiorari under Rule 65. They maintain that the Petition
merely assails the factual basis for the issuance of the warrant and the regularity of its
implementation.[22]
This argument is not convincing. It is settled that there is a question of fact when the doubt arises as
to the truth or the falsity of alleged facts. [23] In the present case, petitioners do not question the truth of
the facts as found by the judge; rather, they are assailing the way in which those findings were arrived
at, a procedure which they contend was violative of the Constitution and the Rules of Court. We agree
that the Petition raises only questions of law, which may be resolved in the present case.
Main Issue:
Validity of the Search Warrant
The fundamental right against unreasonable searches and seizures and the basic conditions for the
issuance of a search warrant are laid down in Section 2, Article III of the 1987 Constitution, which
reads:
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. (Emphasis supplied)
Consistent with the foregoing constitutional provision, Sections 3 and 4, Rule 126 of the Rules of
Court,[24] detail the requisites for the issuance of a valid search warrant as follows:
SEC. 3. Requisite for issuing search warrant. -- A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized.
SEC. 4. Examination of complainant; record. -- The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath the complainant
and any witnesses he may produce on facts personally known to them and attach to the record their
sworn statements together with any affidavits submitted.
More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2)
such presence is determined personally by the judge; (3) the complainant and the witnesses he or
she may produce are personally examined by the judge, in writing and under oath or affirmation; (4)
the applicant and the witnesses testify on facts personally known to them; and (5) the warrant
specifically describes the place to be searched and the things to be seized. [25] In the present case, the
search warrant is invalid because (1) the trial court failed to examine personally the complainant and
the other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing for the issuance of
the search warrant, had no personal knowledge that petitioners were not licensed to possess the
subject firearms; and (3) the place to be searched was not described with particularity.
No Personal Examination of the Witnesses
In his Order dated March 23, 1995, the trial judge insisted that the search warrant was valid, stating
that before issuing the subject warrant, the court propounded searching questions to the applicant
and the witnesses in order to determine whether there was probable cause x x x. [26] (Emphasis
supplied.) This was supported by the Opposition to the Motion to Quash, which argued that it is
erroneous for PICOP to allege that the Honorable Court did not propound searching questions upon
applicant P/Chief Inspector Napoleon Pascua and the witnesses he produced. [27] The records,
however, proclaim otherwise.
As earlier stated, Chief Inspector Pascuas application for a search warrant was supported by (1) the
joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito, (2) a summary of information
and (3) supplementary statements of Mario Enad and Felipe Moreno. Except for Pascua and Bacolod,
however, none of the aforementioned witnesses and policemen appeared before the trial
court. Moreover, the applicants participation in the hearing for the issuance of the search warrant
consisted only of introducing Witness Bacolod: [28]
COURT:
Where is the witness for this application for search warrant?
P/Chief Insp. NAPOLEON PASCUA:
SPO3 CICERO S. BACOLOD, Your Honor.
COURT:
Swear the witness.
Please raise your right hand, sir. Do you swear to tell the truth, the whole truth and nothing but the
truth before this Court?
WITNESS:
Yes Maam.
STENOGRAPHER:
Please state your name, age, civil status, occupation, address and other personal circumstances.
WITNESS:
SPO3 Cicero S. Bacolod, 42 years old, married, policeman, c/o Camp Crame, Quezon City, SOU,
TMC.
xxxxxxxxx
Chief Inspector Pascua was asked nothing else, and he said nothing more. In fact, he failed even to
affirm his application. Contrary to his statement, the trial judge failed to propound questions, let alone
probing questions, to the applicant and to his witnesses other than Bacolod (whose testimony, as will
later be shown, is also improper). Obviously, His Honor relied mainly on their affidavits. This Court has
frowned on this practice in this language:
Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has
to take depositions in writing of the complainant and the witnesses he may produce and attach them
to the record. Such written deposition is necessary in order that the Judge may be able to properly
determine the existence or non-existence of the probable cause, to hold liable for perjury the person
giving it if it will be found later that his declarations are false.
xxxxxxxxx
It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-
forma, if the claimed probable cause is to be established. The examining magistrate must not simply
rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the
application.[29]
Bacolods Testimony Pertained Not to Facts Personally Known to Him
Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony
showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were
not licensed to possess firearms, ammunitions or explosives. In his Deposition, he stated:
Q How do you know that said properties were subject of the offense?
A Sir, as a result of our intensified surveillance and case build up for several days, we gathered
informations from reliable sources that subject properties [which] are in their possession and control
[are] the herein described properties subject of the offense. (Summary of Information dtd Oct 94, SSs
of Mario Enad and Felipe Moreno both dtd 30 Nov 94 are hereto attached). [30]
When questioned by the judge, Bacolod stated merely that he believed that the PICOP security
guards had no license to possess the subject firearms. This, however, does not meet the requirement
that a witness must testify on his personal knowledge, not belief. He declared:
Q This is an application for Search Warrant against Paper Industries Corporation located at PICOP
Compound, Barangay Tabon, Bislig, Surigao del Sur. How come that you have knowledge that there
are illegal firearms in that place?
A At Camp Crame, Quezon City, I was dispatched by our Commander to investigate the alleged
assassination plot of Congressman Amante.
Q In the course of your investigation, what happened?
A We found out that some of the suspects in the alleged assassination plot are employees of PICOP.
Q Know[ing] that the suspects are employees of PICOP, what did you do?
A We conducted the surveillance in that area inside the compound of PICOP in Tabon.
Q What did you find xxx?
A I found xxx several high-powered firearms.
Q How were you able to investigate the compound of PICOP?
A I exerted effort to enter the said compound.
Q By what means?
A By pretending to have some official business with the company.
Q So, in that aspect, you were able to investigate the compound of PICOP?
A Yes, sir.
Q What did you f[i]nd xxxt?
A I found xxx several high-powered firearms being kept in the compound of PICOP.
Q Where are those located?
A Sir, there are firearms kept inside the ammo dam.
Q Inside the compound?
A Located inside the compound.
Q Then what?
A Others, sir, were kept in the security headquarters or office.
Q You mean to say that this Paper Industries Corporation has its own security guards?
A Yes, they call it Blue Guards.
Q You mean to say that their own security guards guarded the PICOP?
A Yes, sir.
Q So, it is possible that the firearms used by the security guards are illegally obtained?
A I believe they have no license to possess high-powered firearms. As far as the verification at FEU,
Camp Crame, [is concerned,] they have no license. (Emphasis supplied.)
Q Have you investigated the Blue Guards Security Agency?
A I conducted the inquiry.
Q What did you find out?
A They are using firearms owned by PICOP.
Q Using firearms owned by PICOP?
A Yes, sir.
Q You mean to say that this Blue Guard Security Agency has no firearms of their own?
A No high-powered firearms.
Q By the way, Mr. Witness, what kind of firearms have you seen inside the compound of PICOP?
A There are M-16 armalite rifles.
Q What else?
A AK-47, armalites, M-203 Grenade Launcher, M-14 US rifles, .38 caliber revolvers, .45 caliber
pistols, several handgrenades and ammos. [31] (Emphasis supplied)
Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was
licensed. Bacolod merely declared that the security agency and its guards were not licensed. He also
said that some of the firearms were owned by PICOP. Yet, he made no statement before the trial court
that PICOP, aside from the security agency, had no license to possess those firearms. Worse, the
applicant and his witnesses inexplicably failed to attach to the application a copy of the
aforementioned no license certification from the Firearms and Explosives Office (FEO) of the PNP, or
to present it during the hearing. Such certification could have been easily obtained, considering that
the FEO was located in Camp Crame where the unit of Bacolod was also based. In People v. Judge
Estrada,[32] the Court held:
The facts and circumstances that would show probable cause must be the best evidence that could
be obtained under the circumstances. The introduction of such evidence is necessary in cases where
the issue is the existence of the negative ingredient of the offense charged for instance, the absence
of a license required by law, as in the present case and such evidence is within the knowledge and
control of the applicant who could easily produce the same. But if the best evidence could not be
secured at the time of the application, the applicant must show a justifiable reason therefor during the
examination by the judge.
Particularity of the Place to Be Searched
In view of the manifest objective of the constitutional safeguard against unreasonable search, the
Constitution and the Rules limit the place to be searched only to those described in the warrant.
[33]
Thus, this Court has held that this constitutional right [i]s the embodiment of a spiritual concept: the
belief that to value the privacy of home and person and to afford its constitutional protection against
the long reach of government is no less than to value human dignity, and that his privacy must not be
disturbed except in case of overriding social need, and then only under stringent procedural
safeguards.[34]Additionally, the requisite of particularity is related to the probable cause requirement in
that, at least under some circumstances, the lack of a more specific description will make it apparent
that there has not been a sufficient showing to the magistrate that the described items are to be found
in a particular place.[35]
In the present case, the assailed search warrant failed to describe the place with particularity. It simply
authorizes a search of the aforementioned premises, but it did not specify such premises. The warrant
identifies only one place, and that is the Paper Industries Corporation of the Philippines, located at
PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur. The PICOP compound, however, is
made up of 200 offices/buildings, 15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23
warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous structures, all of which
are spread out over some one hundred fifty-five hectares. [36] Obviously, the warrant gives the police
officers unbridled and thus illegal authority to search all the structures found inside the PICOP
compound.[37]
In their Opposition, the police state that they complied with the constitutional requirement, because
they submitted sketches of the premises to be searched when they applied for the warrant. They add
that not one of the PICOP Compound housing units was searched, because they were not among
those identified during the hearing. [38]
These arguments are not convincing. The sketches allegedly submitted by the police were not made
integral parts of the search warrant issued by Judge Asuncion. Moreover, the fact that the raiding
police team knew which of the buildings or structures in the PICOP Compound housed firearms and
ammunitions did not justify the lack of particulars of the place to be searched. [39] Otherwise, confusion
would arise regarding the subject of the warrant the place indicated in the warrant or the place
identified by the police. Such conflict invites uncalled for mischief or abuse of discretion on the part of
law enforcers.
Thus, in People v. Court of Appeals,[40] this Court ruled that the police had no authority to search the
apartment behind the store, which was the place indicated in the warrant, even if they
really intended it to be the subject of their application. Indeed, the place to be searched cannot
be changed, enlarged or amplified by the police, viz.:
x x x. In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the
instrument, arising from the absence of a meeting of the minds as to the place to be searched
between the applicants for the warrant and the Judge issuing the same; and what was done was to
substitute for the place that the Judge had written down in the warrant, the premises that the
executing officers had in their mind. This should not have been done. It [was] neither fair nor licit to
allow police officers to search a place different from that stated in the warrant on the claim that the
place actually searched although not that specified in the warrant [was] exactly what they had in view
when they applied for the warrant and had demarcated in their supporting evidence. What is material
in determining the validity of a search is the place stated in the warrant itself, not what the applicants
had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant.
Indeed, following the officers theory, in the context of the facts of this case, all four (4) apartment units
at the rear of Abigail's Variety Store would have been fair game for a search.
The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers
own personal knowledge of the premises, or the evidence they adduced in support of their application
for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search
warrant to particularly describe the place to be searched as well as the persons or things to be
seized. It would concede to police officers the power of choosing the place to be searched, even if it
not be that delineated in the warrant. It would open wide the door to abuse of the search process, and
grant to officers executing a search warrant that discretion which the Constitution has precisely
removed from them. The particularization of the description of the place to be searched may properly
be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the
police officers conducting the search. (Emphasis supplied.)
Seized Firearms and Explosives Inadmissible in Evidence
As a result of the seizure of the firearms, effected pursuant to Search Warrant No. 799 (95) issued by
the respondent judge, the PNP filed with the Department of Justice a complaint docketed as IS No.
95-167 against herein petitioners for illegal possession of firearms. State Prosecutor Dacera, to whom
the Complaint was assigned for preliminary investigation, issued a subpoena requiring petitioners to
file their counter-affidavits.
Instead of complying with the subpoena, petitioners asked for the suspension of the preliminary
investigation, pending the resolution of their motion to quash the search warrant. They argued, as
they do now, that the illegally obtained firearms could not be the basis of the criminal Complaint. Their
motion was denied. A subsequent Motion for Reconsideration met the same fate. In the present
Petition for Certiorari and Prohibition, petitioners assert that State Prosecutor Dacera cannot have any
tenable basis for continuing with the proceedings in IS No. 95-167. [41]
Because the search warrant was procured in violation of the Constitution and the Rules of Court, all
the firearms, explosives and other materials seized were inadmissible for any purpose in any
proceeding.[42] As the Court noted in an earlier case, the exclusion of unlawfully seized evidence was
the only practical means of enforcing the constitutional injunction against
unreasonable searches andseizures.[43] Verily, they are the fruits of the poisonous tree. Without this
exclusionary rule, the constitutional right would be so ephemeral and so neatly severed from its
conceptual nexus with the freedom from all brutish means of coercing evidence xxx. [44]
In the present case, the complaint for illegal possession of firearms is based on the firearms and other
materials seized pursuant to Search Warrant No. 799 (95). Since these illegally obtained pieces of
evidence are inadmissible, the Complaint and the proceedings before State Prosecutor Dacera have
no more leg to stand on.
This Court sympathizes with the police effort to stamp out criminality and to maintain peace and order
in the country; however, it reminds the law enforcement authorities that they must do so only upon
strict observance of the constitutional and statutory rights of our people. Indeed, there is a right way to
do the right thing at the right time for the right reason. [45]
WHEREFORE, the instant petition for certiorari and prohibition is hereby GRANTED and Search
Warrant No. 799 (95) accordingly declared NULL and VOID. The temporary restraining order issued
by this Court on October 23, 1995 is hereby MADE PERMANENT. No pronouncement as to costs.
SO ORDERED.

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON.
ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City:
HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN.
FIDEL RAMOS and COL. JESUS ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for
petitioners.
MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly
stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-
ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one
of the accused of Rebellion in Criminal Case No.
MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs.
Jose Ma. Sison, et al." She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary
Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The
stated time is an allegation of petitioners, not denied by respondents. The record does not disclose
that a warrant of arrest had previously beeen issued against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street,
Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In
their COMMENT, however, respondents have alleged that the search was conducted "late on the
same day"; that is late on august 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search
Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in
Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased
residence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the
premises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been long
wanted by the military for being a high ranking officer of the Communist Party of the Philippines,
particularly connected with the MV Karagatan/Doa Andrea cases.
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-
Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge
Panos Court was Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by Lt.
Col. Saldajeno to Judge Pao.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined
under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter
deposed that to his personal knowledge, there were kept in the premises to be searched records,
documents and other papers of the CPP/NPA and the National Democratic Front, including support
money from foreign and local sources intended to be used for rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party
presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a portable
typewriter, and 2 wooden boxes, making 431 items in all. 3
(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search
was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay
Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and
documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were
charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by
the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit
Rebellion/Subversion."
(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33
(Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the
Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge
Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that
AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on
November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE
praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in
connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City
Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended
Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any
evidence obtained pursuant to the Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized
documents "shall be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS
CASE, praying that such of the 431 items belonging to them be returned to them. It was claimed that
the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on
January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the
SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December
13th issued in the SEARCH WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search
Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and
granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying
petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or
their duly authorized representatives from introducing evidence obtained under the Search Warrant.
The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant
since it does not sufficiently describe with particularity the things subject of the search and seizure,
and that probable cause has not been properly established for lack of searching questions
propounded to the applicant's witness. The respondents, represented by the Solicitor General,
contend otherwise, adding that the questions raised cannot be entertained in this present petition
without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures of whatever nature
and for any purpose. It also specifically provides that no Search Warrant shall issue except upon
probable cause to be determined by the Judge or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the things to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army
and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups,
Programs, List of possible supporters, subversive books and instructions, manuals not otherwise
available to the public, and support money from foreign or local sources.
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties
vaguely described and not particularized. It is an all- embracing description which includes everything
conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It
does not specify what the subversive books and instructions are; what the manuals not otherwise
available to the public contain to make them subversive or to enable them to be used for the crime of
rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully
seized thus giving the officers of the law discretion regarding what articles they should seize as, in
fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general
warrant and infringes on the constitutional mandate requiring particular description of the things to be
seized. In the recent rulings of this Court, search warrants of similar description were considered null
and void for being too general. Thus:
Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives
and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire
Movement and April 6 Movement. 6
The things to be seized under the warrant issued by respondent judge were described as 'subversive
documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials
Such description hardly provided a definite guideline to the search team as to what articles might be
lawfully seized thereunder. Said description is no different from if not worse than, the description
found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and
void for being too general. 7
In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed
copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies
subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and
tape recording machines. Thus, the language used is so all embracing as to include all conceivable
records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant
under consideration was in the nature of a general warrant which is constitutionally objectionable. 8
The lack of particularization is also evident in the examination of the witness presented by the
applicant for Search Warrant.
Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and
the Court would like to know if you affirm the truth of your answer in this deposition?
(The deposition instead)
A Yes, sir,
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the application for search warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila Aguilar-Roque?
A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with
documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines and New People's Army.
Q What else?
A Conferences of the top ranking officials from the National Democratic Front, Organization of the
Communist Party of the Philippines ...
Q And may include what else?
A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs,
List of possible supporters, subversive books and instructions, manuals not otherwise available to the
public and support money from foreign and local sources. 9
case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12,
Rule 126, Rules of Court, explicitly provides:
Section 12. Search without warrant of person arrested.A person charged with an offense may be
searched for dangerous weapons or anything which may be used as proof of the commission of the
offense.
The provision is declaratory in the sense that it is confined to the search, without a search warrant, of
a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or
premises where the arrest was made can also be search without a search warrant. In this latter case,
"the extent and reasonableness of the search must be decided on its own facts and circumstances,
and it has been stated that, in the application of general rules, there is some confusion in the
decisions as to what constitutes the extent of the place or premises which may be searched. 12 "What
must be considered is the balancing of the individual's right to privacy and the public's interest in the
prevention of crime and the apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public
order; that the warrant for her arrest has not been served for a considerable period of time; that she
was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made
within a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-B
Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the
interest of public order.
Such being the case, the personalities seized may be retained. by CSG, for possible introduction as
evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask
Special Military Commission No.1 to return to her any and all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive
Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order
enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the
Subversive Documents case hereby made permanent, the, personalities seized may be retained by
the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1,
pending before Special Military commission No. 1, without prejudice to petitioner Mila Aguilar-Roque
objecting to their relevance and asking said Commission to return to her any and all irrelevant
documents and articles.
SO ORDERED.

