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THIRD DIVISION
G.R. No. 197293 April 21,
2014
ALFREDO C. MENDOZA, Petitioner,
vs. PEOPLE OF THE PHILIPPINES
AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:
While the determination of probable
cause to charge a person of a crime
is the sole function of the.
prosecutor, the trial court may, in
the protection of one's fundamental
right to liberty, dismiss the case if,
upon a personal assessment of the
evidence, it finds that the evidence
does not establish probable cause.
This is a petition for review on
certiorari1 assailing the Court of
Appeals' decision2 dated January
14, 2011, which reversed the
Regional Trial Court's dismissal of
the complaint against petitioner
Alfredo C. Mendoza for qualified
theft and estafa.
This case stems from a complaint-
affidavit filed by Juno Cars, Inc.
through its representative, Raul C.
Evangelista, on January 8, 2008 for
qualified theft and estafa against
Alfredo.
In the complaint-affidavit, Juno Cars
alleged that on June 2, 2007, it hired
Alfredo as Trade-In/Used Car
Supervisor. On November 19, 2007,
its Dealer/Operator, Rolando Garcia,
conducted a partial audit of the used
cars and discovered that five (5)
cars had been sold and released by
Alfredo without Rolando’s or the
finance manager’s permission.
The partial audit showed that the
buyers of the five cars made
payments, but Alfredo failed to
remit the payments totalling
P886,000.00. It was further alleged
that while there were 20 cars under
Alfredo’s custody, only 18 were
accounted for. Further investigation
revealed that Alfredo failed to turn
over the files of a 2001 Hyundai
Starex and a Honda City 1.5 LXI.
Juno Cars alleged that taking into
account the unremitted amounts
and the acquisition cost of the
Honda City, Alfredo pilfered a total
amount of P1,046,000.00 to its
prejudice and damage.
In his counter-affidavit, Alfredo
raised, among others, Juno Cars’
supposed failure to prove
ownership over the five (5) cars or
its right to possess them with the
purported unremitted payments.
Hence, it could not have suffered
damage.
On March 4, 2008, Provincial
Prosecutor Rey F. Delgado issued a
Resolution7 finding probable cause
and recommending the filing of an
information against Alfredo for
qualified theft and estafa.
Alfredo moved for reconsideration,
but the motion was denied. He then
filed a petition for review with the
Department of Justice on May 16,
2008.9
While Alfredo’s motion for
reconsideration was still pending
before the Office of the City
Prosecutor of Mandaluyong, two
informations for qualified theft10
and estafa11 were filed before the
Regional Trial Court, Branch 212,
Mandaluyong City. On March 31,
2008, Alfredo filed a motion for
determination of probable cause12
before the trial court. On April 28,
2008, he also filed a motion to defer
arraignment.
Several clarificatory hearings were
scheduled but were not
conducted.13 On February 4, 2009,
the parties agreed to submit all
pending incidents, including the
clarificatory hearing, for resolution.
On March 3, 2009, the trial court,
through Presiding Judge Rizalina
Capco-Umali, issued an order
dismissing the complaint, stating
that:
After conducting an independent
assessment of the evidence on
record which includes the assailed
Resolution dated 04 March 2008,
the court holds that the evidence
adduced does not support a finding
of probable cause for the offenses of
qualified theft and estafa. x x x.
Juno Cars filed a motion for
reconsideration, which the trial
court denied on July 3, 2009.
Juno Cars then filed a petition for
certiorari with the Court of Appeals,
arguing that the trial court acted
without or in excess of its
jurisdiction and with grave abuse of
discretion when it dismissed the
complaint. It argued that "the
determination of probable cause
and the decision whether or not to
file a criminal case in court,
rightfully belongs to the public
prosecutor."
On January 14, 2011, the Court of
Appeals rendered a decision,
reversed the trial court, and
reinstated the case. In its decision,
the appellate court ruled that the
trial court acted without or in
excess of its jurisdiction "in
supplanting the public prosecutor’s
findings of probable cause with her
own findings of insufficiency of
evidence and lack of probable
cause."
Aggrieved, Alfredo filed a petition
for review under Rule 45 before this
court. In essence, he argued that the
trial court was correct in finding
that there was no probable cause as
shown by the evidence on record.
He argued that "judicial
determination of probable cause is
broader than [the] executive
determination of probable cause"21
and that "[i]t is not correct to say
that the determination of probable
cause is exclusively vested on the
prosecutor x x x."
In its comment, Juno Cars argued
that Alfredo presented questions,
issues, and arguments that were a
mere rehash of those already
considered and passed upon by the
appellate court.
The Office of the Solicitor General,
arguing for public respondent,
stated in its comment24 that the
appellate court correctly sustained
the public prosecutor in his findings
of probable cause against Alfredo.
Since there was no showing of grave
abuse of discretion on the part of
Prosecutor Rey F. Delgado, the trial
court should respect his
determination of probable cause.
In his reply, Alfredo reiterated that
"judicial determination of probable
cause[,] while not a superior
faculty[,] covers a broader
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encompassing perspective in the
disposition of the issue on the
existence of probable cause."26 He
argued that the findings of the trial
court should be accorded greater
weight than the appellate court’s. It
merely reviewed the findings of the
trial court.
The primordial issue is whether the
trial court may dismiss an
information filed by the prosecutor
on the basis of its own independent
finding of lack of probable cause.
Time and again, this court has been
confronted with the issue of the
difference between the
determination of probable cause by
the prosecutor on one hand and the
determination of probable cause by
the judge on the other. We examine
these two concepts again.
Juno Cars filed a complaint against
Alfredo for qualified theft27 and
estafa under Article 315, fourth
paragraph, no. 3(c)28 of the Revised
Penal Code. Since qualified theft is
punishable by reclusion perpetua, a
preliminary investigation must first
be conducted "to determine
whether there is sufficient ground
to engender a well-founded belief
that a crime has been committed
and the respondent is probably
guilty thereof, and should be held
for trial," in accordance with Rule
112, Section 1 of the Rules on
Criminal Procedure.
At this stage, the conduct of the
preliminary investigation and the
subsequent determination of the
existence of probable cause lie
solely within the discretion of the
public prosecutor.29 If upon
evaluation of the evidence, the
prosecutor finds sufficient basis to
find probable cause, he or she shall
then cause the filing of the
information with the court.
Once the information has been filed,
the judge shall then "personally
evaluate the resolution of the
prosecutor and its supporting
evidence"30 to determine whether
there is probable cause to issue a
warrant of arrest. At this stage, a
judicial determination of probable
cause exists.
In People v. Castillo and Mejia, this
court has stated:
There are two kinds of
determination of probable cause:
executive and judicial. The executive
determination of probable cause is
one made during preliminary
investigation. It is a function that
properly pertains to the public
prosecutor who is given a broad
discretion to determine whether
probable cause exists and to charge
those whom he believes to have
committed the crime as defined by
law and thus should be held for trial.
Otherwise stated, such official has
the quasi-judicial authority to
determine whether or not a criminal
case must be filed in court. Whether
or not that function has been
correctly discharged by the public
prosecutor, i.e., whether or not he
has made a correct ascertainment of
the existence of probable cause in a
case, is a matter that the trial court
itself does not and may not be
compelled to pass upon.
The judicial determination of
probable cause, on the other hand,
is one made by the judge to
ascertain whether a warrant of
arrest should be issued against the
accused. The judge must satisfy
himself that based on the evidence
submitted, there is necessity for
placing the accused under custody
in order not to frustrate the ends of
justice. If the judge finds no
probable cause, the judge cannot be
forced to issue the arrest warrant.
The difference is clear: The
executive determination of probable
cause concerns itself with whether
there is enough evidence to support
an Information being filed. The
judicial determination of probable
cause, on the other hand,
determines whether a warrant of
arrest should be issued. In People v.
Inting:
x x x Judges and Prosecutors alike
should distinguish the preliminary
inquiry which determines probable
cause for the issuance of a warrant
of arrest from the preliminary
investigation proper which
ascertains whether the offender
should be held for trial or released.
Even if the two inquiries are
conducted in the course of one and
the same proceeding, there should
be no confusion about the
objectives. The determination of
probable cause for the warrant of
arrest is made by the Judge. The
preliminary investigation proper—
whether or not there is reasonable
ground to believe that the accused is
guilty of the offense charged and,
therefore, whether or not he should
be subjected to the expense, rigors
and embarrassment of trial—is the
function of the Prosecutor.34
(Emphasis supplied)
While it is within the trial court’s
discretion to make an independent
assessment of the evidence on hand,
it is only for the purpose of
determining whether a warrant of
arrest should be issued. The judge
does not act as an appellate court of
the prosecutor and has no capacity
to review the prosecutor’s
determination of probable cause;
rather, the judge makes a
determination of probable cause
independent of the prosecutor’s
finding.
People v. Court of Appeals and
Jonathan Cerbo35 discussed the
rationale. In that case, Jonathan
Cerbo allegedly shot Rosalinda Dy in
the presence of his father, Billy
Cerbo. An information for murder
was filed against Jonathan Cerbo.
The daughter of Rosalinda Dy, as
private complainant, executed a
complaint-affidavit charging Billy
Cerbo with conspiracy. The
prosecutor then filed a motion to
amend the information, which was
granted by the court. The
information was then amended to
include Billy Cerbo as one of the
accused, and a warrant of arrest was
issued against him.
Billy Cerbo filed a motion to quash
the warrant arguing that it was
issued without probable cause. The
trial court granted this motion,
recalled the warrant, and dismissed
the case against him. The Court of
Appeals affirmed this dismissal. This
court, however, reversed the Court
of Appeals and ordered the
reinstatement of the amended
information against Billy Cerbo,
stating that:
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In granting this petition, we are not
prejudging the criminal case or the
guilt or innocence of Private
Respondent Billy Cerbo. We are
simply saying that, as a general rule,
if the information is valid on its face
and there is no showing of manifest
error, grave abuse of discretion or
prejudice on the part of the public
prosecutor, courts should not
dismiss it for ‘want of evidence,’
because evidentiary matters should
be presented and heard during the
trial. The functions and duties of
both the trial court and the public
prosecutor in "the proper scheme of
things" in our criminal justice
system should be clearly
understood.
The rights of the people from what
could sometimes be an "oppressive"
exercise of government
prosecutorial powers do need to be
protected when circumstances so
require. But just as we recognize
this need, we also acknowledge that
the State must likewise be accorded
due process. Thus, when there is no
showing of nefarious irregularity or
manifest error in the performance
of a public prosecutor’s duties,
courts ought to refrain from
interfering with such lawfully and
judicially mandated duties.
In any case, if there was palpable
error or grave abuse of discretion in
the public prosecutor’s finding of
probable cause, the accused can
appeal such finding to the justice
secretary and move for the
deferment or suspension of the
proceedings until such appeal is
resolved.36 (Emphasis supplied)
In this case, the resolution dated
March 4, 2008 of Prosecutor Rey F.
Delgado found that the facts and
evidence were "sufficient to warrant
the indictment of [petitioner] x x
x."37 There was nothing in his
resolution which showed that he
issued it beyond the discretion
granted to him by law and
jurisprudence.
While the information filed by
Prosecutor Delgado was valid, Judge
Capco-Umali still had the discretion
to make her own finding of whether
probable cause existed to order the
arrest of the accused and proceed pursuant to a warrant issued by the
with trial. judge who conducted the
preliminary investigation or when
Jurisdiction over an accused is
the complaint or information was
acquired when the warrant of arrest
filed pursuant to section 7 of this
is served. Absent this, the court
Rule. In case of doubt on the
cannot hold the accused for
existence of probable cause, the
arraignment and trial.
judge may order the prosecutor to
Article III, Section 2 of the present additional evidence within
Constitution states: five (5) days from notice and the
issue must be resolved by the court
The right of the people to be secure within thirty (30) days from the
in their persons, houses, papers, and filing of the complaint of
effects against unreasonable information.
searches and seizures of whatever
nature and for any purpose shall be In People v. Hon. Yadao:
inviolable, and no search warrant or
Section 6, Rule 112 of the Rules of
warrant of arrest shall issue except
Court gives the trial court three
upon probable cause to be
options upon the filing of the
determined personally by the judge
criminal information: (1) dismiss
after examination under oath or
the case if the evidence on record
affirmation of the complainant and
clearly failed to establish probable
the witnesses he may produce, and
cause; (2) issue a warrant of arrest
particularly describing the place to
if it finds probable cause; and (3)
be searched and the persons or
order the prosecutor to present
things to be seized.
additional evidence within five days
The Constitution prohibits the from notice in case of doubt as to
issuance of search warrants or the existence of probable cause.
warrants of arrest where the judge
But the option to order the
has not personally determined the
prosecutor to present additional
existence of probable cause. The
evidence is not mandatory.1âwphi1
phrase "upon probable cause to be
The court’s first option under the
determined personally by the judge
above is for it to "immediately
after examination under oath or
dismiss the case if the evidence on
affirmation of the complainant and
record clearly fails to establish
the witnesses he may produce"
probable cause." That is the
allows a determination of probable
situation here: the evidence on
cause by the judge ex parte.
record clearly fails to establish
For this reason, Section 6, probable cause against the
paragraph (a) of Rule 112 of the respondents. (Emphasis supplied)
Rules on Criminal Procedure
It is also settled that "once a
mandates the judge to "immediately
complaint or information is filed in
dismiss the case if the evidence on
court, any disposition of the case,
record fails to establish probable
whether as to its dismissal or the
cause." Section 6, paragraph (a) of
conviction or the acquittal of the
Rule 112 reads:
accused, rests in the sound
Section 6. When warrant of arrest discretion of the court."
may issue. — (a) By the Regional
In this case, Judge Capco-Umali
Trial Court. — Within ten (10) days
made an independent assessment of
from the filing of the complaint or
the evidence on record and
information, the judge shall
concluded that "the evidence
personally evaluate the resolution
adduced does not support a finding
of the prosecutor and its supporting
of probable cause for the offenses of
evidence. He may immediately
qualified theft and estafa."41
dismiss the case if the evidence on
Specifically, she found that Juno
record clearly fails to establish
Cars "failed to prove by competent
probable cause. If he finds probable
evidence"42 that the vehicles
cause, he shall issue a warrant of
alleged to have been pilfered by
arrest, or a commitment order if the
Alfredo were lawfully possessed or
accused has already been arrested
owned by them, or that these
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vehicles were received by Alfredo,
to be able to substantiate the charge
of qualified theft. She also found
that the complaint "[did] not state
with particularity the exact value of
the alleged office files or their
valuation purportedly have been
removed, concealed or destroyed by
the accused,"43 which she found
crucial to the prosecution of the
crime of estafa under Article 315,
fourth paragraph, no. 3(c) of the
Revised Penal Code. She also noted
that:
x x x As a matter of fact, this court
had even ordered that this case be
set for clarificatory hearing to clear
out essential matters pertinent to
the offense charged and even
directed the private complainant to
bring documents relative to the
same/payment as well as affidavit
of witnesses/buyers with the end
view of satisfying itself that indeed
probable cause exists to commit the
present case which private
complainant failed to do.
THIRD DIVISION
G.R. No. 81561 January 18,
1991
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-
appellee.
Reynaldo B. Tatoy and Abelardo E.
Rogacion for accused-appellant.
BIDIN, J.:
This is an appeal from a decision *
rendered by the Special Criminal
Court of Manila (Regional Trial
Court, Branch XLIX) convicting
accused-appellant of violation of
Section 21 (b), Article IV in relation
to Section 4, Article 11 and Section 2
(e) (i), Article 1 of Republic Act
6425, as amended, otherwise
known as the Dangerous Drugs Act.
The facts as summarized in the brief
of the prosecution are as follows:
by two feet in size (1' x 2'). Styro-
foam was placed at the bottom and
on top of the packages before the
box was sealed with masking tape,
thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to
the Bureau of Customs and/or
Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita
(Reyes), following standard
operating procedure, opened the
boxes for final inspection. When he
opened appellant's box, a peculiar
odor emitted therefrom. His
curiousity aroused, he squeezed one
of the bundles allegedly containing
gloves and felt dried leaves inside.
