Republic of the Philippines then and there, willfully, unlawfully, and without any prior authority, license or permit

SUPREME COURT to possess or carry the firearm hereunder described, have in his possession and
Manila control the following firearm classified as high powered, with its corresponding
ammunitions and accessory, viz:
THIRD DIVISION
- one (1) cal. 45 pistol (NORINCO) bearing SN 906347;
G.R. No. 156320 February 14, 2007
- one (1) magazine for pistol cal. 45
RODOLFO ABENES y GACUTAN, Petitioner,
vs. - seven (7) rounds live ammunitions for cal. 45,
HE HON. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents. in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.

DECISION CONTRARY TO LAW.2

AUSTRIA-MARTINEZ, J.: In Criminal Case No. 4563-98

For review before the Court is the Decision1 dated November 29, 2002 of the Court of
Appeals (CA) which affirmed the Joint Decision of the Regional Trial Court (RTC) of
Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo Abenes y Gacutan
(petitioner) guilty beyond reasonable doubt of Illegal Possession of High Powered
Firearm and Ammunition under Presidential Decree No. 1866 (P.D. No. 1866) in
Criminal Case No. 4559-98, and of violating Section 261(q) of Batas Pambansa
Blg. 881 (B.P. Blg. 881), otherwise known as the Omnibus Election Code, vis--vis
COMELEC Resolution No. 2958 (Gun Ban) in Criminal Case No. 4563-98.
Petitioner was charged under the following Informations:
In Criminal Case No. 4559-98
The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y
GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED
FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by R.A.
No. 8294), committed as follows:
The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES Y
GACUTAN of Election Offense in violation of Sec. 261 (9) 3 , BP 881 (OMNIBUS
ELECTION CODE), vis--vis COMELEC RESOLUTION # 1958 (GUN BAN),
committed as follows:
On May 8, 1998, at about 10:30 a.m. within the Election period which is from January
11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines, within the
jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did, then
and there, willfully, and unlawfully, carry in his person a cal. .45 (NORINCO) pistol,
bearing serial number 906347, and loaded with seven (7) rounds of live ammunitions,
without any prior authority from the COMELEC in gross violation of Sec. 261 (9) of
BP 881 (OMNIBUS ELECTION CODE) in relation to COMELEC RESOLUTION No.
2958 (GUN BAN).
CONTRARY TO LAW.4
Upon arraignment, the petitioner pleaded not guilty. Trial ensued.

On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines, within The facts, as found by the RTC and summarized by the CA, are as follows:
the jurisdiction of this Honorable Court, said RODOLFO ABENES Y GACUTAN did,

1
The prosecution showed that three days prior to the May 11, 1998 national and local
elections, the Philippine National Police (PNP) of Pagadian City, through its Company
Commander Major Pedronisto Quano, created a team composed of seven policemen
with a directive to establish and man a checkpoint in Barangay Danlugan at said city,
for the purpose of enforcing the Gun Ban which was then being implemented by the
COMELEC. SPO3 Cipriano Q. Pascua was the designated team leader.
The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the morning of
May 8, 1998. Team leader SPO3 Pascua coordinated with the Barangay Chairman of
Danlugan, and the team put up a road block with the marking "COMELEC GUN
BAN". Vehicles passing through the road block were required by the team to stop and
their occupants were then politely requested to alight in order to allow routine
inspection and checking of their vehicles. Motorists who refused the request were not
forced to do so.
At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass
through the check point was stopped by the team and directed to park at the side of
the road. As the occupants within the vehicle could not be seen through its tinted
windows, SPO1 Eliezer Requejo, a member of the team, knocked on the vehicles
window and requested the occupants to step down for a routine inspection. The eight
occupants, which included the accused-appellant Rodolfo Abenes who is the
Barangay Chairman of Tawagan Norte, Labangan, Zamboanga Del Sur, alighted from
the vehicle. At this juncture, SPO1 Requejo and SPO3 Pascua noticed that a
holstered firearm was tucked at the right waist of Abenes. The firearm was readily
visible to the policemen; it was not covered by the shirt worn by Abenes. Abenes was
then asked by SPO3 Pascua whether he had a license and authority to carry the
firearm, and whether his possession was exempted from the Gun Ban being enforced
by the COMELEC. Accused answered in the affirmative. The policemen then
demanded for the pertinent documents to be shown to support Abenes claim. He
could not show any. Hence, SPO1 Requejo confiscated Abenes firearm, which was
later identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its
magazine containing seven live ammunitions.
Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to the
PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the
Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn referred
Abenes to a certain SPO2 Benvienido Albon for further investigation (TSN, August
24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer Requejo] pp. 29-50).
2
A certification dated May 18, 1998 from the Firearms and Explosives License
Processing Section of the PNP, Pagadian City disclosed that Abenes is not a
registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98, p.
56).
After the prosecution presented its evidence, [the] accused filed a Demurrer to
Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial
court in a Resolution dated March 5, 1999 (supra, pp. 80-82).
In his defense, accused-appellant tried to establish that the firearm did not belong to
and was not recovered from him; that the firearm was recovered by the policemen
from the floor of the vehicle inside a clutch bag which was allegedly left by an
unidentified person who hitched a ride somewhere along the national highway of
Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay Bazaar in
Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September 15, 1999
[Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado Gengania], pp. 9-
16).5
On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on
both charges, the dispositive portion of which states:
WHEREFORE, in view of all the foregoing discussion, this Court hereby finds
accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for Violation
of P.D. No. 1866, as amended by Republic Act No. 8294, having been found in
possession without license/permit of a Norinco .45 caliber pistol bearing Serial No.
906347 and 7 rounds of ammunitions and sentences him to imprisonment ranging
from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of PRISION
CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to EIGHT (8) YEARS of
PRISION MAYOR in its MINIMUM, as MAXIMUM and a FINE of THIRTY
THOUSAND PESOS (P30,000.00), Philippine currency. Insofar as Criminal Case No.
4559-98 is concerned. The .45 Caliber Pistol aforementioned and the seven (7)
rounds of ammunitions are hereby forfeited in favor of the government the same
being effects of the Violation of P.D. 1866, amended.
As regards Criminal Case No. 4563-98, this Court also finds herein accused Rodolfo
Abenes y Gacutan GUILTY of Violation of Section 264, in relation to Section 261,
paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code and sentences him to imprisonment for a period of ONE (1)
YEAR, and in addition thereto, herein accused is disqualified to hold any public office
and deprived [of] the right of suffrage. It shall be understood that the sentence herein
imposed shall be served simultaneously with the sentence imposed in Criminal Case
No. 4559-98.
6
SO ORDERED.
The RTC found that, as between the positive and categorical assertions of facts by
the two policemen the witnesses for the prosecution and the mere denial of the
accused and his witnesses, the former must prevail over the latter; that the
prosecution successfully proved that the petitioner had no license or permit to carry
the firearm through the officer-in-charge of the firearms and explosives office who
testified that, based on his records, the petitioner had not been issued a license, and
whose testimony had not been impugned by the defense; and that the testimonies of
the accused and his two witnesses to the effect that while aboard their private vehicle
and on their way to attend an election campaign meeting, they simply stopped and
allowed a complete stranger to hitch a ride who was carrying a clutch bag, left the
same in the vehicle when he alighted, and which later turned out to contain the
subject firearm, were flimsy and unbelievable. The RTC ruled that the defense of alibi
or denial cannot prevail over the positive identification by eyewitnesses who have no
improper motive to falsely testify against the petitioner, especially where the
policemen and the petitioner do not know each other; and, that the petitioner failed to
show any license or any other document to justify his lawful possession of the
firearm.
The petitioner appealed to the CA claiming that the checkpoint was not shown to
have been legally set up, and/or that the frisking of the petitioner who was ordered to
alight from the Tamaraw FX, along with his companions in the vehicle, violated his
constitutional right against unlawful search and seizure; and, that the trial court erred
in believing the version of the incident as testified to by the policemen instead of the
version presented by the defenses witness which is more consistent with truth and
human experience.7
On November 29, 2002, the CA rendered its Decision, the dispositive portion of which
reads:
WHEREFORE, premises considered, the Joint Decision appealed from is AFFIRMED
with the MODIFICATION that with respect to Criminal Case No. 4559-98, accused-
appellant is sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of
3
prision correccional as minimum to 7 years and 4 months of prision mayor as
maximum.
SO ORDERED.8
With respect to the validity of the checkpoint, the CA found that not only do the police
officers have in their favor the presumption that official duties have been regularly
performed, but also that the proximity of the day the checkpoint had been set up, to
the day of the May 11, 1998 elections, specifically for the purpose of enforcing the
COMELEC gun ban, gives a strong badge of the legitimacy of the checkpoint; that
after a review of the records, the evidence adduced by the prosecution prevails over
the self-serving and uncorroborated claim of the petitioner that he had been "framed";
and, that with respect to the admissibility of the firearm as evidence, the prosecution
witnesses convincingly established that the .45 caliber pistol, tucked into the right
waist of the petitioner when he alighted from the vehicle, was readily visible, and,
therefore, could be seized without a search warrant under the "plain view" doctrine.
The petitioner is now before this Court, raising the following issues:
I.
Given the circumstances, and the evidence adduced, was the check-point
validly established?
II.
Given the circumstances, and the evidence adduced, was the petitioners
constitutional right against unlawful search and seizure violated?
III.
Given the circumstances, and the evidence adduced, did not the honorable
court of appeals commit a grave abuse of discretion for adopting the trial
courts unsubstantiated findings of fact?
IV.
 Given the circumstances, and the evidence adduced, is not the petitioner
entitled to an acquittal, if not on the ground that the prosecution failed to
prove guilt beyond reasonable doubt, on the ground of reasonable doubt
itself . . . as to where the gun was taken: from the floor of the vehicle or from
the waist of petitioner?9
The appeal is partly meritorious. The Court reverses the CAs finding of his conviction
in Criminal Case No. 4559-98.
After a thorough review of the records, this Court is of the view that the courts a quo
except for a notable exception with respect to the negative allegation in the
Information are correct in their findings of fact. Indeed, the version of the defense,
as found by the lower courts, is implausible and belies the common experience of
mankind. Evidence to be believed must not only proceed from the mouth of a credible
witness but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances. 10 In
addition, the question of credibility of witnesses is primarily for the trial court to
determine.11For this reason, its observations and conclusions are accorded great
respect on appeal.12
The trial court's assessment of the credibility of a witness is entitled to great weight. It
is conclusive and binding unless shown to be tainted with arbitrariness or unless,
through oversight, some fact or circumstance of weight and influence has not been
considered.13 Absent any showing that the trial judge overlooked, misunderstood, or
misapplied some facts or circumstances of weight which would affect the result of the
case, or that the judge acted arbitrarily, his assessment of the credibility of witnesses
deserves high respect by appellate courts. 14 Thus, the Court finds no cogent reason
to disturb the findings of the lower courts that the police found in plain view a gun
tucked into the waist of the petitioner during the Gun Ban period enforced by the
COMELEC.
So too must this Court uphold the validity of the checkpoint. The petitioner insists that
the prosecution should have produced the mission order constituting the checkpoint,
and invokes Aniag, Jr. v. Comelec, 15 where the Court purportedly held that firearms
seized from a motor vehicle without a warrant are inadmissible because there was no
indication that would trigger any suspicion from the policemen nor any other
circumstance showing probable cause.
4
On both points the petitioner is wrong. In the present case, the production of the
mission order is not necessary in view of the fact that the checkpoint was established
three days before the May 11, 1998 elections; and, the circumstances under which
the policemen found the gun warranted its seizure without a warrant.
In People v. Escao,16 the Court, through the ponencia of Chief Justice Hilario G.
Davide, Jr., held:
Accused-appellants assail the manner by which the checkpoint in question was
conducted. They contend that the checkpoint manned by elements of the Makati
Police should have been announced. They also complain of its having been
conducted in an arbitrary and discriminatory manner.
We take judicial notice of the existence of the COMELEC resolution imposing a gun
ban during the election period issued pursuant to Section 52(c) in relation to Section
26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The national and
local elections in 1995 were held on 8 May, the second Monday of the month. The
incident, which happened on 5 April 1995, was well within the election period.
This Court has ruled that not all checkpoints are illegal. Those which are warranted
by the exigencies of public order and are conducted in a way least intrusive to
motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain
extent, on motorists right to "free passage without interruption," but it cannot be
denied that, as a rule, it involves only a brief detention of travelers during which the
vehicles occupants are required to answer a brief question or two. For as long as the
vehicle is neither searched nor its occupants subjected to a body search, and the
inspection of the vehicle is limited to a visual search, said routine checks cannot be
regarded as violative of an individuals right against unreasonable search. In fact,
these routine checks, when conducted in a fixed area, are even less intrusive.
The checkpoint herein conducted was in pursuance of the gun ban enforced by the
COMELEC. The COMELEC would be hard put to implement the ban if its deputized
agents were limited to a visual search of pedestrians. It would also defeat the
purpose for which such ban was instituted. Those who intend to bring a gun during
said period would know that they only need a car to be able to easily perpetrate their
malicious designs.
The facts adduced do not constitute a ground for a violation of the constitutional
rights of the accused against illegal search and seizure. PO3 Suba admitted that they
were merely stopping cars they deemed suspicious, such as those whose windows
are heavily tinted just to see if the passengers thereof were carrying guns. At best
they would merely direct their flashlights inside the cars they would stop, without
opening the cars doors or subjecting its passengers to a body search. There is
nothing discriminatory in this as this is what the situation demands. 17(Emphasis
supplied)
Thus, the Court agrees with the Solicitor General that petitioners reliance on Aniag is
misplaced.
In Aniag, the police officers manning the checkpoint near the Batasang
Pambansa complex stopped the vehicle driven by the driver of Congressman Aniag.
After stopping the vehicle, the police opened a package inside the car which
contained a firearm purportedly belonging to Congressman Aniag. In declaring the
search illegal, the Supreme Court stated that the law enforcers who conducted the
search had no probable cause to check the content of the package because the
driver did not behave suspiciously nor was there any previous information that a
vehicle hiding a firearm would pass by the checkpoint.
In the instant case, the firearm was seized from the petitioner when in plain view, the
policemen saw it tucked into his waist uncovered by his shirt.
Under the plain view doctrine, objects falling in the "plain view" of an officer who has
a right to be in the position to have that view are subject to seizure and may be
presented as evidence.18 The "plain view" doctrine applies when the following
requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is
immediately apparent to the officer that the item he observes may be evidence of a
crime, contraband or otherwise subject to seizure.19
All the foregoing requirements are present in the instant case. The law enforcement
officers lawfully made an initial intrusion because of the enforcement of the Gun Ban
and were properly in a position from which they particularly viewed the area. In the
course of such lawful intrusion, the policemen came inadvertently across a piece of
evidence incriminating the petitioner where they saw the gun tucked into his waist.
The gun was in plain view and discovered inadvertently when the petitioner alighted
from the vehicle.
5
As accurately found by the CA:
xxx It must be emphasized that the policemen discovered the firearm [on] the person
of the [petitioner] shortly after he alighted from the vehicle and before he was frisked.
SPO3 Pascuas testimony[,] corroborated by that of SPO1 Requejo[,] convincingly
established that the holstered .45 caliber pistol tucked at the right waist of the
[petitioner] was readily visible to the policemen (TSN, August 24, 1998, pp. 18, 37).
Thus, notwithstanding the absence of a Search Warrant, the policemen may validly
seize the firearm and the same is admissible in evidence against the [petitioner]
pursuant to the "plain view doctrine" xxx.20
Nor can the Court believe petitioners claim that he could not have freely refused the
"police orders" issued by the police team who were "armed to the teeth" and "in the
face of such show of force." The courts a quo consistently found that the police team
manning the checkpoint politely requested the passengers to alight from their
vehicles, and the motorists who refused this request were not forced to do so. These
findings of fact are fully supported by the evidence in the record.
However, the Court must underscore that the prosecution failed to satisfactorily prove
the negative allegation in the Information that the petitioner possessed no license or
permit to bear the subject firearm.
It is a well-entrenched rule "that in crimes involving illegal possession of firearm, the
prosecution has the burden of proving the elements thereof, viz: the existence of the
subject firearm, and the fact that the accused who owned or possessed the firearm
does not have the corresponding license or permit to possess the same." 21
Undoubtedly, it is the constitutional presumption of innocence that lays such burden
upon the prosecution. The absence of such license and legal authority constitutes an
essential ingredient of the offense of illegal possession of firearm, and every
ingredient or essential element of an offense must be shown by the prosecution by
proof beyond reasonable doubt.22
Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records were
outdated, i.e., that his Master List of holders of firearms only covered licenses up to
1994; that it was possible for the petitioner to acquire a license after 1994; and that
he issued the Certification, dated May 18, 1998, stating that the petitioner carried no
license or permit to possess the guns because he was ordered to do so by his
superiors.23
There is no evidence that between 1994 and May 8, 1998, the date the crime was
allegedly committed, no license was issued to petitioner.
While the prosecution was able to establish the fact that the subject firearm was
seized by the police from the possession of the petitioner, without the latter being
able to present any license or permit to possess the same, such fact alone is not
conclusive proof that he was not lawfully authorized to carry such firearm. In other
words, such fact does not relieve the prosecution from its duty to establish the lack of
a license or permit to carry the firearm by clear and convincing evidence, like a
certification from the government agency concerned.24
Thus, for failure of the prosecution to prove beyond reasonable doubt that petitioner
was carrying a firearm without prior authority, license or permit, the latter must be
exculpated from criminal liability under P.D. No. 1866, as amended.
With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as amended,
otherwise known as the Omnibus Election Code, the Court is constrained to affirm
the conviction of the petitioner, since the prosecution successfully discharged its
burden of proof.
Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded,
provides:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(q) Carrying firearms outside residence or place of business. Any person who,
although possessing a permit to carry firearms, carries any firearms outside his
residence or place of business during the election period, unless authorized in writing
by the Commission: Provided, That a motor vehicle, water or air craft shall not be
considered a residence or place of business or extension hereof.
x x x x (Emphasis supplied)
Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of the
Omnibus Election Code, provides:
SEC. 32. Who May Bear Firearms. During the election period, no person shall bear,
carry or transport firearms or other deadly weapons in public places, including any
6
building, street, park, private vehicle or public conveyance, even if licensed to
possess or carry the same, unless authorized in writing by the Commission. The
issuance of firearm licenses shall be suspended during the election period.
(Emphasis supplied)
In view of the foregoing provisions, while it is well-settled that under P.D. No. 1866,
as amended, the burden to prove the negative allegation that the accused has no
license or permit to carry a firearm lies with the prosecution; under the Omnibus
Election Code, however, the burden to adduce evidence that accused is exempt from
the COMELEC Gun Ban, lies with the accused.
Section 32 of R.A. No. 7166 is clear and unequivocal 25 that the prohibited act to
which this provision refers is made up of the following elements: 1) the person is
bearing, carrying, or transporting firearms or other deadly weapons; 2) such
possession occurs during the election period; and, 3) the weapon is carried in a
public place. Under said provision, it is explicit that even if the accused can prove that
he is holding a valid license to possess such firearm, this circumstance by itself
cannot exculpate him from criminal liability. The burden is on the accused to show
that he has a written authority to possess such firearm issued by no less than the
COMELEC.
On this point, the petitioner failed to present any form of such authority, and,
therefore, his conviction must be affirmed.
Section 264 of the Omnibus Election Code provides:
Sec. 264. Penalties. Any person found guilty of any election offense under this
Code shall be punished with imprisonment of not less than one year but not more
than six years and shall not be subject to probation. In addition, the guilty party shall
be sentenced to suffer disqualification to hold public office and deprivation of the right
of suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be
enforced after the prison term has been served.
The CA affirmed the penalty imposed by the RTC. However, the RTC failed to apply
Section 1 of the Indeterminate Sentence Law26 which provides:
SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said suffrage. The subject firearm isCONFISCATED and FORFEITED in favor of the
Code, and the minimum which shall be within the range of the penalty next lower to Government.
that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the SO ORDERED.
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. Footnotes

Thus, the penalty that should be meted out to petitioner should have a minimum and 1
Penned by Associate Justice Portia Alio-Hormachuelos, with Associate
a maximum period. The Court deems it reasonable that petitioner should suffer Justices Jose L. Sabio, Jr. and Amelita G. Tolentino, concurring.
imprisonment for a period of one (1) year as the minimum and two (2) years, as the
maximum. 2
Rollo, p. 49.
Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be 3
disposed of according to existing laws, which, in this case, must be read in light of Should be (q).
Article 45 of the Revised Penal Code, to wit:
4
Rollo, p. 50.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
5
Every penalty imposed for the commission of a felony shall carry with it the forefeiture Id. at 35-37.
of the proceeds of the crime and the instruments or tools with which it was
committed. 6
Id. at 56-57.

Such proceeds and instruments or tools shall be confiscated and forfeited in favor of 7
Id. at 37-38.
the Government, unless they be the property of a third person not liable for the
offense, but those articles which are not subject of lawful commerce shall be 8
Id. at 42.
destroyed.1awphi1.net
9
Petitioners Memorandum, rollo, pp. 127-128.
WHEREFORE, the petition is partly GRANTED. The Decision dated November 29,
2002 of the Court of Appeals isREVERSED and SET ASIDE insofar as Criminal 10
People v. Alba, 326 Phil. 519, 527 (1996).
Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan
is ACQUITTED from the charge of illegal possession of firearm under P.D. No. 1866, 11
as amended, for failure of the prosecution to prove his guilt beyond unreasonable People v. Mercado, 400 Phil. 37, 71 (2000), citing People v. Dianos, 357
doubt. Phil. 871, 884 (1998).

12
With respect to Criminal Case No. 4563-98, the assailed Decision of the Court of Id. citing People v. Manuel, 358 Phil. 664, 673 (1998).
Appeals is AFFIRMED with MODIFICATIONS that petitioner is sentenced to an
13
indeterminate sentence of one year of imprisonment as minimum to two years of Id. citing People v. Lozano, 357 Phil. 397, 411 (1998).
imprisonment as maximum, not subject to probation; and he shall
sufferDISQUALIFICATION to hold public office and DEPRIVATION of the right of 14
Id. citing People v. Abangin, 358 Phil. 303, 313 (1998).

7
 15
G.R. No. 104961, October 7, 1994, 237 SCRA 424.

16
380 Phil. 719, 733-734 (2000).