The foregoing questions propounded by respondent Executive Judge to the applicant's witness are
not sufficiently searching to establish probable cause. The "probable cause" required to justify the
issuance of a search warrant comprehends such facts and circumstances as will induce a cautious
man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th
pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to
the description of the personalities to be seized, which is Identical to that in the Search Warrant and
suffers from the same lack of particularity. The examination conducted was general in nature and
merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not
satisfy the requirements of probable cause upon which a warrant may issue. 11

Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant
is with the Court that issued it instead of this original, independent action to quash. The records show,
however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment,
dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained
under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the
SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming
that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not
denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant.

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the
SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly
administration of justice. It should be advisable that, whenever a Search Warrant has been issued by
one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of
the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the
criminal case for orderly procedure. The later criminal case is more substantial than the Search
Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on
petitions to exclude evidence unlawfully obtained.

Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles
seized under an invalid search warrant should be returned, they cannot be ordered returned in the

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSALINDA RAMOS y DAVID, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romeo C. Alinea for defendant-appellant.
GUTIERREZ, JR., J.:
Appellant Rosalinda Ramos seeks the reversal of the decisions of the Regional Trial Court, Branch
73, Third Judicial Region at Olongapo City, finding her guilty beyond reasonable doubt in Criminal
Case No. 5990 for violating Section 8 of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and in Criminal Case No. 5991 for violating Section 4 of the same Act and sentencing her
to:
1) Imprisonment of six (6) years and one (1) day and a fine of P6,000.00
in Criminal Case No. 5990; and
2) Life imprisonment and a fine of P20,000.00 in Criminal Case No. 5991.
The two informations filed against the appellant respectively alleged:
Criminal Case No. 5990
That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused without being lawfully authorized, did then and there
wilfully, unlawfully and knowingly have in his/her/their person, possession
and control twenty (20) sticks of marijuana cigarettes.
Criminal Case No. 5991
That on or about the 29th day of November, 1982 in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, without being lawfully authorized, did then and there
wilfully, unlawfully and knowingly engage in selling, delivering, giving
away to another and distributing four (4) sticks of marijuana cigarettes
which is/are prohibited drug(s). (Rollo, p. 68)
The prosecution's version of the facts, as summarized by the Solicitor-General, is as follows:
On November 29,1982, at around 7:00 o'clock in the evening, a civilian
informer came to the Narcotics Command Office in Olongapo City and
reported that a cigarette vendor by the name of 'Mama Rose' was selling
marijuana at the comer of 3rd Street and Rizal Avenue in Olongapo City
(TSN, pp. 4-5, 13, May 4, 1984; pp. 3-4, 11, April 9, 1986). Captain
Castillo instructed the informant to conduct a test buy. He gave to the
informant two (2) five-peso bills, noting first the serial numbers in his
pocket note (TSN, pp. 5,14-15, May 4, 1984; p. 4, April 9, 1986). The
informer left and after thirty (30) minutes came back and gave to Captain
Castillo two (2) sticks of marijuana cigarettes (Exhibit 'C-2') which he
bought from appellant. Captain Castillo again instructed the informer to
make another test buy from the suspect. From his wallet, Captain Castillo
extracted another two (2) five-peso bills and before handing the same to
the informer, recorded the serial numbers in his pocket note (TSN, pp.
19-21, May 4, 1984).
A team composed of Captain Castillo, Sgt. Tahil Ahamad, CIC Danilo
Santiago and Angel Sudiacal left with the informer. The informer
proceeded to where appellant was selling cigarettes to conduct the next
test buy while the NARCOM agents waited at the Black and White Open
Bar located at 7th Street, Rizal Avenue, Olongapo City (TSN, pp. 6-7,
April 9, 1986). The bar was about three (3) blocks away from the place
where appellant was selling cigarettes (TSN, pp. 19, 8, Id.). After forty-
five (45) minutes more or less, the informer arrived at the Black and
White Bar and again gave to Captain Castillo two (2) sticks of marijuana
(Exhibit 'C-l'; TSN, p. 23, May 4, 1984; p. 6, April 9,1986).
The team then proceeded to the place where appellant was selling
cigarettes. After Identifying themselves as NARCOM agents, Capt.
Castillo told appellant that she was being placed under arrest for illegal
peddling of marijuana. Appellant was requested to take out the contents
of her wallet (TSN, pp. 6-7, April 9, 1986, The four marked five- peso bills
were found among her possessions and were confiscated after the serial
numbers were confirmed by Captain Castillo from his record (TSN, pp.
23-25, May 4, 1984). The initial of Sgt. Tahil Ahamad was also found from
the confiscated five- peso bills (TSN, p. 9, April 9, 1986). Sgt. Ahamad
searched the stall of appellant and found twenty (20) sticks of marijuana
cigarettes in a trash can placed under the small table where appellant
displayed the wares she was selling (TSN, p. 7, April 9, 1986). Appellant
was thereafter brought to the station (TSN, p. 23, May 4, 1984).
At the station, appellant executed a statement confessing to her crimes
which she swore to before Assistant City Fiscal Domingo Cabali, Jr.
(TSN, pp. 5-6. June 20,1984; Exhibit 'G').
The marijuana sticks confiscated were sent to the Philippine
Constabulary Crime Laboratory (PCCL) for analysis. These were
confirmed to be marijuana as evidenced by the Chemistry Report No.
MD-363-82 of Marlene Salangad, a Forensic Chemist of the PCCL (See
Exhibit 'B'; TSN, p. 3, Jan. 13, 1986). (Rollo, pp. 92-94)
On the other hand, the version of the appellant as summarized by the trial court, is as follows:
... [O]n November 29, 1982, between 9:00 and 10:00 o'clock in the
evening she was at the corner of 3rd St., and Rizal Avenue, West
Tapinac, Olongapo City, selling cigarettes and fruits; that she does not
have any table, all she had was a small wooden 'papag' to show her
wares and sell them; that she was sitting on the small 'papag' when Capt.
Castillo came and introduced himself followed by three or four others who
were more or less 6 to 8 meters away. She was surprised why they were
there, and that she was invited by Capt. Castillo to the NARCOM office
for investigation to which invitation she said 'yes' after which she was
taken to the NARCOM office. Before she was taken thereto, the other
men searched the buri bags where she used to place her fruits (records
does (sic) not show what fruits she was selling) and also her small
cigarettes (sic) stand; that they did not find anything under the 'papag;
that when she was ordered to board the car, Castillo told her 'sakay na
ho, Mama Rose' (please board now, Mama Rose'); that she was told to
bring along her cigarette stand; that inside her brown wallet, she has fifty
(P 50.00) pesos consisting of five pesos and ten pesos; that it was
Sudiacal who took her wallet and Sudiacal took five (5) peso bills and told
her that four (4) five peso bills are the same money which was used to
buy marijuana from her; that she told the officer that the money was hers
as she has been saving some for the rentals. She claimed that she
affixed her signatures on the four (4) five peso bills because she was
forced by Tahil Ahamad by saying 'Mama Rose', you sign this, if you are
not going to sign this, something will happen to you, you will get hurt'; that
because she is an old woman, she got scared so she signed. When Tahil
Ahamad told her to sign, Ahamad was tailing to her in a normal manner
and seated in front of her; that she cannot remember having signed
anything because she was nervous, Capt. Castillo investigated her and
thereafter was brought to the Fiscal's Office. She signed a document at
the Fiscal's Office; that she was asked if the contents of the document is
(sic) true to which she answered 'No, sir; that she was not assisted by a
counsel while being investigated. She also testified that she stayed at
Narcom for five (5) days; that Capt. Castillo alone investigated her for
four (4) hours and that she likewise was not assisted by counsel at the
Fiscal's Office. She claimed that when she was told by the Fiscal to just
sign the document, Fiscal Cabali did not say anything when she said that
the contents of the document are not true. (Rollo, pp. 72)
Appellant raises the following assignment of errors:
I
THE FINDINGS OF FACTS ARE SO UNCLEAR AND DOUBTFUL,
MAKING THE CONCLUSIONS OF THE TRIAL COURT WITHOUT
FACTUAL AND LEGAL LEG TO STAND ON.
II
THE EVIDENCE OBTAINED AND THE PERSON ARRESTED WITHOUT
THE BENEFIT OF A WARRANT OF ARREST AND SEIZURE MAY NOT
BE USED AGAINST THE ACCUSED AND ANY CONVICTION FROM
SUCH EVIDENCE IS NOT VALID AND A GROUND FOR REVERSAL.
III
THE TRIAL COURT RELIED HEAVILY ON THE CONFESSION OF THE
APPELLANT AND THE CONFESSION WAS EXTRACTED IN
VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS 'TO
REMAIN SILENT AND TO COUNSEL'.
IV
WHEN NOT ALL THE ELEMENTS OF THE OFFENSE ARE PRESENT
AND PROVEN, CONVICTION IS NOT PROPER.
 V To insure that a waiver is voluntary and intelligent, the Constitution now requires; that for the right to
THE REQUISITES IN ORDER TO CONVICT ON CIRCUMSTANTIAL
EVIDENCE ARE NOT PRESENT AND NOT COMPLIED WITH. (Rollo, p.
59)
At the outset, it may be observed that two informations were filed against the appellant and the lower
court imposed two sentences on appellant, one for sale and the other for possession of marijuana.
This Court must emphasize that, assuming arguendo, the findings of guilt for both offenses are
correct, the trial judge nevertheless erred in imposing a separate sentence for possession because
possession of marijuana is inherent in the crime of selling them. (People v. de Jesus, 145 SCRA 521
[1986]; People v. Andiza, 164 SCRA 642 [1988])
After a careful scrutiny of the records, this Court holds that appellant's guilt in Criminal Case No. 5991
(sale of marijuana) has not been proven beyond reasonable doubt.
First, the extrajudicial confession extracted from the accused on November 29, 1982 is inadmissible
in evidence for being violative of the Constitutional mandate that any person under investigation for
the commission of an offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. (Art. III, Section 12(l),
Constitution)
The preliminary statement read to the appellant when her sworn statement was executed appears as
follows:
SALAYSAY NA KUSANG LOOB NA IBINIBIGAY NI ROSALINDA RAMOS
Y DAVID KAY CAPTAIN ARTURO M. CASTILLO PC SA HARAP NI SGT.
TAHIL AHAMAD DITO SA HIMPILAN NG CANU, OLONGAPO CITY,
NGAYON 29 NG BUWAN NG NOBYEMBRE 1982.
counsel to be waived, the waiver must be in writing and in the presence of the counsel of the
accused. (Art. III, Section 12(l), Constitution) There is no such written waiver in this case, much less
was any waiver made in the presence of counsel.
Fiscal Cabali, who administered the oath on the appellant's extrajudicial confession, and the police
officers who took it down should know by now that the procedure they followed results in incompetent
evidence. If the purpose is to get proof which can stand up in court, they should follow the
requirements of the Constitution.
Second, the alleged poseur-buyer, who also happens to be the alleged informant, was never
presented during trial. The presence and Identity of the poseur-buyer is vital to the case as his very
existence is being disputed by the accused-appellant who denies having sold marijuana cigarettes to
anyone. (People v. Ale, 145 SCRA 50 [1986]) Without the testimony of the poseur-buyer, there is no
convincing evidence pointing to the accused as having sold marijuana. (People v. Fernando, 145
SCRA 151 [1986]) In this case, the alleged informant and the alleged poseur-buyer are one and the
same person. We realize that narcotics agents often have to keep their Identities and those of their
informants confidential. For a prosecution involving the sale or distribution of drugs to prosper in this
particular case, however, the informant has to testify. The testimony of the poseur-buyer is rendered
compelling by the fact that the police officers were situated three blocks away from where the alleged
sale took place. They did not see the actual sale of marijuana. Thus, Sit. Sudiacal testified:
Q Before you arrested the accused, where
did you position yourselves?
A We were at the Black and White Open Bar,
sir.
Q How far is that from the place where the
accused was selling cigarettes?

TAGASIYASAT: Gng. Rosalinda Ramos, ikaw ay nasa ilalim ng isang A It is about three blocks, sir.
pagsisiyasat ukol sa paglabag sa ipinagbabawal na gamot. Bago kita
tanungin ay nais kong malaman mo ang iyong mga karapatan sa ating
bagong saligang batas at ito ay ang mga sumusunod: Q You did not actually see the accused
selling marijuana?

1 Ikaw ay may karapatan na huwag sumagot sa aking mga itatanong sa

iyo sa pagsisiyasat na ito, A Yes, Sir ...," (TSN, May 4, 1984, p. 8)

2. Ikaw ay may karapatan na kumuha ng isang abogado upang xxx xxx xxx
makatulong sa iyo sa pagsisiyasat na ito at

Q Did you actually see the buying of the

3. Ano man ang iyong sasabihin sa pagsisiyasat na ito ay maaaring marijuana?
gamitin laban or pabor sa iyo saan mang hukuman dito sa ating bansa.

A No, Mam.
TANONG: Ngayon alam no na ang iyong mga karapatan sa ating bagong
saligang batas ikaw ba ay kusang loob na magbibigay ng isang salaysay
na pawang katotohanan at pawang katotohanan lamang sa pagsisiyasat Q So, you did not see anything?
na ito?;
A Yes, Mam.
SAGOT: Opo. (Exhibit G)
Q None of the three of you, Sgt. Sudiacal
This Court finds that such recital of rights falls short of the requirement on proper apprisal of and Captain Castillo witnessed the actual
constitutional rights. We quote the ruling in People v. Nicandro (141 SCRA 289 [1986]): buy of the three sticks of marijuana?