Opening one of the bundles, he
pulled out a cellophane wrapper
protruding from the opening of one
of the gloves. He made an opening
on one of the cellophane wrappers
and took several grams of the
contents thereof (tsn, pp. 29-30,
October 6, 1987; Emphasis
supplied).

Accordingly, with the present laws
and jurisprudence on the matter,
Judge Capco-Umali correctly
dismissed the case against Alfredo.
Although jurisprudence and
procedural rules allow it, a judge
must always proceed with caution
in dismissing cases due to lack of
probable cause, considering the
preliminary nature of the evidence
before it. It is only when he or she
finds that the evidence on hand
absolutely fails to support a finding
of probable cause that he or she can
dismiss the case. On the other hand,
if a judge finds probable cause, he or
she must not hesitate to proceed
with arraignment and trial in order
that justice may be served.
WHEREFORE, the petition is
GRANTED. The decision dated
January 14, 2011 of the Court of
Appeals in CA-G.R. SP. No. 110774 is
REVERSED and SET ASIDE. Criminal
Case Nos. MC08-11604-05 against
Alfredo C. Mendoza are DISMISSED.
SO ORDERED.
On August 14, 1987, between 10:00 Job Reyes forthwith prepared a
and 11:00 a.m., the appellant and his letter reporting the shipment to the
common-law wife, Shirley Reyes, NBI and requesting a laboratory
went to the booth of the "Manila examination of the samples he
Packing and Export Forwarders" in extracted from the cellophane
the Pistang Pilipino Complex, wrapper (tsn, pp. 5-6, October 6,
Ermita, Manila, carrying with them 1987).
four (4) gift wrapped packages.
He brought the letter and a sample
Anita Reyes (the proprietress and
of appellant's shipment to the
no relation to Shirley Reyes)
Narcotics Section of the National
attended to them. The appellant
Bureau of Investigation (NBI), at
informed Anita Reyes that he was
about 1:30 o'clock in the afternoon
sending the packages to a friend in
of that date, i.e., August 14, 1987. He
Zurich, Switzerland. Appellant filled
was interviewed by the Chief of
up the contract necessary for the
Narcotics Section. Job Reyes
transaction, writing therein his
informed the NBI that the rest of the
name, passport number, the date of
shipment was still in his office.
shipment and the name and address
Therefore, Job Reyes and three (3)
of the consignee, namely, "WALTER
NBI agents, and a photographer,
FIERZ, Mattacketr II, 8052 Zurich,
went to the Reyes' office at Ermita,
Switzerland" (Decision, p. 6)
Manila (tsn, p. 30, October 6, 1987).
Anita Reyes then asked the
Job Reyes brought out the box in
appellant if she could examine and
which appellant's packages were
inspect the packages. Appellant,
placed and, in the presence of the
however, refused, assuring her that
NBI agents, opened the top flaps,
the packages simply contained
removed the styro-foam and took
books, cigars, and gloves and were
out the cellophane wrappers from
gifts to his friend in Zurich. In view
inside the gloves. Dried marijuana
of appellant's representation, Anita
leaves were found to have been
Reyes no longer insisted on
contained inside the cellophane
inspecting the packages. The four
wrappers (tsn, p. 38, October 6,
(4) packages were then placed
1987; Emphasis supplied).
inside a brown corrugated box one
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The package which allegedly
contained books was likewise
opened by Job Reyes. He discovered
that the package contained bricks or
cake-like dried marijuana leaves.
The package which allegedly
contained tabacalera cigars was also
opened. It turned out that dried
marijuana leaves were neatly
stocked underneath the cigars (tsn,
p. 39, October 6, 1987).
The NBI agents made an inventory
and took charge of the box and of
the contents thereof, after signing a
"Receipt" acknowledging custody of
the said effects (tsn, pp. 2-3, October
7, 1987).
Thereupon, the NBI agents tried to
locate appellant but to no avail.
Appellant's stated address in his
passport being the Manila Central
Post Office, the agents requested
assistance from the latter's Chief
Security. On August 27, 1987,
appellant, while claiming his mail at
the Central Post Office, was invited
by the NBI to shed light on the
attempted shipment of the seized
dried leaves. On the same day the
Narcotics Section of the NBI
submitted the dried leaves to the
Forensic Chemistry Section for
laboratory examination. It turned
out that the dried leaves were
marijuana flowering tops as
certified by the forensic chemist.
(Appellee's Brief, pp. 9-11, Rollo, pp.
132-134).
Thereafter, an Information was filed
against appellant for violation of RA
6425, otherwise known as the
Dangerous Drugs Act.
After trial, the court a quo rendered
the assailed decision.
In this appeal, accused/appellant
assigns the following errors, to wit:
THE LOWER COURT ERRED IN
ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED
OBJECTS CONTAINED IN THE FOUR
PARCELS.
THE LOWER COURT ERRED IN
CONVICTING APPELLANT DESPITE
THE UNDISPUTED FACT THAT HIS
RIGHTS UNDER THE
CONSTITUTION WHILE UNDER
CUSTODIAL PROCEEDINGS WERE
NOT OBSERVED.
THE LOWER COURT ERRED IN NOT
GIVING CREDENCE TO THE
EXPLANATION OF THE APPELLANT
ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's
Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the
evidence subject of the imputed
offense had been obtained in
violation of his constitutional rights
against unreasonable search and
seizure and privacy of
communication (Sec. 2 and 3, Art.
III, Constitution) and therefore
argues that the same should be held
inadmissible in evidence (Sec. 3 (2),
Art. III).
Sections 2 and 3, Article III of the
Constitution provide:
Sec. 2. The right of the people to
be secure in their persons, houses,
papers and effects against
unreasonable searches and seizures
of whatever nature and for any
purpose shall be inviolable, and no
search warrant or warrant of arrest
shall issue except upon probable
cause to be determined personally
by the judge after examination
under oath or affirmation of the
complainant and the witnesses he
may produce, and particularly
describing the place to be searched
and the persons or things to be
seized.
Sec. 3. (1) The privacy of
communication and correspondence
shall be inviolable except upon
lawful order of the court, or when
public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in
violation of this or the preceding
section shall be inadmissible for any
purpose in any proceeding.
Our present constitutional provision
on the guarantee against
unreasonable search and seizure
had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure
in their persons, houses, papers and
effects against unreasonable
searches and seizures shall not be
violated, and no warrants shall issue
but upon probable cause, to be
determined by the judge after
examination under oath or
affirmation of the complainant and
the witnesses he may produce, and
particularly describing the place to
be searched, and the persons or
things to be seized. (Sec. 1 [3],
Article III) was in turn derived
almost verbatim from the Fourth
Amendment ** to the United States
Constitution. As such, the Court may
turn to the pronouncements of the
United States Federal Supreme
Court and State Appellate Courts
which are considered doctrinal in
this jurisdiction.
Thus, following the exclusionary
rule laid down in Mapp v. Ohio by
the US Federal Supreme Court (367
US 643, 81 S.Ct. 1684, 6 L.Ed. 1081
[1961]), this Court, in Stonehill v.
Diokno (20 SCRA 383 [1967]),
declared as inadmissible any
evidence obtained by virtue of a
defective search and seizure
warrant, abandoning in the process
the ruling earlier adopted in
Moncado v. People's Court (80 Phil.
1 [1948]) wherein the admissibility
of evidence was not affected by the
illegality of its seizure. The 1973
Charter (Sec. 4 [2], Art. IV)
constitutionalized the Stonehill
ruling and is carried over up to the
present with the advent of the 1987
Constitution.
In a number of cases, the Court
strictly adhered to the exclusionary
rule and has struck down the
admissibility of evidence obtained
in violation of the constitutional
safeguard against unreasonable
searches and seizures. (Bache & Co.,
(Phil.), Inc., v. Ruiz, 37 SCRA 823
[1971]; Lim v. Ponce de Leon, 66
SCRA 299 [1975]; People v. Burgos,
144 SCRA 1 [1986]; Roan v.
Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in
all those cases adverted to, the
evidence so obtained were
invariably procured by the State
acting through the medium of its
law enforcers or other authorized
government agencies.
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On the other hand, the case at bar
assumes a peculiar character since
the evidence sought to be excluded
was primarily discovered and
obtained by a private person, acting
in a private capacity and without the
intervention and participation of
State authorities. Under the
circumstances, can
accused/appellant validly claim that
his constitutional right against
unreasonable searches and seizure
has been violated? Stated otherwise,
may an act of a private individual,
allegedly in violation of appellant's
constitutional rights, be invoked
against the State?
We hold in the negative. In the
absence of governmental
interference, the liberties
guaranteed by the Constitution
cannot be invoked against the State.
As this Court held in Villanueva v.
Querubin (48 SCRA 345 [1972]:
1. This constitutional right
(against unreasonable search and
seizure) refers to the immunity of
one's person, whether citizen or
alien, from interference by
government, included in which is
his residence, his papers, and other
possessions. . . .
. . . There the state, however
powerful, does not as such have the
access except under the
circumstances above noted, for in
the traditional formulation, his
house, however humble, is his
castle. Thus is outlawed any
unwarranted intrusion by
government, which is called upon to
refrain from any invasion of his
dwelling and to respect the
privacies of his life. . . . (Cf.
Schermerber v. California, 384 US
757 [1966] and Boyd v. United
States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US
465 (1921), 41 S Ct. 547; 65 L.Ed.
1048), the Court there in construing
the right against unreasonable
searches and seizures declared that:
(t)he Fourth Amendment gives
protection against unlawful
searches and seizures, and as shown
in previous cases, its protection
applies to governmental action. Its
origin and history clearly show that
it was intended as a restraint upon
the activities of sovereign authority,
and was not intended to be a
limitation upon other than
governmental agencies; as against
such authority it was the purpose of
the Fourth Amendment to secure
the citizen in the right of
unmolested occupation of his
dwelling and the possession of his
property, subject to the right of
seizure by process duly served.
The above ruling was reiterated in
State v. Bryan (457 P.2d 661
[1968]) where a parking attendant
who searched the automobile to
ascertain the owner thereof found
marijuana instead, without the
knowledge and participation of
police authorities, was declared
admissible in prosecution for illegal
possession of narcotics.
And again in the 1969 case of
Walker v. State (429 S.W.2d 121), it
was held that the search and seizure
clauses are restraints upon the
government and its agents, not upon
private individuals (citing People v.
Potter, 240 Cal. App.2d 621, 49 Cap.
Rptr, 892 (1966); State v. Brown,
Mo., 391 S.W.2d 903 (1965); State v.
Olsen, Or., 317 P.2d 938 (1957).
Likewise appropos is the case of
Bernas v. US (373 F.2d 517 (1967).
The Court there said:
The search of which appellant
complains, however, was made by a
private citizen — the owner of a
motel in which appellant stayed
overnight and in which he left
behind a travel case containing the
evidence*** complained of. The
search was made on the motel
owner's own initiative. Because of it,
he became suspicious, called the
local police, informed them of the
bag's contents, and made it available
to the authorities.
The fourth amendment and the case
law applying it do not require
exclusion of evidence obtained
through a search by a private
citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar
having come into possession of the
Government without the latter
transgressing appellant's rights
against unreasonable search and
seizure, the Court sees no cogent
reason why the same should not be
admitted against him in the
prosecution of the offense charged.
Appellant, however, would like this
court to believe that NBI agents
made an illegal search and seizure
of the evidence later on used in
prosecuting the case which resulted
in his conviction.
The postulate advanced by
accused/appellant needs to be
clarified in two days. In both
instances, the argument stands to
fall on its own weight, or the lack of
it.
First, the factual considerations of
the case at bar readily foreclose the
proposition that NBI agents
conducted an illegal search and
seizure of the prohibited
merchandise. Records of the case
clearly indicate that it was Mr. Job
Reyes, the proprietor of the
forwarding agency, who made
search/inspection of the packages.
Said inspection was reasonable and
a standard operating procedure on
the part of Mr. Reyes as a
precautionary measure before
delivery of packages to the Bureau
of Customs or the Bureau of Posts
(TSN, October 6 & 7, 1987, pp. 15-
18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes
opened the box containing the illicit
cargo, he took samples of the same
to the NBI and later summoned the
agents to his place of business.
Thereafter, he opened the parcel
containing the rest of the shipment
and entrusted the care and custody
thereof to the NBI agents. Clearly,
the NBI agents made no search and
seizure, much less an illegal one,
contrary to the postulate of
accused/appellant.
Second, the mere presence of the
NBI agents did not convert the
reasonable search effected by Reyes
into a warrantless search and
seizure proscribed by the
Constitution. Merely to observe and
look at that which is in plain sight is
not a search. Having observed that
which is open, where no trespass
7|Page
has been committed in aid thereof,
is not search (Chadwick v. State, 429
SW2d 135). Where the contraband
articles are identified without a
trespass on the part of the arresting
officer, there is not the search that is
prohibited by the constitution (US v.
Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374
US 23, 10 L.Ed.2d. 726 [1963];
Moore v. State, 429 SW2d 122
[1968]).
In Gandy v. Watkins (237 F. Supp.
266 [1964]), it was likewise held
that where the property was taken
into custody of the police at the
specific request of the manager and
where the search was initially made
by the owner there is no
unreasonable search and seizure
within the constitutional meaning of
the term.
That the Bill of Rights embodied in
the Constitution is not meant to be
invoked against acts of private
individuals finds support in the
deliberations of the Constitutional
Commission. True, the liberties
guaranteed by the fundamental law
of the land must always be subject
to protection. But protection against
whom? Commissioner Bernas in his
sponsorship speech in the Bill of
Rights answers the query which he
himself posed, as follows:
First, the general reflections. The
protection of fundamental liberties
in the essence of constitutional
democracy. Protection against
whom? Protection against the state.
The Bill of Rights governs the
relationship between the individual
and the state. Its concern is not the
relation between individuals,
between a private individual and
other individuals. What the Bill of
Rights does is to declare some
forbidden zones in the private
sphere inaccessible to any power
holder. (Sponsorship Speech of
Commissioner Bernas , Record of
the Constitutional Commission, Vol.
1, p. 674; July 17, 1986; Emphasis
supplied)
The constitutional proscription
against unlawful searches and
seizures therefore applies as a
restraint directed only against the
government and its agencies tasked
with the enforcement of the law.
Thus, it could only be invoked
against the State to whom the
restraint against arbitrary and
unreasonable exercise of power is
imposed.
If the search is made upon the
request of law enforcers, a warrant
must generally be first secured if it
is to pass the test of
constitutionality. However, if the
search is made at the behest or
initiative of the proprietor of a
private establishment for its own
and private purposes, as in the case
at bar, and without the intervention
of police authorities, the right
against unreasonable search and
seizure cannot be invoked for only
the act of private individual, not the
law enforcers, is involved. In sum,
the protection against unreasonable
searches and seizures cannot be
extended to acts committed by
private individuals so as to bring it
within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that
since the provisions of the 1935
Constitution has been modified by
the present phraseology found in
the 1987 Charter, expressly
declaring as inadmissible any
evidence obtained in violation of the
constitutional prohibition against
illegal search and seizure, it matters
not whether the evidence was
procured by police authorities or
private individuals (Appellant's
Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one
thing, the constitution, in laying
down the principles of the
government and fundamental
liberties of the people, does not
govern relationships between
individuals. Moreover, it must be
emphasized that the modifications
introduced in the 1987 Constitution
(re: Sec. 2, Art. III) relate to the
issuance of either a search warrant
or warrant of arrest vis-a-vis the
responsibility of the judge in the
issuance thereof (See Soliven v.
Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985]
and Circular No. 12 [June 30, 1987].
The modifications introduced
deviate in no manner as to whom
the restriction or inhibition against
unreasonable search and seizure is
directed against. The restraint
stayed with the State and did not
shift to anyone else.
Corolarilly, alleged violations
against unreasonable search and
seizure may only be invoked against
the State by an individual unjustly
traduced by the exercise of
sovereign authority. To agree with
appellant that an act of a private
individual in violation of the Bill of
Rights should also be construed as
an act of the State would result in
serious legal complications and an
absurd interpretation of the
constitution.
Similarly, the admissibility of the
evidence procured by an individual
effected through private seizure
equally applies, in pari passu, to the
alleged violation, non-governmental
as it is, of appellant's constitutional
rights to privacy and
communication.
2. In his second assignment of
error, appellant contends that the
lower court erred in convicting him
despite the undisputed fact that his
rights under the constitution while
under custodial investigation were
not observed.
Again, the contention is without
merit, We have carefully examined
the records of the case and found
nothing to indicate, as an
"undisputed fact", that appellant
was not informed of his
constitutional rights or that he gave
statements without the assistance of
counsel. The law enforcers testified
that accused/appellant was
informed of his constitutional rights.
It is presumed that they have
regularly performed their duties
(See. 5(m), Rule 131) and their
testimonies should be given full
faith and credence, there being no
evidence to the contrary. What is
clear from the records, on the other
hand, is that appellant refused to
give any written statement while
under investigation as testified by
Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr.
and Mrs. Job Reyes. What about the
8|Page
accused here, did you investigate
the accused together with the girl?
WITNESS:
Yes, we have interviewed the
accused together with the girl but
the accused availed of his
constitutional right not to give any
written statement, sir. (TSN,
October 8, 1987, p. 62; Original
Records, p. 240)
The above testimony of the witness
for the prosecution was not
contradicted by the defense on
cross-examination. As borne out by
the records, neither was there any
proof by the defense that appellant
gave uncounselled confession while
being investigated. What is more,
we have examined the assailed
judgment of the trial court and
nowhere is there any reference
made to the testimony of appellant
while under custodial investigation
which was utilized in the finding of
conviction. Appellant's second
assignment of error is therefore
misplaced.
3. Coming now to appellant's
third assignment of error, appellant
would like us to believe that he was
not the owner of the packages
which contained prohibited drugs
but rather a certain Michael, a
German national, whom appellant
met in a pub along Ermita, Manila:
that in the course of their 30-minute
conversation, Michael requested
him to ship the packages and gave
him P2,000.00 for the cost of the
shipment since the German national
was about to leave the country the
next day (October 15, 1987, TSN, pp.
2-10).
Rather than give the appearance of
veracity, we find appellant's
disclaimer as incredulous, self-
serving and contrary to human
experience. It can easily be
fabricated. An acquaintance with a
complete stranger struck in half an
hour could not have pushed a man
to entrust the shipment of four (4)
parcels and shell out P2,000.00 for
the purpose and for appellant to
readily accede to comply with the
undertaking without first
ascertaining its contents. As stated
by the trial court, "(a) person would
not simply entrust contraband and
of considerable value at that as the shipment (Exh. "B", Original
marijuana flowering tops, and the Records, p. 40). On the contrary,
cash amount of P2,000.00 to a appellant signed the contract as the
complete stranger like the Accused. owner and shipper thereof giving
The Accused, on the other hand, more weight to the presumption
would not simply accept such that things which a person
undertaking to take custody of the possesses, or exercises acts of
packages and ship the same from a ownership over, are owned by him
complete stranger on his mere say- (Sec. 5 [j], Rule 131). At this point,
so" (Decision, p. 19, Rollo, p. 91). As appellant is therefore estopped to
to why he readily agreed to do the claim otherwise.
errand, appellant failed to explain.
Premises considered, we see no
Denials, if unsubstantiated by clear
error committed by the trial court in
and convincing evidence, are
rendering the assailed judgment.
negative self-serving evidence
which deserve no weight in law and WHEREFORE, the judgment of
cannot be given greater evidentiary conviction finding appellant guilty
weight than the testimony of beyond reasonable doubt of the
credible witnesses who testify on crime charged is hereby AFFIRMED.
affirmative matters (People v. No costs.
Esquillo, 171 SCRA 571 [1989];
People vs. Sariol, 174 SCRA 237 SO ORDERED.
[1989]).
Appellant's bare denial is even
made more suspect considering
that, as per records of the Interpol,
he was previously convicted of
possession of hashish by the Kleve
Court in the Federal Republic of
Germany on January 1, 1982 and
that the consignee of the frustrated
shipment, Walter Fierz, also a Swiss
national, was likewise convicted for
drug abuse and is just about an
hour's drive from appellant's
residence in Zurich, Switzerland
(TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p.
21; Rollo, p. 93).
Evidence to be believed, must not
only proceed from the mouth of a
credible witness, but it must be
credible in itself such as the
common experience and
observation of mankind can
approve as probable under the
circumstances (People v. Alto, 26
SCRA 342 [1968], citing Daggers v.
Van Dyke, 37 N.J. Eg. 130; see also
People v. Sarda, 172 SCRA 651
[1989]; People v. Sunga, 123 SCRA
327 [1983]); Castañares v. CA, 92
SCRA 567 [1979]). As records
further show, appellant did not even
bother to ask Michael's full name,
his complete address or passport
number. Furthermore, if indeed, the
German national was the owner of
the merchandise, appellant should
have so indicated in the contract of
9|Page
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR.,
BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, THE
CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL
OFFICER, PRESIDENTIAL SECURITY
COMMAND, THE JUDGE ADVOCATE
GENERAL, ET AL., respondents.
Lorenzo M. Tañada, Wigberto E.
Tañada, Martiniano Vivo, Augusto
Sanchez, Joker P. Arroyo, Jejomar
Binay and Rene Saguisag for
petitioners.
The Solicitor General for
respondents.
ESCOLIN, J.:
Assailed in this petition for
certiorari prohibition and
mandamus with preliminary
mandatory and prohibitory
injunction is the validity of two [2]
search warrants issued on
December 7, 1982 by respondent
Judge Ernani Cruz-Pano, Executive
Judge of the then Court of First
Instance of Rizal [Quezon City],
under which the premises known as
No. 19, Road 3, Project 6, Quezon
City, and 784 Units C & D, RMS
Building, Quezon Avenue, Quezon
City, business addresses of the
"Metropolitan Mail" and "We
Forum" newspapers, respectively,
were searched, and office and
printing machines, equipment,
paraphernalia, motor vehicles and
other articles used in the printing,
publication and distribution of the
said newspapers, as well as
numerous papers, documents,
books and other written literature
alleged to be in the possession and
control of petitioner Jose Burgos, Jr.
publisher-editor of the "We Forum"
newspaper, were seized.
Petitioners further pray that a writ
of preliminary mandatory and
prohibitory injunction be issued for
the return of the seized articles, and
that respondents, "particularly the
Chief Legal Officer, Presidential
Security Command, the Judge
Advocate General, AFP, the City
Fiscal of Quezon City, their
representatives, assistants,
subalterns, subordinates, substitute
or successors" be enjoined from
using the articles thus seized as
evidence against petitioner Jose
Burgos, Jr. and the other accused in
Criminal Case No. Q- 022782 of the
Regional Trial Court of Quezon City,
entitled People v. Jose Burgos, Jr. et
al. 1
In our Resolution dated June 21,
1983, respondents were required to
answer the petition. The plea for
preliminary mandatory and
prohibitory injunction was set for
hearing on June 28, 1983, later reset
to July 7, 1983, on motion of the
Solicitor General in behalf of
respondents.
At the hearing on July 7, 1983, the
Solicitor General, while opposing
petitioners' prayer for a writ of
preliminary mandatory injunction,
manifested that respondents "will
not use the aforementioned articles
as evidence in the aforementioned
case until final resolution of the
legality of the seizure of the
aforementioned articles. ..." 2 With
this manifestation, the prayer for
preliminary prohibitory injunction
was rendered moot and academic.
Respondents would have this Court
dismiss the petition on the ground
that petitioners had come to this
Court without having previously
sought the quashal of the search
warrants before respondent judge.
Indeed, petitioners, before
impugning the validity of the
warrants before this Court, should
have filed a motion to quash said
warrants in the court that issued
them. 3 But this procedural flaw
notwithstanding, we take
cognizance of this petition in view of
the seriousness and urgency of the
constitutional issues raised not to
mention the public interest
generated by the search of the "We
Forum" offices, which was televised
in Channel 7 and widely publicized
in all metropolitan dailies. The
existence of this special
circumstance justifies this Court to
exercise its inherent power to
suspend its rules. In the words of
the revered Mr. Justice Abad Santos
in the case of C. Vda. de Ordoveza v.
Raymundo, 4 "it is always in the
power of the court [Supreme Court]
to suspend its rules or to except a
particular case from its operation,
whenever the purposes of justice
require it...".
Respondents likewise urge
dismissal of the petition on ground
of laches. Considerable stress is laid
on the fact that while said search
warrants were issued on December
7, 1982, the instant petition
impugning the same was filed only
on June 16, 1983 or after the lapse
of a period of more than six [6]
months.
Laches is failure or negligence for an
unreasonable and unexplained
length of time to do that which, by
exercising due diligence, could or
should have been done earlier. It is
negligence or omission to assert a
right within a reasonable time,
warranting a presumption that the
party entitled to assert it either has
abandoned it or declined to assert it.
Petitioners, in their Consolidated
Reply, explained the reason for the
delay in the filing of the petition
thus:
Respondents should not find fault,
as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the
Petition was filed on June 16, 1983,
more than half a year after the
petitioners' premises had been
raided.
The climate of the times has given
petitioners no other choice. If they
had waited this long to bring their
case to court, it was because they
tried at first to exhaust other
remedies. The events of the past
eleven fill years had taught them
that everything in this country, from
release of public funds to release of
detained persons from custody, has
become a matter of executive
benevolence or largesse
Hence, as soon as they could,
petitioners, upon suggestion of
persons close to the President, like
Fiscal Flaminiano, sent a letter to
President Marcos, through counsel
Antonio Coronet asking the return
at least of the printing equipment
10 | P a g e
and vehicles. And after such a letter
had been sent, through Col. Balbino
V. Diego, Chief Intelligence and
Legal Officer of the Presidential
Security Command, they were
further encouraged to hope that the
latter would yield the desired
results.
After waiting in vain for five [5]
months, petitioners finally decided
to come to Court. [pp. 123-124,
Rollo]
Although the reason given by
petitioners may not be flattering to
our judicial system, We find no
ground to punish or chastise them
for an error in judgment. On the
contrary, the extrajudicial efforts
exerted by petitioners quite
evidently negate the presumption
that they had abandoned their right
to the possession of the seized
property, thereby refuting the
charge of laches against them.
Respondents also submit the theory
that since petitioner Jose Burgos, Jr.
had used and marked as evidence
some of the seized documents in
Criminal Case No. Q- 022872, he is
now estopped from challenging the
validity of the search warrants. We
do not follow the logic of
respondents. These documents
lawfully belong to petitioner Jose
Burgos, Jr. and he can do whatever
he pleases with them, within legal
bounds. The fact that he has used
them as evidence does not and
cannot in any way affect the validity
or invalidity of the search warrants
assailed in this petition.
Several and diverse reasons have
been advanced by petitioners to
nullify the search warrants in
question.
1. Petitioners fault respondent judge
for his alleged failure to conduct an
examination under oath or
affirmation of the applicant and his
witnesses, as mandated by the
above-quoted constitutional
provision as wen as Sec. 4, Rule 126
of the Rules of Court . 6 This
objection, however, may properly
be considered moot and academic,
as petitioners themselves conceded
during the hearing on August 9,
1983, that an examination had
indeed been conducted by
respondent judge of Col. Abadilla
and his witnesses.
2. Search Warrants No. 20-82[a] and
No. 20- 82[b] were used to search
two distinct places: No. 19, Road 3,
Project 6, Quezon City and 784 Units
C & D, RMS Building, Quezon
Avenue, Quezon City, respectively.
Objection is interposed to the
execution of Search Warrant No. 20-
82[b] at the latter address on the
ground that the two search
warrants pinpointed only one place
where petitioner Jose Burgos, Jr.
was allegedly keeping and
concealing the articles listed
therein, i.e., No. 19, Road 3, Project
6, Quezon City. This assertion is
based on that portion of Search
Warrant No. 20- 82[b] which states:
Which have been used, and are
being used as instruments and
means of committing the crime of
subversion penalized under P.D.
885 as amended and he is keeping
and concealing the same at 19 Road
3, Project 6, Quezon City.
The defect pointed out is obviously
a typographical error. Precisely, two
search warrants were applied for
and issued because the purpose and
intent were to search two distinct
premises. It would be quite absurd
and illogical for respondent judge to
have issued two warrants intended
for one and the same place. Besides,
the addresses of the places sought
to be searched were specifically set
forth in the application, and since it
was Col. Abadilla himself who
headed the team which executed the
search warrants, the ambiguity that
might have arisen by reason of the
typographical error is more
apparent than real. The fact is that
the place for which Search Warrant
No. 20- 82[b] was applied for was
728 Units C & D, RMS Building,
Quezon Avenue, Quezon City, which
address appeared in the opening
paragraph of the said warrant. 7
Obviously this is the same place that
respondent judge had in mind when
he issued Warrant No. 20-82 [b].
In the determination of whether a
search warrant describes the
premises to be searched with
sufficient particularity, it has been
held "that the executing officer's
prior knowledge as to the place
intended in the warrant is relevant.
This would seem to be especially
true where the executing officer is
the affiant on whose affidavit the
warrant had issued, and when he
knows that the judge who issued the
warrant intended the building
described in the affidavit, And it has
also been said that the executing
officer may look to the affidavit in
the official court file to resolve an
ambiguity in the warrant as to the
place to be searched."
3. Another ground relied upon
to annul the search warrants is the
fact that although the warrants
were directed against Jose Burgos,
Jr. alone, articles b belonging to his
co-petitioners Jose Burgos, Sr.,
Bayani Soriano and the J. Burgos
Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of
Court, enumerates the personal
properties that may be seized under
a search warrant, to wit:
Sec. 2. Personal Property to be
seized. — A search warrant may be
issued for the search and seizure of
the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled
and other proceeds or fruits of the
offense; and
[c] Property used or intended to be
used as the means of committing an
offense.
The above rule does not require that
the property to be seized should be
owned by the person against whom
the search warrant is directed. It
may or may not be owned by him. In
fact, under subsection [b] of the
above-quoted Section 2, one of the
properties that may be seized is
stolen property. Necessarily, stolen
property must be owned by one
other than the person in whose
possession it may be at the time of
the search and seizure. Ownership,
therefore, is of no consequence, and
it is sufficient that the person
against whom the warrant is
directed has control or possession
of the property sought to be seized,
as petitioner Jose Burgos, Jr. was
11 | P a g e
alleged to have in relation to the
articles and property seized under
the warrants.
4. Neither is there merit in
petitioners' assertion that real
properties were seized under the
disputed warrants. Under Article
415[5] of the Civil Code of the
Philippines, "machinery,
receptables, instruments or
implements intended by the owner
of the tenement for an industry or
works which may be carried on in a
building or on a piece of land and
which tend directly to meet the
needs of the said industry or works"
are considered immovable property.
In Davao Sawmill Co. v. Castillo 9
where this legal provision was
invoked, this Court ruled that
machinery which is movable by
nature becomes immobilized when
placed by the owner of the
tenement, property or plant, but not
so when placed by a tenant,
usufructuary, or any other person
having only a temporary right,
unless such person acted as the
agent of the owner.
In the case at bar, petitioners do not
claim to be the owners of the land
and/or building on which the
machineries were placed. This being
the case, the machineries in
question, while in fact bolted to the
ground remain movable property
susceptible to seizure under a
search warrant.
5. The questioned search warrants
were issued by respondent judge
upon application of Col. Rolando N.