17
Id.

18
People v. Go, 457 Phil. 885, 928 (2003), citing People v. Musa, G.R. No.
96177, January 27, 1993, 217 SCRA 597, 610.

19
People v. Go., id. at 928.

20
Rollo, p. 40.

21
People v. Lualhati, G.R. Nos. 105289-90, July 21, 1994, 234 SCRA 325,
332; Peole v. Damaso, G.R. No. 93516, August 12, 1992, 212 SCRA 547,
Republic of the Philippines
557.
SUPREME COURT
22
Manila
People v. Solayao, 330 Phil. 811, 819 (1996), citing People v. Arce, G.R.
Nos. 101833-34, 227 SCRA 406, 421.
THIRD DIVISION
23
TSN, August 31, 1998, pp. 13-21.
G.R. No. 182010 August 25, 2010
24
People v. Solayao, supra note 22 at 819.
SUSAN ESQUILLO Y ROMINES, Petitioner,
25
vs.
See 1 Luis B. Reyes, The Revised Penal Code 17 (2001) & Antonio L. PEOPLE OF THE PHILIPPINES, Respondent.
Gregorio, Fundamentals of Criminal Law Review 10 (1997).

26
DECISION
Act No. 4103, as amended by Act No. 4225.
CARPIO MORALES, J.:

Via petition erroneously captioned as one for Certiorari, Susan Esquillo y Romines
(petitioner) challenges the November 27, 2007 Decision 1 of the Court of Appeals in
CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of Branch 116 of
the Regional Trial Court (RTC) of Pasay City in Criminal Case No. 02-2297 convicting
Susan Esquillo y Romines (petitioner) for violating Section 11, Article II of Republic
Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002) possession
of methamphetamine hydrochloride or shabu.

8
The accusatory portion of the Information dated December 12, 2002 indicting With respect to the examination of the urine of petitioner, de Belen recorded the
petitioner reads: results thereof in Toxicology Report No. TDD-02-4128 5 reading:

That on or about the 10th day of December, 2002 in Pasay City, Metro Manila, xxxx
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without authority of law, did then and there willfully, unlawfully and SPECIMEN:
feloniously have in her possession, custody and control 0.1224 gram of
Methylamphetamine Hydrochloride (shabu).2 (underscoring supplied) Urine of one SUSAN ESQUILLO Y ROMINES. 37 y/o, married, jobless, of no. 1159
Bo. Bayanihan, Maricaban, Pasay City.
At the trial, petitioner admitted the genuineness and due execution of the
documentary evidence of the prosecution, particularly the Dangerous Drugs and xxxx
Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic
Chemist Antonino de Belen (de Belen), 3 subject to her defenses, to thus dispense
with the testimony of de Belen. F I N D I N G S:

De Belen recorded the results of the laboratory examination of the contents of the Volume of urine = 60 mL.
sachet in Dangerous Drugs Report No. DD-02-613,4 viz:
pH of urine = 5.0
xxxx
Appearance = yellow orange, turbid
SPECIMEN:
Examinations conducted on the above-mentioned specimen
White crystalline substance contained in a heat-sealed transparent plastic sachet gave POSITIVE RESULTS for the presence of METHAMPHETAMINE
marked "SRE" and further placed in bigger marked transparent plastic sachet. HYDROCHLORIDE, and its metabolite AMPHETAMINE. x x x

xxxx x x x x (emphasis and underscoring supplied)

F I N D I N G S: Based on its documentary evidence and the testimony of PO1 Alvin Cruzin (PO1
Cruzin),6 a member of the Pasay City Police Station Special Operations Group
(SOG), the prosecution established its version as follows:
Net Weight of specimen = 0.1224 gram
On the basis of an informants tip, PO1 Cruzin, together with PO2 Angel Aguas (PO2
Examinations conducted on the above-mentioned specimen Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to Bayanihan St.,
gave POSITIVE RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a Malibay, Pasay City to conduct surveillance on the activities of an alleged notorious
dangerous drug. x x x snatcher operating in the area known only as "Ryan."

x x x x (emphasis and underscoring supplied) As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas to
the target area, he glanced in the direction of petitioner who was standing three

9
meters away and seen placing inside a yellow cigarette case what appeared to be a
small heat-sealed transparent plastic sachet containing white substance. While PO1
Cruz was not sure what the plastic sachet contained, he became suspicious when
petitioner started acting strangely as he began to approach her. He then introduced
himself as a police officer to petitioner and inquired about the plastic sachet she was
placing inside her cigarette case. Instead of replying, however, petitioner attempted to
flee to her house nearby but was timely restrained by PO1 Cruzin who then
requested her to take out the transparent plastic sachet from the cigarette case.
After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the
plastic sachet7 on which he marked her initials "SRE." With the seized item, petitioner
was brought for investigation to a Pasay City Police Station where P/Insp. Aquilino E.
Almanza, Chief of the Drug Enforcement Unit, prepared a memorandum 8 dated
December 10, 2002 addressed to the Chief Forensic Chemist of the NBI in Manila
requesting for: 1) a laboratory examination of the substance contained in the plastic
sachet to determine the presence of shabu, and 2) the conduct of a drug test on the
person of petitioner. PO1 Cruzin and PO2 Aguas soon executed a Joint Affidavit of
Apprehension9 recounting the details of their intended surveillance and the
circumstances leading to petitioners arrest.
Repudiating the charges, petitioner10 gave the following tale:
At around 1:00 to 2:00 p.m. of the date in question, while she was sick and resting at
home, several policemen in civilian garb with guns tucked in their waists barged in
and asked her whether she knew one named "Ryan" who they claimed was a
notorious snatcher operating in the area, to which she replied in the negative. The
police officers then forced her to go with them to the Pasay City Police Station-SOG
office where she was detained.
While she was under detention, the police officers were toying with a wallet which
they claimed contained shabu and recovered from her.
In fine, petitioner claimed that the evidence against her was "planted," stemming from
an all too obvious attempt by the police officers to extort money from her and her
family.
Two other witnesses for the defense, petitioners daughter Josan Lee 11 and family
friend Ma. Stella Tolentino,12corroborated petitioners account. They went on to relate
10
that the police officers never informed them of the reason why they were taking
custody of petitioner.
By Decision13 of July 28, 2003, the trial court found petitioner guilty of illegal
possession of Methylamphetamine Hydrochloride or shabu, disposing as follows:
WHEREFORE, in light of the foregoing premises and considerations, this Court
hereby renders judgment finding the accused Susan Esquillo y Romines GUILTY
beyond reasonable doubt of the crime of Violation of par. 3 of Section 11, Article II of
R. A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002,
and absent any modifying circumstance to either aggravate or mitigate the criminal
liability of the same accused, and furthermore, applying the provisions of the
Indeterminate Sentence Law, the same accused is hereby sentenced to suffer
the penalty of imprisonment ranging from Eight (8) years and One (1) day, as
minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as
maximum, and to pay a fine of P350,000.00, Philippine Currency, plus costs.
The 0.1224 gram of Methylamphetamine Hydrochloride or "Shabu" involved in this
case is declared forfeited in favor of the Government and ordered to be turned over
to the Philippine Drug Enforcement Agency (PDEA) for proper and appropriate
disposition in accordance with the provisions of the law. 14 (underscoring supplied)
Before the Court of Appeals, appellant questioned as illegal her arrest without
warrant to thus render any evidence obtained on the occasion thereof inadmissible.
In its challenged Decision affirming petitioners conviction, the appellate court, citing
People v. Chua,15 held that the police officers had probable cause to search petitioner
under the "stop-and-frisk" concept, a recognized exception to the general rule
prohibiting warrantless searches.16
Brushing aside petitioners defense of frame-up, the appellate court noted that
petitioner failed to adduce evidence that the arresting officers were impelled by any
evil motive to falsely charge her, and that she was even found positive for substance
abuse.1wphi1
In her present petition, petitioner assails the appellate courts application of the "stop-
and-frisk" principle in light of PO1 Cruzins failure to justify his suspicion that a crime
was being committed, he having merely noticed her placing something inside a
cigarette case which could hardly be deemed suspicious. To petitioner, such legal
principle could only be invoked if there were overt acts constituting unusual conduct
that would arouse the suspicion.17
Respondent, through the Office of the Solicitor General, prays for the affirmance of
the appealed decision but seeks a modification of the penalty to conform to the
pertinent provisions of R.A. No. 9165.
Appellants conviction stands.
Petitioner did not question early on her warrantless arrest before her arraignment.
Neither did she take steps to quash the Information on such ground. Verily, she
raised the issue of warrantless arrest as well as the inadmissibility of evidence
acquired on the occasion thereof for the first time only on appeal before the
appellate court.18 By such omissions, she is deemed to have waived any objections
on the legality of her arrest.19
Be that as it may, the circumstances under which petitioner was arrested indeed
engender the belief that a search on her was warranted. Recall that the police
officers were on a surveillance operation as part of their law enforcement efforts.
When PO1 Cruzin saw petitioner placing a plastic sachet containing white crystalline
substance into her cigarette case, it was in his plain view. Given his training as a law
enforcement officer, it was instinctive on his part to be drawn to curiosity and to
approach her. That petitioner reacted by attempting to flee after he introduced himself
as a police officer and inquired about the contents of the plastic sachet all the more
pricked his curiosity.
That a search may be conducted by law enforcers only on the strength of a valid
search warrant is settled. The same, however, admits of exceptions, viz:
(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of vessels
and aircraft for violation of immigration, customs, and drug laws; (4) searches of
moving vehicles; (5) searches of automobiles at borders or constructive borders; (6)
where the prohibited articles are in "plain view;" (7) searches of buildings and
premises to enforce fire, sanitary, and building regulations; and (8) "stop and frisk"
operations.20 (emphasis underscoring supplied)
In the instances where a warrant is not necessary to effect a valid search or seizure,
the determination of what constitutes a reasonable or unreasonable search or seizure
is purely a judicial question, taking into account, among other things, the uniqueness
11
of the circumstances involved including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and seizure
was made, the place or thing searched, and the character of the articles procured. 21
Elucidating on what includes "stop-and-frisk" operation and how it is to be carried out,
the Court in People v. Chua22 held:
. . . the act of a police officer to stop a citizen on the street, interrogate him, and pat
him for weapon(s) or contraband. The police officer should properly introduce himself
and make initial inquiries, approach and restrain a person who manifests unusual and
suspicious conduct, in order to check the latters outer clothing for possibly concealed
weapons. The apprehending police officer must have a genuine reason, in
accordance with the police officers experience and the surrounding conditions, to
warrant the belief that the person to be held has weapons (or contraband) concealed
about him. It should therefore be emphasized that a search and seizure should
precede the arrest for this principle to apply.
This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court
of Appeals. In said case, the policemen chanced upon the accused who had reddish
eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we
upheld the validity of the search as akin to a "stop-and-frisk." In People v. Solayao,
we also found justifiable reason to "stop-and-frisk" the accused after considering the
following circumstances: the drunken actuations of the accused and his companions,
the fact that his companions fled when they saw the policemen, and the fact that the
peace officers were precisely on an intelligence mission to verify reports that armed
persons w[h]ere roaming the vicinity. (emphasis and underscoring supplied; citations
omitted)1wphi1
What is, therefore, essential is that a genuine reason must exist, in light of the police
officers experience and surrounding conditions, to warrant the belief that the person
who manifests unusual suspicious conduct has weapons or contraband concealed
about him. Such a "stop-and-frisk" practice serves a dual purpose: (1) the general
interest of effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating possible criminal behavior
even without probable cause; and (2) the more pressing interest of safety and self-
preservation which permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer. 23
From these standards, the Court finds that the questioned act of the police officers
constituted a valid "stop-and-frisk" operation. The search/seizure of the suspected
shabu initially noticed in petitioners possession - later voluntarily exhibited 24 to the
police operative - was undertaken after she was interrogated on what she placed
inside a cigarette case, and after PO1 Cruzin introduced himself to petitioner as a
police officer. And, at the time of her arrest, petitioner was exhibiting suspicious
behavior and in fact attempted to flee after the police officer had identified himself.
It bears recalling that petitioner admitted the genuineness and due execution of the
Dangerous Drugs and Toxicology Reports, subject, however, to whatever available
defenses she would raise. While such admissions do not necessarily control in
determining the validity of a warrantless search or seizure, they nevertheless provide
a reasonable gauge by which petitioners credibility as a witness can be measured,
or her defense tested.
It has not escaped the Courts attention that petitioner seeks exculpation by adopting
two completely inconsistent or incompatible lines of defense. On one hand, she
argues that the "stop-and-frisk" search upon her person and personal effects was
unjustified as it constituted a warrantless search in violation of the Constitution. In the
same breadth, however, she denies culpability by holding fast to her version that she
was at home resting on the date in question and had been forcibly dragged out of the
house by the police operatives and brought to the police station, for no apparent
reason than to try and extort money from her. That her two witnesses a daughter
and a friend who were allegedly present at the time of her arrest did not do
anything to report it despite their claim that they were not informed why she was
being arrested, should dent the credibility of their testimony.
Courts have tended to look with disfavor on claims of accused, such as those of
petitioners, that they are victims of a frame-up. The defense of frame-up, like alibi,
has been held as a shop-worn defense of the accused in drug-related cases, the
allegation being easily concocted or contrived. For this claim to prosper, the defense
must adduce clear and convincing evidence to overcome the presumption of
regularity of official acts of government officials. This it failed to do.
Absent any proof of motive to falsely accuse petitioner of such a grave offense, the
presumption of regularity in the performance of official duty and the findings of the
trial court with respect to the credibility of witnesses prevail over that of petitioner. 25
A word on the penalty.
12
While the appellate court affirmed the trial courts decision, it overlooked the error in
the penalty imposed by the trial court. The trial court, applying the provisions of the
Indeterminate Sentence Law, sentenced petitioner to "suffer the penalty of
imprisonment ranging from Eight (8) years and One (1) day, as minimum, to Fourteen
(14) years, Eight (8) months and One (1) day, as maximum."
Article II, Section 11 of R.A. No. 9165 provides, however:
Section 11. Possession of Dangerous Drugs.
xxxx
Otherwise, if the quantity involved is less than the foregoing quantities, the penalties
shall be graduated as follows:
xxxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000) to Four hundred
thousand pesos (P400,000), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, metamphetamine hydrochloride
or "shabu" or other dangerous drugs such as, but not limited to MDMA or "ecstacy,"
PMA, TMA, LSD, GHB and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity possesses is
far behind therapeutic requirements; or less than three hundred (300) grams of
marijuana. (emphasis and underscoring supplied)
Section 1 of the Indeterminate Sentence Law provides that when the offense is
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 law and the minimum shall not be less than the minimum term
prescribed by the same."
The prayer of the Office of the Solicitor General for a modification of the penalty is
thus in order.
 12
The Court, therefore, imposes on petitioner the penalty of imprisonment of twelve TSN, June 24, 2003, pp. 2-18.
(12) years and one (1) day, as minimum, to fourteen (14) years, as maximum.
13
Rendered by Judge Eleuterio F. Guerrero; records, pp. 143-150.
WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED, with the
MODIFICATION that the penalty of imprisonment shall be twelve (12) years and one 14
Id. at 150.
(1) day, as minimum, to fourteen (14) years, as maximum. In all other respects, the
decision of the RTC in Criminal Case No. 02-2297 is AFFIRMED. 15
G.R. No. 136066-67, February 4, 2003, 396 SCRA 657.

SO ORDERED. 16
CA rollo, pp. 114-115.

17
Rollo, pp. 18-22.

Footnotes 18
CA rollo, pp. 54-59.
1
Penned by Associate Justice Ricardo R. Rosario, with the concurrence of 19
People v. Kimura, G.R. No. 130805, April 27, 2004, 428 SCRA 51, 61 citing
Associate Justices Rebecca De Guia-Salvador and Magdangal M. De Leon; People v. Lagarto, 326 SCRA 693, 749 (2000); People v. Timon, 281 SCRA
CA rollo, pp. 108-116. 579, 597 (1997).
2
Records, p. 5. 20
People v. Agulay, G.R. No. 181747, September 26, 2008, 566 SCRA 571,
594.
3
TSN. May 5, 2003, pp. 2-8.
21
People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463,
4
Vide Exhibit "C," records, p. 116. 476.
5
Vide Exhibit "D," id. at 117. 22
Supra, note 15.
6
TSN, May 29, 2003, pp. 2-19. 23
Malacat v. Court of Appeals, G.R. No. 123595, December 12, 1997, 283
SCRA 159, 177.
7
Exhibit "A-1-a."
24
TSN, May 29, 2003, pp. 7-8.
8
Exhibits "A" and "B," records, pp. 114-115.
25
People v. Teodoro, G.R. No. 185164, June 22, 2009, 590 SCRA 494, 507-
9
Exhibits "E" to "E-2," id. at 118. 508.

10
TSN, June 24, 2003, pp. 19-29.

11
TSN, June 19, 2003, pp. 2-10.

13
 and device.2 This supplemental registration was ordered cancelled by the Bureau of
Patents, Trademarks and Technology Transfer3 on the ground of failure of the
registrant to file the required affidavit of non-use as required by Section 12 of
Republic Act No. 166, as amended.4

Notwithstanding this cancellation, Quintin Cheng executed on 30 January 1990 an

Assignment of a Registered Trademark 5 and a Supplementary Deed of
Assignment6 dated 25 November 1991 wherein he sold all his right, title, interest and
goodwill in the trademark Chin Chun Su and device to petitioner Elidad Kho.

In the meantime, animosity arose between SYCF and Quintin Cheng resulting in the
Republic of the Philippines termination of their distributorship agreement on 30 October 1990. 7
SUPREME COURT
Manila Consequently, on 30 November 1990, SYCF appointed respondent Summerville
General Merchandising, represented by Ang Tiam Chay and Victor Chua, as its
FIRST DIVISION exclusive importer, re-packer and distributor of Chin Chun Su products in the
Philippines8 for a period of five years or until May 2005.
G.R. No. 150877 May 4, 2006
SYCF further executed a Special Power of Attorney dated 11 September 1991 in
ELIDAD KHO and VIOLETA KHO, Petitioners, favor of Summerville General Merchandising granting it the authority to file
vs. complaints against usurpers of Chin Chun Su trademarks/tradename. 9
HON. ENRICO LANZANAS, Presiding Judge of the Regional Trial Court of
Manila Branch 7 and SUMMERVILLE GENERAL From the foregoing incidents arose several judicial and quasi-judicial proceedings.
MERCHANDISING, Respondents.
1) Civil Case No. Q-91-10926 before the Regional Trial Court (RTC) of Quezon City,
DECISION Branch 90

CHICO-NAZARIO, J.:
Culled from the records are the following antecedent facts:
Shun Yih Chemistry Factory (SYCF), a business existing and operating in Taiwan and
engaged in the manufacture and sale of Chin Chun Su Creams/Cosmetics, appointed
Young Factor Enterprises in the Philippines, owned and operated by Quintin Cheng
also known as Kho Seng Hiok, as its distributor of Chin Chun Su products in the
Philippines for a term of two years beginning 1978. 1 Quintin Cheng registered with
the Bureau of Food and Drugs (BFAD) as distributor of Chin Chun Su products.
Quintin Cheng subsequently secured a supplemental registration for Chin Chun Su
On 20 December 1991, Elidad Kho/KEC Laboratory filed a Complaint for Injunction
and Damages against Ang Tiam Chay and Summerville General Merchandising
before the RTC of Quezon City, Branch 90, docketed as Civil Case No. Q-91-10926.
Plaintiff therein Elidad Kho/KEC Laboratory sought to enjoin defendants Ang Tiam
Chay and Summerville General Merchandising from using the name Chin Chun Su in
their cream products.
On 22 January 1993, a decision in Civil Case No. Q-91-10926 was rendered, the
dispositive portion of which provides:
ACCORDINGLY, judgment is hereby rendered:

14
 1. Declaring that plaintiff is not legally authorized to use the trademark "CHIN
CHUN SU" and upholding the right of defendant Summerville General
Merchandising & Co. to use said trademark as authorized by Shun Yih
Chemistry Factory of Taiwan;
2. Declaring plaintiff to have the right to use the copyright claim on "OVAL
FACIAL CREAM CONTAINER/CASE" by virtue of Certificate of Copyright
Registration No. 3687 issued by the National Library on May 23, 1991;
3. No award of damages;
4. Counsels for plaintiff and defendants are awarded P75,000.00 each as
attorneys fees; and
5. Both parties to pay proportionate fees.10
Both parties appealed the RTC decision to the Court of Appeals, docketed as CA-
G.R. CV NO. 48043 entitled, "Elidad C. Kho, doing business under the style of KEC
Cosmetic Laboratory v. Summerville General Merchandising and Co., et al." In a
decision11 dated 22 November 1999, the appellate court affirmed in toto the decision
of the trial court.12 Elidad Kho elevated the case to this Court, docketed as G.R. No.
144100. In a resolution dated 28 August 2000, we denied the petition. We held that:
The issue is who, between petitioner Elidad C. Kho and respondent Summerville
General Merchandising and Company has the better right to use the trademark "Chin
Chun Su" on their facial cream product?
We agree with both the Court of Appeals and the trial court that Summerville General
Merchandising and Company has the better right to use the trademark "Chin Chun
Su" on its facial cream product by virtue of the exclusive importation and distribution
rights given to it by Shun Yih Chemistry Factory of Taiwan on November 20, 1990
after the latter cancelled and terminated on October 30, 1990 its Sole Distributorship
Agreement with one Quintin Cheng, who assigned and transferred his rights under
said agreement to petitioner Elidad C. Kho on January 31, 1990.
As correctly held by the Court of Appeals, petitioner Kho is not the author of the
trademark "Chin Chun Su" and his only claim to the use of the trademark is based on
the Deed of Agreement executed in his favor by Quintin Cheng. By virtue thereof, he
15
registered the trademark in his name. The registration was a patent nullity because
petitioner is not the creator of the trademark "Chin Chun Su" and, therefore, has no
right to register the same in his name. Furthermore, the authority of Quintin Cheng to
be the sole distributor of Chin Chun Su in the Philippines had already been
terminated by Shun Yih Chemistry of Taiwan. Withal, he had no right to assign or to
transfer the same to petitioner Kho.
WHEREFORE, the instant petition is hereby denied due course. 13
2) BFAD Cosmetic Case No. CM-040-91
At the other end of the spectrum, due to the proliferation of fake Chin Chun Su
products, Summerville General Merchandising filed a Complaint 14 before the BFAD
against KEC Cosmetic Laboratory owned by Elidad Kho.
In a resolution of the BFAD dated 4 February 1992, it ruled that:
WHEREFORE, the brand name clearance of CCS in favor of KEC is recalled and
cosmetic registration number DR-X6113-78 dtd 11/17/78 is TEMPORARILY
CANCELLED until KEC applies to change or amend the brand name CCS it is now
using. For this purpose, KEC is hereby ordered to retrieve all locally produced Chin
Chun Su Pearl Cream for relabelling as soon as the amendment of its brand name
has been approved by this Bureau with the corresponding amended Certificate of
Registration.
Summervilles application to register (renew or reinstate) CCS Medicated Cream
under DR-X6113-78 in the name of Shun Yih Chemistry Factory is herewith
approved for processing at BFAD-Product Services Division.15
3) Criminal Case No. 00-183261 before the RTC of Manila, Branch 1
This is the case filed before the RTC of Manila, Branch 1, entitled, "People of the
Philippines v. Elidad and Violeta Kho and Roger Kho," pursuant to the DOJ
Resolution in I.S. No. 00A-02396 and I.S. No. 00B-10973, ordering the filing of a
criminal complaint against Elidad, Roger and Violeta Kho. 16
Prior to the filing of Criminal Case No. 00-183261 before the RTC of Manila, Branch
1, on 18 January 2000, Victor Chua, representing Summerville General
Merchandising, filed a Complaint for Unfair Competition, docketed as I.S. No. 00A-
02396 entitled, "Summerville General Merchandising, represented by Victor Chua v.
Elidad and Violeta Kho," before the Office of the City Prosecutor of Manila.
Elidad and Violeta Kho filed their counter-affidavit in the Complaint for Unfair
Competition which served as their countercharge against Ang Tiam Chay and Victor
Chua, likewise for Unfair Competition, docketed as I.S. No. OOB-10973.
On 29 March 2000, the Office of the City Prosecutor granted the consolidation of both
I.S. No. 00A-02396 and I.S. No. 00B-10973. On 25 April 2000, Assistant City
Prosecutor Rector Macapagal rendered a joint resolution dismissing both the
Complaint and countercharge. This resolution of dismissal was reversed by the
review resolution17 dated 31 May 2000 issued by Assistant City Prosecutor Elmer
Calledo who directed the filing of an information against Elidad Kho, Roger Kho and
Violeta Kho for violation of Section 168.3(a) in relation to Sections 168 and 170,
Republic Act No. 8293 (The Intellectual Property Code). 18 On 17 August 2000,
Department of Justice (DOJ) Undersecretary Regis Puno issued a
resolution19 dismissing the petition for review filed by Elidad and Violeta Kho and
upholding the ruling of Assistant City Prosecutor Calledo, directing the filing of
charges against the Khos. Elidad and Violeta Kho filed a motion for reconsideration,
and in a complete turnabout, on 28 September 2001, a resolution 20 was issued by
then DOJ Secretary Hernando Perez again dismissing the Complaint and
countercharge in I.S. No. 00A-02396 and I.S. No. 00B-10973 for lack of merit.
Summerville General Merchandising accordingly filed a motion for reconsideration of
this DOJ resolution dated 20 September 2001.
In view of the latest DOJ resolution ordering the dismissal of the complaint of
Summerville General Merchandising against the Khos, the RTC of Manila, Branch 1,
issued an Order dated 24 October 2001 directing the dismissal of the Complaint in
Criminal Case No. 00-183261.21 Summerville General Merchandising filed with the
RTC of Manila, Branch 1, a motion for reconsideration of its Order of dismissal of
Criminal Case No. 00-183261. For their part, Elidad and Violeta Kho also filed with
the same court a supplemental motion insisting that the Order dismissing Criminal
Case No. 00-183261 cannot be set aside because to do so would, in effect, reinstate
the said criminal case and would already constitute double jeopardy. Acting on these
motions, the RTC of Manila, Branch 1, issued an Order dated 21 August 2002
resolving the motions in the following manner:
16
The foregoing duly established facts indubitably supports accuseds contention that a
re-filing [o]f the Information would put them in double jeopardy. As ruled by the
Supreme Court in Marcelo v. Court of Appeals, 235 SCRA 39, upon withdrawal of the
Information, which is the logical consequence of the grant of the Motion to Withdraw,
there no longer remained any case to dismiss.
Accordingly, finding merit in the Motion for Reconsideration, the same is hereby
granted.
The information against accused is hereby dismissed.
The Clerk of Court is hereby directed to return to the accused the cash bonds posted
by the latter for their provisional liberty upon presentation of the requisite receipts.
The ruling renders the remaining incidents moot and academic. 22
Thereafter, on 17 September 2002, the DOJ Secretary, Hernando B. Perez, granted
the pending motion of Summerville General Merchandising for reconsideration of the
DOJ resolution23 dated 28 September 2001, which dismissed the Complaint of
movant Summerville General Merchandising in I.S. No. 00A-02396, and accordingly
issued another resolution vacating the questioned 28 September 2001 resolution and
directing the City Prosecutor of Manila to continue with the criminal prosecution of the
Khos for Unfair Competition.
Elidad and Violeta Kho filed a motion for reconsideration of the resolution dated 17
September 2002 before the DOJ. The DOJ, 24 thru the new Secretary Simeon A.
Datumanong denied that double jeopardy lies, in a resolution dated 17 July 2003,
declared that:
After an evaluation of the record, we resolve to deny the motion for reconsideration.
For double jeopardy to attach, the following requirements must be present: (1) upon a
valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was convicted, acquitted, or the
case was dismissed or otherwise terminated without the express consent of the
accused. (People v. Court of Appeals, 308 SCRA 687). In the instant case, it appears
that the case was terminated with the express consent of the respondent, as the
criminal case was dismissed upon the express application of the accused. Her action
in having the case dismissed constitutes a waiver of her constitutional prerogative
against double jeopardy as she thereby prevented the court from proceeding to trial
on the merits and rendering a judgment of conviction against her. 25
At odds with the final DOJ resolution, the RTC of Manila, Branch 1, handling Criminal
Case No. 00-183261, held in its Order dated 2 April 2003 that:
Considering the tenors of the orders of dismissal, whatever maybe the merits of the
Motion for Reconsideration, revival of the case is now barred by the impregnable wall
of double jeopardy.
ACCORDINGLY, the Motion for Reconsideration dated September 10, 2002 filed by
the private prosecutor and subject of the Motion to Resolve is hereby denied with
finality.
The Clerk of Court is hereby directed to return to the accused the cash bond posted
by them for their provisional liberty upon presentation of the required receipts. 26
Thus, Summerville General Merchandising raised its case to the Court of Appeals,
docketed as CA-G.R. SP No. 77180, assailing the Order dated 24 October 2001 of
the RTC of Manila, Branch 1, dismissing Criminal Case No. 00-183261, as well as
the Orders dated 21 August 2002 and 2 April 2003 of the same court affirming its
previous order of dismissal.
In a decision of the Court of Appeals dated 26 May 2004 in CA-G.R. SP No.
77180,27 the Court denied due course to the petition of Summerville General
Merchandising and affirmed the ruling of the trial court that, indeed, double jeopardy
has set in.
The decision of the Court of Appeals in CA-G.R. SP No. 77180 is now the subject of
a Petition for Review before this Court, docketed as G.R. No. 163741 entitled,
Summerville General Merchandising and Co., Inc. v. Elidad Kho." 28
4) Search Warrant No. 99-1520 before the RTC of Manila, Branch 7
Shortly before instituting Criminal Case No. 00-183261 against the Khos, or on 7
January 2000, Summerville General Merchandising applied for the issuance of a
search warrant against the Spouses Elidad and Violeta Kho and Roger Kho, since
they persisted in manufacturing and selling Chin Chun Su products despite the BFAD
17
order directing them to refrain from doing so. The application was docketed as
Search Warrant No. 99-1520 before the RTC of Manila, Branch 7, which was
presided over by respondent herein, Judge Enrico A. Lanzanas. A hearing on the
application was held on 10 January 200029 and the search warrant was issued
against Elidad, Violeta and Roger Kho on the same day. 30 Its enforcement led to the
seizure of several Chin Chun Su products.311avvphil.net
On 17 January 2000, Elidad, Violeta and Roger Kho filed before the RTC of Manila,
Branch 7, a motion to quash the search warrant and for the return of the items
unlawfully seized. The motion was opposed by Summerville General Merchandising.
In an Order32 dated 3 April 2000, the RTC of Manila, Branch 7, denied Elidad and
Violeta Khos motion to quash and to return the seized articles for lack of
merit.33 Elidad and Violeta Kho filed a motion for reconsideration and motion to
transfer the proceedings in RTC of Manila, Branch 7, to RTC of Manila, Branch 1,
citing Supreme Court Administrative Order 113-95 34 designating the RTC of Manila,
Branch 1, as an Intellectual Property Court. The RTC of Manila, Branch 7, denied
these motions in an Order dated 5 June 2000,35 explaining that:
Anent the Motion to Compel this Branch to transfer the case to Branch 1 of this
Court, suffice it to say that the cases for violation of Arts. 188 and 189 of the Revised
Penal Code (now under the Intellectual Property Law) are those that are already filed
in court after the proper preliminary investigation and not cases for application for
search warrant involving probable violation of said law. Supreme Court Administrative
Circular No. 113-95 itself designates the alluded court or branch thereof to try and
decide which clearly excludes cases/applications for search warrant which obviously
does not involve trying and deciding case for violation of the Intellectual Property law.
On respondents Motion for Reconsideration, the Court finds their arguments therein
a rehash of the issues and arguments raised in their Motion to Quash.
WHEREFORE, for lack of merit, respondents Motion for Reconsideration and Motion
to Transfer, are hereby DENIED.36
Elidad and Violeta Kho filed a Petition for Certiorari and Preliminary Mandatory
Injunction,37 docketed as CA-G.R. SP No. 60084, before the Court of Appeals
questioning the aforementioned Orders of the RTC of Manila, Branch 7. A decision
dated 6 August 200138 was rendered by the Court of Appeals denying the petition. It
upheld Search Warrant No. 99-1520 as having been validly issued and properly
executed and, thus, there is no basis for the return of the goods seized. A motion for
reconsideration filed by the Khos was denied by the Court of Appeals in an Order
dated 16 November 2001.39
Elidad and Violeta Kho filed a supplement to their Motion for Reconsideration dated
20 November 200140 before the Court of Appeals in CA-G.R. SP No. 60084,
reiterating their prayer for the quashal of Search Warrant No. 99-1520 and the return
of the seized items. The Court of Appeals, in a resolution dated 4 December
2001,41 merely noted the motion in view of its earlier resolution rendered on 16
November 2001 already denying Elidad and Violeta Khos Motion for
Reconsideration.
Pained by the decisions and orders of the trial court and appellate court, petitioners
Elidad and Violeta Kho filed the present petition praying that the decision of the Court
of Appeals in CA-G.R. SP No. 60084 dated 6 August 2001 be reversed and set aside,
and a new decision be issued granting the quashal of Search Warrant No. 99-1520
and ordering the return of the items unlawfully seized. 42
In their Memorandum, petitioners raise the following issues for resolution:
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISREGARDING THE
WITHDRAWAL OF THE INFORMATION FOR UNFAIR COMPETITION AGAINST
THE PETITIONERS IN BRANCH 1 OF RTC-MANILA AS A RESULT OF THE
RESOLUTION OF THE DEPARTMENT OF JUSTICE FINDING NO PROBABLE
CAUSE.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE
ENRICO LANZANAS IN FINDING THAT PROBABLE CAUSE EXISTED AGAINST
THE PETITIONERS FOR THE ISSUANCE OF SEARCH WARRANT NO. 99-1520.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT
BRANCH 7 OF THE REGIONAL TRIAL COURT OF MANILA HAD JURISDICTION
TO ISSUE SEARCH WARRANT NO. 99-1520.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE
ENRICO LANZANAS IN RULING THAT SEARCH WARRANT NO. 99-1520 WAS
LAWFULLY EXECUTED.
18
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO
GRAVE ABUSE OF DISCRETION WAS COMMITTED BY HONORABLE JUDGE
ENRICO LANZANAS IN NOT ORDERING THE RETURN OF THE ITEMS SEIZED
UNDER SEARCH WARRANT NO. 99-1520.43
The petition is devoid of merit.
As to the first issue, it must be noted that the dismissal of Criminal Case No. 00-
183261 by the RTC of Manila, Branch 1, was initially by virtue of the resolution of the
DOJ dated 28 September 200144 ordering the dismissal of the criminal case for unfair
competition.
This order of dismissal, however, was again set aside by the DOJ in its resolution
dated 17 September 200245directing that appropriate information for Unfair
Competition be filed against the Khos. The motion for reconsideration of Elidad and
Violeta Kho was denied by the DOJ in its resolution dated 17 July 2003. 46 This is the
latest existing resolution of the DOJ on the matter, dated 17 July 2003, which
affirmed the resolution of the then DOJ Secretary Hernando B. Perez directing the
City Prosecutor of Manila to file the appropriate information against Elidad and
Violeta Kho for Unfair Competition as defined and penalized under Section 168.3(a),
in relation to Sections 168 and 170 of Rep. Act No. 8293 or The Intellectual Property
Code of the Philippines. Therefore, at the time of the dismissal of Criminal Case No.
00-183261 by the RTC of Manila, Branch 1, on 24 October 2001, the DOJ resolution
on I.S. No. 00A-02396 on which Criminal Case No. 00-183261 is based has not been
writtenfinis as yet.
Taking into consideration these circumstances, the Court of Appeals did not err in
affirming the Order of the RTC of Manila, Branch 7, denying the motion to quash filed
by the herein petitioners because, subsequently, the DOJ still ordered the filing of
charges against Elidad and Violeta Kho.
As to whether the RTC of Manila, Branch 1, properly dismissed the criminal case
against the Khos despite the resolution of the DOJ ordering their criminal
prosecution, we cannot dwell more on the issue because it is already the subject of
G.R. No. 163741 before another division of this Court.
Issues two, three and four, on the other hand, boil down to the central issue of
whether or not the Court of Appeals erred in upholding the RTC of Manila, Branch 7,
in its findings of probable cause to issue a search warrant. Also resting on how we
shall resolve the foregoing issue is the fifth and last issue in the Petition at bar which
questions the refusal by both the Court of Appeals and the RTC of Manila, Branch 7,
to return the seized items.
The issuance of Search Warrants is governed by Rule 126 of the Revised Rules of
Court reproduced below:
SECTION 1. Search warrant defined. A search warrant is an order in writing issued
in the name of the People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property described therein and
bring it before the court.
SEC. 2. Court where application for search warrant shall be filed. - An application for
search warrant shall be filed with the following:
a) Any court within whose territorial jurisdiction a crime was committed.
b) For compelling reasons stated in the application, any court within the
judicial region where the crime was committed if the place of the commission
of the crime is known, or any court within the judicial region where the
warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be
made in the court where the criminal action is pending.
SEC. 3. Personal property to be seized. A search warrant may be issued for the
search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue
except upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
19
to be searched and the things to be seized which may be anywhere in the
Philippines.
SEC.5. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with the affidavits submitted.
SEC. 6. Issuance and form of search warrant. If the judge is satisfied of the
existence of facts upon which the application is based or that there is probable cause
to believe that they exist, he shall issue the warrant, which must be substantially in
the form prescribed by these Rules.
What constitutes "probable cause" is well settled. In Microsoft Corporation v.
Maxicorp, Inc.,47 we defined probable cause as follows:
Probable cause means "such reasons, supported by facts and circumstances as will
warrant a cautious man in the belief that his action and the means taken in
prosecuting it are legally just and proper." Thus, probable cause for a search warrant
requires such facts and circumstances that would lead a reasonably prudent man to
believe that an offense has been committed and the objects sought in connection
with that offense are in the place to be searched.
xxxx
The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits. As
implied by the words themselves, "probable cause" is concerned with probability, not
absolute or even moral certainty. The prosecution need not present at this stage
proof beyond reasonable doubt. The standards of judgment are those of a
reasonably prudent man, not the exacting calibrations of a judge after a full-blown
trial.
No law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists. Probable cause is determined in the
light of conditions obtaining in a given situation. xxx
In Columbia Pictures, Inc. v. Court of Appeals,48 we explained further that:
Although the term "probable cause" has been said to have a well-defined meaning in
the law, the term is exceedingly difficult to define, in this case, with any degree of
precision; indeed, no definition of it which would justify the issuance of a search
warrant can be formulated which would cover every state of facts which might arise,
and no formula or standard, or hard and fast rule, may be laid down which may be
applied to the facts of every situation. As to what acts constitute probable cause
seem incapable of definition. There is, of necessity, no exact test.
At best, the term "probable cause" has been understood to mean a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the offense
with which he is charged; or the existence of such facts and circumstances as would
excite an honest belief in a reasonable mind acting on all the facts and circumstances
within the knowledge of the magistrate that the charge made by the applicant for the
warrant is true.
Probable cause does not mean actual and positive cause, nor does it import absolute
certainty. The determination of the existence of probable cause is not concerned with
the question of whether the offense charged has been or is being committed in fact,
or whether the accused is guilty or innocent, but only whether the affiant has
reasonable grounds for his belief. The requirement is less than certainty or proof, but
more than suspicion or possibility.
In Philippine jurisprudence, probable cause has been uniformly defined as such facts
and circumstances which would lead a reasonable, discreet and prudent man to
believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched. It being the duty
of the issuing officer to issue, or refuse to issue, the warrant as soon as practicable
after the application therefor is filed, the facts warranting the conclusion of probable
cause must be assessed at the time of such judicial determination by necessarily
using legal standards then set forth in law and jurisprudence, and not those that have
yet to be crafted thereafter.
We also declared in People v. Chiu,49 citing Malaloan v. Court of Appeals,50 that a
search warrant is merely a judicial process designed by the Rules to respond only to
an incident in the main case, if one has already been instituted, or in anticipation
thereof.
20
It bears repeating that the proceedings before the RTC of Manila, Branch 7, was
solely for the issuance of Search Warrant No. 99-1520, while the main case against
Elidad and Violeta Kho for violation of The Intellectual Property Code was instituted
only later on as Criminal Case No. 00-183261 before the RTC of Manila, Branch 1.
What is before us in the Petition at bar is the validity of the search warrant issued in
the proceedings in Search Warrant No. 99-1520.
A perspicacious examination of the records reveal that the RTC of Manila, Branch 7,
followed the prescribed procedure for the issuance of Search Warrant No. 99-1520,
namely, (1) the examination under oath or affirmation of the Complainant and his
witnesses and, in this case, Judge Enrico A. Lanzanas personally examined
complainant-policewoman SPO4 Nedita Alvario Balagbis, and Mr. Victor Chua, the
representative/officer of Summerville General Merchandising, at the hearing on the
application for Search Warrant No. 99-1520 held on 10 January 2000; (2) an
examination personally conducted by then Presiding Judge Lanzanas, in the form of
searching questions and answers, in writing and under oath, of the complainant and
witnesses on facts personally known to them; and (3) the taking of sworn statements,
together with the affidavits submitted, which were duly attached to the records. 51
In determining probable cause in the issuance of a search warrant, the oath required
must refer to the truth of the facts within the personal knowledge of the applicant 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.52
From the affidavit dated 7 January 2000 of SPO4 Nedita Balagbis, in support of the
application for search warrant, she stated that Summerville General Merchandising
represented by Mr. Victor Chua sought the assistance of their police station in
connection with the proliferation of fake Chin Chun Su products. With Victor Chua,
they made a surveillance of two places, namely 2407 Topacio Street and 2412
Raymundo Street both in San Andres, Manila. Through this, they were able to verify
that plastic containers were being labeled with Chin Chun Su stickers filled with
cream at 2407 Topacio Street. On the other hand, in the affidavit dated 7 January
2000 of Victor Chua, he stated that Summerville General Merchandising, being the
exclusive importer, distributor and dealer of Chin Chun Su products received reliable
information that persons going by the name of Elidad, Violeta and Roger Kho were
engaged in the illegal manufacture and sale of these products. From the surveillance
conducted with the help of SPO4 Balagbis, they saw a tricycle full of containers taken
to a house at 2412 Raymundo Street, San Andres, Manila. It was at this address that
Chin Chun Su stickers were being affixed. The containers were thereafter taken to WHEREFORE, the Decision of the Court of Appeals dated 6 August 2001 and
2407 Topacio Street to be filled with the cream product. Resolution dated 16 November 2001, denying the quashal of Search Warrant No. 99-
1520 and the return of the seized items, are hereby AFFIRMED. Costs against
Clearly, probable cause existed for the issuance of the warrant as shown by the petitioners.
affidavits of the above affiants who had personal knowledge of facts indicating that an
offense involving violation of intellectual property rights was being committed and that SO ORDERED.
the objects sought in connection with the offense are in the place sought to be
searched. The surveillance conducted by SPO4 Nedita Balagbis on the basis of Footnotes
reliable information that Elidad, Violeta and Roger Kho were engaged in the illegal
manufacture and sale of fake Chin Chun Su products enabled her to gain personal 1
Annex 2, rollo, pp. 322-323.
knowledge of the illegal activities of the Khos.53 This fact was sufficient justification for
the examining judge, in this case Judge Lanzanas, to conclude that there was 2
probable cause for the issuance of the search warrant. Annex 8, id., p. 331.

At the hearing conducted by Judge Lanzanas, SPO4 Nedita Balagbis and Victor
Chua testified on the affidavits they separately executed, and essentially stated
therein upon inquiry by Judge Lanzanas that indeed several fake Chin Chun Su
products were loaded to a tricycle and brought to a warehouse in Topacio Street.
In People v. Tee,54 this Court held that:
It is presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrates determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court, as long as
there was substantial basis for that determination. Substantial basis means that the
questions of the examining judge brought out such facts and circumstances as would
lead a reasonably discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense sought to be seized are in
the place sought to be searched.
We cannot find any irregularity or abuse of discretion on the part of Judge Lanzanas
for issuing the assailed search warrant. On the contrary, we find that he had complied
with the procedural and substantive requirements for issuing a search warrant. We
are, therefore, bound to respect his finding of probable cause for issuing Search
Warrant No. 99-1520.
3
Annex 9-B, id., p. 334.
4
REPUBLIC ACT No. 166. AN ACT TO PROVIDE FOR THE
REGISTRATION AND PROTECTION OF TRADE-MARKS, TRADE-NAMES,
AND SERVICE-MARKS, DEFINING UNFAIR COMPETITION AND FALSE
MARKING AND PROVIDING REMEDIES AGAINST THE SAME, AND FOR
OTHER PURPOSES.
SEC. 12. Duration. Each certificate of registration shall remain in
force for twenty years: Provided,That registrations under the
provisions of this Act shall be cancelled by the Director, unless within
one year following the fifth, tenth and fifteenth anniversaries of the
date of issue of the certificate of registration, the registrant shall file
in the Patent Office an affidavit showing that the mark or tradename
is still in use or showing that its non-use is due to special
circumstances which excuse such non-use and is not due to any
intention to abandon the same, and pay the required fee.
5
Annex D, rollo, p. 70.
6
Annex E, id., pp. 71-72.