When the Constitution requires a person under investigation 'to be A Yes, Mam.
informed' of his right to remain silent and to counsel, it must be presumed
to contemplate the transmission of meaningful information rather than just
Q Your basis of the alleged buy by the
the ceremonial and perfunctory recitation of an abstract constitutional
informant is his word that he bought it from
principle. As a rule, therefore, it would not be sufficient for a police officer
the suspect?
just to repeat to the person under investigation the provisions of Section
20, Article IV of the Constitution. He is not only duty- bound to tell the
person the rights to which the latter is entitled; he must also explain their A Yes, Mam. (TSN, April 9, 1986, pp. 125-
effects in practical terms, e.g., what the person under interrogation may 126)
or may not do, and in a language the subject fairly understands. In other
words, the right of a person under interrogation 'to be informed implies a
correlative obligation on the part of the police investigator to explain, and It is a known fact that drug dealings are hard to prove in court. Precisely because of this difficulty, buy-
contemplates an effective communication that results in understanding bust operations have to be conducted and every effort is taken such that the suspected pusher is
what is conveyed. Short of this, there is a denial of the right , as it cannot caught in flagrante selling prohibited drugs. For the culprit to be convicted, the element of sale must
truly be said that the person has been 'informed' of his rights. Now, since be unequivocally established. In this case, the alleged poseur-buyer who could have categorically
the right 'to be informed implies comprehension, the degree of asserted that she bought marijuana from the appellant was not presented by the prosecution. And
explanation required will necessary vary, depending upon the education, Sgts. Ahamad and Sudiacal could not attest to the fact of sale because they were three blocks away.
intelligence and other relevant personal circumstances of the person The sale of marijuana was therefore not positively proven.
under investigation. Suffice it to say that a simpler and more lucid
explanation is needed where the subject is unlettered.
Despite the absence of the testimony of the poseur-buyer, the court a quo, however, relied on
circumstantial evidence in concluding that there was indeed a sale:
Although the right to counsel is a right that may be waived, such waiver must be voluntary, knowing
and intelligent (People v. Caguioa, 95 SCRA 2 [1980]).
 In this case, the accused admitted that she was the only one selling
cigarettes at the corner of 3rd Street; the informant told the NARCOM
Officers that their 'suspect' is a cigarette vendor positioned thereat. The
two (2) 'test buy' yielded positive results as the informant was able to buy
four (4) handrolled sticks of marijuana cigarettes from her, two at a time.
The accused did not ask the reason why when she was invited for
investigation. This act negates innocence and against human nature,
especially after having introduced themselves as NARCOM agents. In
her control and possession, twenty (20) sticks of similar handrolled
marijuana cigarettes were recovered from a trash can under her small
table. Her counsel on cross-examination asked Sgt. Tahil Ahamad the
following (TSN, April 9, 1986, p. 14) 'and in order to search that trash can
under the table, you have to ask or request 'Mama Rose' to get out of the
way in order to check the contents of the waste can?' The question was
answered, 'We asked permission from her to stand up so we can look
into the contents of her small table, sir.
When investigated, the accused gave her statement which in fact was a
confession where she admitted having sold marijuana cigarettes. She
was taken before the Fiscal to subscribe the same. While she alleged
that she told the Fiscal (Fiscal Cabali) that the contents of her statement
are not true, why then did she sign it before the said Fiscal? Why did she
not insist that her denial be registered on the document so as to
repudiate it? Fear could not be a valid reason as she has already boldly
spoken out when she said the contents were not true. The 'marked
money' were recovered from her possession. She did not deny that the
four (4) five peso bills were taken from her wallet. She was addressed as
'Mama Rose' not once but twice by the apprehending officers. Her
counsel during the cross-examination of the prosecution witnesses and
direct examination of the accused called and addressed her as 'Mama
Rose', and the informant Identified her not only as Rosalinda Ramos but
also as 'Mama Rose'. (At pp. 73-74, Rollo)
This Court finds that the cited circumstantial evidence do not establish beyond reasonable doubt that
there was a sale of marijuana. Considering the severe penalty of reclusion perpetua imposed on
those who sell or distribute drugs, we have to insure that evidence of culpability must pass the test of
the strictest scrutiny. We also have to take into account the oftrepeated defense in violations of the
Dangerous Drugs Act that the drugs or the marked money were planted by police officers. More direct
and positive evidence is essential.
The failure of the appellant to ask why she was being invited for investigation by the NARCOM
officers does not ipso facto indicate her guilt. Fear could have, prevented her from propounding
inquiries to the officers.
Nor does the fact that' marked money was found in her possession show incontrovertibly that she is
the seller of marijuana. The appellant is a cigarette vendor. By the nature of her job, there is a
constant exchange of goods for money. It may be far- fetched but it is possible that she came into
possession of the marked money because she accepted it in the course of legitimate sales of
cigarettes. Again, it is only the poseur-buyer who could testify that she gave marked money to the
appellant in exchange for marijuana sticks.
The fact that the appellant signed the extrajudicial confession despite her insistence that its contents
were not true does not necessarily signify guilt. As earlier stated the extra-judicial confession cannot
be accepted as evidence. It is useless for purposes of proof of sale of prohibited drugs.
Lastly, this Court fails to see how, from her being addressed as Mama Rose by the witnesses and
appellant's counsel and the alleged informant poseur-buyer, the sale of marijuana can be inferred.
Rule 133, Section 6 of the Rules of Court provides:
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt.
For not successfully meeting the above requirements, the enumerated circumstantial evidence cannot
be a ground for conviction for the sale of marijuana.
With respect to Criminal Case No., 5990, however, this Court upholds the lower court's finding that the
appellant is guilty of possession of marijuana.
Rule 113 Section 6 (b) of the 1985 Rules of Criminal Procedure provides:
SEC. 6. Arrest without warrant. when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it.
Meanwhile, Section 12 of Rule 126 states:
SEC. 12. Search incident to a lawful arrest. A person lawfully arrested
may be searched for dangerous weapons or anything which may be used
as proof of the commission of an offense, without a search warrant.
Sgts. Sudiacal and Ahamad testified that there was an informant who apprised them of the presence
of a drug pusher at the comer of 3rd Street and Rizal Avenue, Olongapo City. Acting on such
information and in their presence, their superior, Captain Castillo, gave the informant marked money
to buy marijuana. The informant, now turned poseur-buyer, returned with two sticks of marijuana.
Captain Castillo again gave said informant marked money to purchase :marijuana. The informant-
poseur buyer thereafter returned with another two sticks of marijuana. The police officers then
proceeded to the corner of 3rd Street and Rizal Avenue and effected the arrest of appellant.
From the above facts, it may be concluded that the arresting police officers had personal knowledge
of facts implicating the appellant with the sale of marijuana to the informant-poseur buyer. We hold
therefore that the arrest was legal and the consequent search which yielded 20 sticks of marijuana
was lawful for being incident to a valid arrest.
The fact that the prosecution failed to prove the sale of marijuana beyond reasonable doubt does not
undermine the legality of the appellant's arrest.
It is not necessary that the crime should have been established as a fact in order to regard the
detention as legal. The legality of detention does not depend upon the actual commission of the
crime, but upon the nature of the deed when such characterization may reasonably be inferred by the
officer or functionary to who in the law at the moment leaves the decision for the urgent purpose of
suspending the liberty of the citizen (People v. Molleda, 86 SCRA 667 [1978]).
The obligation to make an arrest by reason of a crime does not presuppose as a necessary requisite
for the fulfillment thereof the indubitable existence of a crime (People v. Ancheta, 68 Phil. 415 [1939]).
The appellant argues that if the twenty sticks of marijuana were in a trash can and it was not shown
by clear and convincing evidence that the said trash can belongs to the appellant, then she cannot be
considered as being in possession of marijuana.
In disposing of this contention, this Court quotes with approval the following arguments of the
Solicitor-General:
Appellant's defense falls against the categorical testimony of the
NARCOM agents that the trash can was found under the table where her
legitimate wares were being sold. This fact was not denied by appellant.
Therefore, she was the only person who had access to the trash can. The
same was under her immediate physical control. She had complete
charge of the contents of the trash can under the table to the exclusion of
all other persons. In law, actual possession exists when the thing is in the
immediate occupancy and control of the party. But this is not to say that
the law requires actual possession. In criminal law, possession necessary
for conviction of the offense of possession of controlled substances with
intent to distribute may be constructive as well as actual (Black's Law
Dictionary, Abridge, 5th Edition, pp. 606-607). It is only necessary that the
defendant must have dominion and control over the contraband. These
requirements are present in the situation described, where the prohibited
drugs were found inside the trash can placed under the stall owned by
appellant. In fact, the NARCOM agents who conducted the search
testified that they had to ask appellant to stand so that they could look
inside the trash can under the 'papag' of the appellant. Hence the trash
can was positioned in such a way that it was difficult for another person to
use the trash can. The trash can was obviously not for use by her
customers.
Appellant's arguments are inherently weak and improbable and cannot
stand against the clear evidence pointing to her actual possession of the
prohibited drug. The raw facts testified to by the NARCOM agents were
corroborated by appellant and their conclusion-that she had possession
of the marijuana sticks found in the trash can- is consistent with law and
reason.
Appellant further contends that it is hard to believe that she would keep
the marijuana sticks in a trash can since it is a precious commodity to
pushers and users thereof.
 The above argument is misleading. The value of the marijuana is not the
primary consideration in the concealment of the contraband. The primary
consideration is escaping detection and arrest. Obviously, the modus
operandi was to dissimulate the act of selling and possession of
marijuana sticks which carries the capital penalty (sic). Appellant could
not display it among her regular wares of cigarettes and fruits for sale.
She had to hide them from public view, but near enough to have access
to them. The trash can, to her thinking, would be the last place to look for
the precious commodity. Unfortunately, she was found out. The argument
that it was an 'unlikely place' to hide the precious contraband is in fact the
very consideration in choosing it as the hiding place for the contraband.
(At pp. 97-100, Rollo)

We rule, therefore, that the twenty sticks of marijuana are admissible in evidence and the trial court's
finding that the appellant is guilty of possession is correct.

The lower court, however, erred in imposing a fixed penalty of six (6) years and one (1) day for
possession of marijuana. Section 1 of the Indeterminate Sentence Law (Republic Act 4103 as
amended) provides that in imposing a prison sentence for an offense punished by a law other than the
Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the minimum which shall
not be less than the minimum term prescribed by the same. The penalty prescribed by the Dangerous
Drugs Act for possession of marijuana is imprisonment ranging from six (6) years and one (1) day to
twelve (12) years and a fine ranging from P6,000 to P12,000.

WHEREFORE, the appealed decision in Criminal Case No. 5990 is AFFIRMED but MODIFIED. The
appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1)
day to nine (9) years and to pay a fine of six thousand (P 6,000) pesos. The appealed decision in
Criminal Case No. 5991 is REVERSED and SET ASIDE and the appellant is acquitted on grounds of
reasonable doubt.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BONIFACIO BARROS, accused-appellant.
The Solicitor General for plaintiff-appellee.
Bartolome F. Macliing for accused-appellant.
FELICIANO, J.:
Bonifacio Barros was charged with violating Section 4 of R.A. No. 6425, as amended (known as the
Dangerous Drugs Act of 1972), in an information which read as follows:
That on or about September 6, 1987, from Chackchakan, Bontoc,
Mountain Province, to Nacagang, Sabangan, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named accused
while being a passenger in a Dangwa Bus with Plate No. ABZ 242,
destined for Baguio City, without lawful authority did then and there
willfully, unlawfully and feloniously carry with him as part of his baggage
and transport about four (4) kilos of dried marijuana which the accused
intended for distribution and sale at Baguio City, knowing fully well that
said marijuana is a prohibited drug or [a] source of [a] prohibited drug.
Contrary to law. 1
After trial, the trial court convicted Bonifacio Barros of violation of Section 4 of R.A. No. 6425 as
amended and sentenced him to suffer the penalty of reclusion perpetua 2 and to pay a fine of
P20,000.00.
Barros now appeals from the judgment of conviction and essentially asks this Court to determine
Whether the [trial] court deprived [the] accused of his right to due process
by:
(1) ignoring manifest absence of the mandatory warrant in the arrest and
search of the accused;
(2) admitting confessions extracted from the accused after two hours of
interrogation conducted by four (4) soldiers one after the other under
intimidating circumstances; and
(3) misappreciation of facts. 3
The relevant facts as found by the trial court and as set forth in the court's decision are as follows:
That on September 6, 1987, M/Sgt. Francis Yag-as and S/Sgt. James
Ayan, both members of the P.C. Mountain Province Command, rode the
Dangwa Bus bearing Plate No. ABZ-242 bound for Sabangan, Mountain
Province. Upon reaching Chackchakan, Bontoc, Mountain Province, the
bus stopped and both M/Sgt. Yag-as and S/Sgt. Ayan, who were seated
at the back, saw accused carrying a carton, board the bus and seated
himself on seat No. 18 after putting the carton under his seat. Thereafter,
the bus continued and upon reaching Sabangan, M/Sgt. Yag-as and
S/Sgt. Ayan before they alighted, it being their station, called C2C
[Fernando] Bongyao to inspect the carton under seat No. 18. After C2C
Bongyao inspected the carton, he found out that it contained marijuana
and he asked the passengers [who] the owner of the carton [was] but
nobody answered. Thereafter, C2C Bongyao alighted with the carton and
S/Sgt. Ayan and C2C Bongyao invited the herein accused to the
detachment for questioning as accused was the suspected owner of the
carton containing marijuana. As both P.C. officers Yag-as and Ayan saw
accused, Bonifacio Barros carrying that same carton when he boarded
the bus at Chackchakan. That upon entering the detachment the carton
was opened in the presence of accused and accused Bonifacio Barros
was asked if he owned the carton of marijuana and accused denied [this].
That when accused denied ownership of the carton of marijuana, the P.C.
officers called for the bus conductor who pinpointed to Bonifacio Barros
as the owner of the carton of marijuana. That during the oral investigation
of accused, he finally admitted ownership of the carton (Exhibit "B")
containing [four] 4 paper-wrapped packages of dried marijuana. (Exhibits
"B-1", "B-2", "B-3" and "B-4").
. . . [A]fter he was orally investigated, [the accused] was brought to the
Abatan General Hospital, Bauko, Mountain Province, for physical
examination and a Medico Legal Certificate was issued (Exhibits "F" and
"F-1"), indicating that accused suffered no physical injuries and that
accused was probably under the influence of marijuana. That Dra. Danna
Aleta inquired from accused Bonifacio Barros if he smoked marijuana and
accused admitted having smoked marijuana. That after accused was
medically examined, he was escorted by three members of the P.C. to
the P.C. detachment at Tadian, Mountain Province, where the carton of
marijuana (Exhibit "B") was also brought. That at Tadian, a seizure receipt
was made together with a certification (Exhibit "C") pointing out to the fact
that approximately 4 kilos of dried marijuana leaves were from accused
Bonifacio Barros and which certification was signed by the accused
(Exhibit "C-1") and subscribed before Judge Romualdo P. Awisan (Exhibit
"C-2"). That in connection with the confiscation of the marijuana subject
of the instant case and the apprehension of accused Bonifacio Barros,
the P.C. officers who figured in this case namely M/Sgt. Yag-as and
S/Sgt. Ayan and C2C Bongyao have correspondingly executed their
sworn statements (Exhibits "A", "A-1", "A-2", "D", "D-1", "D-2").
. . . [S]amples of the marijuana were taken from each of the four
packages marked Exhibits "B-1", "B-2", "B-3", and "B-4" and placed in
four separate envelopes, following an order of the court to that effect and
were hand-carried by Police Officer Jack Masilian to Camp Dangwa, La
Trinidad, Benguet for laboratory test. That Capt. Carlos Figueroa, the
Forensic Expert conducted two kinds of test on the four samples sent by
the court and found them to be positive of marijuana as per his report No.
D-011-88. (Exhibits "I" and "I-1"). 4
The defense of the accused on the facts consisted of a simple denial of the ownership or possession
of the carton box containing the four (4) kilos of marijuana. The trial court summarized the story of the
accused in the following manner:
That accused Bonifacio Barros since 1984 was employed at the
Honeymoon Disco Pad, Baguio City. That on September 5, 1987,
accused was sent by his Manager, Engineer Arsenio Cuanguey to
Bontoc, Mountain Province, to get their records from one Billy Cuanguey
at Chackchakan, Bontoc, Mountain Province. That upon arriving at
Chackchakan, Bontoc, Mountain Province, accused looked for the
residence of Billy Cuanguey and he was pointed to a house where
someone was tending a store. That accused asked the man if Billy
Cuanguey was there and the man answered that he did not know where
Billy went. So accused asked the man if Billy left [in] his room the tapes
and records and the man said he did not know. Thereafter, accused
asked the man to stay over night in that house where Billy was staying as
it was the instruction of his manager. That the following day, September
6, 1987, after taking breakfast, accused, was going back to Baguio. On
that morning of September 6, 1987, accused Bonifacio Barros boarded
the Dangwa Bus at Chackchakan, Bontoc, Mountain Province bound for
Baguio City. That when the Dangwa Bus reached the P.C. Checkpoint,
soldiers went inside the bus and checked the baggages. That a soldier
fished out a carton under the seat of [the] accused and shouted who
owns the carton but nobody answered. Thereafter, the soldier went down
with the carton and moments later returned to the bus and called accused
Bonifacio Barros to alight from the bus. That Mr. Barros was surprised
why he was ordered to alight and accused took his baggage which
consisted of a pasiking and went down the bus. That accused was led by
the soldiers to a house where his pasiking was taken and his clothes
removed and his wallet taken. Accused was made to accept ownership of
the carton of marijuana but he refused.
. . . [A]t 11:00 o'clock that same day, September 6, 1987, three soldiers
escorted accused to the hospital and from the hospital, they proceeded to
the Municipality of Tadian, Mountain Province. That upon reaching
Tadian, accused was brought to the P.C. Camp and there he saw
someone typing. Later, the soldiers allegedly presented to accused some
papers which he was asked to sign but accused refused. That accused
was threatened and if he refused to sign the papers that something will
happen to him. That moments later, accused was threatened [by] a
soldier [who] pointed a gun to him and told him to sign the paper and
because of fear, he had to sign the document marked Exhibit "C."
Thereafter, the soldiers allegedly threatened again accused and asked
him to sign his name on the inside part of the cover of the carton of
marijuana. Exhibit "X" for the court and Exhibit "B-5" for the prosecution.
That after staying at Tadian for one night, accused was brought back to
Sabangan and later transferred to the Bontoc Provincial Jail. 5
Turning to the legal defenses of the accused, we consider first his allegation that the police authorities
had impermissibly extracted confessions from him after two (2) hours of interrogation, "under
intimidating circumstances," by four (4) soldiers one after the other. The accused complains that he
was not informed of his rights to remain silent and to counsel, that he had not waived his rights as an
accused person, and that he had signed a confession involuntarily and without the assistance of
counsel. He essentially contends that the confession is inadmissible as evidence against him.
We find, however, that it is not necessary to pass upon the above contention of appellant Barros. For
the trial court in reaching its judgment of conviction had not taken into consideration the statements
which had been obtained from the appellant during the interrogation conducted by the police officers.
The trial court, so far as can be determined from its decision, totally disregarded Exhibits "C", "E" and
"B-5," the alleged uncounselled confessions. The trial court made very clear the bases of its
conclusion that the accused was guilty beyond reasonable doubt of the offense charged; those bases
did not include the alleged confessions:
First M/Sgt. Francis Yag-as and S/Sgt. James Ayan testified that they
saw the accused carrying the carton (Exhibit "B") when he boarded the
bus at Chackchakan, Bontoc, Mountain Province. That the bus conductor
pointed to accused at the checkpoint of Sabangan, Mountain Province.
That accused is the owner of the carton (Exhibit "B"). That the carton
(Exhibit "B") which contained four packages of dried marijuana leaves
(Exhibits "B-1", "B-2", "B-3" and "B-4") was fished out from under the seat
of the accused which fact was admitted by the accused himself.
Second That per testimony of Dra. Danna Aleta, she examined
accused Bonifacio Barros and that he suffered no physical injuries that
would show that the accused was in anyway maltreated by the police
authorities, and this fact was also admitted by accused to the effect that
he was never harmed by the police nor the soldiers. Dra. Aleta also found
that the accused was under the influence of drug[s] and that the accused
admitted [to] her that he, accused, smoked marijuana. This is clear
evidence that accused is not only a pusher of marijuana but also a user
of said prohibited drugs. (See Exhibits "F" and "F-1" and TSN Page 24
Orpecio).
Third The samples taken from Exhibits "B-1", "B-2", "B-3" and "B-4"
sent by the court for laboratory test at Camp Dangwa, La Trinidad,
Benguet were all positive of marijuana per Report No. D-011-88 (Exhibits
"I" and "I-1") of Captain Carlos Figueroa, forensical expert.
Lastly, accused's testimony in his own behalf does not impress the court
at it lacks the ring of truth. Besides, it is devoid of any corroboration. Our
Supreme Court in this respect said:
The weak and uncorroborated denial of the accused cannot prevail over
the clear, positive and straightforward testimony of prosecution witnesses
[sic]." (People vs. Acelajao, 148 SCRA 142)." 6
We turn, therefore, to the second legal defense asserted by appellant Barros i.e., that his
constitutional right against unreasonable searches and seizures had been violated by the police
authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the
1987 Constitution which read as follows:
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 witness as he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.
Sec. 3. . . .
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
The general rule is that a search and seizure must be carried out through or with a judicial warrant;
otherwise such search and seizure becomes "unreasonable" within the meaning of the above quoted
constitutional
provision. 7 The evidence secured thereby i.e., the "fruits" of the search and seizure will be
inadmissible in evidence "for any purpose in any
proceeding. 8
The requirement that a judicial warrant must be obtained prior to the carrying out of a search and
seizure is, however, not absolute. There are certain exceptions recognized in our law, one of which
relates to the search of moving vehicles. 9 Peace officers may lawfully conduct searches of moving
vehicles automobiles, trucks, etc. without need of a warrant, it not being practicable to secure a
judicial warrant before searching a vehicle, since such vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant may be sought. 10 In carrying out warrantless searches of moving
vehicles, however, peace officers are limited to routine checks, that is, the vehicles are neither really
searched nor their occupants subjected to physical or body searches, the examination of the vehicles
being limited to visual inspection. In Valmonte vs. De Villa, 11 the Court stated:
[N]ot all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the
facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply looks
into a vehicle, or flashes a light therein, these do not constitute
unreasonable search. (Citations omitted)
When, however, a vehicle is stopped and subjected to an extensive search, such a warrantless
search would be constitutionally permissible only if the officers conducting the search have
reasonable or probable cause to believe, before the search, that either the motorist is a law-offender
or the contents or cargo of the vehicle are or have been instruments or the subject matter or the
proceeds of some criminal offense. 12
This Court has in the past found probable cause to conduct without a judicial warrant an extensive
search of moving vehicles in situations where (1) there had emanated from a package the distinctive
smell of marijuana; 13(2) agents of the Narcotics Command ("Narcom") of the Philippine National
Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana
would be transported along the route where the search was conducted; 14 (3) Narcom agents were
informed or "tipped off" by an undercover "deep penetration" agent that prohibited drugs be brought
into the country on a particular airline flight on a given date; 15 (4) Narcom agents had received
information that a Caucasian coming from Sagada, Mountain Province, had in his possession
prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a
conspicuous bulge in his waistline, he failed to present his passport and other identification papers
when requested to do
so; 16 and (5) Narcom agents had received confidential information that a woman having the same
physical appearance as that of the accused would be transporting marijuana. 17
In the case at bar, however, we have been unable to find in the record of this case any circumstance
which constituted or could have reasonably constituted probable cause for the peace officers to
search the carton box allegedly owned by appellant Barros. The carrying of such a box by appellant
onto a passenger bus could not, by itself, have convinced M/Sgt. Francis Yag-as and S/Sgt. James
Ayan either that the appellant was a law violator or the contents of the box were instruments or the
subject matter or proceeds of some criminal offense. The carrying of carton boxes is a common
practice among our people, especially those coming from the rural areas since such boxes constitute
the most economical kind of luggage possible. The peace officers here involved had not received any
information or "tip-off" from an informer; no such a "tip-off" was alleged by the police officers before or
during the trial. The police officers also did not contend that they had detected the odor of dried
marijuana, or appellant Barros had acted suspiciously in the course of boarding the bus and taking a
seat during the trip to Sabangan, nor in the course of being asked whether he owned the carton box
later ascertained to contain four (4) kilos of marijuana. The testimony of the law enforcement officers
who had apprehended the accused (M/Sgt. Francis Yag-as and S/Sgt. James Ayan), and who had
searched the box in his possession, (C2C Fernando Bongyao), simply did not suggest or indicate the
presence of any such probable cause.
M/Sgt. Francis Yag-as testified as follows:
Direct Examination by Fiscal Moises Ayochok:
xxx xxx xxx
So far as the record itself is concerned, therefore, it would appear that there existed no circumstance
which might reasonably have excited the suspicion of the two (2) police officers riding in the same bus
as appellant Barros. They asked the police officers at the checkpoint at Sabangan to inspect the box
allegedly carried by appellant Barros apparently on a mere guess that appellant Barros might be
carrying something in the nature of contraband goods. There was, in other words, nothing to show
that appellant Barros was then in the process of "actually committing" or "attempting to commit" a
crime. 21 There was, moreover, nothing on the record that could have reasonably led the two (2) police
officers to believe that "an offense [had] in fact just been committed" when appellant Barros boarded
the bus at Chackchakan or when he was asked whether he owned the box here involved at the
checkpoint in Sabangan. The two (2) police officers, according to the record, had no "personable
knowledge of facts indicating that the person to be arrested (appellant Barros) had committed it."
There was, in brief, no basis for a valid warrantless arrest. Accordingly, the search and seizure of the
carton box was equally non-permissible and invalid. 22 The "fruits" of the invalid search and seizure
i.e., the four (4) kilos of marijuana should therefore not have been admitted in evidence against
appellant Barros.
The Solicitor General, however, contends that appellant Barros had waived any irregularities which
may have attended his arrest. Presumably, the Solicitor General also argues that appellant Barros has
waived the non-admissibility of the carton (Exhibit "B") which contained four (4) packages of dried
marijuana leaves (Exhibits "B-1", "B-2", "B-3" and "B-4"). The Solicitor General said:
. . . [E]ven assuming in gratia argumenti that irregularities attended the
arrest of appellant, still the same cannot be questioned at this late stage.
Well-settled is the doctrine laid down in the case of Callanta vs.
Villanueva (77 SCRA 377), and later reiterated in the more recent case
of Bagcal vs. Villaraza (120 SCRA 525), that "posting of [a] bail bond
constitutes waiver of any irregularity attending the arrest of a person and
estops him from questioning its validity." Here, appellant had in fact
posted the required bail to obtain his provisional liberty, albeit his
application was subsequently denied (see TSN, Feb. 10, 1988, p. 65).
Consistent with jurisprudence, therefore, he should be deemed to have
waived any irregularity attending his arrest, if any there be, and cannot
now be heard to assail the same. 23
It might be supposed that the non-admissibility of evidence secured through an invalid warrantless
arrest or a warrantless search and seizure may be waived by an accused person. The a
priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a
defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so
as to estop as accused from questioning the legality or constitutionality of his detention or the failure
to accord him a preliminary investigation. We do not believe, however, that waiver of the latter (by,
e.g., applying for and posting of bail) necessarily constitutes, or carries with it, waiver of the former
an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility
of the "fruits" of an invalid warrantless arrest and of a warrantless search and seizure is not casually
to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality
for the protection of our people. In the case at bar, defense counsel had expressly objected on
constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when
these were formally offered in evidence by the prosecution. 24 We consider that appellant's objection
to the admission of such evidence was made clearly and seasonably and that, under the
circumstances, no intent to waive his rights under the premises can be reasonably inferred from his
conduct before or during during the trial.
In the dissenting opinion, my learned brother Melo, J. takes the view that appellant Barros had waived
his rights by his "stoic deportment" consisting of failure to object to the search by the police authorities
immediately after the opening of the carton box:
. . . In point of fact, when the police authorities inspected the carton of
marijuana and asked accused-appellant who owned the box, accused-
appellant denied ownership of the box or carton and failed to even mutter
the least bit of protest (p. 3, Decision). His demeanor should therefore be
construed as implicit acquiescence to the search inasmuch as the
objection thereto is vulnerable to express or implied waiver (People vs.
Kagui Malasugui (63 Phil. 221 [1936]); 1 Bernas, Constitution of the
Republic of the Philippines, First ed., 1987, p. 108). . . . . 25
It is submitted, with respect, that Kagui Malasugui is not applicable to the case at bar; rather it
is People vs. Burgos, 26 promulgated fifty (50) years after Kaqui Malasuqui, that is applicable.
In Burgos, this Court ruled that the accused is not to be presumed to have waived the unlawful search
conducted on the occasion of his warrantless arrest "simply because he failed to object"
. . . To constitute a waiver, it must appear first that the right exists;
secondly, that the person involved had knowledge, actual or constructive,
of the existence of such a right; and lastly, that said person had an actual
intention to relinquish the right (Pasion Vda. de Garcia vs. Locsin, 65 Phil.
689). The fact that the accused failed to object to the entry into his house
does not amount to a permission to make a search therein (Magoncia vs.
Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case
of Pasion Vda. de Garcia vs. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any affirmative
act of the citizen, the courts do not place the citizen in the position of
either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a
search or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law. (Citation omitted).
We apply the rule that: "courts indulge every reasonable
presumption against waiver of fundamental constitutional rights and that
we do not presume acquiescence in the loss of fundamental rights."
(Johnson vs. Zerbts, 304 U.S. 458). 27 (Emphasis supplied) .
Kagui Malasugui is not applicable to the instant case, because there the Court explicitly found that
there was probable cause for the warrantless arrest of the accused and therefore, the warrantless
search effected immediately thereafter was equally lawful. In Kagui Malasugui, a Chinese merchant
was found lying on the ground with several nasty wounds in the head; one resulted in skull fracture
and proved fatal. He died in the hospital to which he had been immediately brought by a policeman.
Mr. Malasuqui became a suspect because when the victim was found, still alive, and upon being
asked who had attacked him, laconically answered, "Kagui." On the same day, the accused Kagui
Malasugui was arrested and a search of his person was conducted without objection from the
accused. Before the body search of the accused was carried out, the accused voluntarily surrendered
to the police authorities a couple of bracelets belonging to the deceased victim and when asked if he
had anything else to surrender, he, in a trembling voice, answered in the negative. The police
thereupon conducted a body search of the accused, without any objection from him; the search
resulted in the production of additional personal effects belonging to the deceased victim. Under these
circumstances, the Court ruled that:
When one voluntarily submits to a search or consents to have it made of
his person or premises, he is precluded from complaining later thereof.
(Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to
be secure from unreasonable search may, like every right, be waived and
such waiver may be made either expressly or impliedly.
A propos my distinguished brother Melo, J.'s suggestion that the right against an unlawful warrantless
search or arrest is personal and may not be invoked by the accused's counsel during trial, it is
relevant to note that the law (the Rules of Court) specifies the proper time when objections to
admission of evidence must be raised and that in the case at bar, a timely objection was made by
appellant Barros. Finally, the accused's silence during the warrantless search should not be lightly
taken as consent to that search, but rather construed as explained by the Court in Burgos, 28 and as
pointed out by Mr. Justice Laurel, a "demonstration of regard for the supremacy of the law."
It is, of course, possible that appellant Barros may in fact have been guilty of transporting the four (4)
kilos of marijuana. His guilt must, however, be established by constitutional means. The non-
admissibility of evidence secured through a disregard of the constitutional right of the accused against
unreasonable searches and seizures is the sanction imposed by the Constitution for disregard of such
right; the sanction is a powerful one, for it renders inutile the work done by the police officers, by the
prosecutor and by the trial court. It is a sanction which this Court has no choice but to apply in the
instant case.
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 35, Bontoc,
Mountain Province, in Criminal Case No. 687 is hereby REVERSED and SET ASIDE and appellant is
hereby ACQUITTED of the crime charged, the evidence lawfully before the trial court not being
sufficient to establish his guilt thereof beyond reasonable doubt. No costs.
SO ORDERED.

THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,

vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant.

The Solicitor General for plaintiff-appellee.

MEDIALDEA, J.:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the
Regional Trial Court of Dagupan City with violation of Presidential Decree No. 1866 in furtherance of,
or incident to, or in connection with the crime of subversion, together with Luzviminda Morados y
Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric,
Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y
Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude all the above-
enumerated persons except the accused-appellant from the criminal charge. The amended
information reads:

That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the
territorial jurisdiction of this Honorable Court, the above-named accused, Basilio DAMASO @
Bernardo/Bernie Mendoza @ KA DADO, did then and there, willfully, unlawfully and criminally, have in
his possession, custody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine and
Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in connection with the crime of
subversion, filed against said accused in the above-entitled case for Violation of Republic Act 1700, as
amended by Executive Order No. 276.

Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37).
Trial on the merits ensued. The prosecution rested its case and offered its exhibits for admission. The
counsel for accused-appellant interposed his objections to the admissibility of the prosecution's
evidence on grounds of its being hearsay, immaterial or irrelevant and illegal for lack of a search
warrant. On these bases, he, thereafter, manifested that he was not presenting any evidence for the
accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court rendered decision,
the dispositive portion of which states:

WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka
Dado guilty beyond reasonable doubt of Violation of Presidential Decree Number 1866, and
considering that the Violation is in furtherance of, or incident to, or in connection with the crime of
subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree Number 1866 hereby
sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs of the
proceedings.

The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items
seized on June 19, 1988 in connection with this case and marked and submitted in court as evidence
are ordered confiscated and forfeited in favor of the government, the same to be turned over to the
Philippine Constabulary Command at Lingayen, Pangasinan.

SO ORDERED. (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:
A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE
OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE
PRESENTED BY THE PROSECUTION.
B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE
QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT
PROVEN BY THE PROSECUTION.
C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE
FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER
THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY
ANOTHER BRANCH OF THE SAME COURT AND THE SAID
EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.
The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay
evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking
out of the same does not give such evidence any probative value. The lack of objection may make
any incompetent evidence admissible. But admissibility of evidence should not be equated with
weight of evidence. Hearsay evidence whether objected to or not has no probative value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)
It is unfortunate that the prosecution failed to present as witnesses the persons who knew the
appellant as the lessee and owner of the M-14 rifle. In this way, the appellant could have exercised his
constitutional right to confront the witnesses and to cross-examine them for their truthfulness.
Likewise, the records do not show any other evidence which could have identified the appellant as the
lessee of the house and the owner of the subversive items. To give probative value to these hearsay
statements and convict the appellant on this basis alone would be to render his constitutional rights
useless and without meaning.
Even assuming for the sake of argument that the appellant is the lessee of the house, the case
against him still will not prosper, the reason being that the law enforcers failed to comply with the
requirements of a valid search and seizure proceedings.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-
APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED
THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF OR INCIDENT
TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION. (pp. 55-66, Rollo)
The antecedent facts are set forth by the Solicitor General in his Brief, as follows:
The right against unreasonable searches and seizures is enshrined in the Constitution (Article III,
Section 2). The purpose of the law is to prevent violations of private security in person and property,
and unlawful invasions of the sanctity of the home by officers of the law acting under legislative or
judicial sanction and to give remedy against such usurpations when attempted (see Alvero v. Dizon,
76 Phil. 637, 646). However, such right is not absolute. There are instances when a warrantless
search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving
vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889, July 31,
1986, 143 SCRA 267, 276). None of these exceptions is present in this case.

On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd
The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the
PC Company at Lingayen, Pangasinan, and some companions were sent to verify the presence of
appellant's house upon invitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant;
CPP/NPA members in Barangay Catacdang, Arellano-Bani, Dagupan City. In said place, the group
that when Luz Tanciangco opened one of the rooms, they saw a copier machine, computer, M-14 rifle,
apprehended Gregorio Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias Mayaoa.
bullets and ammunitions, radio set and more subversive items; that technically speaking, there was
When interrogated, the persons apprehended revealed that there was an underground safehouse at
no search as the group was voluntarily shown the articles used in subversion; that besides, a search
Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station Commander of Urdaneta,
may be validly conducted without search warrant with the consent of the person searched in this
the group proceeded to the house in Gracia Village. They found subversive documents, a radio, a 1 x
case, appellant's helper and Luz Tanciangco allowed them to enter and to look around the appellant's
7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).
house; and that since the evidence seized was in plain view of the authorities, the same may be
seized without a warrant.
After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented
apartment of Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They
We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being
interviewed Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that she worked with
personal one, cannot be waived by anyone except the person whose rights are invaded or one who is
Bernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When they
expressly authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case
reached the house, the group found that it had already been vacated by the occupants. Since
at bar, the records show that appellant was not in his house at that time Luz Tanciangco and Luz
Morados was hesitant to give the new address of Bernie Mendoza, the group looked for the Barangay
Morados, his alleged helper, allowed the authorities to enter it (TSN, October 31, 1989, p. 10). We
Captain of the place and requested him to point out the new house rented by appellant. The group
Find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper or
again required Morados to go with them. When they reached the house, the group saw Luz
if it was true that she was his helper, that the appellant had given her authority to open his house in
Tanciangco outside. They told her that they already knew that she was a member of the NPA in the
his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority. Without
area. At first, she denied it, but when she saw Morados she requested the group to go inside the
this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of
house. Upon entering the house, the group, as well as the Barangay Captain, saw radio sets,
legality. While the power to search and seize is necessary to the public welfare, still it must be
pamphlets entitled "Ang Bayan," xerox copiers and a computer machine. They also found persons
exercised and the law enforced without transgressing the constitutional rights of the citizens, for the
who were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Maries Calosa,
enforcement of no statute is of sufficient importance to justify indifference to the basic principles of
Eric Tanciangco and Luzviminda Morados). The group requested the persons in the house to allow
government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted
them to look around. When Luz Tanciangco opened one of the rooms, they saw books used for
by the authorities was illegal. It would have been different if the situation here demanded urgency
subversive orientation, one M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps
which could have prompted the authorities to dispense with a search warrant. But the record is silent
of the Philippines, Zambales, Mindoro an(d) Laguna and other items. They confiscated the articles
on this point. The fact that they came to the house of the appellant at nighttime (Exh. J, p.
and brought them to their headquarters for final inventory. They likewise brought the persons found in
7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that:
the house to the headquarters for investigation. Said persons revealed that appellant was the lessee
of the house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn,
October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo) The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They
knew where the petitioners were. They had every opportunity to get a search warrant before making
the raid. If they were worried that the weapons inside the compound would be spirited away, they
While We encourage and support law enforcement agencies in their drive against lawless elements in
could have surrounded the premises in the meantime, as a preventive measure. There was absolutely
our society, We must, however, stress that the latter's efforts to this end must be done within the
no reason at all why they should disregard the orderly processes required by the Constitution and
parameters of the law. In the case at bar, not only did We find that there are serious flaws in the
instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a
method used by the law officers in obtaining evidence against the accused-appellant but also that the
military invasion. (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)
evidence as presented against him is weak to justify conviction.