Abadilla Intelligence Officer of the
P.C. Metrocom. 10 The application
was accompanied by the Joint
Affidavit of Alejandro M. Gutierrez
and Pedro U. Tango, 11 members of
the Metrocom Intelligence and
Security Group under Col. Abadilla
which conducted a surveillance of
the premises prior to the filing of
the application for the search
warrants on December 7, 1982.
It is contended by petitioners,
however, that the abovementioned
documents could not have provided
sufficient basis for the finding of a
probable cause upon which a
warrant may validly issue in
accordance with Section 3, Article IV
of the 1973 Constitution which affidavit of Alejandro M. Gutierrez
provides: and Pedro U. Tango, "that the
evidence gathered and collated by
SEC. 3. ... and no search warrant or
our unit clearly shows that the
warrant of arrest shall issue except
premises above- mentioned and the
upon probable cause to be
articles and things above-described
determined by the judge, or such
were used and are continuously
other responsible officer as may be
being used for subversive activities
authorized by law, after
in conspiracy with, and to promote
examination under oath or
the objective of, illegal organizations
affirmation of the complainant and
such as the Light-a-Fire Movement,
the witnesses he may produce, and
Movement for Free Philippines, and
particularly describing the place to
April 6 Movement."
be searched and the persons or
things to be seized. In mandating that "no warrant shall
issue except upon probable cause to
We find petitioners' thesis
be determined by the judge, ... after
impressed with merit. Probable
examination under oath or
cause for a search is defined as such
affirmation of the complainant and
facts and circumstances which
the witnesses he may produce; 14
would lead a reasonably discreet
the Constitution requires no less
and prudent man to believe that an
than personal knowledge by the
offense has been committed and
complainant or his witnesses of the
that the objects sought in
facts upon which the issuance of a
connection with the offense are in
search warrant may be justified. In
the place sought to be searched. And
Alvarez v. Court of First Instance, 15
when the search warrant applied for
this Court ruled that "the oath
is directed against a newspaper
required must refer to the truth of
publisher or editor in connection
the facts within the personal
with the publication of subversive
knowledge of the petitioner or his
materials, as in the case at bar, the
witnesses, because the purpose
application and/or its supporting
thereof is to convince the
affidavits must contain a
committing magistrate, not the
specification, stating with
individual making the affidavit and
particularity the alleged subversive
seeking the issuance of the warrant,
material he has published or is
of the existence of probable cause."
intending to publish. Mere
As couched, the quoted averment in
generalization will not suffice. Thus,
said joint affidavit filed before
the broad statement in Col.
respondent judge hardly meets the
Abadilla's application that
test of sufficiency established by
petitioner "is in possession or has in
this Court in Alvarez case.
his control printing equipment and
other paraphernalia, news Another factor which makes the
publications and other documents search warrants under
which were used and are all consideration constitutionally
continuously being used as a means objectionable is that they are in the
of committing the offense of nature of general warrants. The
subversion punishable under search warrants describe the
Presidential Decree 885, as articles sought to be seized in this
amended ..." 12 is a mere conclusion wise:
of law and does not satisfy the
1] All printing equipment,
requirements of probable cause.
paraphernalia, paper, ink, photo
Bereft of such particulars as would
(equipment, typewriters, cabinets,
justify a finding of the existence of
tables, communications/recording
probable cause, said allegation
equipment, tape recorders,
cannot serve as basis for the
dictaphone and the like used and/or
issuance of a search warrant and it
connected in the printing of the "WE
was a grave error for respondent
FORUM" newspaper and any and all
judge to have done so.
documents communication, letters
Equally insufficient as basis for the and facsimile of prints related to the
determination of probable cause is "WE FORUM" newspaper.
the statement contained in the joint
12 | P a g e
2] Subversive documents,
pamphlets, leaflets, books, and other
publication to promote the
objectives and piurposes of the
subversive organization known as
Movement for Free Philippines,
Light-a-Fire Movement and April 6
Movement; and,
3] Motor vehicles used in the
distribution/circulation of the "WE
FORUM" and other subversive
materials and propaganda, more
particularly,
1] Toyota-Corolla, colored
yellow with Plate No. NKA 892;
2] DATSUN pick-up colored
white with Plate No. NKV 969
3] A delivery truck with Plate
No. NBS 524;
4] TOYOTA-TAMARAW,
colored white with Plate No. PBP
665; and,
5] TOYOTA Hi-Lux, pick-up
truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the
search warrant which authorized
the search for "books, records,
pamphlets, cards, receipts, lists,
memoranda, pictures, recordings
and other written instruments
concerning the Communist Party in
Texas," was declared void by the
U.S. Supreme Court for being too
general. In like manner, directions
to "seize any evidence in
connectionwith the violation of SDC
13-3703 or otherwise" have been
held too general, and that portion of
a search warrant which authorized
the seizure of any "paraphernalia
which could be used to violate Sec.
54-197 of the Connecticut General
Statutes [the statute dealing with
the crime of conspiracy]" was held
to be a general warrant, and
therefore invalid. 17 The
description of the articles sought to
be seized under the search warrants
in question cannot be characterized
differently.
In the Stanford case, the U.S.
Supreme Courts calls to mind a
notable chapter in English history:
the era of disaccord between the
Tudor Government and the English
Press, when "Officers of the Crown
were given roving commissions to
search where they pleased in order
to suppress and destroy the
literature of dissent both Catholic
and Puritan Reference herein to
such historical episode would not be
relevant for it is not the policy of our
government to suppress any
newspaper or publication that
speaks with "the voice of non-
conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises
searched were the business and
printing offices of the "Metropolitan
Mail" and the "We Forum
newspapers. As a consequence of
the search and seizure, these
premises were padlocked and
sealed, with the further result that
the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of
previous restraint or censorship
abhorrent to the freedom of the
press guaranteed under the
fundamental law, 18 and constitutes
a virtual denial of petitioners'
freedom to express themselves in
print. This state of being is patently
anathematic to a democratic
framework where a free, alert and
even militant press is essential for
the political enlightenment and
growth of the citizenry.
Respondents would justify the
continued sealing of the printing
machines on the ground that they
have been sequestered under
Section 8 of Presidential Decree No.
885, as amended, which authorizes
"the sequestration of the property of
any person, natural or artificial,
engaged in subversive activities
against the government and its duly
constituted authorities ... in
accordance with implementing rules
and regulations as may be issued by
the Secretary of National Defense."
It is doubtful however, if
sequestration could validly be
effected in view of the absence of
any implementing rules and
regulations promulgated by the
Minister of National Defense.
Besides, in the December 10, 1982
issue of the Daily Express, it was
reported that no less than President
Marcos himself denied the request
of the military authorities to
sequester the property seized from
petitioners on December 7, 1982.
Thus:
The President denied a request flied
by government prosecutors for
sequestration of the WE FORUM
newspaper and its printing presses,
according to Information Minister
Gregorio S. Cendana.
On the basis of court orders,
government agents went to the We
Forum offices in Quezon City and
took a detailed inventory of the
equipment and all materials in the
premises.
Cendaña said that because of the
denial the newspaper and its
equipment remain at the disposal of
the owners, subject to the discretion
of the court.
That the property seized on
December 7, 1982 had not been
sequestered is further confirmed by
the reply of then Foreign Minister
Carlos P. Romulo to the letter dated
February 10, 1983 of U.S.
Congressman Tony P. Hall
addressed to President Marcos,
expressing alarm over the "WE
FORUM " case. 20 In this reply dated
February 11, 1983, Minister Romulo
stated:
2. Contrary to reports,
President Marcos turned down the
recommendation of our authorities
to close the paper's printing
facilities and confiscate the
equipment and materials it uses.
IN VIEW OF THE FOREGOING,
Search Warrants Nos. 20-82[a] and
20-82[b] issued by respondent
judge on December 7, 1982 are
hereby declared null and void and
are accordingly set aside. The
prayer for a writ of mandatory
injunction for the return of the
seized articles is hereby granted and
all articles seized thereunder are
hereby ordered released to
petitioners. No costs.
SO ORDERED.
13 | P a g e
EN BANC
G.R. No. 96080 April 19, 1991
ATTY. MIGUEL P. PADERANGA
petitioner,
vs.
HON. FRANKLIN M. DRILON, HON.
SILVESTRE H. BELLO III, ATTY.
HENRICK F. GINGOYON, HELEN B.
CANOY and REBECCA B. TAN,
respondent
Concordio C. Diel, Constantino G.
Jaraula for petitioner.
Benjamin G. Guimong for private
respondents.
REGALADO, J.: p
In this special civil action for
mandamus and prohibition with
prayer for a writ of preliminary
injunction/restraining order,
petitioner seeks to enjoin herein
public respondents from including
the former as an accused in Criminal
Case No. 86-39 for multiple murder,
through a second amended
information, and to restrain them
from prosecuting him.
The records disclose that on
October 16, 1986, an information
for multiple murder was filed in the
Regional Trial Court, Gingoog City,
against Felipe Galarion, Manuel
Sabit, Cesar Sabit, Julito Ampo,
Eddie Torion, John Doe, Peter Doe
and Richard Doe, for the deaths on
May 1, 1984 of Renato Bucag, his
wife Melchora Bucag, and their son
Renato Bucag II. Venue was,
however, transferred to Cagayan de
Oro City per Administrative Matter
No. 87-2-244.
Only Felipe Galarion was tried and
found guilty as charged. The rest of
the accused remained at large.
Felipe Galarion, however, escaped
from detention and has not been
apprehended since then.
In an amended information filed on
October 6, 1988, Felizardo Roxas,
alias "Ely Roxas," "Fely Roxas" and
"Lolong Roxas," was included as a
co-accused. Roxas retained
petitioner Paderanga as his counsel.
As counsel for Roxas, petitioner
filed, among others, an Omnibus
Motion to dismiss, to Quash the
Warrant of Arrest and to Nullify the
Arraignment on October 14, 1988.
The trial court in an order dated
January 9, 1989, denied this
omnibus motion but directed the
City Prosecutor "to conduct another
preliminary investigation or
reinvestigation in order to grant the
accused all the opportunity to
adduce whatever evidence he has in
support of his defense."
In the course of the preliminary
investigation, through a signed
affidavit, Felizardo Roxas implicated
herein petitioner in the commission
of the crime charged.
The City Prosecutor of Cagayan de
Oro City inhibited himself from
further conducting the preliminary
investigation against petitioner at
the instance of the latter's counsel,
per his resolution dated July 7,
1989. In his first indorsement to the
Department of Justice, dated July 24,
1989, said city prosecutor
requested the Department of Justice
to designate a state prosecutor to
continue the preliminary
investigation against herein
petitioner.
In a resolution dated September 6,
1989,1 respondent State Prosecutor
Henrick F. Gingoyon, who was
designated to continue with the
conduct of the preliminary
investigation against petitioner,
directed the amendment of the
previously amended information to
include and implead herein
petitioner as one of the accused
therein. Petitioner moved for
reconsideration,2 contending that
the preliminary investigation was
not yet completed when said
resolution was promulgated, and
that he was deprived of his right to
present a corresponding counter-
affidavit and additional evidence
crucial to the determination of his
alleged "linkage" to the crime
charged. The motion was, however,
denied by respondent Gingoyon in
his order dated January 29, 1990.
From the aforesaid resolution and
order, petitioner filed a Petition for
Review4 with the Department of
Justice. Thereafter, he submitted a
Supplemental Petition with
Memorandum,5 and then a
Supplemental Memorandum with
Additional Exculpatory/Exonerating
Evidence Annexed,6 attaching
thereto an affidavit of Roxas dated
June 20, 1990 and purporting to be
a retraction of his affidavit of March
30, 1990 wherein he implicated
herein petitioner.
On August 10, 1990, the Department
of Justice, through respondent
Undersecretary Silvestre H. Bello III,
issued Resolution No. 6487
dismissing the said petition for
review. His motion for
reconsideration having been
likewise denied, petitioner then
flied the instant petition for
mandamus and prohibition.
Petitioner raises two basic issues,
namely: (1) that the preliminary
investigation as to him was not
complete; and (2) that there exists
no prima facie evidence or probable
cause to justify his inclusion in the
second amended information.
Preliminary investigation is
generally inquisitorial, and it is
often the only means of discovering
the persons who may be reasonably
charged with a crime, to enable the
fiscal to prepare his complaint or
information. It is not a trial of the
case on the merits and has no
purpose except that of determining
whether a crime has been
committed and whether there is
probable cause to believe that the
accused is guilty thereof, and it does
not place the person against whom
it is taken in jeopardy.
The institution of a criminal action
depends upon the sound discretion
of the fiscal. He has the quasi-
judicial discretion to determine
whether or not a criminal case
should be filed in court.9 Hence, the
general rule is that an injunction
will not be granted to restrain a
criminal prosecution.10 The case of
Brocka, et al. vs. Enrile, et al.11 cites
several exceptions to the rule, to
wit:
a. To afford adequate
protection to the constitutional
rights of the accused;
b. When necessary for the
orderly administration of justice or
14 | P a g e
to avoid oppression or multiplicity
of actions;
c. When there is a pre-judicial
question which is sub judice;
d. When the acts of the officer
are without or in excess of
authority;
e. Where the prosecution is
under an invalid law, ordinance or
regulation;
f. When double jeopardy is
clearly apparent;
g. Where the court has no
jurisdiction over the offense;
h. Where it is a case of
persecution rather than
prosecution;
i. Where the charges are
manifestly false and motivated by
the lust for vengeance; and
j. When there is clearly no
prima facie case against the accused
and a motion to quash on that
ground has been denied.
A careful analysis of the
circumstances obtaining in the
present case, however, will readily
show that the same does not fall
under any of the aforesaid
exceptions. Hence, the petition at
bar must be dismissed.
1. Petitioner avers that he was
deprived of a full preliminary
investigation by reason of the fact
that at the time the resolution of
September 6, 1989 was issued,
there were still several incidents
pending resolution such as the
validity of the testimonies and
affidavits of Felizardo Roxas and
Rogelio Hanopol as bases for
preliminary investigation, the
polygraph test of Roxas which he
failed, and the clarificatory
questions which were supposed to
be propounded by petitioner's
counsel to Roxas and Hanopol.
Petitioner likwise claims that he
was deprived of the opportunity to
file his counter-affidavit to the
subpoena of April 25, 1989. These
contentions are without merit.
Firstly, it will be noted that
petitioner had already filed his
counter-affidavit, pursuant to the
subpoena issued to him on April 17,
1989, wherein he controverted the
charge against him and dismissed it
as a malicious design of his political
opponents and enemies to link him
to the crime. We hold that this is
sufficient compliance with the
procedural requirement of the Rules
of Court, specifically Section 3(b) of
Rule 112 thereof. Besides, petitioner
failed to show that the subpoena
issued on April 25, 1989 involved a
separate complaint charging an
offense different and distinct from
that charged in the complaint
attached to the first subpoena
issued to him earlier.
Secondly, the veracity and
credibility of the witnesses and their
testimonies are matters of defense
best addressed to the trial court for
its appreciation and evaluation.
Thirdly, the right of petitioner to ask
clarificatory questions is not
absolute.1âwphi1 The fiscal has the
discretion to determine whether or
not he will propound these
questions to the parties or
witnesses concerned. As clearly
provided for under Section 3(e),
Rule 112 of the Rules of Court.:
(e) If the investigating officer
believes that there are matters to be
clarified, he may set a hearing to
propound clarificatory questions to
the parties or their witnesses,
during which the parties shall be
afforded an opportunity to be
present but without the right to
examine or cross-examine. If the
parties so desire, they may submit
questions to the investigating officer
which the latter may propound to
the parties or witnesses concerned.
Lastly, it has been held that "the
proper forum before which absence
of preliminary investigation should
be ventilated is the Court of First
Instance of a preliminary
investigation does not go to the
jurisdiction of the court but merely
to the regularity of the proceedings.
It could even be waived. Indeed, it is
frequently waived. These are
matters to be inquired into by the
trail court not an appellate court."
2. Petitioner further submits
that there is no prima facie
evidence, or probable cause, or
sufficient justification to hold him to
a tedious and prolonged public trial,
on the basis of the following
grounds: the questioned resolution
of respondent Gingoyon is full of
factual misrepresentations or
misapprehensions; respondent's
reliance on the decision of the
Regional Trial Court against Felipe
Galarion suffers from constitutional
and procedural infirmities
considering that petitioner was not
a party thereto, much less was he
given any opportunity to comment
on or rebut the prosecution
evidence; reliance on Rogelio
Hanopol's testimony is likewise
"contemptible," it being merely
hearsay in addition to the fact that
petitioner was never given the
opportunity to cross-examine
Hanopol at the time he testified in
court; and the affidavit of Roxas
dated March 30, 1989, which is the
only evidence against petitioner, has
been rendered nugatory by his
affidavit of retraction dated June 20,
1990.
A preliminary investigation is
defined as an inquiry or proceeding
for the purpose of determining
whether there is sufficient ground
to engender a well founded belief
that a crime cognizable by the
Regional Trial Court has been
committed and that the respondent
is probably guilty thereof, and
should be held for trial.13 The
quantum of evidence now required
in preliminary investigation is such
evidence sufficient to "engender a
well founded belief as to the fact of
the commission of a crime and the
respondent's probable guilt thereof.
A preliminary investigation is not
the occasion for the full and
exhaustive display of the parties'
evidence; it is for the presentation
of such evidence only as may
engender a wen grounded belief
that an offense has been committed
and that the accused is probably
guilty thereof.14 We are in accord
with the state prosecutor's findings
in the case at bar that there exists
prima facie evidence of petitioner's
involvement in the commission of
the crime, it being sufficiently
supported by the evidence
presented and the facts obtaining
therein.
15 | P a g e
Likewise devoid of cogency is
petitioner's argument that the
testimonies of Galarion and Hanopol
are inadmissible as to him since he
was not granted the opportunity of
cross-examination.
It is a fundamental principle that the
accused in a preliminary
investigation has no right to cross-
examine the witnesses which the
complainant may present. Section 3,
Rule 112 of the Rules of Court
expressly provides that the
respondent shall only have the right
to submit a counter-affidavit, to
examine all other evidence
submitted by the complainant and,
where the fiscal sets a hearing to
propound clarificatory questions to
the parties or their witnesses, to be
afforded an opportunity to be
present but without the right to
examine or cross-examine. Thus,
even if petitioner was not given the
opportunity to cross-examine
Galarion and Hanopol at the time
they were presented to testify
during the separate trial of the case
against Galarion and Roxas, he
cannot assert any legal right to
cross-examine them at the
preliminary investigation precisely
because such right was never
available to him. The admissibility
or inadmissibility of said
testimonies should be ventilated
before the trial court during the trial
proper and not in the preliminary
investigation.
Furthermore, the technical rules on
evidence are not binding on the
fiscal who has jurisdiction and
control over the conduct of a
preliminary investigation. If by its
very nature a preliminary
investigation could be waived by the
accused, we find no compelling
justification for a strict application
of the evidentiary rules. In addition,
considering that under Section 8,
Rule 112 of the Rules of Court, the
record of the preliminary
investigation does not form part of
the record of the case in the
Regional Trial Court, then the
testimonies of Galarion and Hanopol
may not be admitted by the trial
court if not presented in evidence
by the prosecuting fiscal. And, even
if the prosecution does present such
testimonies, petitioner can always
object thereto and the trial court
can rule on the admissibility
thereof; or the petitioner can,
during the trial, petition said court
to compel the presentation of
Galarion and Hanopol for purposes
of cross-examination.
WHEREFORE, the instant petition is
hereby DISMISSED for lack of merit.
SO ORDERED.
----------xxx----------
EN BANC
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-
appellant.
The Solicitor General for plaintiff-
appellee.
Romulo, Mabanta, Buenaventura,
Sayoc & Delos Angeles for
defendant-appellant.
PADILLA, J.:
In an information dated 15 June
1989, accused-appellant Mikael
Malmstedt (hereinafter referred to
as the accused) was charged before
the Regional Trial Court (RTC) of La
Trinidad, Benguet, Branch 10, in
Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of
Republic Act 6425, as amended,
otherwise known as the Dangerous
Drugs Act of 1972, as amended. The
factual background of the case is as
follows:
Accused Mikael Malmstedt, a
Swedish national, entered the
Philippines for the third time in
December 1988 as a tourist. He had
visited the country sometime in
1982 and 1985.
In the evening of 7 May 1989,
accused left for Baguio City. Upon
his arrival thereat in the morning of
the following day, he took a bus to
Sagada and stayed in that place for
two (2) days.
At around 7:00 o'clock in the
morning of 11 May 1989, accused
went to the Nangonogan bus stop in
Sagada to catch the first available
trip to Baguio City. From Baguio
City, accused planned to take a late
afternoon trip to Angeles City, then
proceed to Manila to catch his flight
out of the country, scheduled on 13
May 1989. From Sagada, accused
took a Skyline bus with body
number 8005 and Plate number
AVC 902.1
At about 8: 00 o'clock in the
morning of that same day (11 May
1989), Captain Alen Vasco, the
Commanding Officer of the First
Regional Command (NARCOM)
stationed at Camp Dangwa, ordered
his men to set up a temporary
checkpoint at Kilometer 14, Acop,
Tublay, Mountain Province, for the
purpose of checking all vehicles
coming from the Cordillera Region.
The order to establish a checkpoint
in the said area was prompted by
persistent reports that vehicles
coming from Sagada were
transporting marijuana and other
prohibited drugs. Moreover,
information was received by the
Commanding Officer of NARCOM,
that same morning that a Caucasian
coming from Sagada had in his
possession prohibited drugs.
The group composed of seven (7)
NARCOM officers, in coordination
with Tublay Police Station, set up a
checkpoint at the designated area at
about 10:00 o'clock in the morning
and inspected all vehicles coming
from the Cordillera Region.
At about 1:30 o'clock in the
afternoon, the bus where accused
was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus
and announced that they were
members of the NARCOM and that
they would conduct an inspection.
The two (2) NARCOM officers
started their inspection from the
front going towards the rear of the
bus. Accused who was the sole
foreigner riding the bus was seated
at the rear thereof.
During the inspection, CIC Galutan
noticed a bulge on accused's waist.
Suspecting the bulge on accused's
waist to be a gun, the officer asked
16 | P a g e
for accused's passport and other
identification papers. When accused
failed to comply, the officer required
him to bring out whatever it was
that was bulging on his waist. The
bulging object turned out to be a
pouch bag and when accused
opened the same bag, as ordered,
the officer noticed four (4)
suspicious-looking objects wrapped
in brown packing tape, prompting
the officer to open one of the
wrapped objects. The wrapped
objects turned out to contain
hashish, a derivative of marijuana.
Thereafter, accused was invited
outside the bus for questioning. But
before he alighted from the bus,
accused stopped to get two (2)
travelling bags from the luggage
carrier.
Upon stepping out of the bus, the
officers got the bags and opened
them. A teddy bear was found in
each bag. Feeling the teddy bears,
the officer noticed that there were
bulges inside the same which did
not feel like foam stuffing. It was
only after the officers had opened
the bags that accused finally
presented his passport.
Accused was then brought to the
headquarters of the NARCOM at
Camp Dangwa, La Trinidad, Benguet
for further investigation. At the
investigation room, the officers
opened the teddy bears and they
were found to also contain hashish.
Representative samples were taken
from the hashish found among the
personal effects of accused and the
same were brought to the PC Crime
Laboratory for chemical analysis.
In the chemistry report, it was
established that the objects
examined were hashish. a offense;
prohibited drug which is a
derivative of marijuana. Thus, an
information was filed against
accused for violation of the
Dangerous Drugs Act.
During the arraignment, accused
entered a plea of "not guilty." For his
defense, he raised the issue of illegal
search of his personal effects. He
also claimed that the hashish was
planted by the NARCOM officers in
his pouch bag and that the two (2)
travelling bags were not owned by
him, but were merely entrusted to
him by an Australian couple whom
he met in Sagada. He further
claimed that the Australian couple
intended to take the same bus with
him but because there were no
more seats available in said bus,
they decided to take the next ride
and asked accused to take charge of
the bags, and that they would meet
each other at the Dangwa Station.
Likewise, accused alleged that when
the NARCOM officers demanded for
his passport and other Identification
papers, he handed to one of the
officers his pouch bag which was
hanging on his neck containing,
among others, his passport, return
ticket to Sweden and other papers.
The officer in turn handed it to his
companion who brought the bag
outside the bus. When said officer
came back, he charged the accused
that there was hashish in the bag.
He was told to get off the bus and
his picture was taken with the
pouch bag placed around his neck.
The trial court did not give credence
to accused's defense.
The claim of the accused that the
hashish was planted by the
NARCOM officers, was belied by his
failure to raise such defense at the
earliest opportunity. When accused
was investigated at the Provincial
Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish
was planted by the NARCOM
officers in his bag. It was only two
(2) months after said investigation
when he told his lawyer about said
claim, denying ownership of the two
(2) travelling bags as well as having
hashish in his pouch bag.
In a decision dated 12 October
1989, the trial court found accused
guilty beyond reasonable doubt for
violation of the Dangerous Drugs
Act, specifically Section 4, Art. II of
RA 6425, as amended.3 The
dispositive portion of the decision
reads as follows:
WHEREFORE, finding the guilt of
the accused Mikael Malmstedt
established beyond reasonable
doubt, this Court finds him GUILTY
of violation of Section 4, Article 11
of Republic Act 6425, as amended,
and hereby sentences him to suffer
the penalty of life imprisonment and
to pay a fine of Twenty Thousand
Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency
and to pay the costs.
Let the hashish subject of this case
be turned over to the First Narcotics
Regional Unit at Camp Bado;
Dangwa, La Trinidad Benguet for
proper disposition under Section
20, Article IV of Republic Act 6425,
as amended.
SO ORDERED.
Seeking the reversal of the decision
of the trial court finding him guilty
of the crime charged, accused
argues that the search of his
personal effects was illegal because
it was made without a search
warrant and, therefore, the
prohibited drugs which were
discovered during the illegal search
are not admissible as evidence
against him.
The Constitution guarantees the
right of the people to be secure in
their persons, houses, papers and
effects against unreasonable
searches and seizures.5 However,
where the search is made pursuant
to a lawful arrest, there is no need to
obtain a search warrant. A lawful
arrest without a warrant may be
made by a peace officer or a private
person under the following
circumstances.
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
(b) When an offense has in fact
just been committed, and he has
personal knowledge of facts
indicating that the person to be
arrested has committed it; and
(c) When the person to be
arrested is a prisoner who has
escaped from a penal establishment
or place where he is serving final
judgment or temporarily confined
while his case is pending, or has
17 | P a g e
escaped while being transferred
from one confinement to another.
In cases falling under paragraphs
(a) and (b) hereof, the person
arrested without a warrant shall be
forthwith delivered to the nearest
police station or jail, and he shall be
proceeded against in accordance
with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested
while transporting prohibited drugs
(hashish). A crime was actually
being committed by the accused and
he was caught in flagrante delicto.
Thus, the search made upon his
personal effects falls squarely under
paragraph (1) of the foregoing
provisions of law, which allow a
warrantless search incident to a
lawful arrest.
While it is true that the NARCOM
officers were not armed with a
search warrant when the search
was made over the personal effects
of accused, however, under the
circumstances of the case, there was
sufficient probable cause for said
officers to believe that accused was
then and there committing a crime.
Probable cause has been defined as
such facts and circumstances which
could lead a reasonable, discreet
and prudent man to believe that an
offense has been committed, and
that the objects sought in
connection with the offense are in
the place sought to be searched.8
The required probable cause that
will justify a warrantless search and
seizure is not determined by any
fixed formula but is resolved
according to the facts of each case.
Warrantless search of the personal
effects of an accused has been
declared by this Court as valid,
because of existence of probable
cause, where the smell of marijuana
emanated from a plastic bag owned
by the accused, or where the
accused was acting suspiciously,
and attempted to flee.
Aside from the persistent reports
received by the NARCOM that
vehicles coming from Sagada were
transporting marijuana and other
prohibited drugs, their
Commanding Officer also received
information that a Caucasian
coming from Sagada on that NARCOM officers to reasonably
particular day had prohibited drugs believe that the accused was trying
in his possession. Said information to hide something illegal from the
was received by the Commanding authorities. From these
Officer of NARCOM the very same circumstances arose a probable
morning that accused came down by cause which justified the
bus from Sagada on his way to warrantless search that was made
Baguio City. on the personal effects of the
accused. In other words, the acts of
When NARCOM received the
the NARCOM officers in requiring
information, a few hours before the
the accused to open his pouch bag
apprehension of herein accused,
and in opening one of the wrapped
that a Caucasian travelling from
objects found inside said bag (which
Sagada to Baguio City was carrying
was discovered to contain hashish)
with him prohibited drugs, there
as well as the two (2) travelling
was no time to obtain a search
bags containing two (2) teddy bears
warrant. In the Tangliben case,13
with hashish stuffed inside them,
the police authorities conducted a
were prompted by accused's own
surveillance at the Victory Liner
attempt to hide his identity by
Terminal located at Bgy. San
refusing to present his passport, and
Nicolas, San Fernando Pampanga,
by the information received by the
against persons engaged in the
NARCOM that a Caucasian coming
traffic of dangerous drugs, based on
from Sagada had prohibited drugs
information supplied by some
in his possession. To deprive the
informers. Accused Tangliben who
NARCOM agents of the ability and
was acting suspiciously and pointed
facility to act accordingly, including,
out by an informer was
to search even without warrant, in
apprehended and searched by the
the light of such circumstances,
police authorities. It was held that
would be to sanction impotence and
when faced with on-the-spot
ineffectiveness in law enforcement,
information, the police officers had
to the detriment of society.
to act quickly and there was no time
to secure a search warrant. WHEREFORE, premises considered,
the appealed judgment of conviction
It must be observed that, at first, the
by the trial court is hereby
NARCOM officers merely conducted
AFFIRMED. Costs against the
a routine check of the bus (where
accused-appellant.
accused was riding) and the
passengers therein, and no
extensive search was initially made.
SO ORDERED.
It was only when one of the officers
noticed a bulge on the waist of Melencio-Herrera, Paras, Feliciano,
accused, during the course of the Bidin, Griño-Aquino, Medialdea,
inspection, that accused was Regalado and Davide, Jr., JJ., concur.
required to present his passport.
The failure of accused to present his Sarmiento, J., is on leave.
identification papers, when ordered
Separate Opinions
to do so, only managed to arouse the
suspicion of the officer that accused NARVASA, J., concurring and
was trying to hide his identity. For is dissenting:
it not a regular norm for an innocent
The ancient tradition that a man's
man, who has nothing to hide from
home is his castle, safe from
the authorities, to readily present
intrusion even by the king, has not
his identification papers when
only found its niche in all our
required to do so?
charters, from 1935 to the present;
The receipt of information by it has also received unvarying
NARCOM that a Caucasian coming recognition and acceptance in our
from Sagada had prohibited drugs case law. The present Constitution
in his possession, plus the declares that —
suspicious failure of the accused to
The right of the people to be secure
produce his passport, taken
in their persons, houses, papers, and
together as a whole, led the
18 | P a g e
effects against unreasonable
searches and seizures of whatever
nature and for any purpose, shall be
inviolable, and no search warrant or
warrant of arrest shall issue except
upon probable cause to be
determined personally by the judge
after examination under oath or
affirmation of the complainant and
the witnesses he may produce, and
particularly describing the place to
be searched, and the persons or
things to be seized.
It further ordains that any evidence
obtained in violation of said right,
among others, "shall be
inadmissible for any purpose in any
proceeding."
The rule is that no person may be
subjected by the police or other
government authority to a search of
his body, or his personal effects or
belongings, or his residence except
by virtue of a search warrant or on
the occasion of a legitimate arrest.
An arrest is legitimate, of course, if
effected by virtue of a warrant of
arrest. Even without a warrant, an
arrest may also be lawfully made by
a peace officer or a private person:
(a) when, in his presence, the
person to be arrested has
committed is actually committing,
or is attempting to commit an
offense;
(b) When an offense has in fact
just been committed, and he has
personal knowledge of facts
indicating that the person to be
arrested has committed it; and
(c) When the person to be
arrested is a prisoner who has
escaped from a penal establishment
or place where he is serving final
judgment or temporarily confined
while his case is pending, or has
escaped while being transferred
from one confinement to another.
In cases falling under paragraphs
(a) and (b) hereof, the person
arrested without a warrant shall be
forthwith delivered to the nearest
police station or jail, and he shall be
proceeded against in accordance
with Rule 112, Section 7.
In any of these instances of a lawful
arrest, the person arrested "may be
searched for dangerous weapons or
anything which may be used as
proof of the commission of an
offense, without a search warrant."
And it has been held that the search
may extend to the area "within his
immediate control," i.e., the area
from which said person arrested
might gain possession of a weapon
or destructible evidence.
Apart from "search incidental to an
arrest," a warrantless search has
also been held to be proper in cases
of "search of a moving vehicle,8 and
"seizure of evidence in plain view."9
This was the pronouncement in
Manipon, Jr. v. Sandiganbayan, 143
SCRA 267, 276, which drew
attention to Moreno v. Ago Chi;10
Alvero v. Dizon,11 Papa v. Mago,12
and an American precedent, Harris
v. U.S.13
If, on the other, a person is searched
without a warrant, or under
circumstances other than those
justifying an arrest without warrant
in accordance with law, supra,
merely on suspicion that he is
engaged in some felonious
enterprise, and in order to discover
if he has indeed committed a crime,
it is not only the arrest which is
illegal but also, the search on the
occasion thereof, as being "the fruit
of the poisonous tree.14 In that
event, any evidence taken, even if
confirmatory of the initial suspicion,
is inadmissible "for any purpose in
any proceeding."15 But the right
against an unreasonable search and
seizure may be waived by the
person arrested, provided he knew
of such right and knowingly decided
not to invoke it.
There is unanimity among the
members of the Court upon the
continuing validity of these
established principles. However, the
Court is divided as regards the
ultimate conclusions which may
properly be derived from the
proven facts and consequently, the
manner in which the principles just
cited should apply thereto.
The proofs of the prosecution and
those of the defense are
diametrically at odds. What is
certain, however, is that the soldiers
had no warrant of arrest when they
conducted a search of Malmstedt's
person and the things in his
possession at the time. Indeed, the
Court a quo acknowledged that the
soldiers could "not be expected to
be armed with a warrant or arrest
nor a search warrant everytime they
establish a temporary checkpoint . . .
(and) no judge would issue them
one considering that searching
questions have to be asked before a
warrant could be issued." Equally
plain is that prior to the search, a
warrantless arrest of Malmstedt
could not validly have been in
accordance with the norms of the
law. For Malmstedt had not
committed, nor was he actually
committing or attempting to commit
a crime, in the soldiers' presence,
nor did said soldiers have personal
and competent knowledge that
Malmstedt had in fact just
committed a crime. All they had was
a suspicion that Malmstedt might
have some prohibited drug on him
or in his bags; all they had was, in
the words of the Trial Court, "the
hope of intercepting any dangerous
drug being transported," or, as the
Office of the Solicitor General
asserts, "information that most of
the buses coming . . . (from the
Cordillera) were transporting
marijuana and other prohibited
drugs."
This case, is remarkably similar to
Peo. v. Aminnudin, decided on July
6, 1988 also by the First Division.17
There, Aminnudin was arrested
without a warrant by PC officers as
he was disembarking from an inter-
island vessel. The officers were
waiting for him because he was,
according to an informer's report,
then transporting marijuana. The
search of Aminnudin's bag
confirmed the informer's report; the
bag indeed contained marijuana.
The Court nevertheless held that
since the PC officers had failed to
procure a search warrant although
they had sufficient time (two days)
to do so and therefore, the case
presented no such urgency as to
justify a warrantless search, the
search of Aminnudin's person and
bag, the seizure of the marijuana
and his subsequent arrest were
illegal; and the marijuana was
inadmissible in evidence in the
19 | P a g e
criminal action subsequently
instituted against Aminnudin for
violating the Dangerous Drugs Act.
There are, on the other hand, other
cases adjudicated by this Court in
which apparently different
conclusions were reached. It is
needful to devote a few words to
them so that the relevant
constitutional and legal
propositions are not
misunderstood.
In People v. Claudio (decision
promulgated on April 15, 1988), the
accused boarded a "Victory Liner"
passenger bus going to Olongapo
from Baguio City. She placed the
plastic bag she was carrying at the
back of the seat then occupied by
Obiña, an INP member "on Detached
Service with the Anti-Narcotics
Unit." This avowedly aroused
Obiña's suspicion, and at the first
opportunity, and without Claudio's
knowledge, he surreptitiously
looked into the plastic bag and
noted that it contained camote tops
as well as a package, and that there
emanated from the package the
smell of marijuana with which he
had become familiar on account of
his work. So when the bus stopped
at Sta. Rita, and Claudio alighted,
Obiña accosted her, showed her his
ID, identified himself as a
policeman, and announced his
intention to search her bag which he
said contained marijuana because of
the distinctive odor detected by
him. Ignoring her plea — "Please go
with me, let us settle this at home"
— he brought her to the police
headquarters., where examination
of the package in Claudio's bag
confirmed his suspicion that it
indeed contained marijuana. The
Court held the warrantless arrest
under the circumstances to be
lawful, the search justified, and the
evidence thus discovered
admissible in evidence against the
accused.
In People v. Tangliben (decision
promulgated on April 6, 1990),19
two police officers and a barangay
tanod were conducting a on hand to enable the PC officers to
"surveillance mission" at the Victory
Liner Terminal at San Nicolas, San
Fernando, Pampanga, "aimed not
only against persons who may
commit misdemeanors . . . (there)
but also on persons who may be
engaging in the traffic of dangerous
drugs based on information
supplied by informers; . . . they
noticed a person carrying a red
travelling bag . . who was acting
suspiciously;" they asked him to
open the bag; the person did so only
after they identified themselves as
peace officers; found in the bag
were marijuana leaves wrapped in
plastic weighing one kilogram, more
or less; the person was then taken
to the police headquarters at San
Fernando, Pampanga, where he was
investigated; and an information
was thereafter filed against that
person, Tangliben, charging him
with a violation of the Dangerous
Drugs Act of 1972 (RA 6425), as
amended. Upon these facts it was
ruled, citing Claudio, supra, that
there was a valid warrantless arrest
and a proper warrantless search
incident thereto.
The facts in Tangliben were
pronounced to be different from
those in People v. Aminnudin, supra.
"In contrast" to Aminnudin where
the Court perceived no urgency as
to preclude the application for and
obtention of a search warrant, it
was declared that the Tangliben
case —
. . . presented urgency. . . (The
evidence revealed) that there was
an informer who pointed to the
accused-appellant as carrying
marijuana . . . Faced with such on-
the-spot information, the police
officers had to act quickly. There
was not enough time to secure a
search warrant . . . To require search
warrants during on-the-spot
apprehensions of drug pushers,
illegal possessors of firearms,
jueteng collectors, smugglers of
contraband goods, robber, etc.
would make it extremely difficult, if
not impossible to contain the crimes
with which these persons are
associated.
In Tangliben, therefore, there was in
the Court's view sufficient evidence
secure a search warrant, had there
been time. But because there was
actually no time to get the warrant,
and there were "on-the-spot"
indications that Tangliben was then
actually committing a crime, the
search of his person and his effects
was considered valid.
Two other decisions presented
substantially similar circumstance
instances: Posadas v. C.A., et al.,
decided on August 2, 1990, and
People v. Moises Maspil, Jr., et al.,
decided on August 20, 1990.
In the first case, Posadas was seen
to be acting suspiciously by two
members of the INP, Davao
Metrodiscom, and when he was
accosted by the two, who identified
themselves as police officers, he
suddenly fled. He was pursued,
overtaken and, notwithstanding his
resistance, placed in custody. The
buri bag Posadas was then carrying
was found to contain a revolver, for
which he could produce no license
or authority to possess, four rounds
of live ammunition, and a tear gas
grenade. He was prosecuted for
illegal possession of firearms and
ammunition and convicted after
trial. This Court affirmed Posadas'
conviction, holding that there was,
in the premises, probable cause for
a search without warrant, i.e., the
appellant was acting suspiciously
and attempted to flee with the buri
bag he had with him at the time. The
Court cited with approval the ruling
of the U.S. Federal Supreme Court in
John W. Terry v. State of Ohio, a
1968 case, which the Solicitor
General had invoked to justify the
search.
In the case of Maspil, et al., a
checkpoint was set up by elements
of the First Narcotics Regional Unit
of the Narcotics Command at
Sayangan, Atok, Benguet, to
monitor, inspect and scrutinize
vehicles on the highway going
towards Baguio City. This was done
because of a confidential report by
informers that Maspil and another
person, Bagking, would be
transporting a large quantity of
marijuana to Baguio City. In fact, the
informers were with the policemen
manning the checkpoint. As
expected, at about 2 o'clock in the
early morning of November 1, 1986,
a jeepney approached the
checkpoint, driven by Maspil, with
Bagking as passenger. The officers
20 | P a g e
stopped the vehicle and saw that on
it were loaded 2 plastic sacks, a jute
sack, and 3 big round tin cans. When
opened, the sacks and cans were
seen to contain what appeared to be
marijuana leaves. The policemen
thereupon placed Maspil and
Bagking under arrest, and
confiscated the leaves which, upon
scientific examination, were verified
to be marijuana leaves. The Court
upheld the validity of the search
thus conducted, as being incidental
to a lawful warrantless arrest,23
and declared that, as in Tangliben,
supra, Maspil and Bagking had been
caught in flagrante delicto
transporting prohibited drugs at the
time of their arrest. Again, the Court
took occasion to distinguish the case
from Aminnudin24 in which, as
aforestated, it appeared that the
police officers were aware of
Aminnudin's identity, his projected
criminal enterprise and the vessel
on which he would be arriving, and,
equally as importantly, had
sufficient time and opportunity to
obtain a search warrant. In the case
of Maspil and Bagking, the Court
found that the officers concerned
had no exact description of the
vehicle the former would be using
to transport marijuana, and no
inkling of the definite time of the
suspects' arrival, and pointed out
that a jeepney on the road is not the
same as a passenger boat on the
high seas whose route and time of
arrival are more or less certain, and
which ordinarily cannot deviate
from or otherwise alter its course,
or select another destination.
The most recent decision treating of
warrantless search and seizure
appears to be People v. Lo Ho Wing;
et al., G.R. No. 88017, decided on
January 21, 1991 (per Gancayco, J.).
In that case, an undercover or "deep
penetration" agent, Tia, managed
somehow to gain acceptance into a
group of suspected drug smugglers,
which included Peter Lo and Lim
Ching Huat. Tia accompanied Peter
Lo to Guangzhou, China, where he
saw him and other person empty
the contents of six (6) tins of tea and
replace them with white powder. On
their return to Manila with the cans
of substituted "tea," they were met
at the airport by Lim. As they were
leaving the airport in separate
vehicles, they were intercepted by
officers and operatives of the
Narcotics Command (NARCOM),
who had earlier been tipped off by
Tia, and placed under arrest. As
search of the luggage brought in by
Tia and Peter Lo, loaded on the
group's vehicles, quickly disclosed
the six (6) tin cans containing fifty-
six (56) bags of white crystalline
powder which, upon analysis, was
identified as metamphetamine. Tia,
Lo and Lim were indicted for
violation of the Dangerous Drugs
Act of 1972. Tia was discharged as
state witness. Lo and Lim were
subsequently convicted and
sentenced to life imprisonment. One
of the questions raised by them in
this Court on appeal was whether
the warrantless search of their
vehicles and personal effects was
legal. The Court, citing Manipon, Jr.
v. Sandiganbayan, 143 SCRA 267
(1986),26 held legal the search of
the appellants' moving vehicles and
the seizure therefrom of the
dangerous drug, considering that
there was intelligence information,
including clandestine reports by a
planted spy actually participating in
the activity, that the appellants were
bringing prohibited drugs into the
country; that the requirement of
obtaining a search warrant "borders
on the impossible in the case of
smuggling effected by the use of a
moving vehicle that can transport
contraband from one place to
another with impunity," and "it is
not practicable to secure a warrant
because the vehicle can be quickly
moved out of the locality or
jurisdiction in which the warrant
must be sought.
In all five cases, Claudio, Tangliben,
Posadas, Maspil, and Lo Ho Wing,
facts existed which were found by
the Court as justifying warantless
arrests. In Claudio, the arresting
officer had secretly ascertained that
the woman he was arresting was in
fact in possession of marijuana; he
had personally seen that her bag
contained not only vegetables but
also a package emitting the odor of
marijuana. In Tangliben, the person
arrested and searched was acting
suspiciously, and had been
positively pointed to as carrying
marijuana. And in both cases, the
accused were about to board
passenger buses, making it urgent
for the police officers concerned to
take quick and decisive action. In
Posadas, the person arrested and
searched was acting suspiciously,
too, and when accosted had
attempted to flee from the police
officers. And in Maspil and Lo Ho
Wing, there was definite
information of the precise identity
of the persons engaged in
transporting prohibited drugs at a
particular time and place.
Now, as regards the precise issue at
hand, whether or not the facts in the
case at bar make out a legitimate
instance of a warrantless search and
seizure, there is, as earlier pointed
out, a regrettable divergence of
views among the members of the
Court.
Contrary to the conclusion reached
by the majority, I believe that the
appellant should be absolved on
reasonable doubt. There was in this
case no confidential report from, or
positive identification by an
informer; no attempt to flee; no bag
or package emitting tell-tale odors;
no other reasonably persuasive
indications that Malmstedt was at
the time in process of perpetrating
the offense for which he was
subsequently prosecuted. Hence,
when the soldiers searched
Malmstedt's pouch and the bags in
his possession, they were simply
"fishing" for evidence. It matters not
that the search disclosed that the
bags contained prohibited
substances, confirming their initial
information and suspicion. The
search was not made by virtue of a
warrant or as an incident of a lawful
warrantless arrest, i.e., under
circumstances sufficient to
engender a reasonable belief that
some crime was being or about to
be committed, or adjust been
committed. There was no intelligent
and intentional waiver of the right
against unreasonable searches and
seizure. The search was therefore
illegal, since the law requires that
there first be a lawful arrest of an
individual before a search of his
body and his belongings may licitly
be made. The process cannot be
21 | P a g e
reversed, i.e., a search be first
undertaken, and then an arrest
effected, on the strength of the
evidence yielded by the search. An
arrest made in that case would be
unlawful, and the search
undertaken as an incident of such an
unlawful arrest, also unlawful.
The fact that when investigated at
the headquarters of the Narcotic
Command at Camp Dangwa, La
Trinidad, Malmstedt had, it is said,
willingly admitted that there were
was hashish inside the "teddy
bears" in the luggage found in his
possession — an admission
subsequently confirmed by
laboratory examination — does not
help the cause of the prosecution
one bit. Nothing in the record even
remotely suggests that Malmstedt
was accorded the rights guaranteed
by the Constitution to all persons
under custodial investigation. He
was not informed, prior to being
interrogated, that he had the "right
to remain silent and to have
competent and independent counsel
preferably of his own choice," and
that if he could not afford the
services of counsel, he would be
provided with one; not does it
appear at all that he waived those
rights "in writing and in the
presence of counsel." The soldiers
and the police officers simply went
ahead with the investigation of
Malmstedt, without counsel. The
admissions elicited from Malmstedt
under these circumstances, as the
Constitution clearly states, are
"inadmissible in evidence against
him.