7
After declaring that Search Warrant No. 99-1520 was validly issued by the RTC of Annex 7, id., pp. 330-331.
Manila, Branch 7, then there is no reason for us to order the return of the articles
seized by virtue thereof. 8
Annexes 10, 11, and 12, id., pp. 334-336.

21
 9
Annex 13, id., p. 337. (a) Any person, who is selling his goods and gives them the
general appearance of goods of another manufacturer or
10
Penned by Judge Abraham P. Vera. Annex K, id., p. 106. dealer, either as to the goods themselves or in the wrapping
of the packages in which they are contained, or the devices
11 or words thereon, or in any other feature of their
Penned by Associate Justice Hector L. Hofilena with Associate Justices
appearance, which would be likely to influence purchasers to
Omar U. Amin and Jose L. Sabio, Jr. concurring.
believe that the goods offered are those of a manufacturer or
12
dealer, other than the actual manufacturer or dealer, or who
Annex L, rollo, pp. 107-119. otherwise clothes the goods with such appearance as shall
deceive the public and defraud another of his legitimate
13
Annex 20, id., pp. 368-369. trade, or any subsequent vendor of such goods or any agent
of any vendor engaged in selling such goods with a like
14
Captioned "In the matter of the Summerville Mfg. Request for the purpose; xxx
cancellation of KEC registration of Chin Chun Su" docketed as BFAD
COSMETIC CASE NO. CM-040-91. Section 170. Penalties. - Independent of the civil and administrative
sanctions imposed by law, a criminal penalty of imprisonment from
15
Annex 15, rollo, pp. 346-347. two (2) years to five (5) years and a fine ranging from Fifty Thousand
Pesos (P50,000) to Two Hundred Thousand Pesos (P200,000), shall
16
Except for the Order of dismissal dated 24 October 2001 of the RTC of be imposed on any person who is found guilty of committing any of
Manila, Branch 1, where Criminal Case No. 00-183261 was filed, no other the acts mentioned in Section 155, Section 168 and Subsection
document pertaining to Criminal Case No. 00-183261 appears in the records 169.1. (Arts. 188 and 189, Revised Penal Code)
of the present petition so we could not state the exact date when the said
19
criminal case was filed, but it is safe to assume that the said criminal case Annex 23, rollo, p. 375.
was filed anytime after the 31 May 2000 resolution (p. 373, rollo) rendered by
Assistant City Prosecutor Elmer M. Calledo finding sufficient evidence 20
Annex AA, id., pp. 271-279.
against Elidad, Roger and Violeta Kho for violation of The Intellectual
Property Code. 21
Annex BB, id., p. 280.
17
Annex 2, rollo, pp. 370-373. 22
Id., p. 465.
18
Annex 21, id., p. 370. INTELLECTUAL PROPERTY CODE OF THE 23
Annex A, id., p. 509.
PHILIPPINES (Republic Act No. 8293, As Amended) Section 168. Unfair
Competition, Rights, Regulation and Remedies. x x x 24
Annex B, id., p. 518.
168.3. In particular, and without in any way limiting the scope of 25
Id., p. 519.
protection against unfair competition, the following shall be deemed
guilty of unfair competition:
26
Id., p. 466.

22
 27 42
Id., p. 462. Rollo, p. 457.

28 43
A motion for consolidation of G.R. No. 163741 (CA-G.R. No. 77180 before Id., pp. 421-422.
the Court of Appeals) and G.R. No. 150877 was denied in a resolution dated
17 November 2004 on the ground that although both petitions involve the 44
Annex AA, rollo, pp. 271-279.
same parties, the cause of action and issues are not the same.
45
Annex A, id., p. 509.
29
Annex O, rollo, p. 123.
46
Annex B, id., p. 518.
30
Presided by Judge Enrico A. Lanzanas , now Associate Justice of the
Court of Appeals, Annex P, id., p. 137. 47
G.R. No. 140946, 13 September 2004, 438 SCRA 224, 234-237.
31
Annex Q, id., p. 138. 48
329 Phil. 875, 918-919 (1996).
32
Annex W, id., p. 205. 49
G.R. Nos. 142915-16, 27 February 2004, 424 SCRA 72, 84.
33
Judge Enrico A. Lanzanas. 50
G.R. No. 104879, 6 May 1994, 232 SCRA 249, 257.
34
SC ADMINISTRATIVE ORDER No. 113-95 dated 2 October 1995 "Re: 51
Annexes M and N, rollo, pp. 121-122.
Designation of Special Courts for Intellectual Property Rights."
52
35 Cupcupin v. People, 440 Phil. 712, 727 (2002).
Annex X, rollo, pp. 211-212.
53
36 Yu v. Honrado, G.R. No. 50025, 21 August 1980, 99 SCRA 273, 278.
Id., pp. 211-212.
54
37 443 Phil. 521, 539-540 (2003).
Docketed as CA-G.R. SP No. 60084, Annex Y, id., p. 213.

38 Republic of the Philippines

Penned by Associate Justice Mercedes Gozo-Dadole with then Presiding SUPREME COURT
Justice Alicia Austria-Martinez (now Associate Justice of this Court) and Manila
Associate Justice Portia Alio- Hormachuelos, concurring. Rollo, p. 53.

39 EN BANC
Id., p. 66.

40
Annex CC, id., p. 281.

41 G.R. No. 94902-0 April 21, 1999

Annex DD, id., p. 284.

23
BENJAMIN V. KHO and ELIZABETH ALINDOGAN, petitioners,
vs.
HON. ROBERTO L. MAKALINTAL and NATIONAL BUREAU OF
INVESTIGATION, respondents.
PURISIMA, J
This is a petition for certiorari assailing the Order, dated July 26, 1990, of Branch
LXXVII of the Metropolitan Trial Court of Paranaque, which denied petitioners' Motion
to Quash Search Warrants emanating from the same Court. Petitioners sought to
restrain the respondent National Bureau of Investigation (NBI) from using the objects
seized by virtue of such warrants in any case or cases filed or to be filed against
them and to return immediately the said items, including the firearms, ammunition
and explosives, radio communication equipment, hand sets, transceivers, two units of
vehicles and motorcycle.
The antecedent facts are as follows:
On May 15, 1990, NBI Agent Max B. Salvador applied for the issuance of search
warrants by the respondent Judge against Benjamin V. Kho, now petitioner, in his
residence at No. 45 Bb. Ramona Tirona St., BF Homes, Phase I, Paranaque. On the
same day, Eduardo T. Arugay, another NBI agent, applied with the same court for the
issuance of search warrants against the said petitioner in his house at No. 326
McDivitt St., Bgy. Moonwalk, Paranaque. The search warrants were applied for after
teams of NBI agents had conducted a personal surveillance and investigation in the
two houses referred to on the basis of confidential, information they received that the
said places were being used as storage centers for unlicensed firearms and "chop-
chop" vehicles. Respondent NBI sought for the issuance of search warrants in
anticipation of criminal cases to be instituted against petitioner Kho.
On the same day, the respondent Judge conducted the necessary examination of the
applicants and their witnesses, after which he issued Search Warrant Nos. 90-11, 90-
12, 90-13, 90-14, and 90-15.
On the following day, May 16, 1990, armed with Search Warrant Nos. 90-11 and 90-
12, NBI agents searched subject premises at BF Homes, Paranaque, and they
recovered various high-powered firearms and hundreds of rounds of ammunition.
24
Meanwhile, another search was conducted at the house at No. 326 McDivitt St. Bgy.
Moonwalk, Paranaque, by another team of NBI agents using Search Warrant Nos.
90-13, 90-14 and 90-15. The said second search yielded several high-powered
firearms will explosives and more than a thousand rounds of ammunition. The
simultaneous searches also resulted in the confiscation of various radio and
telecommunication equipment, two units of motor vehicles (Lite-Ace vans) and one
motorcycle. Upon verification with the Firearms and Explosives Unit in Camp Crame,
the NBI agents found out that no license has ever been issued to any person or entity
for the confiscated firearms in question. Likewise, the radio agents found out that no
license has ever been issued to any person or entity for the confiscated firearms in
question. Likewise, the radio transceivers recovered and motor vehicles seized
turned out to be unlicensed and unregistered per records of the government agencies
concerned.
On May 22, 1990, the raiding teams submitted separate returns to the respondent
Judge requesting that the items seized be in the continued custody of the NBI
(Annexes "O", "P", and "Q", Petition).
On May 28, 1990, the petitioners presented a Motion to Quash the said Search
Warrants, contending that:
1. The subject search warrants were issued without probable cause:
2. The same search warrants are prohibited by the Constitution for being general
warrants;
3. The said search warrants were issued in violation of the procedural requirements
set forth by the Constitution;
4. The search warrants aforesaid were served in violation of the Revised Rules of
Court; and
5. The objects seized were all legally possessed and issued.
On July 26, 1990, respondent Judge issued the assailed Order denying the said
Motion To Quash interposed by petitioners.
Petitioners question the issuance of subject search warrants, theorizing upon the
absence of any probable cause therefor. They contend that the surveillance and
investigation conducted by NBI agents within the premises involved, prior to the
application for the search warrants under controversy, were not sufficient to vest in
the applicants personal knowledge of facts and circumstances showing or indicating
the commission of a crime by them (petitioners).
Petitioners' contention is untenable. Records show that the NBI agents who
conducted the surveillance and investigation testified unequivocally that they saw
guns being carried to and unloaded at the two houses searched, and motor vehicles
and spare parts were stored therein. In fact, applicant Max B. Salvador declared that
he personally attended the surveillance together with his witnesses (TSN, May 15,
1990, pp. 2-3), and the said witness personally saw the weapons being unloaded
from motor vehicles and carried to the premises referred to. NBI Agent Ali Vargas
testified that he actually saw the firearms being unloaded from a Toyota Lite-Ace van
and brought to the aformentioned house in BF Homes, Paranaque because he was
there inside the compound posing as an appliance agent (TSN, May 15, 1990, pp. 4-
5). It is therefore decisively clear that the application for the questioned search
warrants was based on the personal knowledge of the applicants and their witnesses.
In the case of Central Bank v. Morfe (20 SCRA 507), this Court ruled that the
question of whether or not a probable cause exists is one which must be determined
in light of the conditions obtaining given situations. InLuna v. Plaza (26 SCRA 310), it
held that the existence of a probable cause depends to a large extent upon the
finding or opinion of the judge who conducted the required examination of the
applicants and the witnesses.
After a careful study, the Court discerns no basis for disturbing the findings and
conclusions arrived at by the respondent Judge after examining the applicants and
witnesses. Respondent judge had the singular opportunity to assess their testimonies
and to find out their personal knowledge of facts and circumstances enough to create
a probable cause. The Judge was the one who personally examined the applicants
and witnesses and who asked searching questions vis-a-vis the applications for
search warrants. He was thus able to observe and determine whether subject
applicants and their witnesses gave accurate accounts of the surveillance and
investigation they conducted at the premises to be searched. In the absence of any
showing that respondent judge was recreant of his duties in connection with the
personal examination he so conducted on the affiants before him, there is no basis
for doubting the reliability and correctness of his findings and impressions.
25
Petitioners brand as fatally defective and deficient the procedure followed in the
issuance of subject search warrants, reasoning out that the same did not comply with
constitutional and statutory requirements. They fault respondent Judge for allegedly
failing to ask specific questions they deem particularly important during the
examination of the applicants and their witnesses. To buttress their submission,
petitioners invite attention to the following question, to wit:
"How did you know that there are unlicensed firearms being kept by Benjamin Kho at
No. 45 Bb. Ramona Tirona St., Phase I, BF Homes, Paranaque, Metro Manila?"
(TSN, Ali Vargas, May 15, 1990, p. 4).
Petitioners argue that by propounding the aforequoted question, the respondent
Judge assumed that the firearms at the premises to be searched were unlicensed,
instead of asking for a detailed account of how the NBI agents came to know that the
firearms being kept thereat were unlicensed.
This stance of petitioners is similarly devoid of any sustainable basis. Nothing
improper is perceived in the manner the respondent Judge conducted the
examination of subject applicants for search warrants and their witnesses. He
personally examined them under oath, and asked them searching questions on the
facts and circumstances personally known to them, in compliance with prescribed
procedure and legal requirements. It can be gleaned that the sworn statements and
affidavits submitted by the witnesses were duly attached to the pertinent records of
the proceedings. It was within the discretion of the examining Judge to determine
what questions to ask the witnesses so long as the questions asked are germane to
the pivot of inquiry the existence or absence of a probable cause.
Petitioners claim that subject search warrants are general warrants prescribed by the
Constitution. According to them, the things to be seized were not described and
detailed out, i.e. the firearms listed were not classified as to size or make, etc.
Records on hand indicate that the search warrants under scrutiny specifically
describe the items to be seized thus:
Search Warrant No. 90- 11.
Unlicensed radio communications equipments such as
transmitters, transceivers, handsets, scanners, monitoring
device and the like.
 Search Warrant No, 90-13.
Unlicensed radio communications equipments such as
transmitters, transceivers, handsets, radio communications
equipments, scanners, monitoring devices and others.
The use of the phrase "and the like" is of no moment. The same did not make the
search warrants in question general warrants. In Oca v. Maiquez (14 SCRA 735), the
Court upheld the warrant although it described the things to be seized as "books of
accounts and allied papers."
Subject Warrant Nos. 90-12 and 90-15 refer to:
Unlicensed firearms of various calibers and ammunitions for
the said firearms.
Search Warrant No. 90-14 states:
Chop-chop vehicles and other spare parts.
The Court believes, and so holds, that the said warrants comply with Constitutional
and statutory requirements. The law does not require that the things to be seized
must be described in precise and minute detail as to leave no room for doubt on the
part of the searching authorities. Otherwise, it would be virtually impossible for the
applicants to obtain a warrant as they would not know exactly what kind of things
they are looking for. Since the element of time is very crucial in criminal cases, the
effort and time spent in researching on the details to be embodied in the warrant
would render the purpose of the search nugatory.
In the case under consideration, the NBI agents could not have been in a position to
know before hand the exact caliber or make of the firearms to be seized. Although
the surveillance they conducted did disclose the presence of unlicensed firearms
within the premises to be searched, they could not have known the particular type of
weapons involved before seeing such weapons at close range, which was of course
impossible at the time of the filing of the applications for subject search warrants.
26
Verily, the failure to specify detailed descriptions in the warrants did not render the
same general. Retired Justice Ricardo Francisco's book on Criminal Procedure has
this useful insight:
A description of the property to be seized need not be technically
accurate nor necessarily precise; and its nature will necessarily vary
according to whether the identity of the property, or its character, is
the matter of concern. Further, the description is required to be
specific only so for as the circumstances will ordinarily allow. . . .
In People v. Rubio (57 Phil 384), the Court held that, ". . . 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, for this would mean that no warrant could issue."
It is indeed understandable that the agents of respondent Bureau have no way of
knowing whether the guns they intend to seize are a Smith and Wesson or a Beretta.
The surveillance conducted could not give the NBI agents a close view of the
weapons being transported or brought to the premises to be searched. Thus, they
could not be expected to know the detailed particulars of the objects to be seized.
Consequently, the list submitted in the applications for subject search warrants
should be adjudged in substantial compliance with the requirements of law.
Petitioners contend that the searching agents grossly violated the procedure in
enforcing the search warrants in question. The petition avers supposedly
reprehensible acts perpetrated by the NBI agents. Among the irregularities alluded to,
are:
1. The raiding team failed to perform the following before breaking into
the premises:
a. Properly identify themselves and showing necessary
credentials including presentation of the Search Warrants;
b. Furnishing of Search Warrants and allowing the
occupants of the place to scrutinize the same
c. Giving ample time to the occupants to voluntarily allow the
raiders entry into the place and to search the premises.
 2. The team entered the premises by climbing the fence and by forcing
open the main door of the house.
3. Once inside the house, the raiders herded the maids and the sixteen
year-old son of defendant Kho into the dining room where they were confined
for the duration of the raid. In the case of the son, he was gagged with a piece
of cloth, his hands were tied behind his back and he was made to lie face down.
4. Defendant Kho's hands were immediately tied behind his back
(initially with a rag and later with the electric cord of a rechargeable
lamp) and was restrained in a kneeling position with guns pointed at
him throughout the duration of the search. It was only after the
search was completed and the seized items stuffed in carton boxes
(and a T-bag) that his hands were untied so he can sign the search
warrants which he was forced to do.
Considering that cases for Illegal Possession of Firearms and Explosives and
Violation of Section 3 in relation to Section 14 of Republic Act No. 6539, otherwise
known as the Anti-Carnapping Act of 1972, have been instituted against the
petitioners, the petition for mandamus with preliminary and mandatory injunction to
return all objects seized and to restrain respondent NBI from using the said objects
as evidence, has become moot and academic.
WHEREFORE, or want of merit and on the ground that it has become moot and
academic, the petition at bar is hereby DISMISSED. No pronoucement as to
costs.1wphi1.nt
SO ORDERED.

5. All throughout the search, defendant Kho and his companions

were kept in the dining room and continuously intimidated of being
shot while the raiders search all the rooms all by themselves and
without anybody seeing whatever they were doing.

The question of whether there was abuse in the enforcerment of the challanged
search warrants is not within the scope of a Motion to Quash. In a Motion to Quash,
what is assailed is the validity of the issuance of the warrant. The manner of serving
the warrant and of effecting the search are not an issue to be resolved here. As aptly
opined and ruled by the respondent Judge, petitioners have remedies under pertinent
penal, civil and administrative laws for their problem at hand, which cannot be solved
by their present motion to quash.

According to petitioner Kho, the premises searched and objects seized during the
search sued upon belong to the Economic Intelligence and Investigation Bureau
(EIIB) of which he is an agent and therefore, the NBI agents involved had no
authority to search the aforesaid premises and to confiscate the objects seized.

Whether the places searched and objects seized are government properties are
questions of fact outside the scope of the petition under consideration. The Court
does not see its way clear to rule on such issues lest it preempts the disposition of
the cases filed by the respondent NBI against the herein petitioners.

27
 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
Republic of the Philippines previously beeen issued against NOLASCO.
SUPREME COURT
Manila 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
EN BANC 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
G.R. No. L-69803 October 8, 1985 6th.

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.
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.

Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar In connection with the Search Warrant issued, the following may be stated:
Maravilla for petitioners.
(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.
MELENCIO-HERRERA, J.:
(b) It does not appear from the records before us that an application in writing was
submitted by Lt. Col. Saldajeno to Judge Pao.