Another factor which illustrates the weakness of the case against the accused-appellant is in the
We reverse.
identification of the gun which he was charged to have illegally possessed. In the amended
information (supra, pp. 1-2), the gun was described as an M-14 rifle with serial no. 1249935. Yet, the
The records of this case show that the accused-appellant was singled out as the sole violator of P.D. gun presented at the trial bore a different serial number thus:
No. 1866, in furtherance of, or incident to, or in connection with the crime of subversion. Yet, there is
no substantial and credible evidence to establish the fact that the appellant is allegedly the same
The Solicitor General contends that the discrepancy is merely a typographical error.
person as the lessee of the house where the M-14 rifle and other subversive items were found or the
owner of the said items. The prosecution presented two witnesses who attested to this fact, thus:
We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it
could spell the difference between freedom and incarceration of the accused-appellant.
Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on
their own personal knowledge. The Solicitor General, however, argues that while the testimonies may
be hearsay, the same are admissible because of the failure of counsel for appellant to object thereto. In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the
existence of the firearm and that the accused who possessed or owned the firearm does not have the
corresponding license for it. Since the gun as identified at the trial differs from the gun described in the
It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence.
amended information, the corpus delicti (the substance of the crime, the fact that a crime has actually
But, one should not be misled into thinking that since these testimonies are admitted as evidence,
been committed) has not been fully established. This circumstance coupled with dubious claims of
they now have probative value. Hearsay evidence, whether objected to or not, cannot be given
appellant's connection to the house (where the gun was found) have totally emasculated the
credence. In People vs. Valero, We emphatically declared that:
prosecution's case.
But even as We find for the accused-appellant, We, take exception to the argument raised by the
defense that the crime of subversion absorbs the crime of illegal possession of firearm in furtherance
of or incident to or in connection with the crime of subversion. It appears that the accused-appellant is
facing a separate charge of subversion. The defense submits that the trial court should have
peremptorily dismissed this case in view of the subversion charge. In People of the Philippines v.
Asuncion, et al., We set forth in no uncertain terms the futility of such argument. We quote:
If We are to espouse the theory of the respondents that force and violence are the very essence of
subversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R. No. 27683, 1976, 73
SCRA 473, 480 [1976]), the Court categorically distinguished subversion from rebellion, and held:
Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct
from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up arms
against the Government for any of the purposes specified in Article 134 of the Revised Penal Code;
while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a
subversive organization as defined therein. In rebellion, there must be a public uprising and taking of
arms against the Government; whereas, in subversion, mere membership in a subversive association
is sufficient and the taking up of arms by a member of a subversive organization against the
Government is but a circumstance which raises the penalty to be imposed upon the offender.
(Emphasis supplied)
Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 289 (1981]), this Court
said that subversion, like treason, is a crime against national security, while rebellion is a crime
against public order. Rising publicly and taking arms against the Government is the very element of
the crime on rebellion. On the other hand, R.A. 1700 was enacted to outlaw the Communist Party of
the Philippines (CPP) , other similar associations and its successors because their existence and
activities constitute a clear, present and grave danger to national security.
\The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow
the Government, not only by force and violence but also by deceit, subversion, and other illegal
means. This is a recognition that subversive acts do not only constitute force and violence (contrary to
the arguments of private respondents), but may partake of other forms as well. One may in fact be
guilty of subversion by authoring subversive materials, where force and violence is neither necessary
or indispensable.
Private respondents contended that the Court in Misolas v. Panga impliedly ruled that if an accused is
simultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion would have found application therein. The respondents relied
on the opinion of this Court when it said:
. . . in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE
COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS
HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF
FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no application
in this case.
This is however a mere obiter. In the above case, the Court upheld the validity of the charge under the
third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is
not applicable in that case, considering that the legislature deemed it fit to provide for two distinct
offenses: (1) illegal possession of firearms qualified by subversion (P.D. 1866) and (2) subversion
qualified by the taking up of arms against the Government (R.A. 1700). The practical result of this may
be harsh or it may pose grave difficulty on an accused in instances similar to those that obtain in the
present case, but the wisdom of the legislature in the lawful exercise of its power to enact laws is
something that the Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).
Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of
illegal possession of firearm in furtherance of, or incident to or in connection with the crime of
subversion, We are therefore, left with no option, but to acquit the accused on reasonable doubt.
ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED
with costs de oficio.
JOSE G. LOPEZ and TOMAS VELASCO, petitioners,
vs.
COMMISSIONER OF CUSTOMS, COLLECTOR OF CUSTOMS OF DAVAO, CHAIRMAN OF THE
ASAC, ACTING DIRECTOR, NATIONAL BUREAU OF INVESTIGATION, CITY FISCAL OF DAVAO,
SENIOR NBI AGENT OF DAVAO, EARL REYNOLDS, AND/OR ANY OF THEIR AUTHORIZED
REPRESENTATIVES, respondents.
A. Romero for petitioners.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro
and Solicitor Augusto M. Amores for respondents.
FERNANDO, J.:
This Court, understandably and appropriately in the decision of cases coming before it, is called upon
to act with due care to avoid putting obstacles to the governmental policy "to minimize, if not to do
away entirely, with the evil and corruption that smuggling brings in its wake ..." 1 Nonetheless, the
steps taken by administrative authorities to implement such a laudable objective must not be
repugnant to nor in conflict with constitutional rights. To be more specific, when the guarantee against
unreasonable search and seizure is invoked, there is a need to scrutinize the facts rigorously to
preclude any infringement thereof. In this special civil action for certiorari, prohibition and mandamus
which arose from the seizures made by the Collector of Customs of Davao of 1,480 sacks of copra
and 86 sacks of coffee from the M/V motor vessel Jolo Lema, our decision of November 29, 1974
in Nasiad v. Court of Tax Appeals 2 made clear that there was no failure to comply with the
requirements of the law in effecting the same. The seizure was therefore declared lawful by the Court
of Tax Appeals, and its decision was affirmed by us. 3 The only question left then is whether the search
conducted by a party headed by respondent Earl Reynolds, Senior NBI Agent of Davao, 4 without the
search warrant for the hotel room of petitioner Tomas Velasco, who entered into a contract with the
other petitioner, Jose G. Lopez, the awardee of such Philippine Reparations Commission vessel, for
its operation and use ostensibly for fishing, 5 is violative of such constitutional provision. 6 The defense
interposed by respondents is that there was consent. A careful scrutiny of the pleadings reveals that
such indeed was the case. We find for respondents and dismiss the action.
The relevant facts as found in the aforesaid Nasiad decision read as follows: "As noted in the
appealed decision, the issue submitted "for resolution is the legality of the seizure made by the
Collector of Customs of Davao of the 1,408 sacks of copra and 86 sacks of coffee allegedly owned by
the petitioners." Then came this portion: "Petitioners claim that the 1,408 sacks of copra and 86 sacks
of coffee in question were purchased in Kiamba, Lumatin, and Lumasal, all in the province of
Cotabato, from a certain Osmea Juanday. Petitioners contend that, inasmuch as the said goods
were not imported and of foreign origin, they are not legally subject to seizure and forfeiture. They
likewise contend that the forfeiture made by the Collector of Customs of Davao was invalid because
the said forfeiture was based on documents and papers which were illegally seized by agents of the
Government through violence and intimidation. Respondent denies petitioners' claim. He contends
that the evidence is sufficient to hold that the goods in question came from Indonesia and
subsequently brought to the Philippines in violation of our laws and, therefore, subject to forfeiture;
and that the Indonesian documents and papers allegedly secured illegally by the combined team of
NBI, PC and RASAC agents stationed in Davao, were in fact lawfully and validly secured by them.
Consequently, said documents and papers are admissible in evidence in the forfeiture proceedings
instituted administratively by the Collector of Customs of Davao." It was then set forth: "The
voluminous [evidence] of record clearly show that M/V [Jolo Lema] had been under strict surveillance
by the combined team of agents of the NBI, PC, RASAC, and City Police of Davao prior to its
apprehension at a private wharf in Batjak, Sasa, Davao City; that the said M/V [Jolo Lema] was
skippered (sic) by Capt. Aquilino Pantinople and chartered by Mr. Tomas Velasco; during the period
from the latter part of August to September 18, 1966, the said vessel was in Indonesian waters where
it loaded copra and coffee beans from Taruna, Pitta and Mangenito, all of Indonesia ... ; that in its trip
to Indonesia it brought various merchandise from the Philippines which were exchanged and/or
bartered for copra and coffee beans and subsequently taken to Davao City ...; and that said vessel
passed Marore, Indonesia on September 18, 1966 on its way to Tahuna, Indonesia ... before
proceeding to Davao City where it was apprehended on September 19, 1966." Then came the
reference to the evidence and the testimonies of the witnesses of both parties, being appraised by
respondent Court, which did not find any ground to discredit the finding of respondent Collector of
Customs. As therein pointed out: "The evidence does not show any plausible motive for respondent's
witnesses to falsify the truth because they represent different agencies of the government. From all
appearances, they have no personal interest whatsoever over the goods subject of the forfeiture
proceedings. Besides, petitioners have not adduced any evidence showing that they were enemies of
the witnesses for the government. In short, no iota of evidence was ever presented by the petitioners
to destroy the integrity of the government witnesses and to cast a cloud of doubt on their testimonies."
Also: "The decision of the Collector of Customs of Davao shows that a petitioner herein and at the
same time one of the claimants of the confiscated copra and coffee beans, Mr. Ernesto Lozada, is the
Officer-in-Charge of the vessel M/V Jolo Lema. It is not surprising, therefore, that the members of his
crew repudiated their sworn statements given to government agents." Then, lastly: "Moreover,
petitioners failed to explain satisfactorily, much less refute the vital testimony of Fiscal Mariano Umali
of the Department of Justice, Manila that the various Indonesian documents ... duly authenticated by
the Indonesian Consulate in Manila, show in clear detail that the vessel M/V Jolo Lema was in
Indonesia during the period from the latter part of August to September 18, 1966, and that it loaded
copra and coffee beans therein before the said vessel returned to Davao City on September 19, 1966.
Petitioners' failure to successfully dispute or destroy said testimony by competent and reliable
evidence strongly indicates that the copra and coffee beans in question were imported from
Indonesia." " 7
On the question of the search of the hotel room, the petition alleged that at about 3:00 o'clock in the
afternoon of September 19, 1966, when the vessel was searched, a combined team of Constabulary
and Regional Anti-Smuggling Center operatives headed by NBI agent Earl Reynolds raided the hotel
room then being rented by petitioner Tomas Velasco without any search warrant and in the absence at
the time of such petitioner Tomas Velasco or the presence of any other person, except one Teofila
Ibaez, a mere manicurist of Davao City by occupation and "forcibly opened luggages and boxes from
which only several documents and papers were found, then seized, confiscated and took away the
same." 8 There was this refutation of such allegation in the answer presented by respondents,
represented by the then Solicitor General, 9 now Associate Justice, Antonio P. Barredo: "(a) After
Captain Pantinople informed the team that petitioner Tomas Velasco, the charterer of the vessel, had
other documents showing that vessel came from Indonesia carrying smuggled copra and coffee,
some members of the team proceeded to the room of petitioner Velasco at the Skyroom Hotel in
Davao City, to ask for said documents; (b) Although petitioner Velasco was not inside the hotel room,
respondent Reynolds, after identifying himself as a police officer and after explaining his purpose, was
allowed to enter the room by Mrs. Tomas Velasco who subsequently volunteered to open the
suitcases and baggages of petitioner Velasco and delivered the documents and things contained
therein to respondent Reynolds; ... (c) The said police team did not search the room; neither did the
members thereof forcibly open the luggages and boxes nor seized and confiscated the documents
and things contained therein, since that was not necessary because ... Mrs. Tomas Velasco voluntarily
opened the baggages and suitcases and gave their contents of documents and things to respondent
Reynolds. Such fact is also established by the joint affidavit of PC Lt. Romeo Arceo, Angel Huertas,
Gregorio Esperancilla, Wilfredo G. Agcaoili, Patricio Barnes and Lucero Cordero, a joint sworn
statement of Antonio Bonotan, Vicente Dubria, Alberto Morgady and Virgilio Humol; and another
affidavit of Pio Raganit and Winifredo Calamba, ... " 10

Thus, as noted at the outset, petitioners are not entitled to the remedies prayed for.

1. There has been marked receptivity on the part of this Court to claims based on the protection of the
search and seizure clause of the Constitution, whenever properly invoked. So it was made clear from
the leading case of Alvarez v. Court of First
Instance. 11 It has been thus since then. 12 Such was the case likewise under previous organic
acts. 13 There is this succinct restatement of what is embraced in the guarantee in the latest case
of Lim v. Ponce de Leon, 14 with Justice Martin as ponente: "There can be no question that without the
proper search warrant, no public official has the right to enter the premises of another without his
consent for the purpose of search and seizure." 15 It does not admit of doubt therefore that a search or
seizure cannot be stigmatized as unreasonable and thus offensive to the Constitution if consent be
shown. Such a view is implicit in People v. Malasugui. 16 For this immunity from unwarranted intrusion
is a personal right which may be waived either expressly or impliedly. 17

The crucial question then is whether in this instance there was consent on the part of the person who
was the occupant of the hotel room then rented by petitioner Velasco. It cannot be contended that
such premises would be outside the constitutional protection of a guarantee intended to protect one's
privacy. It stands to reason that in such a place, the insistence on being free from any unwelcome
intrusion is likely to be more marked. 18 Was there, however, consent sufficient in law to dispense with
the warrant? Respondents, as previously noted, contend that there was such consent. They so
alleged in their answer. Their memorandum would stress it further in these words: "Here the wife of
petitioner Tomas Velasco, upon being informed of the purpose of the search by the officers, invited
them to enter and search the hotel room and even voluntarily gave the documents and things
requested by said officers. This fact could be gleaned from the following records of the two seizure
cases involving the vessel M/V Jolo Lema and its cargo of Indonesian copra and coffee: (a) On
September 19, 1966, Teofila Ibaez, wife of petitioner Tomas Velasco, issued a written statement
which states that "... I have voluntarily and freely allowed my husband's and my personal
belongings to be searched and freely gave the following items." ... (b) On the same date, she issued
another certification which reads in part, viz.: "... That I have voluntarily turned over for safekeeping
and verification the following."... (c) Also on the same date, she issued still another certification which
reads partially, thus:"... that I have freely and voluntarily allowed the search of my and my husband's
personal belongings and turn-over to the NBI of the following items."... (d) On October 13, 1966 the
Davao City Police Department issued a certification to the effect that the petitioner Tomas Velasco
never filed any "report for robbery or other offenses ... against any member of the NBI or the PC
during the period from September 19, 1966 to the present,"... ." 19Their memorandum likewise
included as an annex an affidavit from Benjamin Doronal Y. Yaez, the assistant manager of the
Skyroom Hotel. It was worded thus: "That on September 19, 1966 at around 3:00 to 4:00 o'clock in
the afternoon, a joint NBI, PC and Davao City Police Commando Team conducted a search on Room
220 of the Skyroom Hotel occupied by Mr. and Mrs. Tomas Velasco; That before said search was
conducted, [Teofila Ibaez], the actual occupant of the room at the time, voluntarily consented to the
request of Atty. [Earl Reynolds] and Lt.[Romeo Arceo], to search their room (Rm. 220) after the latter
introduced themselves by showing their respective identifications cards; That during said search,
upon the request of Atty. [Reynolds] and Lt.[Arceo], [Teofila Ibaez] voluntarily opened her handbag
which was found to contain a .45 caliber pistol and likewise voluntarily opened the maletas which
were found to contain several papers and documents; That receipts were duly issued to [Teofila
Ibaez] which accounted for everything taken from their room (Rm. No. 220) during the search,
including said .45 caliber pistol, papers and documents and that nothing was lost; That [Teofila
Ibaez] signed the receipts and received copies thereof; That [Teofila Ibaez] and I were present
when the said search was being conducted; That said search was conducted in a peaceful and
orderly
manner ... ." 20

There was an attempt on the part of petitioners to counteract the force of the above recital by an
affidavit of one Corazon Y. Velasco, 21 who stated that she is the legal wife of petitioner Tomas
Velasco, and another by such petitioner himself 22 reiterating such a fact and that the person who was
present at his hotel room was one Teofila Ibaez, "a manicurist by occupation ." 23 Their effort
appurtenant thereto is doomed to failure. If such indeed were the case, then it is much more easily
understandable why that person, Teofila Ibaez, who could be aptly described as the wrong person at
the wrong place and at the wrong time, would have signified her consent readily and immediately.
Under the circumstances, that was the most prudent course of action. It would save her and even
petitioner Velasco himself from any gossip or innuendo. Nor could the officers of the law be blamed if
they would act on the appearances. There was a person inside who from all indications was ready to
accede to their request. Even common courtesy alone would have precluded them from inquiring too
closely as to why she was there. Under all the circumstances, therefore, it can readily be concluded
that there was consent sufficient in law to dispense with the need for a search warrant. The petition
cannot, therefore, prevail.

2. It was set forth at the outset that the state policy of minimizing, if not doing away entirely with the
festering sore of smuggling must be carried out with due respect for constitutional rights. It is a truism
in law that a desirable end cannot be attained by illegal means. Whenever there is a showing
therefore that the safeguards of the fundamental law are disregarded, more specifically the guarantee
against unreasonable search and seizure, then judicial redress is appropriate. To repeat, such is not
the case here. Moreover, it may likewise be added that as previously mentioned in Nasiad v. Court of
Tax Appeals, 24 involving the very same occurrence, the only difference being that the petitioners there
were the importers of the smuggled goods, this Court had affirmed the validity of the seizure
proceeding. No injustice can therefore be claimed by petitioners.