The prohibited drugs supposedly
discovered in Malmstedt's bags,
having been taken in violation of the
constitutional right against
unreasonable searches and seizures,
are inadmissible against him "for
any purpose in any proceeding."
Also pronounced as incompetent
evidence against him are the
admissions supposedly made by
him without his first being accorded
the constitutional rights of persons
under custodial investigation.
Without such object evidence and
admissions, nothing remains of the
case against Malmstedt.
It may be conceded that, as the Trial
Court points out, the evidence
presented by Malmstedt in his
defense is feeble, unworthy of
credence. This is beside the point;
for conformably to the familiar
axiom, the State must rely on the
strength of its evidence and not on
the weakness of the defense. The
unfortunate fact is that although the
existence of the hashish is an
objective physical reality that
cannot but be conceded, there is in
law no evidence to demonstrate
with any degree of persuasion,
much less beyond reasonable doubt,
that Malmstedt was engaged in a
criminal activity. This is the paradox
created by the disregard of the
applicable constitutional
safeguards. The tangible benefit is
that the hashish in question has
been correctly confiscated and thus
effectively withdrawn from private
use.
What is here said should not by any
means be taken as a disapproval or
a disparagement of the efforts of the
police and military authorities to
deter and detect offenses, whether
they be possession of and traffic in
prohibited drugs, or some other.
Those efforts obviously merit the
support and commendation of the
Courts and indeed of every
responsible citizen. But those efforts
must take account of the basic rights
granted by the Constitution and the
law to persons who may fall under
suspicion of engaging in criminal
acts. Disregard of those rights may
not be justified by the objective of
ferreting out and punishing crime,
no matter how eminently desirable
attainment of that objective might
be. Disregard of those rights, as this
Court has earlier stressed, may
result in the escape of the guilty, and
all because the "constable has
blundered," rendering the evidence
inadmissible even if truthful or
otherwise credible.
I therefore vote to reverse the Trial
Court's judgment of October 12,
1989 and to acquit the appellant on
reasonable doubt.
CRUZ, J., dissenting:
I join Mr. Justice Andres R. Narvasa
in his dissent, which I believe
represents the correct application to
the facts of this case of the
provisions of the Bill of Rights and
the Rules of Court on searches and
seizures. It is consistent with my
ponencia in People v. Aminnudin,
163 SCRA 402, and also with Alih v.
Castro, 151 SCRA 279, the latter
being a unanimous decision of the
Court en banc, and my dissents in
Umil v. Ramos (on warrantless
arrests, 187 SCRA 311, Valmonte v.
De Villa (on checkpoints), 178, SCRA
211, 185 SCRA 665, and Guazon v.
De Villa (on "zonas"), 181 SCRA 623.
I write this separate opinion merely
to remark on an observation made
during the deliberation on this case
that some members of the Court
seem to be coddling criminals
instead of extending its protection
to society, which deserves our
higher concern. The inference is that
because of our wrong priorities,
criminals are being imprudently let
free, to violate our laws again; and it
is all our fault.
Believing myself to be among those
alluded to, I will say without
apology that I do not consider a
person a criminal, until he is
convicted by final judgment after a
fair trial by a competent and
impartial court. Until then, the
Constitution bids us to presume him
innocent. He may seem boorish or
speak crudely or sport tattoos or
dress weirdly or otherwise fall short
of our own standards of propriety
and decorum. None of these makes
him a criminal although he may look
like a criminal.
It is so easy to condemn a person on
the basis of his appearance but it is
also so wrong.
On the question before us, it seems
to be the inclination of some judges
to wink at an illegal search and
seizure as long as the suspect has
been actually found in possession of
a prohibited article That fact will
retroactively validate the violation
of the Bill of Rights for after all, as
they would rationalize, the suspect
is a criminal. What matters to them
is the fact of illegal possession, not
the fact of illegal search and seizure.
This kind of thinking takes us back
to the intolerant days of Moncado v.
22 | P a g e
People's Court, 80 Phil. 1, which was
discredited in Stonehill v. Diokno,
20 SCRA 383, even before it was
definitely rejected by an express
provision in the 1973 Constitution.
That provision, which has been
retained in the present Constitution,
again explicitly declares that any
evidence illegally obtained "shall be
inadmissible for any purpose in any
proceeding."
The fruit of the poisonous tree
should not be allowed to poison our
system of criminal justice.1âwphi1
In the case at bar, the search was
made at a checkpoint established for
the preposterous reason that the
route was being used by marijuana
dealers and on an individual who
had something bulging at his waist
that excited the soldier's suspicion.
Was that probable cause? The
ponencia notes that the military had
advance information that
Caucasian was coming from the
Sagada with prohibited drugs in his
possession. This is what the military
says now, after the fact, to justify the
warrantless search. It is so easy to
make such a claim, and I am
surprised that the majority should
readily accept it.
The conclusion that there was
probable cause may have been
influenced by the subsequent
discovery that the accused was
carrying a prohibited drug. This is
supposed to justify the soldier's
suspicion. In other words, it was the
fact of illegal possession that
retroactively established the
probable cause that validated the
illegal search and seizure. It was the
fruit of the poisonous tree that
washed clean the tree itself.
In Olmstead v. U.S., 277 U.S. 438,
Justice Holmes said sixty-four years
ago:
. . . It is desirable that criminals
should be detected, and to that end
that all available evidence should be
used.1avvphi1 It is also desirable
that the government should not
itself foster and pay for other
crimes, when they are the means by
which the evidence is to be
obtained. If it pays its officers for
having got evidence by crime, I do
not see why it may not as well pay
them for getting it in the same way,
and I can attach no importance to
protestations of disapproval if it
knowingly accepts and pays and
announces that in the future it will
pay for the fruits. We have to
choose, and for my part I think it a
less evil that some criminals should
escape than that the government
should play an ignoble part.
If by deterring the government from
playing "an ignoble part," I am
"coddling criminals," I welcome the
accusation and take pride in it. I
would rather err in favor of the
accused who is impaled with
outlawed evidence than exalt order
at the price of liberty.
----------------xxx---------------
THIRD DIVISION
G.R. No. 96177 January 27, 1993
a evidence of the prosecution was
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs.
MARI MUSA y HANTATALU, accused-
appellant.
The Solicitor General for plaintiff-
appellee.
Pablo L. Murillo for
appellant.
ROMERO, J.:
The appellant, Mari Musa, seeks, in
this appeal, the reversal of the
decision, dated August 31, 1990, 1
of the Regional Trial Court (RTC) of
Zamboanga City, Branch XII, finding
him guilty of selling marijuana in
violation of Article II, Section 4 of
Republic Act No. 6425, as amended,
otherwise known as the Dangerous
Drugs Act of 1972.
The information filed on December
15, 1989 against the appellant
reads:
That on or about December 14,
1989, in the City of Zamboanga,
Philippines, and within the
jurisdiction of this Honorable Court,
the
above-named accused, not being
authorized by law, did then and
there, wilfully, unlawfully and
feloniously sell to one SGT. AMADO
ANI, two (2) wrappers containing
dried marijuana leaves, knowing the
same to be a prohibited drug.
CONTRARY TO LAW.
Upon his arraignment on January
11, 1990, the appellant pleaded not
guilty.
At the trial, the prosecution
presented three (3) witnesses,
namely: (1) Sgt. Amado Ani, Jr. of
the 9th Narcotics Command
(NARCOM) of Zamboanga City, who
acted as poseur-buyer in the buy-
bust operation made against the
appellant; (2) T/Sgt. Jesus Belarga,
also of the 9th Narcotics Command
of Zamboanga City, who was the
NARCOM team leader of the buy-
bust operation; and (3) Athena Elisa
P. Anderson, the Document
Examiner and Forensic Chemist of
PC-INP Crime Laboratory of
Regional Command (RECOM) 9. The
summarized by the trial court as
follows:
Prosecution evidence shows that in
the morning of December 13, 1989,
T/Sgt. Jesus Belarga, leader of a
NARCOTICS COMMAND (NARCOM)
team based at Calarian, Zamboanga
accused-
City, instructed Sgt. Amado Ani to
conduct surveillance and test buy on
a certain Mari Musa of Suterville,
Zamboanga City. Information
received from civilian informer was
that this Mari Musa was engaged in
selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM
agent, proceeded to Suterville, in
company with a NARCOM civilian
informer, to the house of Mari Musa
to which house the civilian informer
had guided him. The same civilian
informer had also described to him
the appearance of Mari Musa.
Amado Ani was able to buy one
newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt.
Ani returned to the NARCOM office
and turned over the newspaper-
wrapped marijuana to T/Sgt. Jesus
Belarga. Sgt. Belarga inspected the
stuff turned over to him and found it
to be marijuana.
The next day, December 14, 1989,
about 1:30 P.M., a buy-bust was
planned. Sgt. Amado Ani was
assigned as the poseur buyer for
which purpose he was given P20.00
23 | P a g e
(with SN GA955883) by Belarga.
The buy-bust money had been taken
by T/Sgt. Jesus Belarga from M/Sgt.
Noh Sali Mihasun, Chief of
Investigation Section, and for which
Belarga signed a receipt (Exh. "L" &
"L-l" ) The team under Sgt.
Foncargas was assigned as back-up
security. A pre-arranged signal was
arranged consisting of Sgt. Ani's
raising his right hand, after he had
succeeded to buy the marijuana. The
two NARCOM teams proceeded to
the target site in two civilian
vehicles. Belarga's team was
composed of Sgt. Belarga, team
leader, Sgt. Amado Ani, poseur
buyer, Sgt. Lego and Sgt. Biong.
Arriving at the target site, Sgt. Ani
proceeded to the house of Mari
Musa, while the rest of the NARCOM
group positioned themselves at
strategic places about 90 to 100
meters from Mari Musa's house.
T/Sgt. Belarga could see what went
on between Ani and suspect Mari
Musa from where he was. Ani
approached Mari Musa, who came
out of his house, and asked Ani what
he wanted. Ani said he wanted some
more stuff. Ani gave Mari Musa the
P20.00 marked money. After
receiving the money, Mari Musa
went back to his house and came
back and gave Amado Ani two
newspaper wrappers containing
dried marijuana. Ani opened the
two wrappers and inspected the
contents. Convinced that the
contents were marijuana, Ani
walked back towards his
companions and raised his right
hand. The two NARCOM teams,
riding the two civilian vehicles, sped
towards Sgt. Ani. Ani joined
Belarga's team and returned to the
house.
At the time Sgt. Ani first approached
Mari Musa, there were four persons
inside his house: Mari Musa,
another boy, and two women, one of
whom Ani and Belarga later came to
know to be Mari Musa's wife. The
second time, Ani with the NARCOM
team returned to Mari Musa's
house, the woman, who was later
known as Mari Musa's wife, slipped
away from the house. Sgt. Belarga
frisked Mari Musa but could not find
the P20.00 marked money with him.
Mari Musa was then asked where
the P20.00 was and he told the
NARCOM team he has given the
money to his wife (who had slipped
away). Sgt. Belarga also found a
plastic bag containing dried
marijuana inside it somewhere in
the kitchen. Mari Musa was then
placed under arrest and brought to
the NARCOM office. At Suterville,
Sgt. Ani turned over to Sgt. Belarga
the two newspaper-wrapped
marijuana he had earlier bought
from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa
first gave his name as Hussin Musa.
Later on, Mari Musa gave his true
name — Mari Musa. T/Sgt. Jesus
Belarga turned over the two
newspaper-wrapped marijuana
(bought at the buy-bust), the one
newspaper-wrapped marijuana
(bought at the test-buy) and the
plastic bag containing more
marijuana (which had been taken
by Sgt. Lego inside the kitchen of
Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for
laboratory examination. The
turnover of the marijuana specimen
to the PC Crime Laboratory was by
way of a letter-request, dated
December 14, 1989 (Exh. "B"),
which was stamped "RECEIVED" by
the PC Crime Laboratory (Exh. "B-
1") on the same day.
Mrs. Athena Elisa P. Anderson, the
Forensic Chemist of the PC Crime
Laboratory, examined the marijuana
specimens subjecting the same to
her three tests. All submitted
specimens she examined gave
positive results for the presence of
marijuana. Mrs. Anderson reported
the results of her examination in her
Chemistry Report D-100-89, dated
December 14, 1989, (Exh. "J", "J-1",
"J-2", "J-3", "J-4" and "J-5"). Mrs.
Anderson identified in court the two
newspaper wrapped marijuana
bought at the buy-bust on December
14, 1989, through her initial and the
weight of each specimen written
with red ink on each wrapper (Exhs.
"C-1" and "D-1"). She also identified
the one newspaper-wrapped
marijuana bought at the test-buy on
December 13, 1989, through her
markings (Exh. "E-1"). Mrs.
Anderson also identified her
Chemistry Report (Exh. "J" & sub-
markings.)
T. Sgt. Belarga identified the two
buy-bust newspaper wrapped
marijuana through his initial, the
words "buy-bust" and the words
"December 14, 1989, 2:45 P.M."
(written on Exhs. "C" and "D").
Belarga also identified the receipt of
the P20 marked money (with SN
GA955883) (Exh. "L"), dated
December 14, 1989, and his
signature thereon (Exh.
"L-1"). He also identified the letter-
request, dated December 14, 1989,
addressed to the PC Crime
Laboratory (Exh. "B") and his
signature thereon (Exh. "B-2") and
the stamp of the PC Crime
Laboratory marked "RECEIVED"
(Exh. "B-1").
For the defense, the following
testified as witnesses: (1) the
accused-appellant Mari H. Musa;
and (2) Ahara R. Musa, his wife. The
trial court summarized the version
of the defense, thus:
[O]n December 14, 1989, at about
1:30 in the afternoon, Mari Musa
was in his house at Suterville,
Zamboanga City. With him were his
wife, Ahara Musa, known as Ara, his
one-year old child, a woman
manicurist, and a male cousin
named Abdul Musa. About 1:30 that
afternoon, while he was being
manicured at one hand, his wife was
inside the one room of their house,
putting their child to sleep. Three
NARCOM agents, who introduced
themselves as NARCOM agents,
dressed in civilian clothes, got inside
Mari Musa's house whose door was
open. The NARCOM agents did not
ask permission to enter the house
but simply announced that they
were NARCOM agents. The NARCOM
agents searched Mari Musa's house
and Mari Musa asked them if they
had a search warrant. The NARCOM
agents were just silent. The
NARCOM agents found a red plastic
bag whose contents, Mari Musa said,
he did not know. He also did not
know if the plastic bag belonged to
his brother, Faisal, who was living
with him, or his father, who was
living in another house about ten
arms-length away. Mari Musa, then,
24 | P a g e
was handcuffed and when Mari
Musa asked why, the NARCOM
agents told him for clarification.
Mari Musa was brought in a pick-up,
his wife joining him to the NARCOM
Office at Calarian, Zamboanga City.
Inside the NARCOM Office, Mari
Musa was investigated by one
NARCOM agent which investigation
was reduced into writing. The
writing or document was
interpreted to Mari Musa in Tagalog.
The document stated that the
marijuana belonged to Mari Musa
and Mari Musa was asked to sign it.
But Mari Musa refused to sign
because the marijuana did not
belong to him. Mari Musa said he
was not told that he was entitled to
the assistance of counsel, although
he himself told the NARCOM agents
he wanted to be assisted by counsel.
Mari Musa said four bullets were
then placed between the fingers of
his right hand and his fingers were
pressed which felt very painful. The
NARCOM agents boxed him and
Mari Musa lost consciousness. While
Mari Musa was maltreated, he said
his wife was outside the NARCOM
building. The very day he was
arrested (on cross-examination
Mari Musa said it was on the next
day), Mari Musa was brought to the
Fiscal's Office by three NARCOM
agents. The fiscal asked him if the
marijuana was owned by him and
he said "not." After that single
question, Mari Musa was brought to
the City Jail. Mari Musa said he did
not tell the fiscal that he had been
maltreated by the NARCOM agents
because he was afraid he might be
maltreated in the fiscal's office.
Mari Musa denied the NARCOM
agents' charge that he had sold two
wrappers of marijuana to them; that
he had received from them a P20.00
bill which he had given to his wife.
He did not sell marijuana because
he was afraid that was against the
law and that the person selling
marijuana was caught by the
authorities; and he had a wife and a
very small child to support. Mari
Musa said he had not been arrested
for selling marijuana before.
After trial, the trial court rendered
the assailed decision with the
following disposition:
WHEREFORE, finding accused Mari
Musa y Hantatalu guilty beyond
reasonable doubt of selling
marijuana and pursuant to Sec. 4,
Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and
to pay the fine of P20,000.00, the
latter imposed without subsidiary
imprisonment.
In this appeal, the appellant
contends that his guilt was not
proved beyond reasonable doubt
and impugns the credibility of the
prosecution witnesses.
The appellant claims that the
testimony of Sgt. Ani, the poseur-
buyer, is not credible because: (1)
prior to the buy-bust operation,
neither Sgt. Ani nor the other
NARCOM agents were personally
known by the appellant or vice-
versa; and (2) there was no witness
to the alleged giving of the two
wrappers of marijuana by the
appellant to Sgt. Ani.
Sgt. Ani testified that on December
13, 1989, upon instruction by T/Sgt.
Jesus Belarga, he conducted a test-
buy operation on the appellant
whereby he bought one wrapper of
marijuana for P15.00 from the
latter. He reported the successful
operation to T/Sgt. Belarga on the
same day. Whereupon, T/Sgt.
Belarga conducted a conference to
organize a buy-bust operation for
the following day.
On December 14, 1989, at 1:30 p.m.,
two NARCOM teams in separate
vehicles headed by T/Sgt. Belarga
and a certain Sgt. Foncardas went to
the place of operation, which was
the appellant's house located in
Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with
the team of T/Sgt. Belarga, whose
other members were Sgts. Lego and
Biong. 10 Sgt. Ani was given a
marked P20.00 bill by T/Sgt.
Belarga, which was to be used in the
operation.
Upon reaching the place, the
NARCOM agents positioned
themselves at strategic places. 11
Sgt. Ani approached the house.
Outside the house, the appellant
asked Sgt. Ani what he wanted. Sgt.
Ani asked him for some more
marijuana. 12 Sgt. Ani gave him the
marked P20.00 bill and the
appellant went inside the house and
brought back two paper wrappers
containing marijuana which he
handed to Sgt. Ani. From his
position, Sgt. Ani could see that
there were other people in the
house.
After the exchange, Sgt. Ani
approached the other NARCOM
agents and made the pre-arranged
signal of raising his right hand. 15
The NARCOM agents, accompanied
by Sgt. Ani, went inside the house
and made the arrest. The agents
searched the appellant and unable
to find the marked money, they
asked him where it was. The
appellant said that he gave it to his
wife.
The Court, after a careful reading of
the record, finds the testimony of
Sgt. Ani regarding the buy-bust
operation, which resulted in the
apprehension, prosecution and
subsequent conviction of the
appellant, to be direct, lucid and
forthright. Being totally untainted
by contradictions in any of the
material points, it deserves
credence.
The contention that the appellant
could not have transacted with Sgt.
Ani because they do not know each
other is without merit. The day
before the buy-bust operation, Sgt.
Ani conducted a test-buy and he
successfully bought a wrapper of
marijuana from the appellant.
Through this previous transaction,
Sgt. Ani was able to gain the
appellant's confidence for the latter
to sell more marijuana to Sgt. Ani
the following day, during the buy-
bust operation. Moreover, the Court
has held that what matters is not an
existing familiarity between the
buyer and the seller, for quite often,
the parties to the transaction may
be strangers, but their agreement
and the acts constituting the sale
and delivery of the marijuana.
The appellant, again to cast doubt
on the credibility of Sgt. Ani, argues
that it was impossible for the
25 | P a g e
appellant to sell marijuana while his
wife, cousin and manicurist were
present. But the place of the
commission of the crime of selling
prohibited drugs has been held to
be not crucial 18 and the presence
of other people apart from the
buyer and seller will not necessarily
prevent the consummation of the
illegal sale. As the Court observed in
People v. Paco, these factors may
sometimes camouflage the
commission of the crime. In the
instant case, the fact that the other
people inside the appellant's house
are known to the appellant may
have given him some assurance that
these people will not report him to
the authorities.
The appellant, besides assailing Sgt.
Ani's credibility, also questions the
credibility of T/Sgt. Belarga. The
appellant submits that since T/Sgt.
Belarga admitted that he was about
90 meters away from Sgt. Ani and
the appellant, he could not have
possibly witnessed the sale. The
appellant invokes People v.
Ale 20 where the Court observed
that from a distance of 10-15
meters, a policeman cannot
distinguish between marijuana
cigarette from ordinary ones by the
type of rolling done on the cigarette
sticks. And since T/Sgt. Belarga
allegedly did not see the sale, the
appellant contends that the
uncorroborated testimony of Sgt.
Ani can not stand as basis for his
conviction.
People v. Ale does not apply here
because the policeman in that case
testified that he and his companion
were certain that the appellant
therein handed marijuana cigarettes
to the poseur-buyer based on the
appearance of the cigarette sticks.
The Court rejected this claim,
stating that:
This Court cannot give full credit to
the testimonies of the prosecution
witnesses marked as they are with
contradictions and tainted with
inaccuracies.
Biñan testified that they were able
to tell that the four cigarettes were
marijuana cigarettes because
according to him, the rolling of
ordinary cigarettes are different
from those of marijuana cigarettes.
(tsn, November 13, 1984, p. 10).
It is however, incredible to believe
that they could discern the type of
rolling done on those cigarettes
from the distance where they were
observing the alleged sale of more
or less 10 to 15 meters.
In the case at bar, however, T/Sgt.
Belarga did not positively claim that
he saw the appellant hand over
marijuana to Sgt. Ani. What he said
was that there was an exchange of
certain articles between the two.
The relevant portion of T/Sgt.
Belarga's testimony reads:
Q Now, do you remember
whether Sgt. Ani was able to reach
the house of Mari Musa?
A Yes, ma'am.
Q After reaching Mari Musa,
did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the
stainless owner type jeep where Sgt.
Lego, Sgt. Biong were boarded, I saw
that Sgt. Ani proceeded to the house
near the road and he was met by
one person and later known as Mari
Musa who was at the time wearing
short pants and later on I saw that
Sgt. Ani handed something to him,
thereafter received by Mari Musa
and went inside the house and came
back later and handed something to
Sgt. Ani.
Contrary to the contention of the
appellant, it was not impossible for
T/Sgt. Belarga to have seen, from a
distance of 90-100 meters, Sgt. Ani
hand to the appellant "something"
and for the latter to give to the
former "something."
Notwithstanding the fact that T/Sgt.
Belarga could not have been certain
that what Sgt. Ani received from the
appellant was marijuana because of
the distance, his testimony,
nevertheless, corroborated the
direct evidence, which the Court
earlier ruled to be convincing,
presented by Sgt. Ani on the
following material points: (1) T/Sgt.
Belarga instructed Sgt. Ani to
conduct a surveillance and test-buy
operation on the appellant at
Suterville, Zamboanga City on
December 13, 1989; 23 (2) later
that same day, Sgt. Ani went back to
their office and reported a
successful operation and turned
over to T/Sgt. Belarga one wrapper
of marijuana; 24 (3) T/Sgt. Belarga
then organized a team to conduct a
buy-bust operation the following
day; 25 (4) on December 14, 1989,
T/Sgt. Belarga led a team of
NARCOM agents who went to
Suterville, Zamboanga City; 26 (5)
T/Sgt. Belarga gave a P20.00
marked bill to Sgt. Ani which was to
be used in the buy-bust operation;
27 (6) upon the arrival of the
NARCOM agents in Suterville,
Zamboanga City, Sgt. Ani proceeded
to the house of the appellant while
some agents stayed in the vehicles
and others positioned themselves in
strategic places; 28 the appellant
met Sgt. Ani and an exchange of
articles took place.
The corroborative testimony of
T/Sgt. Belarga strengthens the
direct evidence given by Sgt. Ani.
Additionally, the Court has ruled
that the fact that the police officers
who accompanied the poseur-buyer
were unable to see exactly what the
appellant gave the poseur-buyer
because of their distance or position
will not be fatal to the prosecution's
case 30 provided there exists other
evidence, direct or circumstantial,
e.g., the testimony of the poseur-
buyer, which is sufficient to prove
the consummation of the sale of the
prohibited drug
The appellant next assails the
seizure and admission as evidence
of a plastic bag containing
marijuana which the NARCOM
agents found in the appellant's
kitchen. It appears that after Sgt. Ani
gave the pre-arranged signal to the
other NARCOM agents, the latter
moved in and arrested the appellant
inside the house. They searched him
to retrieve the marked money but
didn't find it. Upon being
questioned, the appellant said that
he gave the marked money to his
wife. 31 Thereafter, T/Sgt. Belarga
and Sgt. Lego went to the kitchen
26 | P a g e
and noticed what T/Sgt. Belarga
described as a "cellophane colored
white and stripe hanging at the
corner of the kitchen." 32 They
asked the appellant about its
contents but failing to get a
response, they opened it and found
dried marijuana leaves. At the trial,
the appellant questioned the
admissibility of the plastic bag and
the marijuana it contains but the
trial court issued an Order ruling
that these are admissible in
evidence.
Built into the Constitution are
guarantees on the freedom of every
individual against unreasonable
searches and seizures by providing
in Article III, Section 2, the
following:
The right of the people to be secure
in their persons, houses, papers, and
effects against unreasonable
searches and seizures of whatever
nature and for any purpose shall be
inviolable, and no search warrant or
warrant of arrest shall issue except
upon probable cause to be
determined personally by the judge
after examination under oath or
affirmation of the complainant and
the witness he may produce, and
particularly describing the place to
be searched and the persons or
things to be seized.
Furthermore, the Constitution, in
conformity with the doctrine laid
down in Stonehill v. Diokno,
declares inadmissible, any evidence
obtained in violation of the freedom
from unreasonable searches and
seizures.
While a valid search warrant is
generally necessary before a search
and seizure may be effected,
exceptions to this rule are
recognized. Thus, in Alvero v. Dizon,
the Court stated that. "[t]he most
important exception to the necessity
for a search warrant is the right of
search and seizure as an incident to
a lawful arrest."
Rule 126, Section 12 of the Rules of
Court expressly authorizes a
warrantless search and seizure
incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful
arrest. — A person lawfully arrested
may be searched for dangerous
weapons or anything which may be
used as proof of the commission of
an offense, without a search
warrant.
There is no doubt that the
warrantless search incidental to a
lawful arrest authorizes the
arresting officer to make a search
upon the person of the person
arrested. As early as 1909, the Court
has ruled that "[a]n officer making
an arrest may take from the person
arrested any money or property
found upon his person which was
used in the commission of the crime
or was the fruit of the crime or
which might furnish the prisoner
with the means of committing
violence or of escaping, or which
may be used as evidence in the trial
of the cause . . . " 38 Hence, in a buy-
bust operation conducted to entrap
a drug-pusher, the law enforcement
agents may seize the marked money
found on the person of the pusher
immediately after the arrest even
without arrest and search warrants.
In the case at bar, the NARCOM
agents searched the person of the
appellant after arresting him in his
house but found nothing. They then
searched the entire house and, in
the kitchen, found and seized a
plastic bag hanging in a corner.
The warrantless search and seizure,
as an incident to a suspect's lawful
arrest, may extend beyond the
person of the one arrested to
include the premises or
surroundings under his immediate
control. 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 42 police
officers, without securing a search
warrant but having information that
the defendant husband was selling
marijuana from his apartment,
obtained from the building manager
a passkey to defendants' apartment,
and entered it. There they found the
defendant husband in the living
room. The defendant wife emerged
from the kitchen, and one of the
officers, after identifying himself,
observed through the open doorway
of the kitchen, a small scale atop the
kitchen sink, upon which lay a brick-
shaped package containing green
leafy substance which he recognized
as marijuana. The package of
marijuana was used as evidence in
prosecuting defendants for violation
of the Narcotic Law. The
admissibility of the package was
challenged before the U.S. Supreme
Court, which held, after observing
that it was not unreasonable for the
officer to walk to the doorway of the
adjacent kitchen on seeing the
defendant wife emerge therefrom,
that "the discovery of the brick of
marijuana did not constitute a
search, since the officer merely saw
what was placed before him in full
view. 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. 45
Furthermore, the U.S. Supreme
Court stated the following
limitations on the application of the
doctrine:
What the "plain view" cases have in
common is that the police officer in
each of them had a prior
justification for an intrusion in the
course of which he came
inadvertently across a piece of
evidence incriminating the accused.
The doctrine serves to supplement
the prior justification — whether it
be a warrant for another object, hot
pursuit, search incident to lawful
arrest, or some other legitimate
reason for being present
unconnected with a search directed
against the accused — and permits
the warrantless seizure. Of course,
the extension of the original
justification is legitimate only where
27 | P a g e

it is immediately apparent to the within their "plain view," what may

police that they have evidence be said to be the object in their
before them; the "plain view" "plain view" was just the plastic bag
doctrine may not be used to extend and not the marijuana. The
a general exploratory search from incriminating nature of the contents
one object to another until of the plastic bag was not
something incriminating at last immediately apparent from the
emerges. "plain view" of said object. It cannot
be claimed that the plastic bag
It has also been suggested that even
clearly betrayed its contents,
if an object is observed in "plain
whether by its distinctive
view," the "plain view" doctrine will
configuration, its transparency, or
not justify the seizure of the object
otherwise, that its contents are
where the incriminating nature of
obvious to an observer.
the object is not apparent from the
"plain view" of the object. 47 Stated We, therefore, hold that under the
differently, it must be immediately circumstances of the case, the "plain
apparent to the police that the items view" doctrine does not apply and
that they observe may be evidence the marijuana contained in the
of a crime, contraband, or otherwise plastic bag was seized illegally and
subject to seizure. cannot be presented in evidence
pursuant to Article III, Section 3(2)
In the instant case, the appellant
of the Constitution.
was arrested and his person
searched in the living room. Failing The exclusion of this particular
to retrieve the marked money which evidence does not, however,
they hoped to find, the NARCOM diminish, in any way, the damaging
agents searched the whole house effect of the other pieces of evidence
and found the plastic bag in the presented by the prosecution to
kitchen. The plastic bag was, prove that the appellant sold
therefore, not within their "plain marijuana, in violation of Article II,
view" when they arrested the Section 4 of the Dangerous Drugs
appellant as to justify its seizure. Act of 1972. We hold that by virtue
The NARCOM agents had to move of the testimonies of Sgt. Ani and
from one portion of the house to T/Sgt. Belarga and the two
another before they sighted the wrappings of marijuana sold by the
plastic bag. Unlike Ker vs. California, appellant to Sgt. Ani, among other
where the police officer had reason pieces of evidence, the guilt of the
to walk to the doorway of the appellant of the crime charged has
adjacent kitchen and from which been proved beyond reasonable
position he saw the marijuana, the doubt.
NARCOM agents in this case went
WHEREFORE, the appeal is
from room to room with the obvious
DISMISSED and the judgment of the
intention of fishing for more
Regional Trial Court AFFIRMED.
evidence.
SO ORDERED.
Moreover, when the NARCOM
agents saw the plastic bag hanging
in one corner of the kitchen, they
had no clue as to its contents. They
had to ask the appellant what the
bag contained. When the appellant
refused to respond, they opened it
and found the marijuana. Unlike Ker
v. California, where the marijuana
was visible to the police officer's
eyes, the NARCOM agents in this
case could not have discovered the
inculpatory nature of the contents of
the bag had they not forcibly opened
it. Even assuming then, that the
NARCOM agents inadvertently came
across the plastic bag because it was