28
(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
29
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
30
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
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
31
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 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.
Separate Opinions
TEEHANKEE, J., concurring and dissenting.
32
I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad
Santos. The questioned search warrant has correctly been declared null and void in
the Court's decision as a general warrant issued in gross violation of the
constitutional mandate that "the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated" (Bill of Rights, sec. 3). The Bill of
Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence
obtained in violation of this . . . section shall be inadmissible for any purpose in any
proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the
exclusionary rule has proved by historical experience to be the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures
by outlawing all evidence illegally seized and thereby removing the incentive on the
part of state and police officers to disregard such basic rights. What the plain
language of the Constitution mandates is beyond the power of the courts to change
or modify.
All the articles thus seized fall under the exclusionary rule totally and
unqualifiedly and cannot be used against any of the three petitioners, as held by the
majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30,
1985). The Court has held that "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.
No presumptions of regularity are to be invoked in aid of the process when an officer
undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394)
The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's)
arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been
searched, even without a warrant, for evidence of rebellion" is patently against the
constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas
amply discusses this in the dissenting portion of his separate opinion. Suffice it to add
and stress that the arresting CSG Group themselves knew that they needed a search
warrant and obtained the void warrant in question. The exception of Rule 126, sec.
12 which allows a warrantless search of a person who is lawfully arrested is
absolutely limited to his person, at the time of and incident to his arrest and to
dangerous weapons or anything which may be used as proof of the commission of
the offense." Such warrantless search obviously cannot be made in a
place other than the place of arrest. In this case, petitioner Aguilar-Roque was
arrested at 11:30 a.m. on board a public vehicle on the road (at Mayon and P. Margall
Streets). To hold that her dwelling could "later on the same day" be searched without
warrant is to sanction an untenable violation, if not nullification, of the cited basic
constitutional rights against unreasonable searches and seizures.
I vote to grant the petition in toto.
ABAD SANTOS, J., concurring and dissenting:
I concur in the judgment insofar as it annuls and sets aside Search Warrant
No. 80-84 issued by Executive Judge Ernani Cruz Pao for the reasons adduced by
Justice Melencio Herrera. In addition I wish to state the judge either did not fully know
the legal and constitutional requirements for the issuance of a search warrant or he
allowed himself to be used by the military. In either case his action can only be
described as deplorable.
I do not agree with the ponencia when it says that 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. I
agree with Justice Cuevas. for the reasons stated by him, that their retention cannot
be justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then
again I cannot agree with Justice Cuevas, statement that not all the things seized can
be ordered returned to their owners. He refers to "the subversive materials seized by
the government agents." What are subversive materials? Whether a material is
subversive or not is a conclusion of law, not of fact. Who will make the determination?
Certainly not the military for it is not competent to do so aside from the fact that it has
its own peculiar views on the matter. thus copies of Playboy magazines were seized
from a labor leader now deceased and medicines were also seized from a physician
who was suspected of being a subversive. I say return everything to the petitioners.
CUEVAS, J., concurring and dissenting:
I fully agree with the pronouncement in the majority opinion nullifying Search warrant
No. 80-84 issued by the Hon. Ernani Cruz Pao Executive Judge of the Regional
Trial Court of Quezon City which was served at 239B Mayon St., Quezon City It does
not specify with requisite particularity the things, objects or properties that may be
seized hereunder. Being in the nature of a general warrant, it violates the
constitutional mandate that the place to be searched and the persons or things to be
seized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution)
33
I, however, regret being unable to concur with the dictum justifying the said search on
the basis of Sec. 12, Rule 126 of the Rules of Court which provides:
SEC. 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 lawful arrest being the sole justification for the validity of the warrantless search
under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and
circumscribed by, the subject, time, and place of said arrest. As to subject, the
warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything
which may be used as proof of the commission of the offense." Hence
An 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 might furnish the prisoner with the means
of committing violence or escaping or which may be used as
evidence in the trial of the cause ... (In Re Moreno vs. Ago Chi, 12
Phil. 439: People vs. Veloso, 48 Phil. 169)
With respect to the time and place of the warrantless search allowed by law, it must
be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search
must have been conducted at about the time of the arrest or immediately thereafter
and only at the place where the suspect was arrested,
The right without a search warrant contemporaneously to search a
person lawfully arrested while committing a crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it was
committed, as well as weapons or other things to effect an escape
from custody is not to be doubted. CAROLL vs. US 267 US 122. 158.
... But the right does not extend to other places. Frank Agnello's
house was several blocks distant from Alba's house where the arrest
was made. When it was entered and searched, the conspiracy was
ended and the defendants were under arrest and in custody
elsewhere. That search cannot be sustained as an incident of the
 arrests. MARSON vs. US, 275 US 192, 199. (Emphasis supplied)
(Agnello vs. U.S., 269 U.S. 20,30)

The second element which must exist in order to bring the case within the exception
to the general rule is that, in addition to a lawful arrest, the search must be incident to
the arrest.
Footnotes
The search must be made at the place of the arrest, otherwise, it is
not incident to the arrest.AGNELLO vs. U.S. supra. In this latter 1 Rollo, pp. 24 & 145.
case, 269 U.S. 20 at 30, it is said that the officers have a right to
make a search contemporaneously with the arrest. And if the
purpose of the officers in making their entry is not to make an arrest, 2 Inventory List dated August 6, 1984, Annex "D-1", Petition, p. 41,
but to make a search to obtain evidence for some future arrest, then Rollo.
search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET
AL. (Papani vs, U. S. 84 F 2d 160, 163) 3 Amended Inventory List, dated August 31, 1984, Annex Ibid., p. 46,
Rollo.
In the instant case, petitioners were arrested at the intersection of Mayon St. and P.
Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was 4 Annex "D", Petition.
conducted after the arrest, that was at around 12:00 noon of the same day or "late
that same day (as respondents claim in their "COMMENT") at the residence of 5 Annex "F", Petition, p. 44, Rollo.
petitioner AGUILAR-ROQUE in 239B Mayon St., Quezon City. How far or how many
kilometers is that place from the place where petitioner was arrested do not appear 6 Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800, 814 & 815
shown by the record. But what appears undisputed is that the search was made in a (1984).
place other than the place of arrest and, not on the occasion of nor immediately after
the arrest. It cannot be said, therefore, that such a search was incidental to the arrest
7 Fr. Jose Dizon vs. Hon. Jose P. Castro, Resolution of April 1 1,
of the petitioners. Not being an incident of a lawful arrest, the search of the premises
1985 in G.R. No. 67923, p. 4.
at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is
ILLEGAL and violative of the constitutional rights of the respondent. The things and
properties seized on the occasion of said illegal search are therefore INADMISSIBLE 8 Rommel Corro vs. Hon. Esteban Lising, G.R. No. 69899, July 15,
in evidence under the exclusionary rule. However, not all the things so seized can be 1985, p. 8.
ordered returned to their owners. Objects and properties the possession of which is
prohibited by law, cannot be returned to their owners notwithstanding the illegality of 9 Rollo, pp. 144 & 145.
their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70
SCRA 478). Thus, the subversive materials seized by the government agents which 10 U.S. vs. Addison, 28 Phil. 566, 570 (1914); People vs. Sy Juco,
cannot be legally possessed by anyone under the law can and must be retained by 64 Phil. 667 (1937).
the government.
11 Burgos, Sr. vs. Chief of Staff, AFP, 133 SCRA 800 (1984).

12 79 C.J.S., p. 843.

34
 13 68 Am Jur 2d, p. -1 46.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 136066-67 February 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BINAD SY CHUA, accused-appellant.

DECISION

YNARES-SANTIAGO, J.:

Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article III
of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in
two separate Informations which read as follows:

Criminal Case No. 96-5071

35
That on or about the 21st day of September 1996, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession and under
his control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU)
weighing more or less two (2) kilos and one (1) small plastic bag containing
Methamphetamine Hydrocloride weighing more or less fifteen (15) grams, which is a
regulated drug, without any authority whatsoever.
Criminal Case No. 96-5132
That on or about the 21st day of September 1996, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously have in his possession and under
his control twenty (20) pieces of live .22 cal. ammunitions, without first having
obtained a license or permit to possess or carry the same.
Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nt The two cases
were then jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of
Angeles City. Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and
PO2 Emmeraldo Nunag received a report from their confidential informant that
accused-appellant was about to deliver drugs that night at the Thunder Inn Hotel in
Balibago, Angeles City. The informer further reported that accused-appellant
distributes illegal drugs in different karaoke bars in Angeles City. On the basis of this
lead, the PNP Chief of Angeles City, Col. Neopito Gutierrez, immediately formed a
team of operatives composed of Major Bernardino, Insp. Tullao, Insp. Emmanuel
Nunag, P02 Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with
SPO2 Mario Nulud, as team investigator. The group of SPO2 Nulud, PO2 Nunag and
the civilian informer positioned themselves across McArthur Highway near Bali Hai
Restaurant, fronting Thunder Inn Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accused-
appellant which just arrived and parked near the entrance of the Thunder Inn Hotel.
After accused-appellant alighted from the car carrying a sealed Zest-O juice box,
SPO2 Nulud and PO2 Nunag hurriedly accosted him and introduced themselves as
police officers. As accused-appellant pulled out his wallet, a small transparent plastic
36
bag with a crystalline substance protruded from his right back pocket. Forthwith,
SPO2 Nulud subjected him to a body search which yielded twenty (20) pieces of live .
22 caliber firearm bullets from his left back pocket. When SPO2 Nunag peeked into
the contents of the Zest-O box, he saw that it contained a crystalline substance.
SPO2 Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice
box, the twenty (20) pieces of .22 caliber firearm bullets and the car used by
accused-appellant. Afterwards, SPO2 Nulud and the other police operatives who
arrived at the scene brought the confiscated items to the office of Col. Guttierez at
the PNP Headquarters in Camp Pepito, Angeles City.3
When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags
containing crystalline substances. The initial field test conducted by SPO2 Danilo
Cruz at the PNP Headquarters revealed that the siezed items contained
shabu.4 Thereafter, SPO2 Nulud together with accused-appellant brought these items
for further laboratory examination to the Crime Laboratory at Camp Olivas, San
Fernando, Pampanga. After due testing, forensic chemist S/Insp. Daisy Babor
concluded that the crystalline substances yielded positive results for shabu. The
small plastic bag weighed 13.815 grams while the two big plastic bags weighed 1.942
kilograms of shabu.5
Accused-appellant vehemently denied the accusation against him and narrated a
different version of the incident.
Accused-appellant alleged that on the night in question, he was driving the car of his
wife to follow her and his son to Manila. He felt sleepy, so he decided to take the old
route along McArthur Highway. He stopped in front of a small store near Thunder Inn
Hotel in Balibago, Angeles City to buy cigarettes and candies. While at the store, he
noticed a man approach and examine the inside of his car. When he called the
attention of the onlooker, the man immediately pulled out a .45 caliber gun and made
him face his car with raised hands. The man later on identified himself as a
policeman. During the course of the arrest, the policeman took out his wallet and
instructed him to open his car. He refused, so the policeman took his car keys and
proceeded to search his car. At this time, the police officers companions arrived at
the scene in two cars. PO2 Nulud, who just arrived at the scene, pulled him away
from his car in a nearby bank, while the others searched his car.1awphi1.nt
Thereafter, he was brought to the Salakot Police Station and was held inside a
bathroom for about fifteen minutes until Col. Guttierez arrived, who ordered his men
to call the media. In the presence of reporters, Col. Guttierez opened the box and
accused-appellant was made to hold the box while pictures were being taken. 6
Wilfredo Lagman corroborated the story of the accused-appellant in its material
points. He testified that he witnessed the incident while he was conducting a routine
security check around the premises of the Guess Building, near Thunder Inn Hotel. 7
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59,
rendered a decision,8 the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgement is hereby rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the
accused is hereby acquitted of the crime charged for insufficiency of
evidence.
2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of
shabu, accused Binad Sy Chua is found GUILTY beyond reasonable doubt of
the crime charge and is hereby sentenced to suffer the penalty of reclusion
perpetua and to pay a fine of One Million (P1,000,000.00) Pesos.
SO ORDERED.9
Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:
A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS
LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT
CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM WERE
CONDUCTED IN A LAWFUL AND VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED
IS SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT
BEYOND REAONABLE DOUBT.10
37
Accused-appellant maintains that the warrantless arrest and search made by the
police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that
prior to his arrest he has been under surveillance for two years, there was therefore
no compelling reason for the haste within which the arresting officers sought to arrest
and search him without a warrant; that the police officers had sufficient information
about him and could have easily arrested him. Accused-appellant further argues that
since his arrest was null an void, the drugs that were seized should likewise be
inadmissible in evidence since they were obtained in violation of his constitutional
rights against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.
Although the trial courts evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be disturbed on appeal, however,
this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard to the
credibility of witnesses deserves the utmost respect, if not finality, for the reason that
the trial judge has the prerogative, denied to appellate judges, of observing the
demeanor of the declarants in the course of their testimonies. The only exception is if
there is a showing that the trial judge overlooked, misunderstood, or misapplied some
fact or circumstance of weight and substance that would have affected the case. 11
In the case at bar, there appears on record some facts of weight and substance that
have been overlooked, misapprehended, or misapplied by the trial court which casts
doubt on the guilt of accused-appellant. An appeal in a criminal case opens the whole
case for review and this includes the review of the penalty and indemnity imposed by
the trial court.12 We are clothed with ample authority to review matters, even those
not raised on appeal, if we find that their consideration is necessary in arriving at a
just disposition of the case. Every circumstance in favor of the accused shall be
considered.13 This is in keeping with the constitutional mandate that every accused
shall be presumed innocent unless his guilt is proven beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent search and seizure made
upon accused-appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs (shabu).
A crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects x x x allow a warrantless
search incident to a lawful arrest. x x x x
While it is true that the police officers were not armed with a search warrant when the
search was made over the personal affects (sic) of the accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
xxxxxxxxx
In the present case, the police received information that the accused will distribute
illegal drugs that evening at the Thunder Inn Hotel and its vicinities. The police officer
had to act quickly and there was no more time to secure a search warrant. The
search is valid being akin to a "stop and frisk".14
A thorough review of the evidence on record belies the findings and conclusion of the
trial court. It confused the two different concepts of a search incidental to a lawful
arrest (in flagrante delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals,15 we distinguished the concepts of a "stop-and-frisk"
and of a search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk"
and of a search incidental to a lawful arrest. These two types of warrantless searches
differ in terms of the requisite quantum of proof before they may be validly effected
and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there first be arrest before
a search can be madethe process cannot be reversed. At bottom, assuming a valid
arrest, the arresting officer may search the person of the arrestee and the area within
which the latter may reach for a weapon or for evidence to destroy, and seize any
money or property found which was used in the commission of the crime, or the fruit
of the crime, or that which may be used as evidence, or which might furnish the
arrestee with the means of escaping or committing violence.
38
xxxxxxxxx
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a
"limited protective search of outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identifies himself as
a policeman and makes reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or others safety, he
is entitled for the protection of himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is a reasonable search
under the Fourth amendment.
Other notable points of Terry are that while probable cause is not required to conduct
a "stop-and-frisk," it nevertheless holds that mere suspicion or a hunch will not
validate a "stop-and-frisk". A genuine reason must exist, in light of the police officers
experience and surrounding conditions, to warrant the belief that the person detained
has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to
assure himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police
officer.16(Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is
applicable to justify the warrantless arrest and consequent search and seizure made
by the police operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence
of the arresting officer. Emphasis should be laid on the fact that the law requires that
the search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful
arrest must precede the search of a person and his belongings. 17 Accordingly, for this
exception to apply two elements must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually committing, or
is attempting to commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer.18
We find the two aforementioned elements lacking in the case at bar. The record
reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he
merely parked his car along the McArthur Highway, alighted from it and casually
proceeded towards the entrance of the Hotel clutching a sealed Zest-O juice box.
Accused-appellant did not act in a suspicious manner. For all intents and purposes,
there was no overt manifestation that accused-appellant has just committed, is
actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a
violation of the law, the group of SPO2 Nulud "hurriedly accosted" 19 accused-
appellant and later on "introduced themselves as police officers." 20Accused-appellant
was arrested before the alleged drop-off of shabu was done. Probable cause in this
case was more imagined than real. Thus, there could have been no in flagrante
delicto arrest preceding the search, in light of the lack of an overt physical act on the
part of accused-appellant that he had committed a crime, was committing a crime or
was going to commit a crime. As applied to in flagrante delicto arrests, it has been
held that "reliable information" alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify an in flagrante delicto
arrest.21 Hence, in People v. Aminudin,22 we ruled that "the accused-appellant was
not, at the moment of his arrest, committing a crime nor was it shown that he was
about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the
carrier of the marijuana that he suddenly became suspect and so subject to
apprehension" (Emphasis supplied).
The reliance of the prosecution in People v. Tangliben 23 to justify the polices actions
is misplaced. In the said case, based on the information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also on
those who may be engaged in the traffic of dangerous drugs. At 9:30 in the evening,
the policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused.
39
He acceded later on when the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from
the very same informant of accused-appellants activities. No less than SPO2 Mario
Nulud, the team leader of the arresting operatives, admitted that their informant has
been telling them about the activities of accused-appellant for two years prior to his
actual arrest on September 21, 1996. An excerpt of the testimony of SPO2 Mario
Nulud reveals the illegality of the arrest of accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to you the name of this
chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even before September
21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the
activities of this chinese drug pusher reckoning in relation to September 21,
1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal knowledge which you gained
from the civilian informant that this chinese drug pusher have been engaged
pushing drugs here in Angeles City, you did not think of applying for a search
warrant for this chinese drug pusher?
A. No, sir.
xxxxxxxxx
Q. When you accosted this Binad Chua, he was casually walking along the
road near the Thunder Inn Hotel, is that right?
 A. He was pinpointed by the civilian informer that he is the chinese drug
pusher that will deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in
this case he alighted with a Corolla car with plate number 999, I think, he just
alighted when you saw him?
xxxxxxxxx
Q. But would you agree with me that not all crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we have been tailing the
accused that he is really a drug pusher.

A. Yes, sir. Q. So you have been tailing this accused for quite a long time that you are
very sure that what was brought by him was shabu?
Q. From the car when he alighted, he casually walked towards near the
entrance of the Thunder Inn Hotel? A. Yes, sir.24

A. He was about to proceed towards Thunder Inn Hotel but he was The police operatives cannot feign ignorance of the alleged illegal activities of
pinpointed already by the civilian informer. accused-appellant. Considering that the identity, address and activities of the
suspected culprit was already ascertained two years previous to the actual arrest,
Q. But he was just walking towards the entrance of the Thunder Inn Hotel? there was indeed no reason why the police officers could not have obtained a judicial
warrant before arresting accused-appellant and searching his person. Whatever
A. Yes, sir, he is about to enter Thunder Inn Hotel. information their civilian asset relayed to them hours before accused-appellants
arrest was not a product of an "on-the-spot" tip which may excuse them from
obtaining a warrant of arrest. Accordingly, the arresting teams contention that their
xxxxxxxxx
arrest of accused-appellant was a product of an "on-the-spot" tip is untenable.
Q. While he was walking, then you and PO2 Nunag pounced on him as you
In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-frisk
used pounced on him in your affidavit?
was defined as the act of a police officer to stop a citizen on the street, interrogate
him, and pat him for weapon(s) 25 or contraband. The police officer should properly
A. Yes, sir. introduce himself and make initial inquiries, approach and restrain a person who
manifests unusual and suspicious conduct, in order to check the latters outer
xxxxxxxxx clothing for possibly concealed weapons.26 The apprehending police officer must
have a genuine reason, in accordance with the police officers experience and the
Q. And you pounced on Jojo Chua before you saw that alleged small plastic surrounding conditions, to warrant the belief that the person to be held has weapons
bag, is that correct? (or contraband) concealed about him. 27 It should therefore be emphasized that a
search and seizure should precede the arrest for this principle to apply. 28
A. Yes, sir.
This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court
Q. And after that you also confiscated this Zesto juice box? of Appeals.29 In said case, the policemen chanced upon the accused who had
reddish eyes, walking in a swaying manner, and who appeared to be high on drugs.
Thus, we upheld the validity of the search as akin to a "stop-and-frisk." In People v.
A. Yes, sir.
Solayao,30 we also found justifiable reason to "stop-and-frisk" the accused after
considering the following circumstances: the drunken actuations of the accused and

40
his companions, the fact that his companions fled when they saw the policemen, and
the fact that the peace officers were precisely on an intelligence mission to verify
reports that armed persons where roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid
"stop-and-frisk" in the case of accused-appellant. To reiterate, accused-appellant was
first arrested before the search and seizure of the alleged illegal items found in his
possession. The apprehending police operative failed to make any initial inquiry into
accused-appellants business in the vicinity or the contents of the Zest-O juice box he
was carrying. The apprehending police officers only introduced themselves when
they already had custody of accused-appellant. Besides, at the time of his arrest,
accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the
law. There was, therefore, no genuine reasonable ground for the immediacy of
accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended on the information given
to them by their confidential informant. Accordingly, before and during that time of the
arrest, the arresting officers had no personal knowledge that accused-appellant had
just committed, was committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-
appellants warrantless arrest and consequent search would still not be deemed a
valid "stop-and frisk". For a valid "stop-and-frisk" the search and seizure must
precede the arrest, which is not so in this case. Besides, as we have earlier
emphasized, the information about the illegal activities of accused-appellant was not
unknown to the apprehending officers. Hence, the search and seizure of the
prohibited drugs cannot be deemed as a valid "stop-and-frisk".
Neither can there be valid seizure in plain view on the basis of the seized items found
in accused-appellants possession. First, there was no valid intrusion. Second, the
evidence, i.e., the plastic bags found in the Zest-O juice box which contained
crystalline substances later on identified as methamphetamine hydrochloride (shabu)
and the 20 rounds of .22 caliber ammunition, were not inadvertently discovered. The
police officers first arrested accused-appellant and intentionally searched his person
and peeked into the sealed Zest-O juice box before they were able to see and later
on ascertain that the crystalline substance was shabu. There was no clear showing
that the sealed Zest-O juice box accused-appellant carried contained prohibited
drugs. Neither were the small plastic bags which allegedly contained crystalline
41
substance and the 20 rounds of .22 caliber ammunition visible. These prohibited
substances were not in plain view of the arresting officers; hence, inadmissible for
being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving vehicle, a
consented warrantless search, or a customs search. It cannot even fall under exigent
and emergency circumstances, for the evidence at hand is bereft of any such
showing.1a\^/phi1.net
All told, the absence of ill-motive on the part of the arresting team cannot simply
validate, much more cure, the illegality of the arrest and consequent warrantless
search of accused-appellant. Neither can the presumption of regularity of
performance of function be invoked by an officer in aid of the process when he
undertakes to justify an encroachment of rights secured by the
Constitution.31 In People v. Nubla,32 we clearly stated that:
The presumption of regularity in the performance of official duty cannot be used as
basis for affirming accused-appellants conviction because, first, the presumption is
precisely just that a mere presumption. Once challenged by evidence, as in this
case, xxx [it] cannot be regarded as binding truth. Second, the presumption of
regularity in the performance of official functions cannot preponderate over the
presumption of innocence that prevails if not overthrown by proof beyond reasonable
doubt.
Furthermore, we entertain doubts whether the items allegedly seized from accused-
appellant were the very same items presented at the trial of this case. The record
shows that the initial field test where the items seized were identified as shabu, was
only conducted at the PNP headquarters of Angeles City. 33 The items were therefore
not marked at the place where they were taken. In People v. Casimiro,34 we struck
down with disbelief the reliability of the identity of the confiscated items since they
were not marked at the place where they were seized, thus:
The narcotics field test, which initially identified the seized item as marijuana, was
likewise not conducted at the scene of the crime, but only at the narcotics office.
There is thus reasonable doubt as to whether the item allegedly seized from
accused-appellant is the same brick of marijuana marked by the policemen in their
headquarters and given by them to the crime laboratory.
 8
The governments drive against illegal drugs needs the support of every citizen. But it Penned by Judge Eliezer R. De Los Santos now Associate Justice of the Court of
should not undermine the fundamental rights of every citizen as enshrined in the Appeals.
Constitution. The constitutional guarantee against warrantless arrests and
unreasonable searches and seizures cannot be so carelessly disregarded as 9
Rollo, p. 26.
overzealous police officers are sometimes wont to do. Fealty to the constitution and
the rights it guarantees should be paramount in their minds, otherwise their good 10
Ibid., pp. 40-41.
intentions will remain as such simply because they have blundered. The criminal
goes free, if he must, but it is the law that sets him free. Nothing can destroy a 11
People v. Alvarado, G.R. No. 145730, March 19, 2002, citing People v. De Los
government more quickly than its failure to observe its own laws, or worse, its Santos, 355 SCRA 301 (2001); People v. Osing, 349 SCRA 310 (2001).
disregard of the charter of its own existence.35
12
People v. Leones, G.R. Nos. 128514 & 143856-61, October 3, 2001.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of
Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting 13
People v. Manambit, 271 SCRA 344, 385-386 (1997), citing Heirs of Crisanta Y.
accused-appellant Binad Sy Chua of violation of Section 16, Article III, Republic Act Gabriel-Almoradie v. CA, 229 SCRA 15 (1994) and People v. Villagracia, 226 SCRA
No. 6425 and sentencing him to suffer the penalty of reclusion perpetua and to pay a 374, 381(1993).
fine of P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy
Chua is ACQUITTED on the ground of reasonable doubt. Consequently, he is 14
Rollo, pp. 470, 473-474; RTC Decision, pp. 7, 10-11.
ordered forthwith released from custody, unless he is being lawfully held for another
crime. 15
283 SCRA 159 (1997).

SO ORDERED. 16
Ibid, pp. 175-177.

17
Footnotes People v. Aruta, 288 SCRA 626, 643 (1998).

18
1
Records, Volume 1, p. 1. Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA
668, 720 (1999).
2
Ibid., p. 12.
19
TSN, January 7, 1998, p. 8.
3
TSN, January 7, 1998, pp. 4-10; TSN, April 21, 1998, pp. 5-9.
20
Ibid.
4
TSN, April 21, 1998, pp. 9-10.
21
People v. Molina, 352 SCRA 174, 183 (2001).
5
Records, Vol. 2, p. 306.
22
163 SCRA 402, 409-410(1988).
6
TSN, July 2, 1998, pp. 3-8.
23
184 SCRA 220, 221-222 (1990).
7
TSN, August 5, 1998, pp. 5-19.
24
TSN, January 27, 1998, pp. 8-13.

42
 25
Manalili v. CA, 280 SCRA 400, 411 (1997). QUISUMBING, J.:
26
Concurring Opinion of Justice Artemio Panganiban in People v. Doria, 301 SCRA On appeal is the Decision 1 dated September 23, 2005 of the Court of Appeals in CA-
668, 729 (1999). G.R. CR-HC No. 01247 affirming the Decision 2 dated March 7, 2003 of the Regional
Trial Court (RTC) of Manila, Branch 35, in Criminal Cases Nos. 02-205461 and 02-
27
Malacat v. CA, supra, p. 177. 205462. The RTC had convicted appellant Ricardo Bohol (Bohol) of violating
Sections 11 (3)3 and 5,4 Article II, respectively, of Republic Act No. 9165 5 also known
28
Posadas v. CA, 188 SCRA 288, 292 (1990). as the Comprehensive Dangerous Drugs Act of 2002.

29
280 SCRA 400 (1997). On August 7, 2002, two Informations 6 were filed against Bohol before the RTC of
Manila, Branch 35, for violations of Rep. Act No. 9165.
30
262 SCRA 255 (1996).
In Criminal Case No. 02-205461, involving the violation of Section 11 (3), Article II of
31
People v. Salanguit, 356 SCRA 683, 702 (2001), citing Nolasco v. Pao, 139 SCRA Rep. Act No. 9165, the information reads as follows:
152 (1985).

32
That on or about August 2, 2002, in the City of Manila, Philippines, the said accused,
G.R. No. 129376, May 29, 2002, citing People v. Ruiz, G.R. Nos. 135679 and without being authorized by law to possess any dangerous drug, did then and there
137375, October 10, 2001.
willfully, unlawfully and knowingly have in his possession and under his custody and
33
control three (3) heat-sealed transparent plastic sachets containing white crystalline
TSN, January 7, 1998, pp. 10-12. substance commonly known as "shabu" weighing zero point zero four eight (0.048)
gram, zero point zero three five (0.035) gram, and zero point zero three five (0.035)
34
G.R. No. 146277, June 20, 2002. gram, respectively, which, after a laboratory examination, gave positive results for
methylamphetamine (sic) hydrochloride, a dangerous drug.
35
People v. Sagaysay, 308 SCRA 432, 454 (1999).
CONTRARY TO LAW.7
Republic of the Philippines
SUPREME COURT In Criminal Case No. 02-205462, for violation of Section 5 of the same law, the
Manila information reads as follows:

SECOND DIVISION That on or about August 2, 2002, in the City of Manila, Philippines, the said accused,
without being authorized by law to sell, administer, deliver, transport or distribute any
G.R. No. 171729 July 28, 2008 dangerous drug, did then and there willfully, unlawfully and knowingly sell or attempt
to sell, or offer for sale for P100.00 and deliver to PO2 Ferdinand Estrada, a poseur
PEOPLE OF THE PHILIPPINES, Appellee, buyer, one (1) heat-sealed transparent plastic sachet containing white crystalline
vs. substance commonly known as "shabu" weighing zero point zero five four (0.054)
RICARDO BOHOL y CABRINO, Appellant. gram, which substance, after a qualitative examination, gave positive results for
methamphetamine hydrochloride, which is a dangerous drug.
DECISION

43
CONTRARY TO LAW.8
The antecedent facts in these cases are as follows.
On August 2, 2002, at around 8:30 p.m., a confidential informant came to the police
station and tipped P/Sr. Insp. Jessie Nitullano that a certain Ricardo Bohol is
engaged in illegal drug trade in Isla Puting Bato, Tondo, Manila. P/Sr. Insp. Nitullano
then formed a team of six police operatives to verify the informants tip, and, if found
positive, to launch then and there a buy-bust entrapment of Bohol. PO2 Ferdinand
Estrada was assigned to act as poseur buyer, and he was provided with a
marked P100-bill as buy-bust money.
Between 9:30 p.m. to 10:00 p.m. of the same day, the team proceeded to the site of
their operation. Guided by the informant, PO2 Estrada proceeded to the house of
Bohol, whom they saw standing beside the stairs of his house. Following a short
introduction, PO2 Estrada and the informant told Bohol of their purpose. Bohol asked,
"How much?" to which PO2 Estrada replied, "Piso lang" (meaning P100 worth
of shabu) and handed to the former the marked P100-bill. In turn, Bohol gave PO2
Estrada a plastic sachet containing white crystalline granules which the latter
suspected to be shabu. The illicit transaction having been consummated, PO2
Estrada gave to his companions their pre-arranged signal. Emerging from their hiding
places, PO2 Luisito Gutierrez and his companions arrested Bohol. PO2 Gutierrez
frisked Bohol and recovered from him the buy-bust money and three plastic sachets
containing similar white crystalline granules suspected to be shabu.
Consequently, the police officers brought Bohol to the police station and the
confiscated four plastic sachets of white crystalline substance were subjected to
laboratory examination. The specimens were confirmed to be methamphetamine
hydrochloride, commonly known as shabu.
Upon arraignment, Bohol entered a plea of "not guilty" to both charges. Thereafter,
trial on the merits ensued.
On March 7, 2003, the trial court rendered the assailed Decision, the dispositive
portion of which reads:
WHEREFORE, judgment is rendered:
44
(1) In Criminal Case No. 02-205461, pronouncing accused RICARDO
BOHOL y CABRINO guilty beyond reasonable doubt of possession of a total
of 0.118 gram of [methamphetamine] hydrochloride without authority of law,
penalized under Section 11 (3) of Republic Act No. 9165, and sentencing the
said accused to the indeterminate penalty of imprisonment from twelve (12)
years and one (1) day, as minimum, to fifteen (15) years, as maximum, and
to pay a fine of P300,000.00, plus the costs.
(2) In Criminal Case No. 02-205462, pronouncing the same accused
RICARDO BOHOL y CABRINO guilty beyond reasonable doubt of selling
0.054 gram of [methamphetamine] hydrochloride without authority of law,
penalized under Section 5 of the same Republic Act No. 9165, and
sentencing the said accused to life imprisonment and to pay a fine
of P5,000,000.00, plus the costs.
In the service of his sentence in Criminal Case No. 02-205461, the time during which
the accused had been under preventive imprisonment should be credited in his favor
provided that he had agreed voluntarily in writing to abide with the same disciplinary
rules imposed on convicted prisoner. Otherwise, he should be credited with four-fifths
(4/5) only of the time he had been under preventive imprisonment.
Exhibits B and B-1, consisting of four sachets of shabu, are ordered forfeited and
confiscated in favor of the Government. Within ten (10) days following the
promulgation of this judgment, the Branch Clerk of this Court is ordered to turn over,
under proper receipt, the drug involved in this case to the Philippine Drug
Enforcement Agency (PDEA) for proper disposal.
SO ORDERED.9
Since one of the penalties imposed by the trial court is life imprisonment, the cases
were forwarded to this Court for automatic review. On June 15, 2005, this Court
transferred the cases to the Court of Appeals for intermediate review pursuant to this
Courts decision in People v. Mateo.10
In a Decision dated September 23, 2005, the Court of Appeals denied the appeal and
affirmed the decision of the trial court with modification, so that the penalty in Criminal
Case No. 02-205461 should be imprisonment for 12 years, as minimum, to 14 years,
8 months and 1 day, as maximum. Bohols Motion for Reconsideration was likewise
denied by the appellate court. Thus, Bohol filed a notice of appeal.
By Resolution11 dated June 14, 2006, this Court required the parties to file their
respective supplemental briefs if they so desire. Bohol and the Office of the Solicitor
General (OSG), however, manifested that they are adopting their briefs before the
appellate court. Hence, we shall resolve the instant appeal on the basis of the
arguments of the parties in said briefs.
In his appellants brief, Bohol assigns the following errors:
I.
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED-
APPELLANTS SEARCH AND ARREST AS ILLEGAL.
II.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT OF THE CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 12
Simply stated, the issues are: (1) whether Bohols arrest and the search on his
person were illegal; and (2) whether the trial court erred in convicting Bohol despite
the absence of proof beyond reasonable doubt.
On the first issue, Bohol claims that his arrest was illegal since he could not have
committed, nor was he about to commit, a crime as he was peacefully sleeping when
he was arrested without a warrant. Consequently, the search conducted by the police
officers was not incidental to a lawful warrantless arrest, and the
confiscatedshabu obtained from the search was inadmissible as evidence against
him.
For the appellee, the OSG maintains that the arrest of Bohol as well as the search on
his person is legal. The OSG stresses that the search made on the person of Bohol
was incidental to a lawful arrest which was made when he was caught in flagrante
delicto. Further, the OSG maintains that at the time of Bohols arrest, the police
officers had probable cause to suspect that a crime had been committed since they
had received a tip from a confidential informant of the existence of illegal drug trade
in the said place.
45
Bohols arguments are bereft of merit.
The arrest of Bohol is legal. The Constitution proscribes unreasonable arrests and
provides in the Bill of Rights that no arrest, search and seizure can be made without
a valid warrant issued by competent judicial authority. 13However, it is a settled
exception to the rule that an arrest made after an entrapment operation does not
require a warrant. Such warrantless arrest is considered reasonable and valid under
Rule 113, Section 5(a) of the Revised Rules on Criminal Procedure, which states:
Sec. 5. Arrest without warrant; when lawful.A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
xxxx
In the present case, the arresting officers were justified in arresting Bohol as he had
just committed a crime when he sold the shabu to PO2 Estrada. A buy-bust operation
is a form of entrapment which has repeatedly been accepted to be a valid means of
arresting violators of the Dangerous Drugs Law.
Considering the legality of Bohols warrantless arrest, the subsequent warrantless
search that resulted in the seizure of the shabu found in his person is likewise valid.
In a legitimate warrantless arrest, the arresting police officers are authorized to
search and seize from the offender (1) any dangerous weapons and (2) the things
which may be used as proof of the commission of the offense. 14 The constitutional
proscription against warrantless searches and seizures admits of certain exceptions.
This Court has ruled that the following instances constitute valid warrantless
searches and seizures: (1) search incident to a lawful arrest; (2) search of a moving
motor vehicle; (3) search in violation of customs laws; (4) seizure of the evidence in
plain view; (5) search when the accused himself waives his right against
unreasonable searches and seizures; (6) stop and frisk; and (7) exigent and
emergency circumstances.15
As to the second issue, Bohol contends that the prosecution failed to establish his
guilt beyond reasonable doubt. He faults the trial court for giving full faith and
credence to the testimonies of the prosecution witnesses. He asserts that the only
reason why he was arrested was because he was the overseer of a "video-carrera".
The police officers filed the illegal drug trade and possession against him because
they failed to find any evidence to have him tried for overseeing a "video-carrera"
place. Lastly, he laments the failure of the prosecution to present the confidential
informant as a witness during the trial, thereby preventing him from confronting said
witness directly.
The OSG counters that the prosecution established Bohols guilt beyond reasonable
doubt. The police officers who testified against Bohol were not shown to have been
actuated by improper motives, nor were they shown not properly performing their
duty. Thus, their affirmative testimony proving Bohols culpability must be respected
and must perforce prevail. Moreover, the findings of the trial court on the issue of
credibility of witnesses are generally not disturbed by the appellate court and this
Court, since it is the trial court that had the opportunity to appraise firsthand the
demeanor of the witness.
We agree with the OSG. This Court discerns no improper motive on the part of the
police officers that would impel them to fabricate a story and falsely implicate Bohol in
such a serious offense. In the absence of any evidence of the policemens improper
motive, their testimony is worthy of full faith and credit. Also, courts generally give full
faith and credit to officers of the law, for they are presumed to have performed their
duties in a regular manner. Accordingly, in entrapment cases, credence is given to
the narration of an incident by prosecution witnesses who are officers of the law and
presumed to have performed their duties in a regular manner in the absence of clear
and convincing evidence to the contrary.16
Moreover, we find no cogent reason to disturb the findings of the trial court. The
settled rule is that the evaluation of the testimonies of witnesses by the trial court is
entitled to the highest respect because such court has the direct opportunity to
observe the witnesses demeanor and manner of testifying and thus, is in a better
position to assess their credibility.17
Lastly, as ruled by the appellate court, Bohol cannot insist on the presentation of the
informant. During trial, the informants presence is not a requisite in the prosecution
of drug cases. The appellate court held that police authorities rarely, if ever, remove
the cloak of confidentiality with which they surround their poseur-buyers and
informers since their usefulness will be over the moment they are presented in court.
Further, what is material to the prosecution for the illegal sale of dangerous drugs is
the proof that the transaction or sale actually took place, coupled with the
presentation in court of the corpus delicti. Both requirements were sufficiently proven
46
in this case. The police officers were able to testify positively and categorically that
the transaction or sale actually took place. The subject shabu was likewise positively
identified by the prosecution when presented in court. Hence, we agree that Bohols
guilt has been established by the prosecution beyond reasonable doubt.
Finally, the modification made by the Court of Appeals in the penalty imposed by the
RTC in Criminal Case No. 02-205461 ought to be deleted. Section 1 of the
Indeterminate Sentence Law18 provides that when the offense is 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 law and the minimum shall not be less than the minimum term prescribed by
the same." Hence, the penalty originally imposed by the RTC of imprisonment from
12 years and 1 day, as minimum, to 15 years as maximum, and to pay a fine
of P300,000 is correct and must be sustained.
WHEREFORE, the appeal is DENIED. The Decision dated September 23, 2005 of
the Court of Appeals in CA-G.R. CR-HC No. 01247 is hereby AFFIRMED with
MODIFICATION, so that the original penalty imposed in the Decision dated March 7,
2003 of the Regional Trial Court of Manila, Branch 35, in Criminal Case No. 02-
205461 as well as No. 02-205462 is SUSTAINED. No pronouncement as to costs.
SO ORDERED.
Footnotes
1
CA rollo, pp. 93-101. Penned by Associate Justice Juan Q. Enriquez, Jr.,
with Associate Justices Conrado M. Vasquez, Jr. and Japar B. Dimaampao
concurring.
2
Id. at 15-22. Penned by Judge Ramon P. Makasiar.
3
SEC. 11. Possession of Dangerous Drugs.The penalty of life imprisonment
to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon
 6
any person, who, unless authorized by law, shall possess any dangerous CA rollo, pp. 6-7.
drug in the following quantities, regardless of the degree of purity thereof:
7
Id. at 6.
xxxx
8
Id. at 7.
Otherwise, if the quantity involved is less than the foregoing
quantities, the penalties shall be graduated as follows: 9
Id. at 21-22.

xxxx 10
G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640, 657-658.

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20)
years and a fine ranging from Three hundred thousand pesos
(P300,000.00) to Four hundred thousand pesos (P400,000.00), if the
quantities of dangerous drugs are less than five (5) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin
or marijuana resin oil, methamphetamine hydrochloride or "shabu,"
or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy," PMA, TMA, LSD, GHB, and those similarly designed or
newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of
marijuana.
4
Sec. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution
and Transportation of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals.The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of such transactions.
xxxx
5
An Act Instituting the Comprehensive Dangerous Drugs Act Of 2002,
Repealing Republic Act No. 6425, Otherwise Known as the Dangerous Drugs
Act of 1972, As Amended, Providing Funds Therefor, and for Other
Purposes, approved on June 7, 2002.
11
Rollo, p. 12.
12
CA rollo, p. 49.
13
Constitution, Art. III,
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
14
People v. Ayangao, G.R. No. 142356, April 14, 2004, 427 SCRA 428, 433.
15
Epie, Jr. v. Ulat-Marredo, G.R. No. 148117, March 22, 2007, 518 SCRA
641, 646.
16
People v. Ambrosio, G.R. No. 135378, April 14, 2004, 427 SCRA 312, 332,
citing People v. Pacis, G.R. No. 146309, July 18, 2002, 384 SCRA 684, 692.
17
Aclon v. Court of Appeals, G.R. Nos. 106880 & 120190, August 20, 2002,
387 SCRA 415, 425.

47
 18
An Act to Provide for an Indeterminate Sentence and Parole for All Persons
Convicted of Certain Crimes by the Courts of the Philippine Islands; to
Create a Board of Indeterminate Sentence and to Provide Funds Therefor;
and for Other Purposes, approved and effective on December 5, 1933 (Act
No. 4103, as amended).

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 112659 January 24, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SUCHINDA LEANGSIRI (at large), accused. FATI OMOGBOLAHAN Y ALABI,
YAMBA LISASI BHOLA, and ZARIATU AMIDU, accused-appellants.

48
DECISION
PUNO, J.:
On June 7, 1993, appellants FATI OMOGBOLAHAN Y ALABI, 1 YAMBA LISASI
BHOLA,2 and ZARIATU AMIDU3pleaded not guilty to the charge of Violation of
Section 4, Article II, Republic Act (R.A.) No. 64254 embodied in an Information, dated
April 2, 1993, as follows:
xxx xxx xxx
That on or about the 31st of March, 1993 and sometime prior thereto in
Manila and other parts of Metro Manila, and within the jurisdiction of this
Honorable Court, the above named accused, conspiring, confederating, and
mutually helping one another, did then and there, wilfully, unlawfully and
feloniously, without authority of law, deliver, give away, distribute, dispatch in
transit or transport 8,225.31 grams of heroin, a prohibited drug, and/or act as
brokers in any of the aforesaid transactions with or without consideration.
CONTRARY TO LAW.
A fourth accused, Thai national SUCHINDA LEANGSIRI, escaped from the Pasay
City Jail before the arraignment. He remains at large. 5
The evidence of the prosecution establish that in the early afternoon of May 31, 1993,
accused Leangsiri was arrested at the arrival area of the Ninoy Aquino International
Airport (NAIA). He was in the act of bringing into the country 8,225.31 grams of
heroin6 hidden under the false bottom of a black suitcase. 7 He informed the
authorities that he was to deliver the contraband to three (3) people 8 at the Las
Palmas Hotel in Manila.9
Leangsiri was brought to the headquarters of the Narcotics Command (NARCOM) at
the Old MIA for further investigation. 10 The head of the command, MAJOR ALBINO
SABLAYAN, formed a team, headed by SR. INSP. ADOLFO SAMALA, 11 to conduct
follow-up operations in the case. 12 The team and agents of the Bureau of Customs
proceeded to the Las Palmas Hotel, 13 where they allowed Leangsiri to check into
Room 504 with the confiscated black suitcase containing the heroin. 14
49
At around eight o'clock in the evening, two hours after checking in, Leangsiri received
a telephone call from his contact. Leangsiri was told that the black suitcase would be
picked up at about ten o'clock that night. 15 He relayed the information to his escorts,
NARCOM agents SPO3 FABIAN GAPIANGAO 16 and SPO4 ELPIDIO
BALNEG. 17 Thereupon, the two NARCOM agents positioned themselves inside the
washroom, with its door opened a fraction to give them visual access to the rest of
the hotel room. 18
On the ground floor and outside perimeters of the Las Palmas hotel, Samala and
other NARCOM and Bureau of Customs agents were watching for unusual and
suspicious events. 19 From where he sat at the hotel's coffee shop, Samala noticed
appellant Amidu paced around the lobby for nearly an hour. 20 At about ten p.m.,
Amidu's co-appellants, Omogbolahan and Bhola, arrived at the hotel. 21 As Amidu
flashed a "thumbs up" sign to them, they all headed for the elevator and went up to
the fifth floor of the hotel. 22
They knocked on the door of Room 504. Leangsiri stood up from the bed in which he
sat, 23 opened the door, and let the three appellants in. 24 Leangsiri took the black
suitcase 25 and brought it to the dining area of the room where appellants stood in full
view of NARCOM agents Gapiangao and Balneg. Leangsiri opened the suitcase and
displayed its contents to his visitors. 26
Appellants briefly examined the black suitcase and two (2) transparent plastic bags
which contained the heroin. 27After the examination, Leangsiri closed the suitcase
and handed it over to appellants. 28 Appellants started to leave the hotel room with
the contraband when Gapiangao and Balneg barged out of the washroom, identified
themselves as NARCOM agents, and made the arrest. 29
Minutes later, Samala and his companions joined Gapiangao, Balneg, and the four
foreigners in Room 504. 30Appellants Omogbolahan and Bhola identified themselves
by presenting their respective passports. Appellant Amidu, on the other hand, merely
said she was staying in Room 413 of the same hotel. 31 Further questioning of
appellants revealed that Omogbolahan and Bhola were billeted at the Royal Palm
Hotel, also located in Manila. 32
Accompanied by the hotel's owner and security officer, Samala searched appellant
Amidu's room. Tucked within the pages of her telephone and address book was a
piece of paper with the name "SUCHINDA LEANGSIRI" written on it. 33 The paper
and Amidu's other possessions were confiscated. 34
The NARCOM and Customs teams then proceeded to the Royal Palm Hotel where
appellants Omogbolahan and Bhola were billeted. The agents coordinated with the
security officers of the hotel, who stood as witnesses when the former entered and
searched said appellants' room. Their efforts yielded two black suitcases each with
false bottoms and both smaller than that confiscated from Leangsiri. 35 Masking tape
and an empty transparent bag were also found in the room. 36
Appellants denied any involvement in the transport of heroin by Leangsiri. They told a
different tale. 37
Appellants Omogbolahan and Bhola were staying at Royal Palm Hotel. On that
fateful night of March 31, 1993, they went to the Las Palmas Hotel to meet co-
appellant Amidu and an American named David. When they got to the fourth floor of
the hotel, and as they made their way to Room 413 (Amidu's room), they were
accosted by some people who forcibly brought them to Room 504. They explained
that they were at the hotel to meet Amidu. Some of those who intercepted them left
the room and returned with Amidu. Appellants' money and jewelry were taken from
them. Those who dispossesed them turned out to be policemen.
Appellants were driven to the Royal Palm Hotel. Only one of the policemen entered
its premises as appellants and the others remained in the car. Afterwards, appellants
were brought to NARCOM headquarters. Together with Leangsiri, they were
presented to the media as members of an international drug syndicate.
On August 31, 1993, the trial court convicted appellants, finding them guilty of
conspiring to transport heroin in violation of Section 4, R.A. 6425. The dispositive
portion of the decision reads:
xxx xxx xxx
WHEREFORE, premises considered judgment is hereby rendered, finding all
the accused (herein appellants ) FATI OMOGBOLAHAN y ALABI, YAMBA
LISASI BHOLA and ZARIATU AMIDU, "guilty" beyond reasonable doubt of
the crime described in the Information, and hereby sentences them to suffer
a penalty of "life imprisonment" plus a fine of P30,000 for each of (them).
The case as against accused Suchinda Leangsiri is hereby ordered archived.
50
The "Heroin" of about 8,225.31 kgs. is hereby ordered destroyed in the
manner provided by law.
SO ORDERED.
On September 9, 1993, appellants filed a motion for new trial grounded on the
following -
I. THAT ERRORS OF LAW OR IRREGULARITIES HAVE BEEN
COMMITTED DURING THE TRIAL PREJUDICIAL TO THE SUBSTANTIAL
RIGHTS OF HEREIN ACCUSED (HEREIN APPELLANTS);
II. THAT NEW AND MATERIAL EVIDENCE HAS BEEN DISCOVERED
WHICH THE ACCUSED (APPELLANTS) COULD NOT WITH REASONABLE
DILIGENCE HAVE DISCOVERED AND PRODUCED AT THE TRIAL, AND
WHICH IF INTRODUCED AND ADMITTED, WOULD PROBABLY CHANGE
THE JUDGMENT.
The purported new and material evidence consists of the testimony of a certain Julita
Thach Camerino, a Thai citizen, who narrated in her affidavit:
1. That (she) is at present a detention prisoner at the Manila City Jail, Old
Bilibid Prison Compound, Sta. Cruz, Manila;
2. That on or about 11:00 o'clock in the morning of 31 August 1993, (she)
noticed the arrival of inmates (appellants) into (the prison) compound, and
(Amidu) was still crying;
3. That after a few minutes, Zariatu Amidu started banging her head against
the concrete wall, but after a few attempts she was prevailed upon to stop by
another woman;
4. That (she) inquired from some of the inmates the reason why Zariatu
Amidu was behaving that way, and found out that she and the two other male
detainees were just sentenced by the Court of very severe penalty of life
imprisonment;
 5. That (she) pitied (appellants) of the fate that befell them and (her)
conscience rebelled and started tormenting (her) since (she) knows that they
are innocent of the crime charged against them of transporting heroin into the
country;
6. That (her) conscience compelled (her) to approach them and voluntarily
offered (her) help, if it is still possible under the situation, whatever
assistance (she) could extend to let justice prevail and reveal the truth out of
that incident on the evening of 31 March 1993, at Las Palmas Hotel, because
(she) was with the police at the NAIA, acting as an interpreter between
Suchinda Leangsiri and the police when the former was being interrogated at
the NARCOM Headquarters at the Ninoy Aquino International Airport (NAIA)
in the afternoon of 31 March 1993, and into the evening of said date at Las
Palmas Hotel;
7. That in the process of (her) questioning of Leangsiri, the latter revealed to
(them) that he was going to deliver his stuff of heroin to someone at Las
Palmas Hotel but did not identify the person whom he was going to meet at
the hotel nor mention the name/s of the same;
8. That on or about 6:00 o'clock in the evening of 31 March 1993, (she),
Suchinda Leangsiri, and the police team arrived at Las Palmas Hotel wherein
(she) and Leangsiri were instructed to proceed to the desk counter and
check-in, and got Room 504 to occupy;
9. That (she), Suchinda Leangsiri and a police officer whom (she) knew as
Emil went to Room 504 to await for someone who would allegedly pick up
the stuff of heroin but the claim or testimony that SP03 Gapiangao and SP04
Balneg were also inside Room 504 together with Suchinda Leangsiri is
absolutely false;
10. That at around 9:30 that evening, the police brought inside Room 504
two black males whom (she) later knew as Yamba Lisasi Bhola and Fati
Omogbolahan Alabi;
11. That while inside Room 504, (she) heard the two, Yamba Lisasi Bhola
and Fati Omogbolahan Alabi, protesting and complaining to the police why
they were brought inside Room 504;
51
12. That the two further explained to the police that they were about to visit a
lady friend billeted at Room 413 of the same hotel;
13. That after hearing that information, (she) was requested by Sr. Insp. Dela
Cruz to go with him, and (they) immediately went inside Room 413 and
forcibly brought Zariatu Amidu to Room 504 to join with the two male black
nationals already inside;
14. That afterwards, (they) brought (appellants) in the vicinity of Royal Palm
Hotel, where (they) search the room of the two black males and found no
prohibited drugs;
15. That from Royal Palm Hotel, (they) went back to NARCOM Headquarters
at NAIA, where (she) divested the three black nationals of their cash and
pieces of jewelry, and turn them over to Sr. Insp. Dela Cruz for safekeeping;
16. That (she is) am going to state further the other details and related
matters in court during my testimony in the trial of the case against
(appellants);
xxx xxx xxx38
The trial court denied the motion, ratiocinating thus:
xxx xxx xxx
The Court reviewed the records of the case, the transcript of stenographic
notes, and the pertinent laws and jurisprudence, and the Court finds, and so
holds, that the findings and conclusions regarding the guilt of the herein
accused (appellants), as well as the sufficiency of the evidence against them,
are amply supported by the evidence, and the present motion did not
ventilate any new matter as to warrant the said findings to be disturbed
and/or set aside.
With respect to the alleged newly discovered evidence, the Court disagrees
with the stance taken by the accused (appellants) on this point. The
testimony of Julita Thach Camerino could not be considered newly
discovered, as said person was brought to the premises of the Court for
 identification during the trial of this case. Besides, her testimony, summarized
in the undated Affidavit submitted by the accused (appellants) on September
24, 1993, does not inspire confidence, considering that this witness was
convicted by this Court for violation of the dangerous drugs law, as amended.
xxx xxx xxx39
Appellants now impugn the trial court's decision and its denial of their motion for new
trial, and raise the following assignments of error:
I. THAT THE LOWER COURT GRAVELY ERRED IN CONSIDERING THE
EXISTENCE OF CONSPIRACY BETWEEN AND AMONG THE ACCUSED;
II. THAT THE PROSECUTION FAILED TO INTRODUCE DIRECT AND/OR
CIRCUMSTANTIAL EVIDENCE TO PROVE THE GUILT OF THE ACCUSED
BEYOND REASONABLE DOUBT;
III. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE
CREDIBLE TESTIMONIES AND OTHER SUBSTANTIAL EVIDENCE
PRESENTED BY THE THREE ACCUSED.
IV. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE
CONFLICTING TESTIMONIES OF THE PROSECUTION AND OTHER
EVIDENCE FAVORABLE TO THE ACCUSED;
V. THE LOWER COURT ERRED IN DENYING ACCUSED'S MOTION FOR
NEW TRIAL.40
We affirm appellants' conviction for reasons we shall discuss in seriatim.
One. We hold that the trial court correctly found that appellants conspired with
Leangsiri to transport eight-and-a-half kilos of heroin.
Appellants submit a two-pronged argument assailing the finding of conspiracy. The
first prong urges that there is neither direct nor circumstantial evidence linking them
to the transport of heroin by Leangsiri. The second prong posits that only Leangsiri's
testimony can prove their alleged conspiracy. The running fault in appellants' line of
reasoning is obvious to the eye.
52
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 41 It is well-entrenched in our
jurisprudence that conspiracy need not be proved by direct evidence. 42 Proof of
previous agreement to commit the crime is not also essential to establish conspiracy.
Conspiracy may be inferred from the acts of the accused, whose conduct before,
during, and after the commission of the crime can show its existence. In a host of
cases, we have upheld the finding of conspiracy where it is shown that the accused
acted in concert to attain the same objective.
In the case at bar, the positive testimonies of prosecution
witnesses Gapiangao, Balneg, and Samala established the concerted acts of
appellants aimed at carrying out the unlawful design of transporting the heroin
confiscated from Leangsiri. when Leangsiri was interrogated after his arrest, he
revealed to the authorities that he was to deliver the contraband to three (3) people at
the Las Palmas Hotel. Later, while in Room 504 of said hotel, Leangsiri received a
telephone call in the presence of Gapiangao and Balneg, by which he was informed
that the heroin would be picked up from him at ten o'clock in the evening. Shortly
before the designated pick-up time, Samala saw appellant Amidu (who had been
waiting in the lobby of the hotel for almost an hour) flash a "thumbs up" sign to
appellants Omogbolahan and Bhola when they arrived at the hotel. The three (3)
appellants then took the elevator and went up to the fifth floor. They knocked on the
door of Room 504, and Leangsiri let them into the room. In full view of Gapiangao
and Balneg, appellants examined Leangsiri's heroin, and took it and the suitcase with
the false bottom in which it was hidden. Appellants were on their way out of the room
with the suitcase and heroin when they were arrested by Gapiangao and Balneg.
These facts show beyond doubt that appellants conspired with Leangsiri to transport
the illegal drug heroin.
Two. We also hold that there was delivery of the heroin under Section 4 of R.A. 6425,
from Leangsiri to appellants even though Leangsiri and the heroin were already
under the control of the NARCOM on the evening of March 31, 1993. Too far out from
the fringes of reason is appellants' argument that since the NARCOM agents had
already taken Leangsiri and the heroin into their custody and control, it is the
NARCOM agents who should be liable for transporting the said heroin confiscated
from Leangsiri.
Section 4, Article II of R.A. 6425 provides, inter alia:
 The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions. . . .(Emphasis supplied)
The proviso applies to the NARCOM agents in the case at bar. In bringing Leangsiri
and the heroin to Las Palmas Hotel, the NARCOM agents were performing a lawful
act in furtherance of their follow-up operations. They went to the hotel to apprehend
appellants to whom delivery of the illegal drug was to be made.
Appellants also argue that, even assuming arguendo, they were caught in
possession of the heroin, they cannot be held liable under Section 4 of R.A. 6425
because they were neither delivering nor transporting the drug. They postulate that
said provision does not penalize the recipient of the delivered contraband. 43
The same argument was raised and rejected by this Court in People vs. Lo Ho
Wing. 44 In Lo Hong Wing, the authorities gathered from their intelligence and
surveillance activities that the accused were going to bring illegal drugs (shabu) into
the country. The accused were arrested while on-board a taxi cab which they hailed
and boarded at the NAIA. In rejecting the defense argument that there was no
delivery, transporting or dispatching of shabu made by the accused therein, we held:
xxx xxx xxx
The information charged the accused of delivering, transporting or
dispatching fifty-six (56) tea bags containing metamphetamine, a regulated
drug. The conjunction "or" was used, thereby implying that the accused were
being charged of the three specified acts in the alternative. Appellant argues
that he cannot be convicted of "delivery" because the term connotes a
source and a recipient, the latter being absent under the facts of the case. It
is also argued that "dispatching" cannot apply either since appellant never
sent off or disposed of drugs. As for "transporting," appellant contends that
he cannot also be held liable therefor because the act of transporting
necessarily requires a point of destination, which again is non-existent under
the given facts.
The contentions are futile attempts to strain the meaning of the operative
acts of which appellant and his co-accused were charged in relation to the
53
facts of the case. There is no doubt that law enforcers caught appellant and
his co-accused in flagrante delicto of transporting a prohibited drug. The term
"transport" is defined as "to carry or convey from one place to another." The
operative words in the definition are "to carry or convey." The fact that there
is actual conveyance suffices to support a finding that the act of transporting
was committed. It is immaterial whether or not the place of destination is
reached. Furthermore, the argument of appellant gives rise to the illogical
conclusion that he and his co-accused did not intend to bring the
metamphetamine anywhere, i.e., they had no place of destination.
The situation in the instant case is one where the transport of a prohibited
drug was interrupted by the search and arrest of the accused. Interruption
necessarily infers that an act had already been commenced. Otherwise,
there would be nothing to interrupt.
xxx xxx xxx
In the case at bar, appellants were on their way out of Room 504 of the Las Palmas
Hotel carrying the suitcase with a false bottom containing 8.5 kilos of heroin when
they were arrested by the NARCOM agents. At that point, they were in the act
of conveying the heroin to an unknown destination. Their act was part of the process
of transporting the heroin. They were all involved in a conspiracy. The act of Leangsiri
in transporting the heroin is appellants' act. They cannot isolate and separate
themselves from Leangsiri, for in conspiracy, the act of one is the act of all.
Three. We further rule that the heroin (Exhs. "C" and its sub-exhibits) and the
suitcase with false bottom (Exh. "F") are admissible against appellants.
It is inaccurate for appellants to claim that these evidentiary exhibits were formally
offered only against Leangsiri. They were also offered against them. As correctly
noted by the Solicitor General in his Brief:
xxx xxx xxx
The records show that on July 2, 1993, Assistant Chief State Prosecutor
Jovencio Zuo and State Prosecutor Reynaldo Lugtu formally offered
Exhibits "A" to "Q" and their submarkings against Leangsiri, (Omogbolahan),
Bhola and Amidu (Original Records, pp. 67-71). . . .45
Four. We now come to the argument of appellants that the piece of paper found in
Amidu's hotel room, with the name "SUCHINDA LEANGSIRI" written on it, 46 should
not have been admitted by the trial court.
The Revised Rules of Court provide that "(a) person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. 47 We interpreted this provision
in Nolasco vs. Pao, 48 thus:
xxx xxx xxx
The better and established rule is a strict application of the exception
provided . . . that is to absolutely limit a warrantless search of a person who
is lawfully arrested to his or her person at the time of and incident to his or
her arrest and to "dangerous weapons or anything which may be used as
proof of the commission of the offense." Such warrantless search obviously
cannot be made in a place other than the place of arrest.
We then held that the warrantless search made by the authorities on the accused's
apartment which was located a few blocks away from where she was arrested was
illegal for being "an untenable violation, if not nullification, of the basic constitutional
right and guarantee against unreasonable searches and seizures."
Nolasco, however, has undergone some mutations. In subsequent cases, we
validated warrantless searches made not only on the person of the suspect but also
in a permissible area within his reach. 49 We ruled that the reach of a valid
warrantless search goes beyond the person of the one arrested and includes
the premises or surroundings under his immediate control. 50 The immediate control
test was enunciated in the American case ofChimel vs. State of California. 51 In that
case, defendant was arrested in his home for burglary of a coin shop. Afterwards, the
arresting officers conducted a search of his entire three-bedroom house, including
the attic, the garage, a small workshop, and drawers. Various items - primarily coins -
were found through the search, and were admitted in evidence against him by the
trial court, which convicted him of burglary. The United States Supreme Court
reversed the conviction as it struck down the warrantless search on the ground
that the search of the accused's home went far beyond his person and the area from
within which he might have obtained either a weapon or something that could have
been used as evidence against him.
54
The inadmissibility of evidence obtained in a warrantless search incident to a lawful
arrest outside the suspect's person and the premises under his immediate control
admits of an exception. The exception obtains when thePlain View Doctrine applies
as explained in People vs. Musa, 52 in this wise:
. . . 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.
In Ker v. California, 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 defendant's
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, as small scale atop the kitchen sink, upon which lay a brick-shaped
package containing green leafy substance which he recognized as
marijuana. The package of marijuana was used as evidence in prosecuting
defendants for violation of the Narcotic Law. The admissibility of the package
was challenged before the U.S. Supreme Court, which held, after observing
that it was not unreasonable for the officer to walk to the doorway of the
adjacent kitchen on seeing the defendant wife emerge therefrom, that "the
discovery of the brick of marijuana did not constitute a search, since the
officer merely saw what was placed before him in full view." . . . The U.S.
Supreme Court ruled that the warrantless seizure of the marijuana was legal
on the basis of the "plain view" doctrine and upheld the admissibility of the
seized drugs as part of the prosecution's evidence.
The "plain view" doctrine may not, however, be used to launch unbridled
searches and indiscriminate seizures nor to extend a general exploratory
search made solely to find evidence of defendant's guilt. The "plain view"
doctrine is usually applied where a police officer is not, searching for
evidence against the accused, but nonetheless inadvertently comes across
an incriminating object. . . . Furthermore, the U.S. Supreme Court stated the
following limitations on the application of the doctrine.
What the "plain view" cases have in common is that the police officer
in each of them had a prior justification for an intrusion in the course
of which he came inadvertently across a piece of evidence
 incriminating the accused. The doctrine serves to supplement the
prior justification - whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search directed against
the accused - and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating at last emerges.
In the case at bar, appellants were arrested in Room 504 of the Las Palmas Hotel.
The piece of paper bearing Leangsiri's name was obtained through a warrantless
search of Room 413 of the same hotel, and found tucked within the pages of
appellant Amidu's telephone and address book. Clearly, the warrantless search is
illegal and the piece of paper bearing Leangsiri's name cannot be admitted as
evidence against appellants. The inadmissibility of this evidence will not, however,
exculpate appellants. Its exclusion does not destroy the prosecution's case against
appellants. The remaining evidence still established their guilt beyond reasonable
doubt.
Five. We uphold the calibration of the credibility of witnesses made by the court a
quo. The trial court judge had the opportunity to observe the demeanor of the
witnesses first-hand, and his findings are entitled to great weight.
The inconsistencies in Gapiangao's, Balneg's, and Samala's testimonies alluded to
by appellants hardly relate to the material parts of their testimonies which sufficiently
proved the elements of the crime at bar. It is a well-entrenched rule of evidence that
corroborative testimonies, in order to be credible, need not coincide on all aspects.
Given the natural limitations of the human senses, the immaterial and slight
discrepancies in the testimonies of witnesses, far from weakening their probative
value, serve to strengthen their credibility. Imperfect senses cannot be the source of
perfect testimonies. 53
Neither is the credibility of the prosecution witnesses crumpled by the fact that the
testimonies of some prosecution witnesses during the trial were not exactly and
totally reflected in their Joint Affidavit, dated April 1, 1993. 54 We have held before
that:
55
The general rule has always been that discrepancies between the
statements of the affiant in his affidavit and those made by him on the
witness stand do not necessarily discredit him since ex parte affidavits are
generally incomplete. Affidavits are generally subordinated in importance to
open court declarations because they are oftentimes not in such a state as to
afford him a fair opportunity of narrating in full the incident which has
transpired. . . .55
In checkered contrast, the testimonies of appellants are incongruous with reality. The
story proffered by appellant Omogbolahan, for instance, is too obviously
melodramatic and incredible to be believed. His story begins in February, 1992, with
his wife and two children being killed in a civil war in his native land of Liberia.
Distraught, he decided to migrate to the United States of America. 56 He first flew to
Thailand, where he stayed for six months without managing to learn a single Thai
word. 57 Despite his language inadequacy, he was able to land a job in a cargo
company in that country. He did not befriend any Thai national. Neither did he apply
for an American visa in Thailand. 58
He then heard from two co-Liberians named Jabar and Samsi that it was easy to
obtain an American visa from the United States embassy in the Philippines.
Omogbolahan flew from Thailand to our country. He stepped on Philippine soil on
March 16, 1993, only to learn that Jabar and Samsi had long left the
country. 59 Instead of going to the United States embassy at Roxas Boulevard or any
of the many travel agencies doing business in the country, he spent his first two
weeks here making the rounds of bars and clubs in the Ermita area, hoping to meet
fellow Africans and American citizens who could help him obtain an American visa. In
this clubs, he allegedly befriended his co-appellant Bhola 60 and an American named
David whom he was supposed to meet on the fateful night of March 31, 1993.
Omogbolahan soon moved in with Bhola at the Royal Palm Hotel, and David
promised to help him obtain his American passport. 61
Omogbolahan's a story is clearly a fabrication designed to provide him with a
convenient defense and to elicit sympathy from the courts. The testimonies of his co-
appellants are equally incredulous. They are also tattered with inconsistencies. As
observed by the Solicitor General, they could not even get their occupations
straight, viz.:
xxx xxx xxx
 Appellant Zariatu Amidu is a native of Ghana, Africa, 38 years old at the time presented by appellants. As has been discussed earlier, the defense version of what
she testified, a widow and as shown in her passport, a seamstress by occurred on the evening of March 31, 1993 is incredible and difficult to believe.
occupation. However, in her testimony; she stated that she is a plain Secondly, Camerino's claim that she was a member of the team that arrested
housewife, (tsn July 21, 1993, pp. 4 and 27) appellants is belied by the testimony of prosecution witness Samala on rebuttal, viz:

On the other hand, appellant Yamba Lisasi Bhola is a native of Kinshasha, xxx xxx xxx
Zaire, Central Africa, 37 years old at the time he testified, married and a high
school graduate. . . . In his testimony, he stated that he is a trader . . . Later STATE PROS.:
on, he stated that he was working for the New Star Investment in Thailand as
marketing officer.62 (tsn July 16, 1993, p. 23) One Julita Camerino appeared before this Honorable Court and
accused through counsel claim she was a member of the team which
Lastly, Fati Omogbolahan Alabi was 27 years old at the time he testified and arrested the three Africans now the accused in this case. What can
an elementary graduate and plumber according to his passport. In his you say to that?
testimony, however, he claimed to be a technician. 63 (tsn July 13, 1993 p. 4).
A: I don't know that person, sir.
Six. We finally hold that the trial court did not gravely abuse its discretion in denying
appellants' motion for new trial. Q: Were there instances or occasions before the date of March 31, 1993
when you met this Julita Camerino?
We find appellants' first argument in moving for a new trial as baseless. As discussed
above, the purported errors and irregularities committed in the course of the trial A: I don't know, sir.
against the substantive rights of appellants do not exist.
Q: You don't recall any?
Appellants' second argument as to the necessity of a new trial is likewise
unmeritorious. Section 1 Rule 37 of the Revised Rules of Court grants an aggrieved
party the right to move for new trial on the ground, among others, of "(n)ewly A: I don't recall any, sir.
discovered evidence, which he could not, with reasonable diligence, have
discovered, and produced at the trial, and which if presented would probably alter the xxx xxx xxx
result (thereof)." 64 Newly discovered evidence, in order to warrant a new trial, must
meet three requirements, viz: (1) it must have been discovered after trial; (2) it could Court:
not have been discovered and produced at the trial despite reasonable diligence; and
(3) if presented, it would probably alter the results of the action. 65 Cross?

In the case at bar, appellants were unable to prove that, even with the use of ATTY. BORJA:
reasonable diligence, they could not have obtained Camerino's testimony during the
trial. On the contrary, as correctly noted by the trial court, Camerino was identified in
Capt. Samala, is it not a fact that Julita Camerino served as your
open court by appellant Bhola on July 26, 1993.
interpreter during the custodial investigation after the arrest of the
Thai National in the person of Suchinda Leangsiri?
Furthermore, it is unlikely that Camerino's prospective testimony would acquit
appellants. Firstly, her affidavit embodies a narration of events almost identical to that

56
 17
A: No, sir. Testified on June 9, 1993; TSN of June 9, 1993, p. 28.
18
TSN of June 7, 1993, pp. 27-29; TSN of June 9, 1993, pp. 27, 37-38.
19
ATTY. BORJA: TSN of June 15, 1993, p. 13.
20
Ibid., at pp. 14, 37.
21
Id., at p. 15.
She was not there at any moment from March 31 to April 1, 1993 at 22
Id., at pp. 16, 39.
the police headquarters or at the Las Palmas Hotel? 23
TSN of June 9, 1993, p. 13.
24
TSN of June 7, 1993, p. 30; TSN of June 9, 1993, pp. 14-15.
A: I don't know that person, sir. 66 25
Ibid., at p. 13.
26
TSN of June 7, 1993, p. 40; TSN of June 9, 1993, pp. 15, 35.
Her credibility is also questionable considering the fact that she herself has been 27
Ibid., at p. 35.
previously convicted of violating the Dangerous Drugs Act. 28
Id., at pp. 15-16.
29
TSN of June 7, 1993, p. 32; TSN of June 9, 1993, p. 17.
30
IN VIEW WHEREOF, the Decision, dated August 31, 1993, and the Order, dated TSN of June 7, 1993, pp. 33-34; TSN of June 9, 1993, p. 18.
31
October 11, 1993, of the RTC of Manila, Branch 47, in Criminal Case No. 93-118913 TSN of June 7, 1993, pp. 34, 35, 39; TSN of June 9, 1993, p. 18; TSN of
are AFFIRMED. Costs against appellants. June 15, 1993, p. 18.
32
TSN of June 7, 1993, p. 40.
33
SO ORDERED. Ibid., at pp. 46, 49; TSN of June 15, 1993, p. 19.
34
Ibid., at p. 18.
35
TSN of June 18, 1993, pp. 5-6.
Footnotes 36
1 TSN of June 7, 1993, pp. 46-47.
A national of Liberia. 37
2 See TSN of July 13, 1993, July 16, 1993, and July 21, 1993.
A national of Zaire. 38
3 Original Records, pp. 197-198.
A national of Ghana. 39
4 Ibid., p. 202.
Dangerous Drugs Act of 1972. 40
5 Brief For The Appellants, p. 1; Rollo, p. 44.
The case was raffled to Regional Trial Court, Manila, Branch 47, presided 41
Article 8, Revised Penal Code.
over by Judge Lorenzo B. Veneracion. 42
6 See People vs. Lug-aw, 229 SCRA 308 (1994); People vs. Pinzon, 206
The substance was tested by NBI forensic chemist and prosecution witness
SCRA 93 (1992); People vs. Uy,206 SCRA 270 (1992).
Insp. Noemi P. Austerio, and was found to be heroin. (See TSN of June 7, 43
See Brief for Appellants, p. 5; Rollo, p. 48.
1993, pp. 13-16; see also Exh. "A", which is Laboratory Report No. 299-93). 44
7 193 SCRA 123 (1991).
Pre-trial stipulation. See TSN of June 7, 1993, pp. 7-8. 45
8 Brief for Appellee, page 12; Rollo, p. 126.
TSN of June 7, 1993, p. 23; TSN of June 15, 1993, p. 29. 46
9 It must be noted that, although two black luggages with false bottoms, an
TSN of June 7, 1993.
10 empty transparent bag, and masking tape were gathered by the Narcom
TSN of June 9, 1993, p. 23.
11 agents in a similar warrantless search made on the hotel room of appellants
Testified on June 15, 18, and 29, 1993.
12 Omogbolahan and Bhola, these were not formally offered in evidence by the
TSN of June 9, 1993, p. 23.
13 prosecution. Only the note found in Amidu's room was so offered and marked
TSN of June 7, 1993, p. 24.
14 as Exh. "E"
Ibid., at p. 27; TSN of June 9, 1993, pp. 9, 11; TSN of June 15, 1993, pp. 47
Rule 126, Section 12.
12-13. 48
15 147 SCRA 509 (1987).
TSN of June 7, 1993, pp. 26-27, 41.
16
Testified on June 7, 1993; TSN of June 9, 1993 pp. 12-13.

57
 49
People vs. Santos, 236 SCRA 689 (1994); People vs. Catan, 205 SCRA
235 (1992); People vs. Liquen,212 SCRA 288 (1992).
50
People vs. Musa, 217 SCRA 597 (1993), citing Marron vs. United States,
275 U.S. 192, 72 L. ed. 231 (1927).
51
395 US 752, 23 L. Ed. 2d 685 (1969).
52
217 SCRA 597 (1993), In the case, the suspect was arrested for selling
dried marijuana to a police poseur buyer somewhere along Bonifacio
Avenue, Marikina, Metro Manila.
53
People vs. Coral, 230 SCRA 499 (1994).
54
Original Records, p. 6.
55
People vs. Sarellana, 233 SCRA 31 (1994)
56
TSN of July 13, 1993, pp. 6-7.
57
Ibid., at pp. 38, 43.
58
Id., at pp. 34-35.
59
Id., at pp. 23-25.
60
Ibid., at p. 25.
61
Id., at p. 30.
62
Brief for Appellee, p. 15; Rollo, p. 129.
63
Id., p. 16.
64
Section l(b), Rule 137, Revised Rules of Court.
65
F. Regalado, 1 Remedial Law Compendium, 1988 ed., p.
247, citing National Shipyards Corp. vs. Asuncion, 54 O.G. 6246.
66
TSN of July 28, 1993, pp. 5-7.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

58
G.R. No. 171980 October 6, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
OLIVE RUBIO MAMARIL, Accused-Appellant.
DECISION
PEREZ, J.:
1 2
For review through this appeal is the Decision dated 31 August 2005 of the Court of
Appeals in CA-G.R. CR. No. 28482 which affirmed the conviction of herein accused-
appellant OLIVE RUBIO MAMARIL of possession of dangerous drugs in violation of
Section 11, Article II3 of Republic Act No. 9165 or the Comprehensive Dangerous
Drugs Act of 2002. The dispositive portion of the assailed decision reads:
WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The
challenged judgment of the court a quo is hereby AFFIRMED. 4
The affirmed disposition reads:
WHEREFORE, upon proof of guilt beyond reasonable doubt, this court sentences
accused Olive Rubio Mamaril to suffer an indeterminate prison term of twelve (12)
years and one (1) day as minimum to twenty (20) years as maximum and a fine
of P300,000 for violation of Section 11, Article II, of R.A. 9165 5.
The facts as presented by the prosecution before the appellate court follow:
On 25 March 2003, at 9:30 oclock in the evening, SPO4 Alexis Gotidoc, along with
the members of Intel Operatives of Tarlac City Police Station and Philippine Drug
Enforcement Agency (PDEA), implemented Search Warrant No. 144C dated 18
March 2003 issued by Judge Alipio Yumul of Branch 66, Regional Trial Court, Capas,
Tarlac against the appellant in her residence at Zone 1, Barangay Maliwalo, Tarlac
City, Province of Tarlac.6
Prior to the search, the police team invited Barangay Kagawad Oscar Tabamo of
Barangay Maliwalo to witness the conduct of the search and seizure operation in the
appellants house. With Barangay Kagawad Tabamo, the police team presented the
59
search warrant to appellant and informed her of the purpose of the search and her
constitutional rights.7
Afterwards, SPO4 Gotidoc, the designated searcher, started searching the
appellants house, in the presence of the appellant and Kagawad Tabamo. During his
search, he found on the top cover of the refrigerator one (1) plastic sachet containing
white crystalline substance. Thereafter he prepared a Certificate of Good Search and
Confiscation Receipt which the appellant refused to sign. 8
The plastic sachet was brought to the Tarlac Provincial Crime Laboratory located at
Tarlac Provincial Hospital for qualitative examination. The examination conducted by
Engr. Marcene G. Agala, the Forensic Chemist who tested the white crystalline
substance, yielded positive results for 0.055 gram of Methamphetamine
Hydrochloride, commonly known as shabu, a dangerous drug. 9
The factual version presented by the defense is:
On 25 March 2003, at 9:30 o clock in the evening the police officers arrived at
appellants house and showed her a search warrant. Thereafter, the policemen
searched her house but found nothing. Then a certain Police Officer Pangilinan
asked her where she was sleeping. When she replied that she was inside the hut, the
police officers proceeded to and searched the place and found the plastic sachet
containing the shabu.10
Thereafter, she was brought to the sub-station at Maliwalo and was told, particularly
by SPO4 Gotidoc and a certain Maam Dulay that in exchange of P20,000.00, no
case would be filed against her. When she told them that she did not have money,
she was detained.11 However, on cross-examination, the appellant admitted that the
alleged extortion of P20,000.00 was not reported to the higher ranking police
officers.12
Appellant claims that the police officers framed her up and planted the shabu inside
her house because of her refusal to give them money. 13
Eventually, an Information was filed against the appellant which reads:
That on March 25, 2003 at around 9:30 oclock in the evening at Tarlac City and
within the jurisdiction of this Honorable Court, accused, did then and there willfully,
unlawfully and criminally have in her possession and control Methamphetamine
Hydrochloride known as Shabu, a dangerous drug, weighing more or less 0.055
gram, without being authorized by law.
CONTRARY TO LAW14
Upon arraignment, the appellant, assisted by the de-officio counsel, entered a plea of
not guilty.
On 21 April 2004, the trial court found the accused-appellant guilty of violation of
Section 11, Article II, of R.A. 9165.15
On appeal, the Court of Appeals ruled that the evidence for the prosecution fully
proved beyond reasonable doubt the elements necessary to successfully prosecute a
case for illegal possession of a regulated drug, namely, (a) the accused is in
possession of an item or an object identified to be a prohibited or a regulated drug,
(b) such possession is not authorized by law and (c) the accused freely and
consciously possessed said drug.16
Centered on the conduct of the search of appellants house that yielded the
prohibited substance, the Court of Appeals upheld the trial court on the finding that
"after a careful evaluation and analysis of the arguments presented by the
prosecution and the defense, we hold that the search conducted by the INTEL
Operatives of Tarlac City Police Station, in coordination with the PDEA, on the
residence of the accused-appellant on 25 March 2003 at Zone 1, Barangay Maliwalo,
Tarlac City and the seizure therein of one (1) plastic pack of white crystalline
substance of methamphetamine hydrochloride or "shabu" weighing 0.055 gram are
legal. As a consequence of the legal search, the said methamphetamine
hydrochloride or "shabu" seized on the occasion thereof, is admissible in evidence
against the accused-appellant."17
In this appeal, accused-appellant, through her new counsel from the Public Attorneys
Office, goes further back, presenting new arguments, that (1) the search warrant was
not based on probable cause, hence, the evidence allegedly obtained through it may
not be admitted to support the accused-appellants conviction; 18 and (2) the
presumption of regularity in the performance of official functions by public officers
cannot prevail over the presumption of innocence. 19
60
We first deal with the original position of the accused which, in this petition, begins
with the contention of non-compliance with all the requisites of illegal possession of
dangerous drugs. We agree with the rulings of the trial court and the Court of Appeals
that there was indeed full satisfaction of the requisites for the conviction of the
accused.
The trial court found that the evidence presented by the prosecution was not
adequately defeated. Re-stating that in illegal possession of prohibited drugs, there
are only three (3) elements to secure conviction: (1) accused is in possession of the
prohibited drugs; (2) such possession is not authorized by law; and (3) accused
consciously and freely possessed the prohibited drugs, 20 the trial court held that all
these were established beyond doubt. It determined that appellant failed to proffer
evidence enough to discredit the prosecution and render doubtful his guilt. 21
The Court of Appeals found no reason to overturn the finding of the trial court. It held
that:
After a careful evaluation and analysis of the arguments presented by the
prosecution and the defense, we hold that the search by the INTEL Operatives of
Tarlac City Police Station, in coordination with the PDEA, on the residence of the
accused-appellant on March 25, 2003 at Zone 1, Barangay Maliwalo, Tarlac City and
the seizure therein of one (1) plastic pack of white crystalline substance of
methamphetamine hydrochloride or "shabu" weighing 0.055 gram are legal. As a
consequence of the legal search, the said methamphetamine hydrochloride or
"shabu" seized on the occasion thereof, is admissible in evidence against the
accused-appellant.22
We will not reverse this holding. The repeated contentions of frame-up of the
accused-appellant23 and that the dangerous drug of methamphetamine hydrochloride
was planted by the police officers do not deserve further considerations by this Court.
While We are aware that in some cases, law enforcers resort to the practice of
planting evidence in order that to, inter alia, harass, nevertheless the defense of
frame-up in drug cases requires strong and convincing evidence because of the
presumption that the police officers performed their duties regularly and that they
acted within the bounds of their authority.24
Frame-up, like alibi, is generally viewed with caution by the Court because it is easy
to contrive and difficult to disprove. It is a common and standard line of defense in
prosecutions of violations of the Dangerous Drugs Act. 25And so is the likewise
repeated referral to the primacy of the constitutional presumption of innocence over
the presumption of regularity in the performance of public functions, 26 the contention
being that the frame-up argument is supported by the constitutional presumption of
innocence.
The argument is without merit.
Indeed it is a constitutional mandate 27 that in all criminal prosecutions, the accused
shall be presumed innocentuntil the contrary is proved and that on the other hand, it
is in the Rules of Court28 that.
"The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
"xxx
"m. That official duty has been regularly performed; (Emphasis supplied)
xxx"
In the case at hand, the so-called frame-up was virtually pure allegation bereft of
credible proof. The narration 29of the police officer who implemented the search
warrant, was found after trial and appellate review as the true story. It is on firmer
ground than the self-serving statement of the accused-appellant of frame-up. 30 The
defense cannot solely rely upon the constitutional presumption of innocence for, while
it is constitutional, the presumption is not conclusive. Notably, the accused-appellant
herself stated in her brief that31 "no proof was proffered by the accused-appellant of
the police officers alleged ill motive."
Stated otherwise, the narration of the incident by law enforcers, buttressed by the
presumption that they have regularly performed their duties in the absence of
convincing proof to the contrary, must be given weight. 32
We now deal with the late submission about the validity of the search warrant.
A party cannot change his theory on appeal nor raise in the appellate court any
question of law or of fact that was not raised in the court below or which was not
within the issue raised by the parties in their pleadings. 33
61
In a long line of cases, this Court held that points of law, theories, issues and
arguments not adequately brought to the attention of the trial court ordinarily will not
be considered by a reviewing court as they cannot be raised for the first time on
appeal because this would be offensive to the basic rules of fair play, justice and due
process.34
We opt to get out of the ordinary in this case. After all, technicalities must serve, not
burden the cause of justice. It is a prudent course of action to excuse a technical
lapse and afford the parties a review of the case on appeal to attain the ends of
justice. 35
We thus allow the new arguments for the final disposition of this case.
The contention of the accused-appellant, as asserted through the Public Attorneys
Office, is that the issued search warrant was not based on probable cause. 36 The
accused-appellant relied heavily on its argument that SPO4 Gotidoc, as the applicant
of the search warrant, did not testify on facts personally known to him but simply
relied on stories that the accused- appellant was peddling illegal drugs. 37
The requisites for the issuance of a search warrant are: (1) probable cause is
present; (2) such probable cause must be determined personally by the judge; (3) the
judge must examine, in writing and under oath or affirmation, the complainant and the
witnesses he or she may produce; (4) the applicant and the witnesses testify on the
facts personally known to them; and (5) the warrant specifically describes the place
to be searched and the things to be seized.38
On the other hand, probable cause means such facts and circumstances which
would lead a reasonable discreet and prudent man to believe that an offense has
been committed and that the objects sought in connection with the offense are in the
place sought to be searched.39
Based on the records, the Court is convinced that the questioned search warrant was
based on a probable cause. A portion of the direct testimony of SPO4 Gotidoc is
hereby quoted:
Q: What is your basis for applying for search warrant against the accused?
 A: Because there were many persons who were going to her place and
weve been hearing news that she is selling prohibited drugs and some of
them were even identified, sir.
Q: But you did not conduct any surveillance before you applied for search
warrant?
A: Prior to the application for search warrant, we conducted surveillance
already.
Q: Because personally you heard that the accused was dealing prohibited
drugs and that was the basis for you to apply for search warrant with Branch
66?
40
A: Yes, sir. (Emphasis supplied)
xxx
Section 6, Rule 126 of the Rules on Criminal Procedure provides that:
If the judge is satisfied of the existence of facts upon which the application is based
or that there is probable cause to believe that they exist, he shall issue the warrant,
which must be substantially in the form prescribed by these Rules. (Emphasis
supplied)
There is no general formula or fixed rule for the determination of probable cause
since the same must be decided in light of the conditions obtaining in given situations
and its existence depends to a large degree upon the findings or opinion of the judge
conducting the examination.41
It is presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrates determination of a probable cause for the
issuance of a search warrant is paid with great deference by a reviewing court, as
long as there was substantial basis for that determination. 42
The defenses reliance of the quoted testimony of the police officer alone, without any
other evidence to show that there was indeed lack of personal knowledge, is
insufficient to overturn the finding of the trial court. The accused-appellant, having
62
failed to present substantial rebuttal evidence to defeat the presumption of regularity
of duty of the issuing judge, will not be sustained by this Court.
WHEREFORE, the instant appeal is DENIED. Accordingly, the decision of the Court
of Appeals in CA-G.R. CR. No. 28482 is hereby AFFIRMED. Costs against the
appellant.
SO ORDERED.
Footnotes
*
Additional member per Raffle dated 1 March 2010.
1
Via a notice of appeal, pursuant to Section 2 (c) of Rule 122 of the Rules of
Court.
2
Penned by Associate Justice Amelita G. Tolentino with Associate Justices
Roberto A. Barrios and Vicente S.E. Veloso concurring. CA rollo, pp. 54-62.
3
Section 11. Possession of Dangerous Drugs. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon
any person, who, unless authorized by law, shall possess any dangerous
drug in the following quantities, regardless of the degree of purity thereof:
xxx
Otherwise, if the quantity involved is less than the foregoing
quantities, the penalties shall be graduated as follows:
xxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20)
years and a fine ranging from Three hundred thousand pesos
(P300,000.00) to Four hundred thousand pesos (P400,000.00), if the
quantities of dangerous drugs are less than five (5) grams of opium,
 18
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin Supplemental Brief. Rollo, p. 280.
or marijuana resin oil, methamphetamine hydrochloride or "shabu",
or other dangerous drugs such as, but not limited to, MDMA or 19
Id. at 283.
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or
newly introduced drugs and their derivatives, without having any 20
People v. Chen Tiz Chang, G.R. No. 131872-73, 382 Phil. 669, 684 (2000).
therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of 21
marijuana. Records, p. 52.

22
4
CA rollo, p. 61. Id. at 60-61.

23
5
Records, p. 53. TSN, 5 February 2004, p. 6.

24
6
CA rollo, p. 55, TSN, 29 August 2003, p. 3. Chan v. Secretary of Justice, G.R. 147065, 14 March 2008, 548 SCRA
337, 353; Dacles v. People, G.R. No. 171487, 14 March 2008, 548 SCRA
7 643, 658.
Id. at 56; id.
25
8 People v. Del Monte, G.R. No. 179940, 23 April 2008, 552 SCRA 627, 639;
Id.; id at 3-4. People v. Concepcion, G.R. No. 178876, 27 June 2008, 556 SCRA 421, 443.
9
Id.; TSN, 14 October 2003, pp. 6-7. 26
Rollo, p. 283.
10
TSN, 5 February 2004, p. 3. 27
Art. III, Section 14 (2), 1987 Constitution.
11
Id. at 56-57, TSN, 5 February 2004, p. 6. 28
Sec. 3, Rule 131, Rules on Criminal Procedure.
12
Id. at 57; id. at 10-11. 29
TSN, 29 August 2003, p. 3-4.
13
Id. at 56; id. at 6. 30
TSN, 5 February 2004, p. 6-7.
14
Records, p. 1. 31
Rollo, p. 283.
15
Id. at 53. 32
Remedial Law, Revised Rules on Evidence, Oscar M. Herrera, 1999
Edition, p. 82; People v. Lopez, G.R. No. 71875, Jan 25, 1988; People v.
16
CA rollo, p. 59. Mauyao, G.R. No. 84525, 6 April 1992, 207 SCRA 732, 738.
17
Id. at 60-61. 33
Sari Sari Group of Companies, Inc. v. Piglas Kamao (Sari Sari Chapter),
G.R. No. 164624, 11 August 2008, 561 SCRA 569, 589.

63
 34
Philippine Commercial and International Bank v. Custodio, G.R. No.
173207, 14 February 2008, 545 SCRA 367, 380; Heirs of Cesar Marasigan v.
Marasigan, G.R. No. 156078, 14 March 2008, 548 SCRA 409, 431-432;
Eastern Assurance and Surety Corporation v. Con-Field Construction and
Development Corporation, G.R. No. 159731, 22 April 2008, 552 SCRA 271,
279-280.

35
Peoso v. Dona, G.R. No. 154018, 3 April 2007, 520 SCRA 232, 239-240.

36
Rollo, p. 280.

37
Id. at 282.

38
Abuan v. People, G.R. No. 168773, 27 October 2006, 505 SCRA 799, 822.

39
Betoy, Sr. vs Coliflores, A.M. No. MTJ-05-1608, 28 February 2006, 483
SCRA 435, 444.

40
TSN, 29 August 2003, p. 7.

41
Lastrilla v. Granda, G.R. No. 160257, 31 January 2006, 481 SCRA 324,
347.

42
People v. Choi, G.R. No. 152950, 3 August 2006, 497 SCRA 547, 556.

64