WHEREFORE, the petition for certiorari, prohibition and mandamus is dismissed. Costs against
petitioners

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo L. Murillo for accused-appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31,
1990, 1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling
marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known
as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the appellant reads:
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and
feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves,
knowing the same to be a prohibited drug.
CONTRARY TO LAW. 2
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th
Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust
operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of
Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and (3) Athena Elisa
P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of Regional
Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court as follows:
Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader
of a NARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt.
Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga City.
Information received from civilian informer was that this Mari Musa was engaged in selling marijuana
in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with
a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had
guided him. The same civilian informer had also described to him the appearance of Mari Musa.
Amado Ani was able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani
returned to the NARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus
Belarga. Sgt. Belarga inspected the stuff turned over to him and found it to be marijuana.
The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was
assigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by
Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of
Investigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt.
Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt.
Ani's raising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga,
team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the
NARCOM group positioned themselves at strategic places about 90 to 100 meters from Mari Musa's
house. T/Sgt. Belarga could see what went on between Ani and suspect Mari Musa from where he
was. Ani approached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said
he wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the
money, Mari Musa went back to his house and came back and gave Amado Ani two newspaper
wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked back towards his companions and raised his
right hand. The two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined
Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa,
another boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's
wife. The second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who
was later known as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa
but could not find the P20.00 marked money with him. Mari Musa was then asked where the P20.00
was and he told the NARCOM team he has given the money to his wife (who had slipped away). Sgt.
Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari
Musa was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned
over to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from Mari Musa
(Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his
true name Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana
(bought at the buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the
plastic bag containing more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari
Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the
marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated December 14,
1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the
same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the
marijuana specimens subjecting the same to her three tests. All submitted specimens she examined
gave positive results for the presence of marijuana. Mrs. Anderson reported the results of her
examination in her Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-
3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at
the
buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red
ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped
marijuana bought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs.
Anderson also identified her Chemistry Report (Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words
"buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also
identified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 14,
1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime
Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime
Laboratory marked "RECEIVED" (Exh. "B-1"). 4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2)
Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville,
Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman
manicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was being
manicured at one hand, his wife was inside the one room of their house, putting their child to sleep.
Three NARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes,
got inside Mari Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The NARCOM agents
searched Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM
agents were just silent. The NARCOM agents found a red plastic bag whose contents, Mari Musa
said, he did not know. He also did not know if the plastic bag belonged to his brother, Faisal, who was
living with him, or his father, who was living in another house about ten arms-length away. Mari Musa,
then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian,
Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by one NARCOM agent
which investigation was reduced into writing. The writing or document was interpreted to Mari Musa in
Tagalog. The document stated that the marijuana belonged to Mari Musa and Mari Musa was asked
to sign it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari Musa said
he was not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers
were pressed which felt very painful. The NARCOM agents boxed him and Mari Musa lost
consciousness. While Mari Musa was maltreated, he said his wife was outside the NARCOM building.
The very day he was arrested (on cross-examination Mari Musa said it was on the next day), Mari
Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to
the City Jail. Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them;
that he had received from them a P20.00 bill which he had given to his wife. He did not sell marijuana
because he was afraid that was against the law and that the person selling marijuana was caught by
the authorities; and he had a wife and a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before. 5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling
marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment
and to pay the fine of P20,000.00, the latter imposed without subsidiary imprisonment. 6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and
impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior
to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally known by
the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted
a test-buy operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from
the latter. 7 He reported the successful operation to T/Sgt. Belarga on the same day. 8 Whereupon,
T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt.
Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's house
located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of T/Sgt.
Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00
bill by T/Sgt. Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic places. 11 Sgt. Ani
approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani
asked him for some more marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the appellant
went inside the house and brought back two paper wrappers containing marijuana which he handed
to Sgt. Ani. 13 From his position, Sgt. Ani could see that there were other people in the house. 14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the
house and made the arrest. The agents searched the appellant and unable to find the marked money,
they asked him where it was. The appellant said that he gave it to his wife. 16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust
operation, which resulted in the apprehension, prosecution and subsequent conviction of the
appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the
material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they do not know
each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana
from the appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's
confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the buy-bust
operation. Moreover, the Court has held that what matters is not an existing familiarity between the
buyer and the seller, for quite often, the parties to the transaction may be strangers, but their
agreement and the acts constituting the sale and delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the
appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of the
commission of the crime of selling prohibited drugs has been held to be not crucial 18 and the
presence of other people apart from the buyer and seller will not necessarily prevent the
consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factors may
sometimes camouflage the commission of the crime. In the instant case, the fact that the other people
inside the appellant's house are known to the appellant may have given him some assurance that
these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga.
The appellant submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt.
Ani and the appellant, he could not have possibly witnessed the sale. The appellant invokes People v.
Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish
between marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks.
And since T/Sgt. Belarga allegedly did not see the sale, the appellant contends that the
uncorroborated testimony of Sgt. Ani can not stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he and his
companion were certain that the appellant therein handed marijuana cigarettes to the poseur-buyer
based on the appearance of the cigarette sticks. The Court rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are
with contradictions and tainted with inaccuracies.
Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because
according to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes.
(tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on those cigarettes
from the distance where they were observing the alleged sale of more or less 10 to 15 meters. 21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand
over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between
the two. The relevant portion of T/Sgt. Belarga's testimony reads: 22
Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw
that Sgt. Ani proceeded to the house near the road and he was met by one person and later known as
Mari Musa who was at the time wearing short pants and later on I saw that Sgt. Ani handed
something to him, thereafter received by Mari Musa and went inside the house and came back later
and handed something to Sgt. Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from
a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to
the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received
from the appellant was marijuana because of the distance, his testimony, nevertheless, corroborated
the direct evidence, which the Court earlier ruled to be convincing, presented by Sgt. Ani on the
following material points: (1) T/Sgt. Belarga instructed Sgt. Ani to conduct a surveillance and test-buy
operation on the appellant at Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same
day, Sgt. Ani went back to their office and reported a successful operation and turned over to T/Sgt.
Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust
operation the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM
agents who went to Suterville, Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to
Sgt. Ani which was to be used in the buy-bust operation; 27 (6) upon the arrival of the NARCOM
agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some
agents stayed in the vehicles and others positioned themselves in strategic places; 28 the appellant
met Sgt. Ani and an exchange of articles took place. 29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani.
Additionally, the Court has ruled that the fact that the police officers who accompanied the poseur-
buyer were unable to see exactly what the appellant gave the poseur-buyer because of their distance
or position will not be fatal to the prosecution's case 30 provided there exists other evidence, direct or
circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to prove the consummation
of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing
marijuana which the NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani
gave the pre-arranged signal to the other NARCOM agents, the latter moved in and arrested the
appellant inside the house. They searched him to retrieve the marked money but didn't find it. Upon
being questioned, the appellant said that he gave the marked money to his wife. 31 Thereafter, T/Sgt.
Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a
"cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant
about its contents but failing to get a response, they opened it and found dried marijuana leaves. At
the trial, the appellant questioned the admissibility of the plastic bag and the marijuana it contains but
the trial court issued an Order ruling that these are admissible in evidence. 33
Built into the Constitution are guarantees on the freedom of every individual against unreasonable
searches and seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witness
he may produce, and particularly describing the place to be searched and the persons or things to be
seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom from unreasonable
searches and seizures. 35
While a valid search warrant is generally necessary before a search and seizure may be effected,
exceptions to this rule are recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most
important exception to the necessity for a search warrant is the right of search and seizure as an
incident to a lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure
incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as proof of the commission of an offense, without
a search warrant.
appellant refused to respond, they opened it and found the marijuana. Unlike Ker v. California, where
the marijuana was visible to the police officer's eyes, the NARCOM agents in this case could not have
discovered the inculpatory nature of the contents of the bag had they not forcibly opened it. Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag because it was
within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag
and not the marijuana. The incriminating nature of the contents of the plastic bag was not immediately
apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearly betrayed
its contents, whether by its distinctive configuration, its transprarency, or otherwise, that its contents
are obvious to an observer. 48

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting
officer to make a search upon the person of the person arrested. As early as 1909, the Court has
ruled that "[a]n officer making an arrest may take from the person arrested any money or property
found upon his person which was used in the commission of the crime or was the fruit of the crime or
which might furnish the prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a
buy-bust operation conducted to entrap a drug-pusher, the law enforcement agents may seize the
marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his
house but found nothing. They then searched the entire house and, in the kitchen, found and seized a
plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond
the person of the one arrested to include the premises or surroundings under his immediate
control. 40 Objects in the "plain view" of an officer who has the right to be in the position to have that
view are subject to seizure and may be presented as evidence. 41
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply
and the marijuana contained in the plastic bag was seized illegally and cannot be presented in
evidence pursuant to Article III, Section 3(2) of the Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect
of the other pieces of evidence presented by the prosecution to prove that the appellant sold
marijuana, in violation of Article II, Section 4 of the Dangerous Drugs Act of 1972. We hold that by
virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the two wrappings of marijuana sold by
the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of the crime
charged has been proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.
SO ORDERED.

In Ker v. California 42 police officers, without securing a search warrant but having information that the
defendant husband was selling marijuana from his apartment, obtained from the building manager a
passkey to defendants' apartment, and entered it. There they found the defendant husband in the
living room. The defendant wife emerged from the kitchen, and one of the officers, after identifying
himself, observed through the open doorway of the kitchen, a small scale atop the kitchen sink, upon
which lay a brick-shaped package containing green leafy substance which he recognized as
marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of
the Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court,
which held, after observing that it was not unreasonable for the officer to walk to the doorway of the
Terry v. Ohio, 392 U.S. 1 (1968)
adjacent kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the brick of
marijuana did not constitute a search, since the officer merely saw what was placed before him in full
Terry v. Ohio
view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal on the
basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the
No. 67
prosecution's evidence. 44

Argued December 12, 1967

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate
seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt.
The "plain view" doctrine is usually applied where a police officer is not searching for evidence against Decided June 10, 1968
the accused, but nonetheless inadvertently comes across an incriminating object. 45 Furthermore, the
U.S. Supreme Court stated the following limitations on the application of the doctrine: 392 U.S. 1

What the "plain view" cases have in common is that the police officer in each of them had a prior
justification for an intrusion in the course of which he came inadvertently across a piece of evidence
incriminating the accused. The doctrine serves to supplement the prior justification whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the "plain view" doctrine may
not be used to extend a general exploratory search from one object to another until something
incriminating at last emerges. 46
It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine
will not justify the seizure of the object where the incriminating nature of the object is not apparent
from the "plain view" of the object. 47 Stated differently, it must be immediately apparent to the police
that the items that they observe may be evidence of a crime, contraband, or otherwise subject to
seizure.
In the instant case, the appellant was arrested and his person searched in the living room. Failing to
retrieve the marked money which they hoped to find, the NARCOM agents searched the whole house
and found the plastic bag in the kitchen. The plastic bag was, therefore, not within their "plain view"
when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from one
portion of the house to another before they sighted the plastic bag. Unlike Ker vs. California, where
the police officer had reason to walk to the doorway of the adjacent kitchen and from which position
he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious
intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they
had no clue as to its contents. They had to ask the appellant what the bag contained. When the
CERTIORARI TO THE SUPREME COURT OF OHIO
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment in the
confrontation on the street between the citizen and the policeman investigating suspicious
circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily
prescribed term of one to three years in the penitentiary. [Footnote 1] Following
[5]
the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a
number of bullets seized from Terry and a codefendant, Richard Chilton, [Footnote 2] by Cleveland
Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer
McFadden testified that, while he was patrolling in plain clothes in downtown Cleveland at
approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men,
Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the
two men before, and he was unable to say precisely what first drew his eye to them. However, he
testified that he had been a policeman for 39 years and a detective for 35, and that he had been
assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He
explained that he had developed routine habits of observation over the years, and that he would
"stand and watch people or walk and watch people at many intervals of the day." He added: "Now, in
this case, when I looked over, they didn't look right to me at the time."
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to
400 feet
[6]
away from the two men. "I get more purpose to watch them when I seen their movements," he
testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some
stores. The man paused for a moment and looked in a store window, then walked on a short distance,
turned around and walked back toward the corner, pausing once again to look in the same store
window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man
went through the same series of motions, strolling down Huron Road, looking in the same window,
walking on a short distance, turning back, peering in the store window again, and returning to confer
with the first man at the corner. The two men repeated this ritual alternately between five and six times
apiece -- in all, roughly a dozen trips. At one point, while the two were standing together on the corner,
a third man approached them and engaged them briefly in conversation. This man then left the two
others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering,
and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading
west on Euclid Avenue, following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious. He testified that, after observing
their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he
suspected the two men of "casing a job, a stick-up," and that he considered it his duty as a police
officer to investigate further. He added that he feared "they may have a gun." Thus, Officer McFadden
followed Chilton and Terry and saw them stop in front of Zucker's store to talk to the same man who
had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct
action, Officer McFadden approached the three men, identified
[7]
himself as a police officer and asked for their names. At this point, his knowledge was confined to
what he had observed. He was not acquainted with any of the three men by name or by sight, and he
had received no information concerning them from any other source. When the men "mumbled
something" in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around
so that they were facing the other two, with Terry between McFadden and the others, and patted down
the outside of his clothing. In the left breast pocket of Terry's overcoat, Officer McFadden felt a pistol.
He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry
between himself and the others, the officer ordered all three men to enter Zucker's store. As they went
in, he removed Terry's overcoat completely, removed a .38 caliber revolver from the pocket and
ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat
down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the
outer pocket of Chilton's overcoat, but no weapons were found on Katz. The officer testified that he
only patted the men down to see whether they had weapons, and that he did not put his hands
beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from
the record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized
Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to the
station, where Chilton and Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns, the prosecution took the position that they had been seized
following a search incident to a lawful arrest. The trial court rejected this theory, stating that it "would
be stretching the facts beyond reasonable comprehension" to find that Officer
[8]
McFadden had had probable cause to arrest the men before he patted them down for weapons.
However, the court denied the defendants' motion on the ground that Officer McFadden, on the basis
of his experience, "had reasonable cause to believe . . . that the defendants were conducting
themselves suspiciously, and some interrogation should be made of their action." Purely for his own
protection, the court held, the officer had the right to pat down the outer clothing of these men, who he
had reasonable cause to believe might be armed. The court distinguished between an investigatory
"stop" and an arrest, and between a "frisk" of the outer clothing for weapons and a full-blown search
for evidence of crime. The frisk, it held, was essential to the proper performance of the officer's
investigatory duties, for, without it, "the answer to the police officer may be a bullet, and a loaded
pistol discovered during the frisk is admissible."
After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not
guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District,
Cuyahoga County, affirmed. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966). The Supreme
Court of Ohio dismissed their appeal on the ground that no "substantial constitutional question" was
involved. We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of the
revolvers in evidence violated petitioner's rights under the Fourth Amendment, made applicable to the
States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We affirm the conviction.
I the-street stop, interrogate and pat down for weapons (known in street vernacular as 'stop and frisk').
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." This
inestimable right of
[9]
personal security belongs as much to the citizen on the streets of our cities as to the homeowner
closeted in his study to dispose of his secret affairs. For as this Court has always recognized,
"No right is held more sacred, or is more carefully guarded, by the common law than the right of every
individual to the possession and control of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U. S.
250, 251 (1891).
We have recently held that "the Fourth Amendment protects people, not places," Katz v. United
States, 389 U. S. 347, 351 (1967), and wherever an individual may harbor a reasonable "expectation
of privacy," id. at 361 (MR. JUSTICE HARLAN, concurring), he is entitled to be free from
unreasonable governmental intrusion. Of course, the specific content and incidents of this right must
be shaped by the context in which it is asserted. For "what the Constitution forbids is not all searches
and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U. S. 206, 222
(1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he
walked down the street in Cleveland. Beck v. Ohio, 379 U. S. 89 (1964); Rios v. United States, 364 U.
S. 253 (1960); Henry v. United States, 361 U. S. 98 (1959); United States v. Di Re, 332 U. S.
581 (1948); Carroll v. United States, 267 U. S. 132 (1925). The question is whether, in all the
circumstances of this on-the-street encounter, his right to personal security was violated by an
unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult
and troublesome issues regarding a sensitive area of police activity -- issues which have never before
been squarely
[10]
presented to this Court. Reflective of the tensions involved are the practical and constitutional
arguments pressed with great vigor on both sides of the public debate over the power of the police to
"stop and frisk" -- as it is sometimes euphemistically termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly unfolding and often dangerous
situations on city streets, the police are in need of an escalating set of flexible responses, graduated
in relation to the amount of information they possess. For this purpose, it is urged that distinctions
should be made between a "stop" and an "arrest" (or a "seizure" of a person), and between a "frisk"
and a "search." [Footnote 3] Thus, it is argued, the police should be allowed to "stop" a person and
detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon
suspicion that the person may be armed, the police should have the power to "frisk" him for weapons.
If the "stop" and the "frisk" give rise to probable cause to believe that the suspect has committed a
crime, then the police should be empowered to make a formal "arrest," and a full incident "search" of
the person. This scheme is justified in part upon the notion that a "stop" and a "frisk" amount to a
mere "minor inconvenience and petty indignity," [Footnote 4] which can properly be imposed upon the
[11]
citizen in the interest of effective law enforcement on the basis of a police officer's suspicion.
[Footnote 5]
On the other side, the argument is made that the authority of the police must be strictly circumscribed
by the law of arrest and search as it has developed to date in the traditional jurisprudence of the
Fourth Amendment. [Footnote 6] It is contended with some force that there is not -- and cannot be -- a
variety of police activity which does not depend solely upon the voluntary cooperation of the citizen,
and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart
of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any
intrusion upon protected personal security, coupled with a highly developed system of judicial controls
to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the
courts in the compulsion inherent
[12]
in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial
control over, and indeed an encouragement of, substantial interference with liberty and personal
security by police officers whose judgment is necessarily colored by their primary involvement in "the
often competitive enterprise of ferreting out crime."Johnson v. United States, 333 U. S. 10, 14 (1948).
This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of
our Nation's cities. [Footnote 7]
In this context, we approach the issues in this case mindful of the limitations of the judicial function in
controlling the myriad daily situations in which policemen and citizens confront each other on the
street. The State has characterized the issue here as "the right of a police officer . . . to make an on-
[Footnote 8]" But this is only partly accurate. For the issue is not the abstract propriety of the police
conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure.
Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has
been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United
States, 232 U. S. 383, 391-393 (1914). Thus, its major thrust is a deterrent one, see Linkletter v.
Walker, 381 U. S. 618, 629-635 (1965), and experience has taught that it is the only effective
deterrent to police misconduct in the criminal context, and that, without it, the constitutional guarantee
against unreasonable searches and seizures would be a mere "form of words." Mapp v. Ohio, 367 U.
S. 643, 655 (1961). The rule also serves another vital function -- "the imperative of judicial
integrity." Elkins
[13]
v. United States, 364 U. S. 206, 222 (1960). Courts which sit under our Constitution cannot and will
not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered
governmental use of the fruits of such invasions. Thus, in our system, evidentiary rulings provide the
context in which the judicial process of inclusion and exclusion approves some conduct as comporting
with constitutional guarantees and disapproves other actions by state agents. A ruling admitting
evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which
produced the evidence, while an application of the exclusionary rule withholds the constitutional
imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be
invoked to exclude the products of legitimate police investigative techniques on the ground that much
conduct which is closely similar involves unwarranted intrusions upon constitutional protections.
Moreover, in some contexts, the rule is ineffective as a deterrent. Street encounters between citizens
and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of
pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or
injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a
friendly enough manner, only to take a different turn upon the injection of some unexpected element
into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of
which are wholly unrelated to a desire to prosecute for crime. [Footnote 9] Doubtless some
[14]
police "field interrogation" conduct violates the Fourth Amendment. But a stern refusal by this Court to
condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless
of how effective the rule may be where obtaining convictions is an important objective of the police,
[Footnote 10] it is powerless to deter invasions of constitutionally guaranteed rights where the police
either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of
serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness
of these limitations. The wholesale harassment by certain elements of the police community, of which
minority groups, particularly Negroes, frequently complain, [Footnote 11] will not be
[15]
stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application
of the exclusionary rule, in futile protest against practices which it can never be used effectively to
control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial
opinion can comprehend the protean variety of the street encounter, and we can only judge the facts
of the case before us. Nothing we say today is to be taken as indicating approval of police conduct
outside the legitimate investigative sphere. Under our decision, courts still retain their traditional
responsibility to guard against police conduct which is overbearing or harassing, or which trenches
upon personal security without the objective evidentiary justification which the Constitution requires.
When such conduct is identified, it must be condemned by the judiciary, and its fruits must be
excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained
investigative conduct undertaken on the basis of ample factual justification should in no way
discourage the employment of other remedies than the exclusionary rule to curtail abuses for which
that sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate over the limits on police
investigative conduct in general and the background against which this case presents itself, we turn
our attention to the quite narrow question posed by the facts before us: whether it is always
unreasonable for a policeman to seize a person and subject him to a limited search for weapons
unless there is probable cause for an arrest.
[16]
Given the narrowness of this question, we have no occasion to canvass in detail the constitutional
limitations upon the scope of a policeman's power when he confronts a citizen without probable cause
to arrest him.
II
Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant.
That is, we must decide whether and when Officer McFadden "seized" Terry, and whether and when
he conducted a "search." There is some suggestion in the use of such terms as "stop" and "frisk" that
such police conduct is outside the purview of the Fourth Amendment because neither action rises to
the level of a "search" or "seizure" within the meaning of the Constitution. [Footnote 12] We
emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the
person which do not eventuate in a trip to the stationhouse and prosecution for crime -- "arrests" in
traditional terminology. It must be recognized that, whenever a police officer accosts an individual and
restrains his freedom to walk away, he has "seized" that person. And it is nothing less than sheer
torture of the English language to suggest that a careful exploration of the outer surfaces of a person's
clothing all over his or her body in an attempt to find weapons is not a "search." Moreover, it is simply
fantastic to urge that such a procedure
[17]
performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his
hands raised, is a "petty indignity." [Footnote 13] It is a serious intrusion upon the sanctity of the
person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken
lightly. [Footnote 14]
The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or
"seizure" of the person, and between a "frisk" and a "search," is twofold. It seeks to isolate from
constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And, by
suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it
obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means
of constitutional regulation. [Footnote 15] This Court has held, in
[18]
the past that a search which is reasonable at its inception may violate the Fourth Amendment by
virtue of its intolerable intensity and scope. Kremen v. United States, 353 U. S. 346 (1957); Go-Bart
Importing Co. v.
[19]
United States, 282 U. S. 344, 356-358 (1931); see United States v. Di Re, 332 U. S. 581, 586-587
(1948). The scope of the search must be "strictly tied to and justified by" the circumstances which
rendered its initiation permissible. Warden v. Hayden, 387 U. S. 294, 310 (1967) (MR. JUSTICE
FORTAS, concurring); see, e.g., Preston v. United States, 376 U. S. 364, 367-368 (1964); Agnello v.
United States, 269 U. S. 20, 30-31 (1925).
The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central
inquiry under the Fourth Amendment -- the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security. "Search" and "seizure" are not talismans. We
therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation
upon police conduct if the officers stop short of something called a "technical arrest" or a "full-blown
search."
In this case, there can be no question, then, that Officer McFadden "seized" petitioner and subjected
him to a "search" when he took hold of him and patted down the outer surfaces of his clothing. We
must decide whether, at that point, it was reasonable for Officer McFadden to have interfered with
petitioner's personal security as he did. [Footnote 16] And, in determining whether the seizure and
search were "unreasonable," our inquiry
[20]
is a dual one -- whether the officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would
have to ascertain whether "probable cause" existed to justify the search and seizure which took place.
However, that is not the case. We do not retreat from our holdings that the police must, whenever
practicable, obtain advance judicial approval of searches and seizures through the warrant
procedure, see, e.g., Katz v. United States, 389 U. S. 347 (1967); Beck v. Ohio, 379 U. S. 89, 96
(1964); Chapman v. United States, 365 U. S. 610 (1961), or that, in most instances, failure to comply
with the warrant requirement can only be excused by exigent circumstances, see, e.g., Warden v.
Hayden, 387 U. S. 294 (1967) (hot pursuit); cf. Preston v. United States, 376 U. S. 364, 367-368
(1964). But we deal here with an entire rubric of police conduct -- necessarily swift action predicated
upon the on-the-spot observations of the officer on the beat -- which historically has not been, and, as
a practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in
this case must be tested by the Fourth Amendment's general proscription against unreasonable
searches and seizures. [Footnote 17]
Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable
cause remain fully relevant in this context. In order to assess the reasonableness of Officer
McFadden's conduct as a general proposition, it is necessary "first to focus upon
[21]
the governmental interest which allegedly justifies official intrusion upon the constitutionally protected
interests of the private citizen," for there is "no ready test for determining reasonableness other than
by balancing the need to search [or seize] against the invasion which the search [or seizure]
entails." Camara v. Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). And, in justifying the
particular intrusion, the police officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that intrusion. [Footnote
18] The scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some
point, the conduct of those charged with enforcing the laws can be subjected to the more detached,
neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in
light of the particular circumstances. [Footnote 19] And, in making that assessment, it is imperative
that the facts be judged against an objective standard: would the facts
[22]
available to the officer at the moment of the seizure or the search "warrant a man of reasonable
caution in the belief" that the action taken was appropriate? Cf. Carroll v. United States, 267 U. S.
132 (1925); Beck v. Ohio, 379 U. S. 89, 96-97 (1964). [Footnote 20] Anything less would invite
intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate
hunches, a result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio, supra; Rios
v. United States, 364 U. S. 253 (1960); Henry v. United States, 361 U. S. 98 (1959). And simple "'good
faith on the part of the arresting officer is not enough.' . . . If subjective good faith alone were the test,
the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their
persons, houses, papers, and effects,' only in the discretion of the police." Beck v. Ohio, supra, at 97.
Applying these principles to this case, we consider first the nature and extent of the governmental
interests involved. One general interest is, of course, that of effective crime prevention and detection;
it is this interest which underlies the recognition that a police officer may, in appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest. It was this legitimate investigative
function Officer McFadden was discharging when he decided to approach petitioner and his
companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them
perhaps innocent in itself, but which, taken together, warranted further investigation. There is nothing
unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there
anything suspicious about people
[23]
in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover,
are made to be looked in. But the story is quite different where, as here, two men hover about a street
corner for an extended period of time, at the end of which it becomes apparent that they are not
waiting for anyone or anything; where these men pace alternately along an identical route, pausing to
stare in the same store window roughly 24 times; where each completion of this route is followed
immediately by a conference between the two men on the corner; where they are joined in one of
these conferences by a third man who leaves swiftly, and where the two men finally follow the third
and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of
30 years' experience in the detection of thievery from stores in this same neighborhood to have failed
to investigate this behavior further.
The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate
petitioner's suspicious behavior, but, rather, whether there was justification for McFadden's invasion of
Terry's personal security by searching him for weapons in the course of that investigation. We are now
concerned with more than the governmental interest in investigating crime; in addition, there is the
more immediate interest of the police officer in taking steps to assure himself that the person with
whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against
him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the
performance of their duties. American criminals have a long tradition of armed violence, and every
year in this country many law enforcement officers are killed in the line of duty, and thousands more
are wounded.
[24]
Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
[Footnote 21]
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect
themselves and other prospective victims of violence in situations where they may lack probable
cause for an arrest. When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the officer or to
others, it would appear to be clearly unreasonable to deny the officer the power to take necessary
measures to determine whether the person is, in fact, carrying a weapon and to neutralize the threat
of physical harm.
We must still consider, however, the nature and quality of the intrusion on individual rights which must
be accepted if police officers are to be conceded the right to search for weapons in situations where
probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons
constitutes a severe,
[25]
though brief, intrusion upon cherished personal security, and it must surely be an annoying,
frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is
permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or
for a crime the commission of which led the officer to investigate in the first place. However, this
argument must be closely examined.
Petitioner does not argue that a police officer should refrain from making any investigation of
suspicious circumstances until such time as he has probable cause to make an arrest; nor does he
deny that police officers, in properly discharging their investigative function, may find themselves
confronting persons who might well be armed and dangerous. Moreover, he does not say that an
officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is
unreasonable for the policeman to take that step until such time as the situation evolves to a point
where there is probable cause to make an arrest. When that point has been reached, petitioner would
concede the officer's right to conduct a search of the suspect for weapons, fruits or instrumentalities of
the crime, or "mere" evidence, incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to take account of
traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose,
character, and extent between a search incident to an arrest and a limited search for weapons. The
former, although justified in part by the acknowledged necessity to protect the arresting officer from
assault with a concealed weapon, Preston v. United States, 376 U. S. 364, 367 (1964), is also justified
on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A
search for weapons in the absence of probable cause to
[26]
arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify
its initiation. Warden v. Hayden, 387 U. S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).
Thus, it must be limited to that which is necessary for the discovery of weapons which might be used
to harm the officer or others nearby, and may realistically be characterized as something less than a
"full" search, even though it remains a serious intrusion.
A second, and related, objection to petitioner's argument is that it assumes that the law of arrest has
already worked out the balance between the particular interests involved here -- the neutralization of
danger to the policeman in the investigative circumstance and the sanctity of the individual. But this is
not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search
for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the
initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws
obeyed, and it is inevitably accompanied by future interference with the individual's freedom of
movement, whether or not trial or conviction ultimately follows. [Footnote 22] The protective search for
weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the
sanctity of the person. It does not follow that, because an officer may lawfully arrest a person only
when he is apprised of facts sufficient to warrant a belief that the person has committed or is
committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any
intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long
before the officer is possessed of adequate information to justify taking a person into custody for
[27]
the purpose of prosecuting him for a crime. Petitioner's reliance on cases which have worked out
standards of reasonableness with regard to "seizures" constituting arrests and searches incident
thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of
personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis
of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v.
Municipal Court, supra.
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude
that there must be a narrowly drawn authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.
The officer need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that
of others was in danger. Cf. Beck v. Ohio, 379 U. S. 89, 91 (1964); Brinegar v. United States, 338 U.
S. 160, 174-176 (1949); Stacey v. Emery, 97 U. S. 642, 645 (1878). [Footnote 23] And in determining
whether the officer acted reasonably in such circumstances, due weight must be given not to his
inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he
is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.
IV
We must now examine the conduct of Officer McFadden in this case to determine whether his search
and seizure of petitioner were reasonable, both at their inception
[28]
and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner
he took to be preface to a "stick-up." We think, on the facts and circumstances Officer McFadden
detailed before the trial judge, a reasonably prudent man would have been warranted in believing
petitioner was armed, and thus presented a threat to the officer's safety while he was investigating his
suspicious behavior. The actions of Terry and Chilton were consistent with McFadden's hypothesis
that these men were contemplating a daylight robbery -- which, it is reasonable to assume, would be
likely to involve the use of weapons -- and nothing in their conduct from the time he first noticed them
until the time he confronted them and identified himself as a police officer gave him sufficient reason
to negate that hypothesis. Although the trio had departed the original scene, there was nothing to
indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden
approached the three men gathered before the display window at Zucker's store, he had observed
enough to make it quite reasonable to fear that they were armed, and nothing in their response to his
hailing them, identifying himself as a police officer, and asking their names served to dispel that
reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for
weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in the course of an
investigation, had to make a quick decision as to how to protect himself and others from possible
danger, and took limited steps to do so.
The manner in which the seizure and search were conducted is, of course, as vital a part of the
inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by
limitations upon the
[29]
scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v.
United States, 389 U. S. 347, 354-356 (1967). The entire deterrent purpose of the rule excluding
evidence seized in violation of the Fourth Amendment rests on the assumption that "limitations upon
the fruit to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914 (C.A.2d
Cir.1930); see, e.g., Linkletter v. Walker, 381 U. S. 618, 629-635 (1965); Mapp v. Ohio, 367 U. S.
643 (1961); Elkins v. United States, 364 U. S. 206, 216-221 (1960). Thus, evidence may not be
introduced if it was discovered by means of a seizure and search which were not reasonably related
in scope to the justification for their initiation. Warden v. Hayden, 387 U. S. 294, 310 (1967) (MR.
JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which the Fourth Amendment
places upon a protective seizure and search for weapons. These limitations will have to be developed
in the concrete factual circumstances of individual cases. See Sibron v. New York, post, p. 40,
decided today. Suffice it to note that such a search, unlike a search without a warrant incident to a
lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of
crime. See Preston v. United States, 376 U. S. 364, 367 (1964). The sole justification of the search in
the present situation is the protection of the police officer and others nearby, and it must therefore be
confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of these standards. Officer
McFadden patted down the outer clothing of petitioner and his two companions. He did not place his
hands in their pockets or under the outer surface of their garments until he had
[30]
felt weapons, and then he merely reached for and removed the guns. He never did invade Katz'
person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which
might have been a weapon. Officer McFadden confined his search strictly to what was minimally
necessary to learn whether the men were armed and to disarm them once he discovered the
weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity
he might find.
V
We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the
time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds
to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself
and others to take swift measures to discover the true facts and neutralize the threat of harm if it
materialized. The policeman carefully restricted his search to what was appropriate to the discovery of
the particular items which he sought. Each case of this sort will, of course, have to be decided on its
own facts. We merely hold today that, where a police officer observes unusual conduct which leads
him reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where, in the course of
investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or
others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him.
[31]
Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may
properly be introduced in evidence against the person from whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from
and relies upon this Court's opinion in Katz v. United States and the concurring opinion in Warden v.
Hayden.
MR. JUSTICE HARLAN, concurring.
While I unreservedly agree with the Court's ultimate holding in this case, I am constrained to fill in a
few gaps, as I see them, in its opinion. I do this because what is said by this Court today will serve as
initial guidelines for law enforcement authorities and courts throughout the land as this important new
field of law develops.
A police officer's right to make an on-the-street "stop" and an accompanying "frisk" for weapons is, of
course, bounded by the protections afforded by the Fourth and Fourteenth Amendments. The Court
holds, and I agree, that, while the right does not depend upon possession by the officer of a valid
warrant, nor upon the existence of probable cause, such activities must be reasonable under the
circumstances as the officer credibly relates them in court. Since the question in this and most cases
is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk
reasonable.
If the State of Ohio were to provide that police officers could, on articulable suspicion less than
probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would
have little doubt that action taken pursuant to such authority could be constitutionally reasonable.
Concealed weapons create an immediate
[32]
and severe danger to the public, and though that danger might not warrant routine general weapons
checks, it could well warrant action on less than a "probability." I mention this line of analysis because
I think it vital to point out that it cannot be applied in this case. On the record before us, Ohio has not
clothed its policemen with routine authority to frisk and disarm on suspicion; in the absence of state
authority, policemen have no more right to "pat down" the outer clothing of passers-by, or of persons
to whom they address casual questions, than does any other citizen. Consequently, the Ohio courts
did not rest the constitutionality of this frisk upon any general authority in Officer McFadden to take
reasonable steps to protect the citizenry, including himself, from dangerous weapons.
The state courts held, instead, that, when an officer is lawfully confronting a possibly hostile person in
the line of duty, he has a right, springing only from the necessity of the situation, and not from any
broader right to disarm, to frisk for his own protection. This holding, with which I agree and with which
I think the Court agrees, offers the only satisfactory basis I can think of for affirming this conviction.
The holding has, however, two logical corollaries that I do not think the Court has fully expressed.
In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen,
the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any
person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a
policeman has a right instead to disarm such a person for his own protection, he must first have a
right not to avoid him, but to be in his presence. That right must be more than the liberty (again,
possessed by every citizen) to address questions to other persons, for ordinarily the person
[33]
addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to
a frisk for the questioner's protection. I would make it perfectly clear that the right to frisk in this case
depends upon the reasonableness of a forcible stop to investigate a suspected crime.
Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the
reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search
incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop
must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a
person suspected of a serious crime, should have to ask one question and take the risk that the
answer might be a bullet.
The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no
probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably
lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or
robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining
his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. When
he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he
suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry "mumbled
something." Whereupon McFadden, without asking Terry to speak louder and without giving him any
chance to explain his presence or his actions, forcibly frisked him.
I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would,
however, make explicit what I think is implicit in affirmance on
[34]
the present facts. Officer McFadden's right to interrupt Terry's freedom of movement and invade his
privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to
prevent or investigate a crime. Once that forced encounter was justified, however, the officer's right to
take suitable measures for his own safety followed automatically.
Upon the foregoing premises, I join the opinion of the Court.
MR. JUSTICE WHITE, concurring.
I join the opinion of the Court, reserving judgment, however, on some of the Court's general remarks
about the scope and purpose of the exclusionary rule which the Court has fashioned in the process of
enforcing the Fourth Amendment.
Also, although the Court puts the matter aside in the context of this case, I think an additional word is
in order concerning the matter of interrogation during an investigative stop. There is nothing in the
Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent
special circumstances, the person approached may not be detained or frisked, but may refuse to
cooperate and go on his way. However, given the proper circumstances, such as those in this case, it
seems to me the person may be briefly detained against his will while pertinent questions are directed
to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and
refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for
continued observation. In my view, it is temporary detention, warranted by the circumstances, which
chiefly justifies the protective frisk for weapons. Perhaps the frisk itself, where proper, will have
beneficial results whether questions are asked or not. If weapons are found, an arrest will follow.
[35]
If none is found, the frisk may nevertheless serve preventive ends because of its unmistakable
message that suspicion has been aroused. But if the investigative stop is sustainable at all,
constitutional rights are not necessarily violated if pertinent questions are asked and the person is
restrained briefly in the process.
MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I also agree that
frisking petitioner and his companions for guns was a "search." But it is a mystery how that "search"
and that "seizure" can be constitutional by Fourth Amendment standards unless there was "probable
cause" [Footnote 1] to believe that (1) a crime had been committed or (2) a crime was in the process
of being committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of "probable cause." If loitering were in issue and that
[36]
was the offense charged, there would be "probable cause" shown. But the crime here is carrying
concealed weapons; [Footnote 2] and there is no basis for concluding that the officer had "probable
cause" for believing that that crime was being committed. Had a warrant been sought, a magistrate
would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of
"probable cause." We hold today that the police have greater authority to make a "seizure" and
conduct a "search" than a judge has to authorize such action. We have said precisely the opposite
over and over again. [Footnote 3]
[37]
In other words, police officers up to today have been permitted to effect arrests or searches without
warrants only when the facts within their personal knowledge would satisfy the constitutional standard
of probable cause. At the time of their "seizure" without a warrant, they must possess facts concerning
the person arrested that would have satisfied a magistrate that "probable cause" was indeed present.
The term "probable cause" rings a bell of certainty that is not sounded by phrases such as
"reasonable suspicion." Moreover, the meaning of "probable cause" is deeply imbedded in our
constitutional history. As we stated in Henry v. United States, 361 U. S. 98, 100-102:
"The requirement of probable cause has roots that are deep in our history. The general warrant, in
which the name of the person to be arrested was left blank, and the writs of assistance, against which
James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and
search on suspicion. Police control took the place of judicial control, since no showing of 'probable
cause' before a magistrate was required."
"* * * *"
"That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And
as the early American decisions both before and immediately after its adoption show, common rumor
or report, suspicion, or even 'strong reason to suspect' was not adequate to support a warrant
[38]
for arrest. And that principle has survived to this day. . . ."
". . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the
standard set by the Constitution protects both the officer and the citizen. If the officer acts with
probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a
search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a
warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of
officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen."
The infringement on personal liberty of any "seizure" of a person can only be "reasonable" under the
Fourth Amendment if we require the police to possess "probable cause" before they seize him. Only
that line draws a meaningful distinction between an officer's mere inkling and the presence of facts
within the officer's personal knowledge which would convince a reasonable man that the person
seized has committed, is committing, or is about to commit a particular crime. "In dealing with
probable cause, . . . as the very name implies, we deal with probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act." Brinegar v. United States, 338 U. S. 160, 175.
To give the police greater power than a magistrate is to take a long step down the totalitarian path.
Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should
be the deliberate choice of the people through a constitutional amendment.
[39]
Until the Fourth Amendment, which is closely allied with the Fifth, [Footnote 4] is rewritten, the person
and the effects of the individual are beyond the reach of all government agencies until there are
reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about
to be launched.
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to
water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has
probably never been greater than it is today.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not
like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime.
The decision to enter it should be made only after a full debate by the people of this country.
Footnotes
[Footnote 1]
Ohio Rev.Code 2923.01 (1953) provides in part that "[n]o person shall carry a pistol, bowie knife,
dirk, or other dangerous weapon concealed on or about his person." An exception is made for
properly authorized law enforcement officers.
[Footnote 2]
Terry and Chilton were arrested, indicted, tried, and convicted together. They were represented by the
same attorney, and they made a joint motion to suppress the guns. After the motion was denied,
evidence was taken in the case against Chilton. This evidence consisted of the testimony of the
arresting officer and of Chilton. It was then stipulated that this testimony would be applied to the case
against Terry, and no further evidence was introduced in that case. The trial judge considered the two
cases together, rendered the decisions at the same time, and sentenced the two men at the same
time. They prosecuted their state court appeals together through the same attorney, and they
petitioned this Court for certiorari together. Following the grant of the writ upon this joint petition,
Chilton died. Thus, only Terry's conviction is here for review.
[Footnote 3]
Both the trial court and the Ohio Court of Appeals in this case relied upon such a distinction. State v.
Terry, 5 Ohio App.2d 122, 125-130, 214 N.E.2d 114, 117-120 (1966). See also, e.g., People v. Rivera,
14 N.Y.2d 441, 201 N.E.2d 32, 252 N.Y.S.2d 458 (1964), cert. denied, 379 U.S. 978 (1965); Aspen,
Arrest and Arrest Alternatives: Recent Trends, 1966 U.Ill.L.F. 241, 249-254; Warner, The Uniform
Arrest Act, 28 Va.L.Rev. 315 (1942); Note, Stop and Frisk in California, 18 Hastings L.J. 623, 629-632
(1967).
[Footnote 4]
People v. Rivera, supra, n 3, at 447, 201 N.E.2d at 36, 252 N.Y.S.2d at 464.
[Footnote 5]
The theory is well laid out in the Rivera opinion:
"[T]he evidence needed to make the inquiry is not of the same degree of conclusiveness as that
required for an arrest. The stopping of the individual to inquire is not an arrest and the ground upon
which the police may make the inquiry may be less incriminating than the ground for an arrest for a
crime known to have been committed. . . ."
"* * * *"
"And as the right to stop and inquire is to be justified for a cause less conclusive than that which
would sustain an arrest, so the right to frisk may be justified as an incident to inquiry upon grounds of
elemental safety and precaution which might not initially sustain a search. Ultimately, the validity of
the frisk narrows down to whether there is or is not a right by the police to touch the person
questioned. The sense of exterior touch here involved is not very far different from the sense of sight
or hearing -- senses upon which police customarily act." People v. Rivera, 14 N.Y.2d 441, 445, 447,
201 N.E.2d 32, 34, 35, 252 N.Y.S.2d 458, 461, 463 (1964), cert. denied, 379 U.S. 978 (1965).
[Footnote 6]
See, e.g., Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J.Crim.L.C.
& P.S. 402 (1960).
[Footnote 7]
See n 11, infra.
[Footnote 8]
Brief for Respondent 2.
[Footnote 9]
See L. Tiffany, D. McIntyre D. Rotenberg, Detection of Crime: Stopping and Questioning, Search and
Seizure, Encouragement and Entrapment 186 (1967). This sort of police conduct may, for example,
be designed simply to help an intoxicated person find his way home, with no intention of arresting him
unless he becomes obstreperous. Or the police may be seeking to mediate a domestic quarrel which
threatens to erupt into violence. They may accost a woman in an area known for prostitution as part of
a harassment campaign designed to drive prostitutes away without the considerable difficulty involved
in prosecuting them. Or they may be conducting a dragnet search of all teenagers in a particular
section of the city for weapons because they have heard rumors of an impending gang fight.
[Footnote 10]
See Tiffany, McIntyre & Rotenberg, supra, n 9, at 100-101; Comment, 47 Nw.U.L.Rev. 493, 497-499
(1952).
[Footnote 11]
The President's Commission on Law Enforcement and Administration of Justice found that, "[i]n many
communities, field interrogations are a major source of friction between the police and minority
groups." President's Commission on Law Enforcement and Administration of Justice, Task Force
Report: The Police 183 (1967). It was reported that the friction caused by "[m]isuse of field
interrogations" increases "as more police departments adopt 'aggressive patrol,' in which officers are
encouraged routinely to stop and question persons on the street who are unknown to them, who are
suspicious, or whose purpose for being abroad is not readily evident." Id. at 184. While the frequency
with which "frisking" forms a part of field interrogation practice varies tremendously with the locale, the
objective of the interrogation, and the particular officer, see Tiffany, McIntyre & Rotenberg, supra, n 9,
at 47-48, it cannot help but be a severely exacerbating factor in police-community tensions. This is
particularly true in situations where the "stop and frisk" of youths or minority group members is
"motivated by the officers' perceived need to maintain the power image of the beat officer, an aim
sometimes accomplished by humiliating anyone who attempts to undermine police control of the
streets." Ibid.
[Footnote 12]
In this case, for example, the Ohio Court of Appeals stated that "we must be careful to distinguish that
the 'frisk' authorized herein includes only a 'frisk' for a dangerous weapon. It by no means authorizes
a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds
to arrest. Such a search is controlled by the requirements of the Fourth Amendment, and probable
cause is essential." State v. Terry, 5 Ohio App.2d 122, 130, 214 N.E.2d 114, 120 (1966). See also,
e.g., Ellis v. United States, 105 U.S.App.D.C. 86, 88, 264 F.2d 372, 374 (1959); Comment, 65
Col.L.Rev. 848, 860, and n. 81 (1965).
[Footnote 13]
Consider the following apt description:
"[T]he officer must feel with sensitive fingers every portion of the prisoner's body. A thorough search
must be made of the prisoner's arms and armpits, waistline and back, the groin and area about the
testicles, and entire surface of the legs down to the feet." Priar & Martin, Searching and Disarming
Criminals, 45 J.Crim.L.C. & P.S. 481 (1954).
[Footnote 14]
See n 11, supra, and accompanying text.
We have noted that the abusive practices which play a major, though by no means exclusive, role in
creating this friction are not susceptible of control by means of the exclusionary rule, and cannot
properly dictate our decision with respect to the powers of the police in genuine investigative and
preventive situations. However, the degree of community resentment aroused by particular practices
is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of
personal security caused by those practices.
[Footnote 15]
These dangers are illustrated in part by the course of adjudication in the Court of Appeals of New
York. Although its first decision in this area, People v. Rivera, 14 N.Y.2d 441, 201 N.E.2d 32, 252
N.Y.S.2d 458 (1964), cert. denied, 379 U.S. 978 (1965), rested squarely on the notion that a "frisk"
was not a "search," see nn. 3-5 supra, it was compelled to recognize, in People v. Taggart, 20 N.Y.2d
335, 342, 229 N.E.2d 581, 586, 283 N.Y.S.2d 1, 8 (1967), that what it had actually authorized
in Rivera and subsequent decisions, see, e.g., People v. Pugach, 15 N.Y.2d 65, 204 N.E.2d 176, 255
N.Y.S.2d 833 (1964), cert. denied, 380 U.S. 936 (1965), was a "search" upon less than probable
cause. However, in acknowledging that no valid distinction could be maintained on the basis of its
cases, the Court of Appeals continued to distinguish between the two in theory. It still defined "search"
as it had in Rivera -- as an essentially unlimited examination of the person for any and all seizable
items -- and merely noted that the cases had upheld police intrusions which went far beyond the
original limited conception of a "frisk." Thus, principally because it failed to consider limitations upon
the scope of searches in individual cases as a potential mode of regulation, the Court of Appeals in
three short years arrived at the position that the Constitution must, in the name of necessity, be held
to permit unrestrained rummaging about a person and his effects upon mere suspicion. It did
apparently limit its holding to "cases involving serious personal injury or grave irreparable property
damage," thus excluding those involving "the enforcement of sumptuary laws, such as gambling, and
laws of limited public consequence, such as narcotics violations, prostitution, larcenies of the ordinary
kind, and the like." People v. Taggart, supra, at 340, 214 N.E.2d at 584, 283 N.Y.S.2d at 6.
In our view, the sounder course is to recognize that the Fourth Amendment governs all intrusions by
agents of the public upon personal security, and to make the scope of the particular intrusion, in light
of all the exigencies of the case, a central element in the analysis of reasonableness. Cf. Brinegar v.
United States, 338 U. S. 160, 183 (1949) (Mr. Justice Jackson, dissenting). Compare Camara v.
Municipal Court, 387 U. S. 523, 537 (1967). This seems preferable to an approach which attributes
too much significance to an overly technical definition of "search," and which turns in part upon a
judge-made hierarchy of legislative enactments in the criminal sphere. Focusing the inquiry squarely
on the dangers and demands of the particular situation also seems more likely to produce rules which
are intelligible to the police and the public alike than requiring the officer in the heat of an unfolding
encounter on the street to make a judgment as to which laws are "of limited public consequence."
[Footnote 16]
We thus decide nothing today concerning the constitutional propriety of an investigative "seizure"
upon less than probable cause for purposes of "detention" and/or interrogation. Obviously, not all
personal intercourse between policemen and citizens involves "seizures" of persons. Only when the
officer, by means of physical force or show of authority, has in some way restrained the liberty of a
citizen may we conclude that a "seizure" has occurred. We cannot tell with any certainty upon this
record whether any such "seizure" took place here prior to Officer McFadden's initiation of physical
contact for purposes of searching Terry for weapons, and we thus may assume that, up to that point,
no intrusion upon constitutionally protected rights had occurred.
[Footnote 17]
See generally Leagre, The Fourth Amendment and the Law of Arrest, 54 J.Crim.L.C. & P.S. 393, 396
403 (1963).
[Footnote 18]
This demand for specificity in the information upon which police action is predicated is the central
teaching of this Court's Fourth Amendment jurisprudence. See Beck v. Ohio, 379 U. S. 89, 96-97
(1964); Ker v. California, 374 U. S. 23, 34-37 (1963); Wong Sun v. United States, 371 U. S. 471, 479-
484 (1963); Rios v. United States, 364 U. S. 253, 261-262 (1960); Henry v. United States, 361 U. S.
98, 100-102 (1959); Draper v. United States, 358 U. S. 307, 312-314 (1959); Brinegar v. United
States, 338 U. S. 160, 175-178 (1949); Johnson v. United States, 333 U. S. 10, 15-17 (1948); United
States v. Di Re, 332 U. S. 581, 593-595 (1948); Husty v. United States, 282 U. S. 694, 700-701
(1931); Dumbra v. United States, 268 U. S. 435, 441 (1925); Carroll v. United States, 267 U. S. 132,
159-162 (1925); Stacey v. Emery, 97 U. S. 642,6 45 (1878).
[Footnote 19]
"These long-prevailing standards [for probable cause] seek to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give
fair leeway for enforcing the law in the community's protection. Because many situations which
confront officers in the course of executing their duties are more or less ambiguous, room must be
allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on
facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical,
nontechnical conception affording the best compromise that has been found for accommodating these
often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would
be to leave law-abiding citizens at the mercy of the officers' whim or caprice."

See, e.g., Katz v. United States, 389 U. S. 347, 354-357 (1967); Berger v. New York, 388 U. S. 41, 54- And see Johnson v. United States, 333 U. S. 10, 14-15; Wrightson v. United States, 95 U.S.App.D.C.
60 (1967); Johnson v. United States, 333 U. S. 10, 13-15 (1948); cf. Wong Sun v. United States, 371 390, 393-394, 222 F.2d 556, 559-560 (1955).
U. S. 471, 479-480 (1963). See also Aguilar v. Texas, 378 U. S. 108, 110-115 (1964).
[Footnote 4]
[Footnote 20]
See Boyd v. United States, 116 U. S. 616, 633:
See also cases cited in n 18, supra.
"For the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost
[Footnote 21] always made for the purpose of compelling a man to give evidence against himself, which, in criminal
cases, is condemned in the Fifth Amendment, and compelling a man 'in a criminal case to be a
Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the witness against himself,' which is condemned in the Fifth Amendment, throws light on the question as
total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults to what is an 'unreasonable search and seizure' within the meaning of the Fourth Amendment."
on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed
in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the
person. The remaining two murders were perpetrated by knives. See Federal Bureau of Investigation,
Uniform Crime Reports for the United States -- 1966, at 45-48, 152 and Table 51.

The easy availability of firearms to potential criminals in this country is well known, and has provoked
much debate. See, e.g., President's Commission on Law Enforcement and Administration of Justice,
The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun control
proposals, this fact is relevant to an assessment of the need for some form of self-protective search
power.

[Footnote 22]

See generally W. LaFave, Arrest -- The Decision to Take a Suspect into Custody 1-13 (1965).

[Footnote 23]

See also cases cited in n. 18, supra.

[Footnote 1]

The meaning of "probable cause" has been developed in cases where an officer has reasonable
grounds to believe that a crime has been or is being committed. See, e.g., 70 U. S. 3 Wall.
155; Stacey v. Emery, 97 U. S. 642; Director General v. Kastenbaum, 263 U. S. 25; Carroll v. United
States, 267 U. S. 132; United States v. Di Re, 332 U. S. 581; Brinegar v. United States, 338 U. S.
160; Draper v. United States, 358 U. S. 307; Henry v. United States, 361 U. S. 98. In such cases, of
course, the officer may make an "arrest" which results in charging the individual with commission of a
crime. But while arresting persons who have already committed crimes is an important task of law
enforcement, an equally if not more important function is crime prevention and deterrence of would-be
criminals. "[T]here is no war between the Constitution and common sense," Mapp v. Ohio, 367 U. S.
643, 657. Police officers need not wait until they see a person actually commit a crime before they are
able to "seize" that person. Respect for our constitutional system and personal liberty demands in
return, however, that such a "seizure" be made only upon "probable cause."

[Footnote 2]

Ohio Rev.Code 2923.01.

[Footnote 3]

This Court has always used the language of "probable cause" in determining the constitutionality of an
arrest without a warrant. See, e.g., Carroll v. United States, 267 U. S. 132, 156, 161-162; Johnson v.
United States, 333 U. S. 10, 13-15; McDonald v. United States, 335 U. S. 451, 455-456; Henry v.
United States, 361 U. S. 98; Wong Sun v. United States, 371 U. S. 471, 479-484. To give power to the
police to seize a person on some grounds different from or less than "probable cause" would be
handing them more authority than could be exercised by a magistrate in issuing a warrant to seize a
person. As we stated in Wong Sun v. United States, 371 U. S. 471, with respect to requirements for
arrests without warrants:

"Whether or not the requirements of reliability and particularity of the information on which an officer
may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent
than where an arrest warrant is obtained."

Id. at 479. And we said in Brinegar v. United States, 338 U. S. 160, 176: