Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. 181881 October 18, 2011
BRICCIO "Ricky" A. POLLO, Petitioner,
vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALI
DA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND TH
E CIVIL SERVICE COMMISSION, Respondents.

D E C I S I O N
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee who was charged a
dministratively and eventually dismissed from the service. The employee’s personal files stored in the co
mputer were used by the government employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA)
. The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky"
A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him g
uilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation
of Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hi
ndi Mamaya Na" program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC Ch
airperson Karina Constantino-David which was marked "Confidential" and sent through a courier service
(LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrat
ed Records Management Office (IRMO) at the CSC Central Office. Following office practice in which do
cuments marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter
was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright
for an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in
the csc. I honestly think this is a violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pendi
ng cases in the Csc. The justice in our govt system will not be served if this will continue. Please inves
tigate this anomaly because our perception of your clean and good office is being tainted.
Concerned Govt employee3
Chairperson David immediately formed a team of four personnel with background in information technolo
gy (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all th
e files in the computers found in the Mamamayan Muna (PALD) and Legal divisions." 4 After some briefi
ng, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arri
val thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director IV
Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson David’s d
irective.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD)
was witnessed by several employees, together with Directors Castillo and Unite who closely monitored
said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD,
who were both out of the office at the time, informing them of the ongoing copying of computer files in t
heir divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction
of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed about this.
"We can’t do anything about … it … it’s a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms" 5
Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he wi
ll just get a lawyer. Another text message received by petitioner from PALD staff also reported the pres
ence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin." 6 At around 10:0
0 p.m. of the same day, the investigating team finished their task. The next day, all the computers in th
e PALD were sealed and secured for the purpose of preserving all the files stored therein. Several disk
ettes containing the back-up files sourced from the hard disk of PALD and LSD computers were turned
over to Chairperson David. The contents of the diskettes were examined by the CSC’s Office for Legal
Affairs (OLA). It was found that most of the files in the 17 diskettes containing files copied from the co
mputer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft
pleadings or letters7 in connection with administrative cases in the CSC and other tribunals. On the basi
s of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring th
e petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five d
ays from notice.
Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made the
following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected w
ith administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-
NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are
for and on behalves of parties, who are facing charges as respondents in administrative cases. This giv
es rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding
and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency
of the government tasked to discipline misfeasance and malfeasance in the government service. The n
umber of pleadings so prepared further demonstrates that such person is not merely engaged in an isol
ated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, a
nd certainly against common human experience, to believe that the person concerned had engaged in t
his customary practice without any consideration, and in fact, one of the retrieved files (item 13 above)
appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in th
eir drafting or preparation since the computer of origin was within his direct control and disposition. 9
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint
which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people wit
h cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully
copied and printed personal files in his computer, and subsequently asking him to submit his comment
which violated his right against self-incrimination. He asserted that he had protested the unlawful taking
of his computer done while he was on leave, citing the letter dated January 8, 2007 in which he inform
ed Director Castillo that the files in his computer were his personal files and those of his sister, relatives
, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printi
ng as these would violate his constitutional right to privacy and protection against self-incrimination and
warrantless search and seizure. He pointed out that though government property, the temporary use and
ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee wh
o may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal
complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the
illegal search, the files/documents copied from his computer without his consent is thus inadmissible as
evidence, being "fruits of a poisonous tree."10
On February 26, 2007, the CSC issued Resolution No. 070382 11 finding prima facie case against the pe
titioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees). Petitioner was directed to submit his answer under oath within five days from notice a
nd indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URA
CC, petitioner was likewise placed under 90 days preventive suspension effective immediately upon rece
ipt of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search which is beyond the authority of the
CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any
people with pending cases at the CSC and alleged that those files found in his computer were prepared
not by him but by certain persons whom he permitted, at one time or another, to make use of his com
puter out of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano
R. Solosa who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N. Estrellado, the lat
ter being Atty. Solosa’s client who attested that petitioner had nothing to do with the pleadings or bill for
legal fees because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contende
d that the case should be deferred in view of the prejudicial question raised in the criminal complaint he
filed before the Ombudsman against Director Buensalida, whom petitioner believes had instigated this a
dministrative case. He also prayed for the lifting of the preventive suspension imposed on him. In its Re
solution No. 07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved t
o treat the said motion as petitioner’s answer.
On March 14, 2007, petitioner filed an Urgent Petition 13 under Rule 65 of the Rules of Court, docketed
as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No.
070382 dated February 26, 2007 as having been issued with grave abuse of discretion amounting to ex
cess or total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal c
omplaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chair
man) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate complain
t for disbarment against Director Buensalida.14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation
of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance
of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on
April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/
or his counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with
the formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference, clai
ming that the investigation proceedings should be held in abeyance pending the resolution of his petition
by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May 18, 2
007 with similar warning on the consequences of petitioner and/or his counsel’s non-appearance.17 This
prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing office
r, in indirect contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard
G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner
was deemed to have waived his right to the formal investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Rick
y A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Ser
vice and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE
with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benef
its, cancellation of civil service eligibilities and bar from taking future civil service examinations. 21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC noted
the dearth of jurisprudence relevant to the factual milieu of this case where the government as employ
er invades the private files of an employee stored in the computer assigned to him for his official use, i
n the course of initial investigation of possible misconduct committed by said employee and without the l
atter’s consent or participation. The CSC thus turned to relevant rulings of the United States Supreme C
ourt, and cited the leading case of O’Connor v. Ortega22as authority for the view that government agenci
es, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in
the governmental workplace without meeting the "probable cause" or warrant requirement for search an
d seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons 2
3 which declared that the federal agency’s computer use policy foreclosed any inference of reasonable e

xpectation of privacy on the part of its employees. Though the Court therein recognized that such policy
did not, at the same time, erode the respondent’s legitimate expectation of privacy in the office in which
the computer was installed, still, the warrantless search of the employee’s office was upheld as valid be
cause a government employer is entitled to conduct a warrantless search pursuant to an investigation of
work-related misconduct provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonabl
e expectation of privacy with regard to the computer he was using in the regional office in view of the
CSC computer use policy which unequivocally declared that a CSC employee cannot assert any privacy
right to a computer assigned to him. Even assuming that there was no such administrative policy, the C
SC was of the view that the search of petitioner’s computer successfully passed the test of reasonablen
ess for warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stres
sed that it pursued the search in its capacity as government employer and that it was undertaken in co
nnection with an investigation involving work-related misconduct, which exempts it from the warrant requi
rement under the Constitution. With the matter of admissibility of the evidence having been resolved, the
CSC then ruled that the totality of evidence adequately supports the charges of grave misconduct, dish
onesty, conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the
petitioner. These grave infractions justified petitioner’s dismissal from the service with all its accessory p
enalties.
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing hi
m from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a sub
sequent motion, he likewise prayed for the inclusion of Resolution No. 071800 25 which denied his motion
for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave a
buse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not cha
rged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investiga
tion was conducted and the results thereof yielded a prima facie case against him; (2) it could not be s
aid that in ordering the back-up of files in petitioner’s computer and later confiscating the same, Chairpe
rson David had encroached on the authority of a judge in view of the CSC computer policy declaring th
e computers as government property and that employee-users thereof have no reasonable expectation o
f privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothi
ng contemptuous in CSC’s act of proceeding with the formal investigation as there was no restraining or
der or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that
–

I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREG
ULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN
IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH A
ND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8
OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER
CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW A
MOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INV
OKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRI
MINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORAN
DUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIA
L COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CAN
NOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND RO
UTINARY INSTRUCTION;

III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION W
HEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENT
S IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION
LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTE
D WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE G
OVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES
WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY
ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT EN
CROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2
OF THE 1987 PHILIPPINE CONSTITUTION;
IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENT
S, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AN
D TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-
1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID
NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR T
RO.26
Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his const
itutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected b
y the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constit
ution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unrea
sonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no sear
ch warrant or warrant of arrest shall issue except upon probable cause to be determined personally by t
he judge after examination under oath or affirmation of the complainant and the witnesses he may prod
uce, and particularly describing the place to be searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable"
searches and seizures.28 But to fully understand this concept and application for the purpose of resolvin
g the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in anoth
er jurisdiction. As the Court declared in People v. Marti 29 :
Our present constitutional provision on the guarantee against unreasonable search and seizure had its o
rigin 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 b
e determined by the judge after examination under oath or affirmation of the complainant and the witnes
ses 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 s
uch, the Court may turn to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in e
lectronically recording a conversation made by petitioner in an enclosed public telephone booth violated
his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable exp
ectation of privacy in using the enclosed booth to make a personal telephone call, the protection of the
Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further
noted that the existence of privacy right under prior decisions involved a two-fold requirement: first, that
a person has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be
one that society is prepared to recognize as reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workp
lace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard to a
n office at union headquarters that he shared with other union officials, even as the latter or their guest
s could enter the office. The Court thus "recognized that employees may have a reasonable expectation
of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 cas
e of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital,
claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of mis
management of the psychiatric residency program, sexual harassment of female hospital employees and
other irregularities involving his private patients under the state medical aid program, searched his office
and seized personal items from his desk and filing cabinets. In that case, the Court categorically declare
d that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government
instead of a private employer."35 A plurality of four Justices concurred that the correct analysis has two
steps: first, because "some government offices may be so open to fellow employees or the public that n
o expectation of privacy is reasonable", a court must consider "[t]he operational realities of the workplac
e" in order to determine whether an employee’s Fourth Amendment rights are implicated; and next, whe
re an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation "for no
ninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances."36
On the matter of government employees’ reasonable expectations of privacy in their workplace, O’Conno
r teaches:
x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar exp
ectations of employees in the private sector, may be reduced by virtue of actual office practices and pro
cedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed in t
he context of the employment relation. An office is seldom a private enclave free from entry by supervis
ors, other employees, and business and personal invitees. Instead, in many cases offices are continually
entered by fellow employees and other visitors during the workday for conferences, consultations, and
other work-related visits. Simply put, it is the nature of government offices that others – such as fellow
employees, supervisors, consensual visitors, and the general public – may have frequent access to an i
ndividual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable
searches by the government does not disappear merely because the government has the right to make
reasonable intrusions in its capacity as employer," x x x but some government offices may be so op
en to fellow employees or the public that no expectation of privacy is reasonable. x x x Given t
he great variety of work environments in the public sector, the question of whether an employe
e has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citation
s omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’
s Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an expec
tation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence that
respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal
correspondence and other private items in his own office while those work-related files (on physicians in
residency training) were stored outside his office, and there being no evidence that the hospital had est
ablished any reasonable regulation or policy discouraging employees from storing personal papers and e
ffects in their desks or file cabinets (although the absence of such a policy does not create any expecta
tion of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a reasonabl
e expectation of privacy at least in his desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O’Connor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Ap
peals simply concluded without discussion that the "search…was not a reasonable search under the four
th amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public e
mployers] is only to begin the inquiry into the standards governing such searches…[W]hat is reasonable
depends on the context within which a search takes place. x x x Thus, we must determine the appropri
ate standard of reasonableness applicable to the search. A determination of the standard of reasonablen
ess applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusi
on on the individual’s Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we
must balance the invasion of the employees’ legitimate expectations of privacy against the gove
rnment’s need for supervision, control, and the efficient operation of the workplace.
x x x x
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an emplo
yee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct
of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upo
n supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unrea
sonable. In contrast to other circumstances in which we have required warrants, supervisors in offices s
uch as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather,
work-related searches are merely incident to the primary business of the agency. Under these circumsta
nces, the imposition of a warrant requirement would conflict with the "common-sense realization that gov
ernment offices could not function if every employment decision became a constitutional matter." x x x
x x x x
The governmental interest justifying work-related intrusions by public employers is the efficient and prope
r operation of the workplace. Government agencies provide myriad services to the public, and the work
of these agencies would suffer if employers were required to have probable cause before they entered
an employee’s desk for the purpose of finding a file or piece of office correspondence. Indeed, it is diffic
ult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much mea
ning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept o
f probable cause has little meaning for a routine inventory conducted by public employers for the purpos
e of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore,
public employers must be given wide latitude to enter employee offices for work-related, noninvestigator
y reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of work-related em
ployee misconduct. Even when employers conduct an investigation, they have an interest substantially di
fferent from "the normal need for law enforcement." x x x Public employers have an interest in ensuring
that their agencies operate in an effective and efficient manner, and the work of these agencies inevitabl
y suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and t
he consequences of their misconduct or incompetence to both the agency and the public interest can b
e severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the cri
minal law; instead, public employers have a direct and overriding interest in ensuring that the work of th
e agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requ
irement for searches of the type at issue here would impose intolerable burdens on public empl
oyers. The delay in correcting the employee misconduct caused by the need for probable cause
rather than reasonable suspicion will be translated into tangible and often irreparable damage t
o the agency’s work, and ultimately to the public interest. x x x

x x x x
In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigator
y intrusions as well as investigations of work-related misconduct. A standard of reasonableness wi
ll neither unduly burden the efforts of government employers to ensure the efficient and proper operation
of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, ther
efore, that public employer intrusions on the constitutionally protected privacy interests of gover
nment employees for noninvestigatory, work-related purposes, as well as for investigations of w
ork-related misconduct, should be judged by the standard of reasonableness under all the circu
mstances. Under this reasonableness standard, both the inception and the scope of the intrusion
must be reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whet
her the…action was justified at its inception,’ x x x ; second, one must determine whether the search as
actually conducted ‘was reasonably related in scope to the circumstances which justified the interferenc
e in the first place,’" x x x
Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" wh
en there are reasonable grounds for suspecting that the search will turn up evidence that the e
mployee is guilty of work-related misconduct, or that the search is necessary for a noninvestiga
tory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in
its scope when "the measures adopted are reasonably related to the objectives of the search a
nd not excessively intrusive in light of …the nature of the [misconduct]." x x x39 (Citations omitted
; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the factual dispute as to the ch
aracter of the search and neither was there any finding made as to the scope of the search that was u
ndertaken, the case was remanded to said court for the determination of the justification for the search
and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.
In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public e
mployees for work-related reasons. The Court thus laid down a balancing test under which government i
nterests are weighed against the employee’s reasonable expectation of privacy. This reasonableness tes
t implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40
O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace.
One of these cases involved a government employer’s search of an office computer, United States v.
Mark L. Simons41where the defendant Simons, an employee of a division of the Central Intelligence Age
ncy (CIA), was convicted of receiving and possessing materials containing child pornography. Simons wa
s provided with an office which he did not share with anyone, and a computer with Internet access. The
agency had instituted a policy on computer use stating that employees were to use the Internet for offi
cial government business only and that accessing unlawful material was specifically prohibited. The polic
y also stated that users shall understand that the agency will periodically audit, inspect, and/or monitor t
he user’s Internet access as deemed appropriate. CIA agents instructed its contractor for the manageme
nt of the agency’s computer network, upon initial discovery of prohibited internet activity originating from
Simons’ computer, to conduct a remote monitoring and examination of Simons’ computer. After confirmin
g that Simons had indeed downloaded pictures that were pornographic in nature, all the files on the har
d drive of Simon’s computer were copied from a remote work station. Days later, the contractor’s repres
entative finally entered Simon’s office, removed the original hard drive on Simon’s computer, replaced it
with a copy, and gave the original to the agency security officer. Thereafter, the agency secured warrant
s and searched Simons’ office in the evening when Simons was not around. The search team copied th
e contents of Simons’ computer; computer diskettes found in Simons’ desk drawer; computer files stored
on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal corres
pondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his offic
e and computer violated his Fourth Amendment rights. After a hearing, the district court denied the moti
on and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer
and office did not violate his Fourth Amendment rights and the first search warrant was valid. It held tha
t the search remains valid under the O’Connor exception to the warrant requirement because evidence
of the crime was discovered in the course of an otherwise proper administrative inspection. Simons’ viol
ation of the agency’s Internet policy happened also to be a violation of criminal law; this does not mean
that said employer lost the capacity and interests of an employer. The warrantless entry into Simons’ of
fice was reasonable under the Fourth Amendment standard announced in O’Connor because at the ince
ption of the search, the employer had "reasonable grounds for suspecting" that the hard drive would yiel
d evidence of misconduct, as the employer was already aware that Simons had misused his Internet ac
cess to download over a thousand pornographic images. The retrieval of the hard drive was reasonably
related to the objective of the search, and the search was not excessively intrusive. Thus, while Simons
had a reasonable expectation of privacy in his office, he did not have such legitimate expectation of priv
acy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that h
e had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order t
o prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy
is one that society is prepared to accept as objectively reasonable. x x x
x x x x

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth Amendment
rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the fil
es downloaded from the Internet. Additionally, we conclude that Simons’ Fourth Amendment rights were
not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of hi
s Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "au
dit, inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all websit
es visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees
on notice that they could not reasonably expect that their Internet activity would be private. Therefore, re
gardless of whether Simons subjectively believed that the files he transferred from the Internet were priv
ate, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his
Internet use. x x x Accordingly, FBIS’ actions in remotely searching and seizing the computer files Simo
ns downloaded from the Internet did not violate the Fourth Amendment.
x x x x

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office.
x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operati
onal realities of Simons’ workplace may have diminished his legitimate privacy expectations. However, th
ere is no evidence in the record of any workplace practices, procedures, or regulations that had such a
n effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of p
rivacy in his office.
x x x x
In the final analysis, this case involves an employee’s supervisor entering the employee’s government of
fice and retrieving a piece of government equipment in which the employee had absolutely no expectatio
n of privacy – equipment that the employer knew contained evidence of crimes committed by the emplo
yee in the employee’s office. This situation may be contrasted with one in which the criminal acts of a g
overnment employee were unrelated to his employment. Here, there was a conjunction of the conduct th
at violated the employer’s policy and the conduct that violated the criminal law. We consider that FBIS’ i
ntrusion into Simons’ office to retrieve the hard drive is one in which a reasonable employer might enga
ge. x x x42 (Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board 43 which involved the constitutionali
ty of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, stude
nts of secondary and tertiary schools, officers and employees of public and private offices, and persons
charged before the prosecutor’s office with certain offenses, have also recognized the fact that there ma
y be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon wh
ich the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intr
udes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expect
ation of the employees and the reasonableness of drug testing requirement. The employees’ privacy inte
rest in an office is to a large extent circumscribed by the company’s work policies, the collective bargain
ing agreement, if any, entered into by management and the bargaining unit, and the inherent right of th
e employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulate
d office environment is, in fine, reduced; and a degree of impingement upon such privacy has been uph
eld. (Emphasis supplied.)
Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now ad
dress the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office an
d computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of
the hard drive on petitioner’s computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s relationshi
p to the item seized; (2) whether the item was in the immediate control of the employee when it was se
ized; and (3) whether the employee took actions to maintain his privacy in the item." These factors are
relevant to both the subjective and objective prongs of the reasonableness inquiry, and we consider the
two questions together.44 Thus, where the employee used a password on his computer, did not share hi
s office with co-workers and kept the same locked, he had a legitimate expectation of privacy and any s
earch of that space and items located therein must comply with the Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectat
ion of privacy either in his office or government-issued computer which contained his personal files. Petit
ioner did not allege that he had a separate enclosed office which he did not share with anyone, or that
his office was always locked and not open to other employees or visitors. Neither did he allege that he
used passwords or adopted any means to prevent other employees from accessing his computer files.
On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally wo
uld have visitors in his office like friends, associates and even unknown people, whom he even allowed
to use his computer which to him seemed a trivial request. He described his office as "full of people, hi
s friends, unknown people" and that in the past 22 years he had been discharging his functions at the
PALD, he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in c
harge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of na
me, accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office
as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectat
ion of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he clai
ms, such is negated by the presence of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service Commission and may be used only for
legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in the performance of their re
spective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any given time.
x x x x

No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission shall not have an expectati
on of privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to ha
ndle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, se
nd, or receive on the computer through the Internet or any other computer network. Users understand th
at the CSC may use human or automated means to monitor the use of its Computer Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the ex
clusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or o
perated by other users. However, he is accountable therefor and must insure its care and maintenance.
x x x x
Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access
to the computer system. Individual passwords shall not be printed, stored online, or given to others. Us
ers shall be responsible for all transactions made using their passwords. No User may access the comp
uter system with another User’s password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to en
code particular files or messages does not imply that Users have an expectation of privacy in the materi
al they create or receive on the computer system. The Civil Service Commission has global passwords t
hat permit access to all materials stored on its networked computer system regardless of whether those
materials have been encoded with a particular User’s password. Only members of the Commission shall
authorize the application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that they have no exp
ectation of privacy in anything they create, store, send or receive on the office computers, and that the
CSC may monitor the use of the computer resources using both automated or human means. This impli
es that on-the-spot inspections may be done to ensure that the computer resources were used only for
such legitimate business purposes.
One of the factors stated in O’Connor which are relevant in determining whether an employee’s expectat
ion of privacy in the workplace is reasonable is the existence of a workplace privacy policy. 48 In one cas
e, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that he
had a reasonable expectation of privacy in his computer files where the university’s computer policy, the
computer user is informed not to expect privacy if the university has a legitimate reason to conduct a s
earch. The user is specifically told that computer files, including e-mail, can be searched when the unive
rsity is responding to a discovery request in the course of litigation. Petitioner employee thus cannot clai
m a violation of Fourth Amendment rights when university officials conducted a warrantless search of his
computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s comput
er, we answer in the affirmative.
The search of petitioner’s computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anom
alies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is suppose
dly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her sworn affi
davit:
8. That prior to this, as early as 2006, the undersigned has received several text messages from unkno
wn sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV)
such as, staff working in another government agency, "selling" cases and aiding parties with pending ca
ses, all done during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions i
nvolved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its ef
fect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the f
iles in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employee’s office is justified at inception when there are reas
onable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related mi
sconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that
where a government agency’s computer use policy prohibited electronic messages with pornographic co
ntent and in addition expressly provided that employees do not have any personal privacy rights regardi
ng their use of the agency information systems and technology, the government employee had no legiti
mate expectation of privacy as to the use and contents of his office computer, and therefore evidence f
ound during warrantless search of the computer was admissible in prosecution for child pornography. In
that case, the defendant employee’s computer hard drive was first remotely examined by a computer inf
ormation technician after his supervisor received complaints that he was inaccessible and had copied an
d distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed tha
t defendant had used his computer to access the prohibited websites, in contravention of the express po
licy of the agency, his computer tower and floppy disks were taken and examined. A formal administrati
ve investigation ensued and later search warrants were secured by the police department. The initial re
mote search of the hard drive of petitioner’s computer, as well as the subsequent warrantless searches
was held as valid under the O’Connor ruling that a public employer can investigate work-related miscon
duct so long as any search is justified at inception and is reasonably related in scope to the circumstan
ces that justified it in the first place.52
Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception an
d scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent
as it were with the guidelines established by O’Connor:
Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind
of the Commission that the search of Pollo’s computer has successfully passed the test of reasonablene
ss for warrantless searches in the workplace as enunciated in the above-discussed American authorities.
It bears emphasis that the Commission pursued the search in its capacity as a government emp
loyer and that it was undertaken in connection with an investigation involving a work-related mi
sconduct, one of the circumstances exempted from the warrant requirement. At the inception of the sea
rch, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyeri
ng" for parties having pending cases with the said regional office or in the Commission. The nature of
the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found
to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commis
sion would be a highly repugnant scenario, then such a case would have shattering repercussions. It wo
uld undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial
agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective
dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be
actually impartial but must be seen to be so, otherwise the general public would not have any trust an
d confidence in it.
Considering the damaging nature of the accusation, the Commission had to act fast, if only to ar
rest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint w
as received, a search was forthwith conducted involving the computer resources in the concerned region
al office. That it was the computers that were subjected to the search was justified since these f
urnished the easiest means for an employee to encode and store documents. Indeed, the comp
uters would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the
ephemeral nature of computer files, that is, they could easily be destroyed at a click of a butto
n, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the prob
able cause requirement would invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and
transparent manner. Officials and some employees of the regional office, who happened to be in the vici
nity, were on hand to observe the process until its completion. In addition, the respondent himself was d
uly notified, through text messaging, of the search and the concomitant retrieval of files from his comput
er.
All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo
was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial pre
rogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficienc
y by going after the work-related misfeasance of its employees. Consequently, the evidence derived fro
m the questioned search are deemed admissible.53
Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argume
nt invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987
Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into th
e privacy of employees in the government workplace under the aforecited authorities. We likewise find n
o merit in his contention that O’Connor and Simons are not relevant because the present case does not
involve a criminal offense like child pornography. As already mentioned, the search of petitioner’s comp
uter was justified there being reasonable ground for suspecting that the files stored therein would yield i
ncriminating evidence relevant to the investigation being conducted by CSC as government employer of
such misconduct subject of the anonymous complaint. This situation clearly falls under the exception to t
he warrantless requirement in administrative searches defined in O’Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was inve
stigated on the basis of an anonymous letter alleging that he was consuming his working hours filing an
d attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot
investigation aided by NBI agents. The team was able to access Atty. Morales’ personal computer and
print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA
and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales’ computer was sei
zed and taken in custody of the OCA but was later ordered released on his motion, but with order to th
e MISO to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating J
udge that there was no evidence to support the charge against Atty. Morales as no one from the OCC
personnel who were interviewed would give a categorical and positive statement affirming the charges a
gainst Atty. Morales, along with other court personnel also charged in the same case. The OCA recom
mended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that whi
le Atty. Morales may have fallen short of the exacting standards required of every court employee, the
Court cannot use the evidence obtained from his personal computer against him for it violated his consti
tutional right against unreasonable searches and seizures. The Court found no evidence to support the
claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as i
n fact the latter immediately filed an administrative case against the persons who conducted the spot inv
estigation, questioning the validity of the investigation and specifically invoking his constitutional right aga
inst unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retri
eved from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable,
the Court had no choice but to dismiss the charges against him for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein petitioner
were retrieved is a government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office
computer) and other relevant factors and circumstances under American Fourth Amendment jurispruden
ce, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish that petiti
oner had a reasonable expectation of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner are admissible in
the administrative case against him, we now proceed to the issue of whether the CSC was correct in fin
ding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial evidence. Substantial evidenc
e is such amount of relevant evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might conceivably opine otherwise. 55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings
and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witn
esses it presented during the formal investigation. According to the CSC, these documents were confirm
ed to be similar or exactly the same content-wise with those on the case records of some cases pendin
g either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar
copies of those pleadings filed with the CA and duly furnished the Commission. Further, the CSC foun
d the explanation given by petitioner, to the effect that those files retrieved from his computer hard drive
actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his compute
r for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstan
ces. We hold that the CSC’s factual finding regarding the authorship of the subject pleadings and misus
e of the office computer is well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of pleadings responding to t
he orders, decisions or resolutions of these offices or directly in opposition to them such as a petition fo
r certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof kno
wingly and willingly participated in the promotion or advancement of the interests of parties contrary or a
ntagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "E
ric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or
drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsi
ble for these documents was simply doing the same for the money – a "legal mercenary" selling or purv
eying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumpti
on that he was the author thereof. This is because he had a control of the said computer. More signific
antly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the
pleadings found in the case records lying on the table of the respondent. This was the Petition for Revi
ew in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably de
monstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the documents we
re the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally se
rved as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself e
xecuted a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebu
tted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never
saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that sh
e worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally kno
ws, was using the computer in question. Further, Atty. Solosa himself was never presented during the fo
rmal investigation to confirm his sworn statement such that the same constitutes self-serving evidence u
nworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo subm
itted.
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that
he was unlawfully authorizing private persons to use the computer assigned to him for official purpose,
not only once but several times gauging by the number of pleadings, for ends not in conformity with the
interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation…Or
at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resource
s, that is, the computer and the electricity, to be utilized for purposes other than what they were officiall
y intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing i
n one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between th
e person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anyth
ing more sinister. The same is too preposterous to be believed. Why would such a statement appear in
a legal pleading stored in the computer assigned to the respondent, unless he had something to do with
it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complai
nt since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:
Rule II – Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due cour
se unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated
by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegatio
n therein or supported by documentary or direct evidence, in which case the person complained of may
be required to comment.
x x x x
We need not belabor this point raised by petitioner. The administrative complaint is deemed to have bee
n initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stor
ed in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of
the disciplining authority’s own fact-finding investigation and information-gathering -- found a prima facie
case against the petitioner who was then directed to file his comment. As this Court held in Civil Servic
e Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of
Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil
service officer or employee by the appropriate disciplining authority, even without being subscribed and s
worn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdicti
on over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant co
nsideration. The alleged infirmity due to the said memorandum order having been issued solely by the
CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buen
aflor is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to
Commissioner Buenaflor’s previous memo expressing his dissent to the actions and disposition of the C
ommission in this case. According to Chairperson David, said memorandum order was in fact exhaustive
ly discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by her and f
ormer Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time saw no
need to issue a Resolution for the purpose and further because the CUP being for internal use of the C
ommission, the practice had been to issue a memorandum order.58 Moreover, being an administrative rul
e that is merely internal in nature, or which regulates only the personnel of the CSC and not the public,
the CUP need not be published prior to its effectivity.59
In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling tha
t petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the servic
e, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of t
he ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulation
s.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 an
d Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED
.
With costs against the petitioner.
SO ORDERED.

51

BRICCIO A. POLLO v. CHAIRPERSON KARINA CONSTANTINO-DAVID.G.R.

No. 181881. October 18, 2011.
FACTS:

CSC Chairperson Karina David received a document from an anonymous source, making her aware that
there is a corrupt official in the Commission. She then formed personnel and directed them to back u
p all the files of the computers found therein.

David found, in Bricio Pollo, petitioner, legal pleading or documents that are related to administrative c
ases and were for on the behalf of parties who were facing charges. David inferred that he was willfully
aiding their adverse interests and it was a practice that he pursued regularly.

Pollo argued that he was not even a lawyer to pursue such acts. He also asserted that the CSC conduct
ed a fishing expedition and his right to privacy was violated and that the source of the complaint was
anonymous. The CSC charged Pollo in violation of RA 6713. After some motions filed to the CSC, he fil
ed his motion to the CA wherein he was ordered to be dismissed of his governmental duties. The CA r
uled that the search was legal because in their capacity as employers, the government agencies could va
lidly conduct search and seizure in the governmental workplace without meeting the “probable cause” o
r warrant requirement for search and seizure.

ISSUE: Whether there was illegal search.

RULING:

The SC ruled in favor of the CSC. Basing their decision on other cases, the SC asked whether Pollo has
a reasonable expectation of privacy in his office and computer files and was the search reasonable in i
ts inception and scope.

On regards the first inquiry, the SC found that he had no actual expectation of privacy on his work co
mputer. He did not have a separate office space nor did he use a password for his computer. He woul
d have visitors which he let them use his computer. The CSC also implemented a policy that its emplo
yees on notice that they have no expectation of privacy in anything on their office computers, and that
the CSC may monitor their use. This implies that on-the-spot inspections may be done to ensure that t
he computer resources were used only for such legitimate business purposes.

On the second inquiry, the SC said that the search Pollo's files were conducted in connection with inve
stigation of work-related misconduct prompted by an anonymous letter-complaint. A search by a govern
ment employer of an employee’s office is justified at inception when there are reasonable grounds for s
uspecting that it will turn up evidence that the employee is guilty of work-related misconduct.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-08-2519 November 19, 2008
(Formerly A.M. OCA IPI No. 05-2155-P)
ANONYMOUS LETTER-COMPLAINT AGAINST ATTY. MIGUEL MORALES, CL
ERK OF COURT, METROPOLITAN TRIAL COURT OF MANILA.
and
A.M. No. P-08-2520 November 19, 2008
(Formerly A.M. OCA IPI No. 05-2156-P)
ANONYMOUS LETTER-COMPLAINT AGAINST CLERK OF COURT ATTY. HE
NRY P. FAVORITO OF THE OFFICE OF THE CLERK OF COURT, CLERK O
F COURT ATTY. MIGUEL MORALES OF BRANCH 17, CLERK OF COURT A
MIE GRACE ARREOLA OF BRANCH 4, ADMINISTRATIVE OFFICER III WILLI
AM CALDA OF THE OFFICE OF THE CLERK OF COURT AND STENOGRAP
HER ISABEL SIWA OF BRANCH 16, ALL OF THE METROPOLITAN TRIAL C
OURT, MANILA.
 R E S O L U T I O N
AUSTRIA-MARTINEZ, J.:
Before the Court are two anonymous complaints: docketed as A.M. No. P-08-25
19 charging Atty. Miguel Morales (Atty. Morales), Branch Clerk of Court, Branch
17, Metropolitan Trial Court (MeTC) of Manila of misconduct; and A.M. No. P-08
-2520 charging Atty. Morales, together with Isabel Siwa (Siwa), Court Stenograph
er, Branch 16; William Calda (Calda), Administrative Officer III, Office of the Cler
k of Court (OCC); Amie Grace Arreola (Arreola), Branch Clerk of Court, Branch
4, and Atty. Henry P. Favorito (Atty. Favorito), Clerk of Court VI, OCC, all of the
MeTC, Manila of misconduct, graft and corruption and moonlighting.
A.M. No. P-08-2519
In an unsigned and undated letter which the Office of the Court Administrator (O
CA) received on February 24, 2005, the writers, who claim to be employees of t
he OCC-MeTC of Manila, allege that Atty. Morales, then detailed at the OCC, w
as consuming his working hours filing and attending to personal cases, such as
administrative cases against employees in his old sala, using office supplies, equ
ipment and utilities. The writers aver that Atty. Morales's conduct has demoralize
d them and they resorted to filing an anonymous complaint in fear of retaliation f
rom Atty. Morales.1
Assistant Court Administrator (ACA) now Deputy Court Administrator (DCA) Reub
en P. dela Cruz, conducted a discreet investigation on March 8, 2005 to verify th
e allegations of the complaint. However, since the office of Atty. Morales was loc
ated at the innermost section of the Docket/Appeals Section of the OCC, DCA D
ela Cruz failed to extensively make an observation of the actuations of Atty. Mor
ales. On March 16, 2005, a spot investigation was conducted by DCA Dela Cruz
together with four NBI agents, a crime photographer and a support staff. The te
am was able to access the personal computer of Atty. Morales and print two doc
uments stored in its hard drive, a Petition for Relief from Judgment for the case
entitled, "Manolo N. Blanquera, et al. v. Heirs of Lamberto N. Blanquera" in the
name of Atty. Jose P. Icaonapo, Jr. (Atty. Icaonapo) filed with the Court of Appe
als, and a Pre-trial Brief for the case entitled, "Pentacapital Investment Corp. v.
Toyoharu Aoki, et al." also in the name of Atty. Icaonapo, which was filed before
Branch 1, Regional Trial Court (RTC), Manila. Atty. Morales's computer was sei
zed and taken to the custody of the OCA.2 Upon Atty. Morales's motion however
, the Court ordered the release of said computer with an order to the Manageme
nt Information Systems Office of the Supreme Court to first retrieve the files stor
ed therein.3
Atty. Morales filed a letter-complaint addressed to then Chief Justice Hilario G. D
avide, Jr. against DCA Dela Cruz and his companions for alleged conspiracy and
culpable violation of Secs. 1,4 25 & 36of Art. III of the Constitution relative to the
spot investigation. Said letter-complaint was indorsed by the Chief Justice to the
Court Administrator on March 31, 2005 for appropriate action. 7 Atty. Morales's w
ife, Francisca Landicho-Morales also filed a letter-complaint dated February 15, 2
005 against Judge Crispin B. Bravo, Presiding Judge of MeTC Branch 16 Manila
, Lenin Bravo, former Clerk of the said branch and Judge Cristina Javalera-Sulit,
Presiding Judge of MeTC Branch 18, Manila for violations of the law and ethical
standards which was indorsed by Chief Justice Davide to the Court Administrator
for preliminary inquiry.8 Although diligent efforts were made to ascertain from the
OCA Legal Office the current status of Atty. Morales's case against DCA Dela
Cruz, the same however, could not be determined.
Parenthetically, Atty. Favorito, together with more than a hundred employees of t
he MeTC Manila, wrote an undated letter to Chief Justice Davide assailing the s
pot investigation conducted by DCA Dela Cruz.9 Said letter was indorsed by Chi
ef Justice Davide to DCA Dela Cruz on March 28, 2005 for his comment. 10 No c
omment can be found in the records of herein administrative cases.
In a 1st Indorsement dated April 14, 2005, then Court Administrator Presbitero J.
Velasco, Jr. (now Associate Justice of the Supreme Court) directed Atty. Morale
s to comment on the undated anonymous letter-complaint.11
In his Manifestation which the OCA received on April 27, 2005, Atty. Morales all
eged that: the anonymous letter-complaint should not have been given due cours
e as there is no truth to the allegations therein; the OCA took almost a year to
act on the anonymous letter-complaint which did not have the proper indorsemen
t from the Office of the Chief Justice; even though he brought to the OCC his p
ersonal computer, such act is not prohibited; he did not use his computer to writ
e pleadings during office hours and neither did he use paper of the OCC; the "r
aid" conducted by DCA Dela Cruz without search and seizure orders violated his
right to privacy and the articles seized therewith should be considered inadmissi
ble.12
In a letter dated April 12, 2005, Atty. Morales applied for optional retirement13 wh
ich the Court approved in its Resolution dated October 12, 2005 subject to the w
ithholding of his benefits pending resolution of cases against him, the instant cas
e included.14
A.M. No. P-08-2520
In another unsigned letter dated April 1, 2004, the writers who claim to be emplo
yees of the OCC-MeTC, Manila, charge Atty. Morales, Arreola, Atty. Favorito, Cal
da and Siwa of the following offenses: Atty. Morales and Arreola, who are both
detailed in the OCC, leave the office after logging-in only to return in the afterno
on, which acts are allowed by Atty. Favorito; Atty. Morales and Arreola were not
given assignments and whenever they are at the office, they do nothing but play
computer games; Siwa is also allowed by Atty. Favorito to lend money and redis
count checks during office hours using court premises; many people from differe
nt offices go to the OCC because of the business of Siwa; Atty. Favorito also all
ows two of Siwa's personal maids to use the OCC as their office in rediscountin
g checks; and Atty. Favorito and Calda charge P50.00 to P500.00 from sureties
claiming said amounts to be processing fees without issuing receipts therefor.15
In the same spot investigation conducted by DCA De La Cruz on March 16, 200
5, a partly hidden plastic box was discovered containing the amount of P65,390.
00 and six commercial checks, which Siwa voluntarily opened to the team. Thes
e were also confiscated and turned over to the custody of the OCA.16
In a letter to then Chief Justice Davide dated April 12, 2005, Siwa requested tha
t said money and personal belongings that were confiscated be returned to her i
mmediately and that a formal investigation be conducted regarding DCA Dela Cr
uz's conduct during the spot investigation.17 The seized items were later returned
to Siwa18 while her letter-complaint was indorsed by the Chief Justice to the Co
urt Administrator on April 18, 2005 for appropriate action.19 As with the complaint
filed by Atty. Morales, however, the status of Siwa's complaint could not be asc
ertained despite diligent efforts at inquiring about the matter from the OCA Legal
Office.
In a 1st Indorsement dated April 14, 2005, the OCA directed Atty. Morales, Atty.
Favorito, Calda, Arreola and Siwa to comment on the letter-complaint.20
Atty. Morales submitted the same Manifestation he submitted in A.M. P-08-2519.
Siwa in her Comment avers that: the anonymous letter-complaint should not hav
e been given due course as it contravened Sec. 46(c) of Executive Order No. 29
2 and the implementing rules; it was not subscribed and sworn to by the complai
nant and there is no obvious truth to the allegations therein; while she admits th
at she is involved in the business of rediscounting checks, such is a legitimate e
ndeavor, in fact, there are other employees of the court engaged in the same bu
siness; she is also not aware of any rule prohibiting her from engaging in said e
ndeavor; she does not use the OCC to conduct her business and she is mindful
of her duties as a government employee; thus, she has a staff to do the encash
ment of the checks; there were rare occasions when her staff members were sta
tioned at the corridors to lend cash to employees but while said occasions may
have occurred during office hours, her staff cannot be blamed for the same sinc
e the employees go to them; she has never neglected her duty as a court steno
grapher -- in fact, her last performance rating was "very satisfactory"; it is a kno
wn fact that because of the meager pay given to government employees, most a
ugment their income by engaging in business; she should not be singled out for
being enterprising and industrious; and it is unfair to accuse her of wrongdoing a
t a time when she has voluntarily retired from government service due to health
reasons.21
A month after the incident, Siwa filed for optional retirement22 which the Court ap
proved in its Resolution23 dated October 12, 2005, with the proviso that the amo
unt of P30,000.00 shall be retained from the money value of her earned leave cr
edits pending resolution of the present case.
Calda explains in his letter dated April 25, 2005 that: the fees of P50.00 and P5
00.00 were charged in connection with the filing of surety and cash bonds pursu
ant to Rule 141 of the Revised Rules of Court and that corresponding official rec
eipts were issued; at nighttime, he is the one authorized to approve the filing of
surety bonds since he is the highest ranking officer of a skeletal force detailed fo
r night court duty; he has been with the MeTC for 16 years, rose in rank, was n
ever involved in any controversy and would never tarnish his reputation.24
Arreola asserts that: her record of arrival and departure was always signed by h
er superiors without question because it reflected the correct entries; she is alwa
ys in the office even when there is typhoon; and she has proven herself useful i
n the OCC by answering queries of litigants and verifications from other offices a
nd attending to complaints.25
In compliance, Atty. Favorito adopted the comments of Atty. Morales, Calda and
Arreola and denied that he committed the acts alluded to in the anonymous lette
r-complaint.26 Atty. Favorito also incorporated in his comment a letter of the empl
oyees of the OCC-MTC Manila disowning the alleged anonymous complaint.27
In a Resolution dated July 27, 2005, the Court, upon recommendation of the OC
A, consolidated the two complaints and referred the same to the Executive Judg
e of the MeTC, Manila for investigation, report and recommendation.28
Report of the Investigating Judge
In her Report dated September 1, 2006, MeTC Executive Judge Ma. Theresa Do
lores C. Gomez-Estoesta states that discreet observation of the daily working acti
vities of Atty. Morales and Siwa could no longer be done as the two had already
availed themselves of their optional retirement; thus, random interviews with em
ployees who had proximate working activities with them were resorted to, as well
as perusal of court records.29
The following employees were interviewed: Rueben Duque, Clerk of Court, Branc
h 16, MeTC; Beneluz Dumlao, Records Officer I; Marilou Magbag, Clerk III; Estre
lla Rafael, Records Officer I; Lydia dela Cruz, Records Officer III; Raymundo Bilb
ao, Clerk III; Marie Joy Valle, Clerk IV, and Ma. Lizabeth Marcelino, Administrativ
e Officer II, all of the OCC; Rosie Jose, freelance bondswoman, and Norberto D.
Soriano, authorized representative of the Commonwealth Insurance Company.30
After conducting her investigation, Judge Estoesta found:
Insofar as Atty. Morales, Atty. Favorito, Calda and Arreola are concerned, the inv
estigation immediately stumbled into a dead end. No one from the OCC personn
el who were interviewed would give a categorical and positive statement affirmin
g the charges against the said personnel. While almost all confirmed that Atty. M
orales maintained his own computer and printer at the OCC, nobody could state
for certain that what he worked on were pleadings for private cases. Rafael, who
was seated right next to Atty. Morales at the OCC merely said that what preocc
upied Atty. Morales were his own administrative cases. She did not notice Atty.
Morales engage in private work in his computer although she saw Atty. Icaonapo
drop by the office every now and then to personally see Atty. Morales. Rafael e
xplained however that this could be because Atty. Icaonapo was the counsel of
Atty. Morales in his administrative cases. While documents referring to private ca
ses were found in the hard drive of the computer of Atty. Morales, and while the
writing style is similar to that of the Manifestation he filed in this case, still no d
efinite conclusion could be drawn that he has composed the said pleadings at th
e OCC during official working hours. A close examination of the Pre-Trial Brief si
gned by Atty. Icaonapo and filed with the RTC Branch 1, Manila also revealed th
at the paper and the printer used were not the same as that used in the office o
f Atty. Morales.31
There was also no evidence to support charges of extortion against Atty. Favorit
o and Calda. Two bondsmen who were randomly interviewed denied that Atty. F
avorito and Calda exacted illegal sums from them. The amounts they charged co
uld actually refer to legal fees.32
As to Arreola, the charge against her also has no basis. The interviewees were
unanimous in saying that Arreola was always around the office, and that while s
he fetched her son from a nearby school, she did so during lunch or after office
hours. Random checks on Arreola also revealed that she was always at the OC
C and at Branch 30 where she was reassigned.33
As to Siwa, she candidly admitted that she was engaged in lending and discount
ing activities at her station, through her own staff which she had maintained for
said purpose. Because of her business, a number of employees, even those fro
m other government agencies, usually huddled at her station to hold transactions
. Branch Clerk of Court Ruben Duque relates that a number of people would oft
en go to their office looking for Siwa for lending and rediscounting. Assuming tha
t Siwa is not prohibited from engaging in said business, still it has distracted her
from her duties as a stenographer. A random check on the court records of Bran
ch 16 showed that Siwa had not yet submitted a complete transcription of 7 sten
ographic notes in 5 cases, 3 of which already had decisions rendered. In one ca
se, the testimonies of two prosecution witnesses had to be re-taken to fill in the
gap which not only wasted precious time of the court but also distressed the effo
rts of the prosecution in the presentation of its case.34
Judge Estoesta recommended as follows:
1. In OCA IPI No. 05-2155-P [now A.M. No. P-08-2519], with no substantial evi
dence taken to prove the charges in the anonymous letter-complaint filed against
Atty. Miguel C. Morales, it is RECOMMENDED that the same be ordered dismis
sed;
2. In OCA IPI No. 05-2156-P [now A.M. No. P-2520], likewise, with no substant
ial evidence taken to prove the charges in the anonymous letter-complaint filed a
gainst Atty. Miguel C. Morales, Atty. Henry P. Favorito, William Calda and Amie
Grace Arreola, it is RECOMMENDED that the same be ordered dismissed insofa
r as said court employees are concerned; and
3. In OCA IPI No. 05-2156-P [now A.M. No. P-08-2520] insofar as it concerns
Ms. Isabel Siwa, it is RECOMMENDED that she be directed to explain why she
still has stenographic notes pending for transcription despite having already avail
ed of an optional retirement pay.35
The report was referred to the OCA for its evaluation, report and recommendatio
n.36
OCA Report and Recommendation
The OCA, through ACA Antonio H. Dujua, in its November 7, 2007 Memorandu
m, states that it does not entirely concur with the findings and recommendation o
f Judge Estoesta.
Instead the OCA submits the following findings.
On Atty. Morales: The allegation that Atty. Morales had been using his personal
computer to draft pleadings for private counsels was established in the spot insp
ection on March 16, 2005. The hard drive of Atty. Morales's computer yielded a
pre-trial brief and a petition for relief from judgment with the name of Atty. Icaon
apo. The said pre-trial brief was the same pleading that was submitted to RTC B
ranch 1, Manila by Atty. Icaonapo on February 10, 2003. Atty. Morales in his Ma
nifestation dated April 25, 2005 failed to refute the evidence that emanated from
his computer and instead chided the OCA for confiscating the same.
On Siwa: While she insisted that the anonymous letter should not have been giv
en due course, she admitted in her April 28, 2005 Manifestation to being involve
d in the business of rediscounting checks, claiming that she was not the only em
ployee engaged in the same, and that she maintained her own personnel to do t
he rediscounting which stretched to the premises of the MeTC-OCC where Atty.
Favorito is the Clerk of Court.37
The OCA concluded that: Atty. Morales and Siwa should be found guilty of gross
misconduct. Atty. Morales, for preparing pleadings for private counsels and litiga
nts; and Siwa, for engaging in the business of rediscounting checks during office
hours; gross misconduct carries the penalty of dismissal from the service even fo
r the first offense, and while Atty. Morales and Siwa have already left the judiciar
y, the Court can still direct the forfeiture of their benefits; Atty. Favorito should al
so be held liable for neglect of duty because as Clerk of Court of the MeTC-OC
C, he was negligent in allowing the nefarious activities of Atty. Morales and Siwa
to happen right inside the confines of the MeTC-OCC.38
On Arreola and Calda: The OCA agrees with Judge Estoesta that the charges a
gainst them should be dismissed for lack of concrete evidence.39
The OCA then recommended:
(a) That (resigned) Clerk of Court Miguel C. Morales, Branch 17, and (retired) C
ourt Stenographer Isabel A. Siwa, Branch 16, both of the Metropolitan Trial Court
, Manila be found GUILTY of Gross Misconduct with forfeiture of the benefits du
e them excluding accrued leave credits;
(b) That Clerk of Court Henry P. Favorito of the MeTC-OCC, Manila be found G
UILTY of Simple Neglect of Duty and suspended without pay for a period of one
(1) month and one (1) day, with a stern warning that a repetition of the same o
r similar acts in the future shall be dealt with more severely; and
(c) That the charges made in the April 1, 2004 anonymous letter against Clerk o
f Court Amie Grace A. Arreola, Branch 4 and Administrative Officer III William C
alda, OCC, both of the MeTC, Manila be DISMISSED for lack of merit.40
The Court's Ruling.
The Court partly adopts the findings and recommendations of the OCA with som
e modifications.
An anonymous complaint is always received with great caution, originating as it
does from an unknown author. Such a complaint, however does not justify outrig
ht dismissal for being baseless or unfounded for the allegations therein may be
easily verified and may, without much difficulty, be substantiated and established
by other competent evidence. Indeed, complainant's identity would hardly be mat
erial where the matter involved is of public interest.41
Liability of Atty. Morales.
The two anonymous letters charge Atty. Morales with the following offenses: atte
nding to personal cases while using official time, office supplies, equipment and
utilities, leaving the office after logging-in in the morning only to return in the afte
rnoon, and playing computer games whenever he was at the office.
It is undisputed that pleadings for private cases were found in Atty. Morales's per
sonal computer in the MeTC-OCC and Atty. Morales could not provide any satisf
actory explanation therefor. Such fact, by itself, could already make Atty. Morales
liable for simple misconduct for it hints of impropriety on his part. The Court ha
s always stressed that all members of the judiciary should be free from any whiff
of impropriety, not only with respect to their duties in the judicial branch but als
o to their behavior outside the court as private individuals, in order that the integ
rity and good name of the courts of justice shall be preserved.42
Atty. Morales, in defense, argues that since the pleadings were acquired from his
personal computer which DCA Dela Cruz confiscated without any valid search a
nd seizure order, such evidence should be considered as the fruits of a poisono
us tree as it violated his right to privacy.
Both the Investigating Justice and the OCA failed to discuss this matter. The Co
urt however finds it proper to squarely address such issue, without prejudice to t
he outcome of the administrative case filed by Atty. Morales against DCA Dela C
ruz regarding the same incident. The finding of guilt or exoneration of Atty. Moral
es hinges on this very crucial question: Are the pleadings found in Atty. Morales'
s personal computer admissible in the present administrative case against him?
The Court answers in the negative.
Enshrined in our Constitution is the inviolable right of the people to be secure in
their persons and properties against unreasonable searches and seizures, which
is provided for under Section 2, Article III thereof. 43 The exclusionary rule under
Section 3(2), Article III of the Constitution also bars the admission of evidence o
btained in violation of such right.44 The fact that the present case is administrativ
e in nature does not render the above principle inoperative. As expounded in Zul
ueta v. Court of Appeals,45 any violation of the aforestated constitutional rig
ht renders the evidence obtained inadmissible for any purpose in any proc
eeding.
There are exceptions to this rule one of which is consented warrantless search. 46
DCA Dela Cruz in his report claims that that they were able to obtain the subjec
t pleadings with the consent of Atty. Morales.47 The Court finds however that suc
h allegation on his part, even with a similar allegation from one of his staff, 48 is
not sufficient to make the present case fall under the category of a valid warrantl
ess search.
Consent to a search is not to be lightly inferred and must be shown by clear an
d convincing evidence.49 It must be voluntary in order to validate an otherwise ill
egal search; that is, the consent must be unequivocal, specific, intelligently given
and uncontaminated by any duress or coercion.50The burden of proving, by clear
and positive testimony, that the necessary consent was obtained and that it was
freely and voluntarily given lies with the State. 51 Acquiescence in the loss of f
undamental rights is not to be presumed and courts indulge every reasona
ble presumption against waiver of fundamental constitutional rights.52 To c
onstitute a valid consent or waiver of the constitutional guarantee against obtrusi
ve searches, it must be shown that (1) the right exists; (2) that the person involv
ed had knowledge, either actual or constructive, of the existence of such right; a
nd (3) the said person had an actual intention to relinquish the right. 53
In this case, what is missing is a showing that Atty. Morales had an actual intent
ion to relinquish his right. While he may have agreed to the opening of his perso
nal computer and the printing of files therefrom, in the presence of DCA Dela Cr
uz, his staff and some NBI agents during the March 16, 2005 spot investigation,
it is also of record that Atty. Morales immediately filed an administrative case ag
ainst said persons questioning the validity of the investigation, specifically invokin
g his constitutional right against unreasonable search and seizure.
While Atty. Morales may have fallen short of the exacting standards required of
every court employee, unfortunately, the Court cannot use the evidence obtained
from his personal computer against him for it violated his constitutional right.
As the Court has staunchly declared:
The Bill of Rights is the bedrock of constitutional government. If people are strip
ped naked of their rights as human beings, democracy cannot survive and gover
nment becomes meaningless. This explains why the Bill of Rights, contained as i
t is in Article III of the Constitution, occupies a position of primacy in the fundam
ental law way above the articles on governmental power.
The right against unreasonable search and seizure in turn is at the top of the hi
erarchy of rights, next only to, if not on the same plane as, the right to life, libert
y and property, which is protected by the due process clause. This is as it shoul
d be for, as stressed by a couple of noted freedom advocates, the right to perso
nal security which, along with the right to privacy, is the foundation of the right a
gainst unreasonable search and seizure "includes the right to exist, and the right
to enjoyment of life while existing."
x x x x
Unreasonable searches and seizures are the menace against which the constituti
onal guarantees afford full protection. While the power to search and seize may
at times be necessary to the public welfare, still it may be exercised and the law
enforced without transgressing the constitutional rights of the citizens, for the en
forcement of no statute is of sufficient importance to justify indifference to the ba
sic principles of government.54
And as there is no other evidence, apart from the pleadings, retrieved from the u
nduly confiscated personal computer of Atty. Morales, to hold him administratively
liable, the Court has no choice but to dismiss the charges herein against him fo
r insufficiency of evidence.
Liability of Siwa.
The Court agrees with the OCA that Siwa should be administratively disciplined f
or engaging in the business of lending and rediscounting checks.
Siwa admits engaging in the business of lending and rediscounting checks, claim
ing that it was a legitimate endeavor needed to augment her meager income as
a court employee; that she is not aware of any rule prohibiting her from engagin
g in the business of rediscounting checks; that there are other employees engag
ed in the same business; and that she employs her own staff to do the encash
ment of the checks as she always attends to and never neglects her duties as a
stenographer.55
Siwa is clearly mistaken.
Officials and employees of the judiciary are prohibited from engaging directly in a
ny private business, vocation, or profession even outside office hours to ensure t
hat full-time officers of the court render full-time service so that there may be no
undue delay in the administration of justice and in the disposition of cases. 56 The
nature of work of court employees requires them to serve with the highest degr
ee of efficiency and responsibility and the entire time of judiciary officials and em
ployees must be devoted to government service to ensure efficient and speedy a
dministration of justice.57 Indeed, the Court has always stressed that court emplo
yees must strictly observe official time and devote every second moment of such
time to public service. 58 And while the compensation may be meager, that is th
e sacrifice judicial employees must be willing to take.
As pronounced by the Court in Biyaheros Mart Livelihood Association, Inc. v. Ca
busao, Jr.:
Government service demands great sacrifice. One who cannot live with the mode
st salary of a public office has no business staying in the service. He is free to
seek greener pastures elsewhere. The public trust character of the office proscrib
es him from employing the facilities or using official time for private business or
purposes.59
Siwa's offense is compounded by the fact that she was previously verbally instru
cted by her superior, MeTC Branch 16 Presiding Judge Crispin B. Bravo, to stop
using court premises for her business. But she ignored the same, prompting the
latter to issue a written Memorandum dated January 18, 2005 asking her to exp
lain why she was still using the office in "transacting/attending" to her lending an
d rediscounting business when she was already verbally instructed to desist ther
efrom in December 2004.60
Siwa apologized and promised not to let it happen again, in her letter dated Jan
uary 21, 2005.61 Siwa also admitted that she was using her house-helper in the
rediscounting of checks and allowed the latter to use the court premises in the c
onduct of the same.62
Her allegation that she never neglected her duty as a stenographer is also belie
d by the findings of the Investigating Judge, who in her random check of records
, discovered that Siwa had not yet submitted a complete transcription of 7 steno
graphic notes in 5 cases (3 criminal and 2 civil cases), in three of which decisio
ns were already rendered.63 In one case, the testimonies of the prosecution witn
esses had to be re-taken.64 Thus, contrary to Siwa's assertion, she was not able
to satisfactorily perform her duties as a court stenographer while engaging in priv
ate business.
Her argument that her business is a legal endeavor also cannot excuse her from
liability. Many "moonlighting" activities pertain to legal acts that otherwise would
be countenanced if the actors were not employed in the public sector. And while
moonlighting is not normally considered a serious misconduct, nonetheless, by th
e very nature of the position held, it amounts to a malfeasance in office.65
Siwa conducted her business within the court's premises, which placed the imag
e of the judiciary, of which she is part, in a bad light. Time and again, the Court
has held that the image of a court of justice is mirrored in the conduct, official
and otherwise, of the personnel who work thereat; thus the conduct of a person
serving the judiciary must, at all times, be characterized by propriety and decoru
m, and be above suspicion so as to earn and keep the respect of the public for
the judiciary.66
Siwa's infraction constitutes conduct prejudicial to the best interest of the service
which, under Sec. 52 A (20) of Rule IV of the Uniform Rules on Administrative
Cases in the Civil Service, carries the penalty of suspension of 6 months and 1
day to 1 year for the first offense and dismissal for the second offense. Since thi
s is her first offense and considering the October 12, 2005 Resolution of the Co
urt in A.M. No. 12096-Ret. which approved Siwa's application for optional retirem
ent, retaining only the amount of P30,000.00 from the money value of her earne
d leave credits pending resolution of the instant case, the Court finds she should
be imposed the penalty of fine in the amount of P30,000.00.
Liability of Atty. Favorito.
There is no evidence to show that Atty. Favorito knows or should have known th
at Atty. Morales had copies of pleadings for private cases in his personal comput
er for which Atty. Favorito could be held liable for neglect of duty as supervisor.
As to Siwa's lending and rediscounting activities, however, the Court finds that At
ty. Favorito was remiss in addressing said matter which activity took place in the
court's premises which was under his responsibility.
Clarifications, however, should be made.
The OCA in its Memorandum dated November 7, 2007 stated that:
x x x in her April 28, 2005 Manifestation, Siwa admitted to being involved in the
business of rediscounting checks, claiming that 'she is not the only employee en
gaged in the same business.' Respondent [Siwa] even had the audacity to admit
that she 'maintained my own personnel' to do the rediscounting which stretched t
o the premises of the MeTC-OCC, where respondent Favorito is the Clerk of Co
urt.67 (Emphasis supplied)
A review of the records, however, would show that what Siwa submitted is not a
"Manifestation" but a "Comment" dated April 28, 2005 and there, instead of stati
ng that her rediscounting activities stretched to the premises of the MeTC-OCC,
she actually denied that she used the OCC to conduct said business. Pertinent p
ortions of said Comment reads:
4.1. Respondent admits that she is involved in the business of rediscounting che
cks x x x.
x x x x
4.2. Respondent, however, denies that she uses the Office of the Clerk of Court
to conduct this business x x x.
4.3. There are other occasions when the said staff will be stationed at the corrid
ors to lend emergency cash to employees in need. The said occasions may hav
e occurred during office hours, for which, the respondent's staff may not be blam
ed since it was the employees themselves who go to them. However, these inst
ances were rare. It should also be emphasized that these transactions occurred
outside of the offices and within the common or public areas.68(Emphasis supplie
d)
Thus, Siwa never admitted that her business stretched to the premises of the O
CC-MeTC but only claimed that her staff used "corridors" which were "common o
r public areas" for their transactions.
Still, Atty. Favorito failed to address such matter and to prevent such activities fr
om taking place, even if they were conducted in the corridors, since such areas
are still part of the court's premises. As Clerk of Court of the OCC, it is Atty. Fa
vorito's duty to plan, direct, supervise and coordinate the activities of all divisions
/sections/units in the OCC.69 He should therefore be reprimanded for his failure t
o duly supervise and prevent such activities from happening within his area of re
sponsibility.
Liability of Atty. Favorito and Calda on the extortion charges.
On the claim that Atty. Favorito and Caldo extorted money from sureties without
issuing receipts therefor, the Court finds no cogent reason to deviate from the fin
dings of the Investigating Judge and the OCA.
Investigating Judge Estoesta found that:
x x x the charges of "extortion" levelled against Atty. Henry P. Favorito and Mr.
William Calda x x x suffered from loose ends.
Random interviews with two (2) bondsmen denied that Atty. Favorito and Mr. Cal
da exacted such amounts.
The P50.00 and P500.00 specified to as "processing fee" could actually refer to t
he Legal Fees mandated under Section 8 (o) and Section 21 (c) of Rule 141, as
follows x x x
Here, it is obvious that the anonymous letter-complainant has no understanding
whatsoever of the legal fees charged by Office of the Clerk of Court.
This actually hints of the fact that said anonymous letter-complainant may not be
a personnel of the Office of the Clerk of Court after all.
The extortion charge slapped against Atty. Favorito and Mr. Calda, therefore, ring
s empty.70
Such finding was affirmed by the OCA in its Memorandum dated November 7, 2
007 which recommended the dismissal of said charges against Atty. Favorito and
Calda for lack of concrete proof.71
Liability of Arreola on absence during office hours.
As with the extortion charges against Atty. Favorito and Calda, the Court finds n
o sufficient evidence to hold Arreola administratively liable.
As reported by Judge Estoesta:
x x x the charge against Ms. Amie Grace Arreola regarding her habit of leaving t
he office after logging-in found no concrete corroboration.
The interviewees were actually unanimous in saying that Ms. Arreola was not pr
one to such habit as she is always around the office. Ms. Arreola may have bee
n known to fetch her son at a nearby school but she has always done so during
lunch hours and after office hours.
As a matter of fact, at a time when the MeTC was stricken by a debilitating bro
wn-out schedule in the afternoon sometime [in] July 2006, Ms. Arreola was still a
round, having been one of the skeletal force who volunteered to stay on. The un
dersigned has personally seen her around 5:30 p.m. of the same day.
As a matter of fact, several random checks on Ms. Arreola by the undersigned h
erself revealed that she has always been around at the OCC and at Branch 30
where she was re-assigned as Branch Clerk of Court. At times, personal visits w
ere made, interspersed by telephone calls between 8:00 a.m. to 10:30 a.m. wher
e Ms. Arreola proved herself to be always at the office.
Needless to say, therefore, the charge against Ms. Arreola is certainly without ba
sis.72
The OCA agreed with the said finding and likewise recommended the dismissal
of the charges against Arreola.73
It is well-settled that in administrative proceedings, the quantum of proof necessa
ry for a finding of guilt is substantial evidence or such relevant evidence as a re
asonable mind might accept as adequate to support a conclusion. The complaina
nt has the burden of proving, by substantial evidence, the allegations in the com
plaint. That is, in the absence of evidence to the contrary, what will prevail is tha
t respondent has regularly performed his or her duties. 74 Reliance on mere alleg
ations, conjectures and suppositions will leave an administrative complaint with n
o leg to stand on, and charges based on mere suspicion and speculation cannot
be given credence.75
Since there is no proof, apart from the allegations of the letter-complaint, to hold
Atty. Favorito, Calda and Arreola liable for the afore- stated charges against the
m, the Court deems it proper to dismiss said charges for lack of merit.
Other matters.
In view of the initial findings of Investigating Judge Estoesta that Siwa was remis
s in her duty of transcribing stenographic notes assigned to her, the OCA is her
eby directed to conduct an audit investigation on Siwa's transcription of stenogra
phic notes to determine the full extent of the notes she failed to transcribe on ti
me. If warranted, such matter shall be treated as a separate case to be given a
new docket number and assigned to another ponente for evaluation.
The OCA should also report on the status of the complaint filed by Atty. Morales
which the Court received on March 31, 2005, the complaint of Isabel Siwa date
d April 12, 2005, and the letter-complaint of Atty. Favorito together with other Me
TC employees which the Court received on March 28, 2005, against DCA Dela
Cruz, regarding the spot investigation conducted on March 16, 2005 regarding thi
s case.
WHEREFORE, the Court finds Isabel Siwa, Court Stenographer of Branch 16, M
etropolitan Trial Court, Manila, GUILTY of conduct prejudicial to the best interest
of the service and is FINED in the amount of P30,000.00 to be deducted from th
e money value of her leave credits which was set aside per Resolution dated Oc
tober 12, 2005 in A.M No. 12096-Ret. entitled Application for Retirement Benefits
under Section 13-A of R.A. No. 8291 of Ms. Isabel A. Siwa, Court Stenographer
II, MeTC, Manila, Branch 16.
Atty. Henry P. Favorito, Clerk of Court of the Office of the Clerk of Court is RE
PRIMANDED for his failure to supervise the lending and rediscounting activites o
f Siwa which took place in the court's premises. The extortion charges against hi
m are DISMISSED for lack of merit.
The charges against Atty. Miguel Morales, former Branch Clerk of Court, Branc
h 17, are DISMISSED for insufficiency of evidence. Deputy Court Administrator R
euben de la Cruz is advised to be more circumspect in the performance of his d
uties.
The charges against William Calda, Administrative Officer of the Office of the Cl
erk of Court, and Amie Grace Arreola, formerly Branch Clerk of Court of Branc
h 4 now Clerk of Court of Branch 30, both of the Metropolitan Trial Court of Ma
nila, are DISMISSED for lack of merit.
The Office of the Court Administrator is DIRECTED to conduct an audit inves
tigation on Isabel Siwa's transcription of stenographic notes in view of the finding
of Judge Ma. Theresa Dolores C. Gomez-Estoesta in her Investigation Report d
ated September 1, 2006 in A.M. No. P-08-2519 and A.M. P-08-2520 (formerly A.
M. OCA IPI No. 05-2155-P and A.M. OCA IPI No. 05-2156-P) that Siwa has not
submitted a complete transcription of stenographic notes in several cases assign
ed to her. Said matter shall be treated as a separate case, to be given a new d
ocket number and assigned to a new ponente for final resolution.
SO ORDERED.

Facts:

Atty. Morales, Branch Clerk of Court of MeTC, Branch 67, Manila was investigated on the
basis of an anonymous letter alleging that he was consuming his working hours filing and
attending to personal cases, using office supplies, equipment and utilities. The OCA conduc
ted a spot investigation aided by NBI agents. The team was able to access Atty. Morales
personal computer and print two documents stored in its hard drive, which turned out to be
two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of
another lawyer. Atty. Morales computer was seized and taken in custody of the OCA but
was later ordered released on his motion, but with order to the MISO to first retrieve the fil
es stored therein.

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

The OCA disagreed with the report of the Investigating Judge that there was no evidence t
o support the charge against Atty. Morales as no one from the OCC personnel who were i
nterviewed would give a categorical and positive statement affirming the charges against At
ty. Morales, along with other court personnel also charged in the same case. The OCA rec
ommended that Atty. Morales should be found guilty of gross misconduct.

Issues:

1. Are the pleadings found in Atty. Morales's personal computer admissible in the present
administrative case against him?

2. May the right against unreasonable searches and seizures be invoked in an administrati
ve case?

3. Was there consented warrantless search in this case?

4. Is there a ground to hold Atty. Morales liable of the charge?

Held:

1. While Atty. Morales may have fallen short of the exacting standards required of every c
ourt employee, the Court cannot use the evidence obtained from his personal computer ag
ainst him for it violated his constitutional right against unreasonable searches and seizures.

2. As expounded in Zulueta v. Court of Appeals, any violation of the aforestated constitutio

nal right renders the evidence obtained inadmissible for any purpose in any proceeding.

3. Consent to a search is not to be lightly inferred and must be shown by clear and convi
ncing evidence. It must be voluntary in order to validate an otherwise illegal search; that is,
the consent must be unequivocal, specific, intelligently given and uncontaminated by any d
uress or coercion. The burden of proving, by clear and positive testimony, that the necessa
ry consent was obtained and that it was freely and voluntarily given lies with the State. Ac
quiescence in the loss of fundamental rights is not to be presumed and courts indulge ever
y reasonable presumption against waiver of fundamental constitutional rights. To constitute
a valid consent or waiver of the constitutional guarantee against obtrusive searches, it must
be shown that (1) the right exists; (2) that the person involved had knowledge, either actu
al or constructive, of the existence of such right; and (3) the said person had an actual int
ention to relinquish the right.

In this case, what is missing is a showing that Atty. Morales had an actual intention to reli
nquish his right. While he may have agreed to the opening of his personal computer and t
he printing of files therefrom during the spot investigation, it is also of record that Atty. Mor
ales immediately filed an administrative case against said persons questioning the validity o
f the investigation, specifically invoking his constitutional right against unreasonable search
and seizure.

4. And as there is no other evidence, apart from the pleadings, retrieved from the unduly c
onfiscated personal computer of Atty. Morales, to hold him administratively liable, the Court
had no choice but to dismiss the charges against him for insufficiency of evidence.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 186529 August 3, 2010
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
JACK RACHO y RAQUERO, Appellant.
D E C I S I O N
NACHURA, J.:
On appeal is the Court of Appeals (CA) Decision 1 dated May 22, 2008 in CA-G.R. CR-H.C. No. 00425
affirming the Regional Trial Court2 (RTC) Joint Decision3 dated July 8, 2004 finding appellant Jack Rach
o y Raquero guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic Act (R.A.) N
o. 9165.
The case stemmed from the following facts:

On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant for
the purchase of shabu. The agent later reported the transaction to the police authorities who immediatel
y formed a team composed of member of the Philippine Drug Enforcement Agency (PDEA), the Intellige
nce group of the Philippine Army and the local police force to apprehend the appellant. 4 The agent gave
the police appellant’s name, together with his physical description. He also assured them that appellant
would arrive in Baler, Aurora the following day.
On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on board
a Genesis bus and would arrive in Baler, Aurora, anytime of the day wearing a red and white striped T-
shirt. The team members then posted themselves along the national highway in Baler, Aurora. At aroun
d 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the
confidential agent pointed to him as the person he transacted with earlier. Having alighted from the bus
, appellant stood near the highway and waited for a tricycle that would bring him to his final destination.
As appellant was about to board a tricycle, the team approached him and invited him to the police stati
on on suspicion of carrying shabu. Appellant immediately denied the accusation, but as he pulled out hi
s hands from his pants’ pocket, a white envelope slipped therefrom which, when opened, yielded a smal
l sachet containing the suspected drug.5
The team then brought appellant to the police station for investigation. The confiscated specimen was tu
rned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with appellan
t’s name. The field test and laboratory examinations on the contents of the confiscated sachet yielded p
ositive results for methamphetamine hydrochloride.6
Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for tran
sporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous drugs,
the accusatory portions of which read:
"That at about 3:00 o’clock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the jurisd
iction of this Honorable Court, the said accused, did then and there, unlawfully, feloniously and willfully
have in his possession five point zero one (5.01) [or 4.54] grams of Methamphetamine Hydrochloride co
mmonly known as "Shabu", a regulated drug without any permit or license from the proper authorities to
possess the same.

CONTRARY TO LAW."7
"That at about 3:00 o’clock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused di
d then and there, unlawfully, feloniously and willfully transporting or delivering dangerous drug of 5.01 [o
r 4.54] grams of shabu without any permit or license from the proper authorities to transport the same.
CONTRARY TO LAW."8

During the arraignment, appellant pleaded "Not Guilty" to both charges.

At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to info
rm him about their ailing father. He maintained that the charges against him were false and that no sha
bu was taken from him. As to the circumstances of his arrest, he explained that the police officers, thro
ugh their van, blocked the tricycle he was riding in; forced him to alight; brought him to Sea Breeze Lod
ge; stripped his clothes and underwear; then brought him to the police station for investigation.9
On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of Violation of Section 5, Art
icle II, R.A. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of ₱50
0,000.00; but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On appeal, th
e CA affirmed the RTC decision.11
Hence, the present appeal.
In his brief,12 appellant attacks the credibility of the witnesses for the prosecution. He likewise avers that
the prosecution failed to establish the identity of the confiscated drug because of the team’s failure to
mark the specimen immediately after seizure. In his supplemental brief, appellant assails, for the first tim
e, the legality of his arrest and the validity of the subsequent warrantless search. He questions the admi
ssibility of the confiscated sachet on the ground that it was the fruit of the poisonous tree.
The appeal is meritorious.

We have repeatedly held that the trial court’s evaluation of the credibility of witnesses and their testimon
ies is entitled to great respect and will not be disturbed on appeal. However, this is not a hard and fast
rule. We have reviewed such factual findings when there is a showing that the trial judge overlooked, mi
sunderstood, or misapplied some fact or circumstance of weight and substance that would have affected
the case.13
Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of sh
abu and, consequently, the admissibility of the sachet. It is noteworthy that although the circumstances
of his arrest were briefly discussed by the RTC, the validity of the arrest and search and the admissibilit
y of the evidence against appellant were not squarely raised by the latter and thus, were not ruled upon
by the trial and appellate courts.

It is well-settled that an appeal in a criminal case opens the whole case for review. This Court is clothe
1avv phi1

d with ample authority to review matters, even those not raised on appeal, if we find them necessary in
arriving at a just disposition of the case. Every circumstance in favor of the accused shall be considered
. This is in keeping with the constitutional mandate that every accused shall be presumed innocent unle
ss his guilt is proven beyond reasonable doubt.14
After a thorough review of the records of the case and for reasons that will be discussed below, we find
that appellant can no longer question the validity of his arrest, but the sachet of shabu seized from him
during the warrantless search is inadmissible in evidence against him.
The records show that appellant never objected to the irregularity of his arrest before his arraignment. In
fact, this is the first time that he raises the issue. Considering this lapse, coupled with his active partici
pation in the trial of the case, we must abide with jurisprudence which dictates that appellant, having vol
untarily submitted to the jurisdiction of the trial court, is deemed to have waived his right to question the
validity of his arrest, thus curing whatever defect may have attended his arrest. The legality of the arre
st affects only the jurisdiction of the court over his person. Appellant’s warrantless arrest therefore canno
t, in itself, be the basis of his acquittal. 15
As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or not
the search which yielded the alleged contraband was lawful.16
The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial w
arrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible f
or any purpose in any proceeding.17 Said proscription, however, admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in "plain view;"

3. Search of a moving vehicle;

4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and

7. Exigent and emergency circumstances.18

What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial questio
n, determinable from the uniqueness of the circumstances involved, including the purpose of the search
or seizure, the presence or absence of probable cause, the manner in which the search and seizure wa
s made, the place or thing searched, and the character of the articles procured.19
The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in the a
ct of actually committing a crime or attempting to commit a crime in the presence of the apprehending o
fficers as he arrived in Baler, Aurora bringing with him a sachet of shabu. 20 Consequently, the warrantle
ss search was considered valid as it was deemed an incident to the lawful arrest.
Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the sear
ch; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous wit
h an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of
the search.21 Thus, given the factual milieu of the case, we have to determine whether the police office
rs had probable cause to arrest appellant. Although probable cause eludes exact and concrete definition
, it ordinarily signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of the offense with
which he is charged.22
The determination of the existence or absence of probable cause necessitates a reexamination of the es
tablished facts. On May 19, 2003, a confidential agent of the police transacted through cellular phone wi
th appellant for the purchase of shabu. The agent reported the transaction to the police authorities who
immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00 a.m., appellant calle
d up the agent with the information that he was on board a Genesis bus and would arrive in Baler, Aur
ora anytime of the day wearing a red and white striped T-shirt. The team members posted themselves
along the national highway in Baler, Aurora, and at around 3:00 p.m. of the same day, a Genesis bus a
rrived in Baler. When appellant alighted from the bus, the confidential agent pointed to him as the perso
n he transacted with, and when the latter was about to board a tricycle, the team approached him and i
nvited him to the police station as he was suspected of carrying shabu. When he pulled out his hands f
rom his pants’ pocket, a white envelope slipped therefrom which, when opened, yielded a small sachet
containing the suspected drug.23 The team then brought appellant to the police station for investigation a
nd the confiscated specimen was marked in the presence of appellant. The field test and laboratory exa
minations on the contents of the confiscated sachet yielded positive results for methamphetamine hydroc
hloride.
Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given by
the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives rise to
another question: whether that information, by itself, is sufficient probable cause to effect a valid warran
tless arrest.
The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a w
arrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indi
cate that he has committed, is actually committing, or is attempting to commit an offense. 24 We find no
cogent reason to depart from this well-established doctrine.
The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v. Nuevas.27
In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would be
arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip, the poli
ce assembled a team and deployed themselves near the Philippine National Bank (PNB) in Olongapo Ci
ty. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where two females a
nd a man got off. The informant then pointed to the team members the woman, "Aling Rosa," who was
then carrying a traveling bag. Thereafter, the team approached her and introduced themselves. When as
ked about the contents of her bag, she handed it to the apprehending officers. Upon inspection, the bag
was found to contain dried marijuana leaves.28

The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao City,
received a report from a civilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were compla
ining that the latter was responsible for the proliferation of marijuana in the area. Reacting to the report,
the Intelligence Section conducted surveillance. For five days, they gathered information and learned tha
t Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed the police that Tu
dtud had headed to Cotabato and would be back later that day with a new stock of marijuana. At aroun
d 4:00 p.m. that same day, a team of police officers posted themselves to await Tudtud’s arrival. At 8:0
0 p.m., two men disembarked from a bus and helped each other carry a carton. The police officers app
roached the suspects and asked if they could see the contents of the box which yielded marijuana leav
es.29
In People v. Nuevas, the police officers received information that a certain male person, more or less 5’
4" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a san
do and maong pants, would make a delivery of marijuana leaves. While conducting stationary surveillanc
e and monitoring of illegal drug trafficking, they saw the accused who fit the description, carrying a plast
ic bag. The police accosted the accused and informed him that they were police officers. Upon inspectio
n of the plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks wrapp
ed in a blue cloth. In his bid to escape charges, the accused disclosed where two other male persons
would make a delivery of marijuana leaves. Upon seeing the two male persons, later identified as Reyn
aldo Din and Fernando Inocencio, the police approached them, introduced themselves as police officers,
then inspected the bag they were carrying. Upon inspection, the contents of the bag turned out to be
marijuana leaves.30
In all of these cases, we refused to validate the warrantless search precisely because there was no ade
quate probable cause. We required the showing of some overt act indicative of the criminal design.
As in the above cases, appellant herein was not committing a crime in the presence of the police officer
s. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arr
ested had committed, was committing, or about to commit an offense. At the time of the arrest, appellan
t had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any s
uspicious manner that would engender a reasonable ground for the police officers to suspect and conclu
de that he was committing or intending to commit a crime. Were it not for the information given by the i
nformant, appellant would not have been apprehended and no search would have been made, and cons
equently, the sachet of shabu would not have been confiscated.
We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to justify
a search incident to a lawful warrantless arrest. As cited in People v. Tudtud, these include People v.
Maspil, Jr.,31 People v. Bagista,32 People v. Balingan,33 People v. Lising,34 People v. Montilla,35 People v.
Valdez,36and People v. Gonzales.37 In these cases, the Court sustained the validity of the warrantless se
arches notwithstanding the absence of overt acts or suspicious circumstances that would indicate that th
e accused had committed, was actually committing, or attempting to commit a crime. But as aptly obser
ved by the Court, except in Valdez and Gonzales, they were covered by the other exceptions to the rul
e against warrantless searches.38
Neither were the arresting officers impelled by any urgency that would allow them to do away with the r
equisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting team, their
office received the "tipped information" on May 19, 2003. They likewise learned from the informant not
only the appellant’s physical description but also his name. Although it was not certain that appellant wo
uld arrive on the same day (May 19), there was an assurance that he would be there the following day
(May 20). Clearly, the police had ample opportunity to apply for a warrant.39
Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated item
is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any evidenc
e obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proc
eeding."
Without the confiscated shabu, appellant’s conviction cannot be sustained based on the remaining evide
nce. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the illegality
of his arrest by entering a plea and his active participation in the trial of the case. As earlier mentioned,
the legality of an arrest affects only the jurisdiction of the court over the person of the accused. A waiv
er of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seize
d during an illegal warrantless arrest.40
One final note. As clearly stated in People v. Nuevas,41
x x x In the final analysis, we in the administration of justice would have no right to expect ordinary peo
ple to be law-abiding if we do not insist on the full protection of their rights. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal search and seizure as long as the law enforcers show
the alleged evidence of the crime regardless of the methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual denigration of society. While this Court appreciates
and encourages the efforts of law enforcers to uphold the law and to preserve the peace and security
of society, we nevertheless admonish them to act with deliberate care and within the parameters set by
the Constitution and the law. Truly, the end never justifies the means.42

WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CA-G.R. CR
-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED for ins
ufficiency of evidence.
The Director of the Bureau of Corrections is directed to cause the immediate release of appellant, unles
s the latter is being lawfully held for another cause; and to inform the Court of the date of his release,
or the reasons for his confinement, within ten (10) days from notice.
No costs.

SO ORDERED.

G.R. No. 186529 August 3, 2010

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JACK RACHO y RAQUERO, Appellant.

A confidential agent of the police transacted through cellular phone with appellant for the purchase
of shabu. Appellant called up the agent and informed him that he was on board a Genesis bus an
d would arrive in Baler, Aurora. Having alighted from the bus, appellant was about to board a tricyc
le when the team of police authorities approached him and invited him to the police station. As he
pulled out his hands from his pants’ pocket, a white envelope slipped therefrom which, when opene
d, yielded a small sachet containing the suspected drug.5

Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9
165, for transporting or delivering; and the second, of Section 11 of the same law for possessing, d
angerous drugs.
ISSUE: (1) WON the warrant of arrest was violated.

(2) WON the evidence was admissible in evidence.

RULING: (1) No. “Reliable information” alone is not sufficient probable cause to effect a valid warra
ntless arrest. The SC required the showing of some overt act indicative of the criminal design.

(2) No. This is an instance of seizure of the “fruit of the poisonous tree.” Hence, the confis
cated item is inadmissible in evidence.

The 1987 Constitution states that a search and consequent seizure must be carried out with a judic
ial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inad
missible for any purpose in any proceeding.17 Said proscription, however, admits of exceptions, nam
ely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in "plain view;"
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.

EN BANC
G.R. No. 150224 May 19, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
JOEL YATAR alias "KAWIT", appellant.
D E C I S I O N

PER CURIAM:
On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, s
entencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homici
de, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P
75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,00
0.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and c
osts of litigation.1
Appellant was charged with Rape with Homicide under the following Information:
That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdictio
n of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D.
UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the l
atter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reas
on thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal
knowledge of said Kathlyn D. Uba against her will.

CONTRARY TO LAW.2
The facts are:
On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, w
ere on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga
. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar,
through Kathylyn’s friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning. 3
At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm
in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judily
n that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would ju
st stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alo
ne in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel.
They saw appellant at the back of the house. They went inside the house through the back door of the
kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he
was getting lumber to bring to the house of his mother.5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the lad
der from the second floor of the house of Isabel Dawang and run towards the back of the house. 6 She
later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth
at the back of the house. She did not find this unusual as appellant and his wife used to live in the ho
use of Isabel Dawang.7
At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearin
g a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber
he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were "reddish and sharp
." Appellant asked her where her husband was as he had something important to tell him. Judilyn’s hus
band then arrived and appellant immediately left and went towards the back of the house of Isabel.8
In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house we
re off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She
noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went
up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door
was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeles
s body that was cold and rigid.9
Isabel moved her hand throughout the entire body. She found out that it was the naked body of her gra
nddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight
by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines p
rotruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel
, Cion, called the police.10
At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel
Dawang’s house. Together with fellow police officers, Faniswa went to the house and found the naked b
ody of Kathylyn Uba with multiple stab wounds.
The people in the vicinity informed the police officers that appellant was seen going down the ladder of
the house of Isabel Dawang at approximately 12:30 p.m.
The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her naked c
adaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 mete
rs from the house of Isabel.
When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s death,11 howe
ver, he was placed under police custody.
On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Aba
gan accompanied him to the toilet around seven to ten meters away from the police station. They sudd
enly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!). Police Officer Orland
o Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was
approximately 70 meters away from the station when Police Officer Abagan recaptured him. 12 He was c
harged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilt
y."
After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Arti
cle 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape La
w of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brie
f, appellant assigns the following errors:
I

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED
BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.
II

THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE
SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant’s contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. Thi
s Court will not interfere with the judgment of the trial court in determining the credibility of witnesses un
less there appears in the record some fact or circumstance of weight and influence which has been ove
rlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule that the findin
gs of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reas
ons are presented necessitating a reexamination if not the disturbance of the same; the reason being th
at the former is in a better and unique position of hearing first hand the witnesses and observing their d
eportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or
misapplied some facts or circumstances of weight which would affect the result of the case, the trial jud
ge’s assessment of credibility deserves the appellate court’s highest respect.15 Where there is nothing to
show that the witnesses for the prosecution were actuated by improper motive, their testimonies are enti
tled to full faith and credit.16
The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which provi
des that an accused can be convicted even if no eyewitness is available, as long as sufficient circumsta
ntial evidence is presented by the prosecution to prove beyond doubt that the accused committed the cr
ime.17
Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised,
were found on the victim’s abdomen and back, causing a portion of her small intestines to spill out of h
er body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the victim at 9:00
a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) t
o twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of death
was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within
which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witness
es.
It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan
C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim, 20 D
r. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr.
Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual i
ntercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution tha
t the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm in
dicating resistance to the appellant’s assault on her virtue.22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen fr
om the vagina of the victim was identical the semen to be that of appellant’s gene type.
DNA is a molecule that encodes the genetic information in all living organisms. 23 A person’s DNA is the
same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood i
s the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, uri
ne, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human ge
netic structure, no two individuals have the same DNA, with the notable exception of identical twins.25
DNA print or identification technology has been advanced as a uniquely effective means to link a suspe
ct to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For
purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpato
ry evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficie
ntly facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the prope
r administration of justice in every case.
DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspici
on in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biologi
cal evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim’s body or
at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred
to the victim’s body during the assault.27Forensic DNA evidence is helpful in proving that there was phy
sical contact between an assailant and a victim. If properly collected from the victim, crime scene or ass
ailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28
The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used
the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. Wit
h PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus
, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplif
y small samples using the PCR method.
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factor
s: how the samples were collected, how they were handled, the possibility of contamination of the sampl
es, the procedure followed in analyzing the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst who conducted the tests.29

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an
expert witness on DNA print or identification techniques.30 Based on Dr. de Ungria’s testimony, it was de
termined that the gene type and DNA profile of appellant are identical to that of the extracts subject of
examination.31 The blood sample taken from the appellant showed that he was of the following gene typ
es: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken fro
m the victim’s vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and th
e blood sample given by the appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in science and technology in the Philippin
e criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fort
unately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdicti
ons. Specifically, the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles c
ould be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discr
etion over which testimony they would allow at trial, including the introduction of new kinds of scientific t
echniques. DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief i
n its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence obtai
ned through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is r
elevant and reliable since it is reasonably based on scientifically valid principles of human genetics and
molecular biology.
Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the trial
court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond
reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with th
e victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of their frequent quarr
els; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early m
orning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m.
of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty
white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at
12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appel
lant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw ap
pellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba wa
s found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a ro
pe; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her bo
dy on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoe
s scattered along the periphery; (10) Laboratory examination revealed sperm in the victim’s vagina (Exhi
bit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive
with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are id
entical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended,
such flight being indicative of guilt.35
Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which lea
ds to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of
the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur:
(1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and
(3) the combination of all the circumstances is such as to produce a conviction beyond reasonable dou
bt.36

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from hi
m as well as the DNA tests were conducted in violation of his right to remain silent as well as his right
against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.
This contention is untenable. The kernel of the right is not against all compulsion, but against testimonia
l compulsion.37 The right against self- incrimination is simply against the legal process of extracting from
the lips of the accused an admission of guilt. It does not apply where the evidence sought to be exclud
ed is not an incrimination but as part of object evidence.
We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly
taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair
samples may be admitted in evidence against him, for what is proscribed is the use of testimonial comp
ulsion or any evidence communicative in nature acquired from the accused under duress.
Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA,
as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the i
ncident, the police authorities took pictures of the accused without the presence of counsel, we ruled th
at there was no violation of the right against self-incrimination. The accused may be compelled to submi
t to a physical examination to determine his involvement in an offense of which he is accused.
It must also be noted that appellant in this case submitted himself for blood sampling which was conduc
ted in open court on March 30, 2000, in the presence of counsel.
Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitution
al on the ground that resort thereto is tantamount to the application of an ex-post facto law.
This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typi
ng involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court.
Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual det
ermination of the probative weight of the evidence presented.
Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodi
ed shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house during the t
ime when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not
demonstrate with clear and convincing evidence an impossibility to be in two places at the same time,
especially in this case where the two places are located in the same barangay. 40 He lives within a one
hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach
one house from the other. This fact severely weakens his alibi.
As to the second assignment of error, appellant asserts that the court a quo committed reversible error i
n convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt.
Appellant’s assertion cannot be sustained.
Generally, courts should only consider and rely upon duly established evidence and never on mere conj
ectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of p
robative value," suggesting that such evidentiary relevance must contain a "plus value." 41 This may be n
ecessary to preclude the trial court from being satisfied by matters of slight value, capable of being exa
ggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but
not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of su
ch evidence against the likely harm that would result from its admission.
The judgment in a criminal case can be upheld only when there is relevant evidence from which the co
urt can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonab
le doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree o
f certainty that convinces and directs the understanding and satisfies the reason and judgment of those
who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires th
at the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the wh
ole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In
view of the totality of evidence appreciated thus far, we rule that the present case passes the test of m
oral certainty.
However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond rea
sonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit. 44
Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the
victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appell
ant running down the stairs of Isabel’s house and proceeding to the back of the same house. 46 She als
o testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Y
atar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident
or attempt of the appellant to rape her five days before her naked and violated body was found dead in
her grandmother’s house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Lu
z Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our fa
mily."49 According to Judilyn, who was personally present during an argument between her aunt and the
appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I
will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant.
Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a rul
e in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the
acts or statements of the accused before or immediately after the commission of the offense, deeds or
words that may express it or from which his motive or reason for committing it may be inferred. 51
Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special compl
ex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the oc
casion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by stabbing her
repeatedly, thereby causing her untimely demise.
The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledg
e of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation
; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidati
on, appellant killed the woman.52However, in rape committed by close kin, such as the victim’s father, st
ep-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimi
dation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The
fact that the victim’s hymen is intact does not negate a finding that rape was committed as mere entry
by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, s
uffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so el
astic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not dispro
ve sexual abuse especially when the victim is of tender age.56
In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the victi
m Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, to
gether with the victim and his wife. After the separation, appellant moved to the house of his parents, a
pproximately one hundred (100) meters from his mother-in-law’s house. Being a relative by affinity within
the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on
the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their
position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless s
ubmit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be
lawfully imposed in the case at bar.
As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the
victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.00
59 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be aw

arded as part of the civil liability since the crime was not committed with one or more aggravating circu
mstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25
in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special com
plex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay
the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.0
0 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED
.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amende
d by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President
of the Philippines for the possible exercise of the pardoning power.
Costs de oficio.
SO ORDERED.

EN BANC

G.R. No. 144656 May 9, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GERRICO VALLEJO Y SAMARTINO @ PUKE, accused-appellant.
PER CURIAM:
This is an appeal from the decision1 of the Regional Trial Court, Branch 88, Cavite City, sentencing Ger
rico Vallejo y Samartino to death and ordering him to indemnify the heirs of the victim in the amount of
P100,000.00 as civil indemnity and P50,000.00 as moral damages for the rape-slaying of a 9-year old c
hild, Daisy Diolola, in Rosario, Cavite on July 10, 1999.
The Information charging accused-appellant Gerrico Vallejo with the crime of Rape with Homicide allege
d:
"That on or about the 10th day of July 1999, in Barangay Ligtong I, Municipality of Rosario, Province of
Cavite, Philippines and within the jurisdiction of this Honorable Trial Court, the above-named accused, wi
th lewd design, by means of force and intimidation, did then and there, willfully, unlawfully and feloniousl
y have sexual intercourse with DAISY DIOLOLA Y DITALO, a nine-year old child against the latter's will
and while raping the said victim, said accused strangled her to death."

"CONTRARY TO LAW."2
Accused-appellant was arraigned on July 26, 1999 and, with the assistance of counsel, pleaded not guilt
y to the crime charged, whereupon trial ensued.

Ten (10) witnesses testified for the prosecution, namely, Ma. Nida Diolola, the victim's mother; Dr. Anton
io S. Vertido, medico-legal officer of the NBI; Atty. Lupo Leyva; Mayor Renato Abutan of Rosario, Cavite
; Atty. Sikat Agbunag of the Public Attorney's Office; Pet Byron Buan, NBI Forensic Biologist; Aida Vilori
a-Magsipoc, NBI Forensic Chemist; SPO1 Arnel Cuevas of the Rosario, Cavite police station; and Jessie
min Mataverde and Charito Paras-Yepes, both neighbors of the victim.
The victim's mother, Ma. Nida Diolola, testified that at around 1:00 o'clock in the afternoon of July 10, 1
999, she sent her 9-year old daughter Daisy Diolola to their neighbor's house in Pilapil, Ligtong I, Rosar
io, Cavite, so that Aimee Vallejo, the sister of accused-appellant, could help Daisy with her lessons. Aim
ee's house, where accused-appellant was also staying, is about four to five meters away from Daisy's h
ouse. Ma. Nida saw her daughter go to the house of her tutor. She was wearing pink short pants and a
white sleeveless shirt. An hour later, Daisy came back with accused-appellant. They were looking for a
book which accused-appellant could copy to make a drawing or a poster that Daisy would submit to her
teacher. After finding the book, Daisy and accused-appellant went back to the latter's house. When Ma.
Nida woke up at about 5:30 o'clock after an afternoon nap, she noticed that Daisy was not yet home.
She started looking for her daughter and proceeded to the house of Aimee, Daisy's tutor. Aimee's moth
er told Ma. Nida that Daisy was not there and that Aimee was not able to help Daisy with her lessons
because Aimee was not feeling well as she had her menstrual period. Ma. Nida looked for Daisy in her
brother's and sister's houses, but she was not there, either. At about 7:00 o'clock that evening, Ma. Nid
a went back to her neighbor's house, and there saw accused-appellant, who told her that Daisy had go
ne to her classmate's house to borrow a book. But, when Ma. Nida went there, she was told that Daisy
had not been there. Ma. Nida went to the dike and was told that they saw Daisy playing at about 3:30
o'clock in the afternoon. Jessiemin Mataverde also told Ma. Nida that Daisy was playing in front of her
house that afternoon and even watched television in her house, but that Daisy later left with accused-ap
pellant.
Ma. Nida and her brother and sister searched for Daisy the whole evening of June 10, 1999, a Saturda
y, until the early morning of the following day, June 11, 1999, a Sunday, but their search proved fruitles
s. Then, at about 10:00 o'clock in the morning of June 11, 1999, she was informed that the dead body
of her daughter was found tied to the root of an aroma tree by the river after the "compuerta" by a cert
ain Freddie Quinto. The body was already in the barangay hall when Ma. Nida saw her daughter. Daisy
was wearing her pink short pants with her sleeveless shirt tied around her neck. Barangay Councilmen
Raul Ricasa and Calring Purihin reported the incident to the Rosario police. The other barangay officers
fetched accused-appellant from his house and took him to the barangay hall. At the barangay hall, Ma.
Nida pointed to accused-appellant Gerrico Vallejo as the probable suspect since he was with the victim
when she was last seen alive.3
Another witness, Jessiemin Mataverde, testified that at around 3:00 o'clock in the afternoon of that day,
she saw Daisy playing with other children outside her house. She asked Daisy and her playmates to sto
p playing as their noise was keeping Jessiemin's one-year old baby awake. Daisy relented and watched
television instead from the door of Jessiemin's house. About five minutes later, accused-appellant came
to the house and told Daisy something, as a result of which she went with him and the two proceeded
towards the "compuerta."

Jessiemin testified that at around 5:00 o'clock that afternoon, while she and her daughter were in front
of a store across the street from her house, accused-appellant arrived to buy a stick of Marlboro cigaret
te. Accused-appellant had only his basketball shorts on and was just holding his shirt. They noticed both
his shorts and his shirt were wet. After lighting his cigarette, accused-appellant left.4
Charito Yepes, another neighbor of Ma. Nida, also testified. She said that at about 4:30 o'clock in the af
ternoon of July 10, 1999, while she and her husband and children were walking towards the "compuerta
" near the seashore of Ligtong, Rosario, Cavite, they met a fisherman named Herminio who said that it
was a good day for catching milkfish (bangus). For this reason, according to this witness, they decided t
o get some fishing implements. She said they met accused-appellant Gerrico Vallejo near the seashore
and noticed that he was uneasy and looked troubled. Charito said that accused-appellant did not even g
reet them, which was unusual. She also testified that accused-appellant's shorts and shirt (sando) were
wet, but his face and hair were not.5
SPO1 Arnel Cuevas testified that upon receipt of the report, Rosario Police Chief Ricardo B. de la Cruz,
Jr. responded to the call together with his men, PO2 Garcia, SPO1 Araracap and PO2 Lariza. When th
ey arrived, Daisy's body was already in the barangay hall. SPO1 Cuevas took photographs of the body.
At that time, Daisy was wearing pink short pants and a dirty white panty with a dirty white sleeveless s
hirt wrapped around her neck. The body was afterwards taken to the Samson Funeral Parlor in Rosario,
Cavite. The inquiries conducted by the police showed that one Freddie Quinto was fishing near the co
mpuerta when he accidentally hit the body of Daisy, which was in the mud and tied to the root of an ar
oma tree.
Accused-appellant was invited by the policemen for questioning. Two others, a certain Raymond and Est
ing, were also taken into custody because they were seen with accused-appellant in front of the store in
the late afternoon of July 10 1999. Later, however, the two were released. Based on the statements of
Jessiemin Mataverde and Charito Paras-Yepes, the policemen went to the house of accused-appellant a
t about 4:00 o'clock in the afternoon of July 11, 1999 and recovered the white basketball shirt, with the
name Samartino and No. 13 printed at the back, and the violet basketball shorts, with the number 9 pri
nted on it, worn by accused-appellant the day before. The shirt and shorts, which were bloodstained, we
re turned over to the NBI for laboratory examination.6
Dr. Antonio S. Vertido, NBI Medico-Legal Officer, testified that at about 9:00 o'clock in the evening of Ju
ly 11, 1999, he conducted a physical examination of accused-appellant. His findings7 showed the followi
ng:
"PHYSICAL FINDINGS:
"Abrasions: thigh, right, antero-lateral aspect, lower 3rd 5.0 x 0.1 cm., knee, left, 7.0 x 6.0 cm. legs, righ
t anterior aspect, 28.0 x 8.0 cms., left anterior aspect, 24.0 x 10.0 cms., feet, plantar aspects; right, 9.0
x 3.0 cms. and left, 13.0 x 5.0 cms.
"Hematoma, left ring finger, posterior aspect, 1.0 x 0.5 cm.
"Lacerations, left ring finger, posterior aspect, 0.3 cm.
"(Living Case No. BMP-9902, p. 101, records)"
At about 10:00 o'clock in the evening, Dr. Vertido went to the Samson Funeral Parlor in Rosario, Cavite
for an autopsy on the cadaver of the victim Daisy Diolola. The autopsy revealed the following postmort
em findings:8
"Body in early stage of postmortem decomposition characterized by foul odor, eyes and tongue protrudin
g, bloating of the face and blister formation.
"Washerwoman's hands and feet.
"Contusion, (pinkish) face, right, 14.0 x 10.0 cms. and left, 13.0 x 6.0 cms. Contused abrasions, forehea
d, 13.0 x 5.0 cms. upper lip, 5.0 x 22.0 cms., lower lip, 3.0 x 2.0 cms., neck (nailmarks) anterior aspect
, 8.0 x 5.0 cms., arms, right antero-medial aspect, middle 3rd 3.0 x 15.0 cms. posterior aspect, upper 3r
d, 1.5 x 1.0 cms., left posterior aspect, 20.0 x 9.0 cms., forearm, left, posterior aspect, 21.0 x 8.0 cms.
left thumb, anterior aspect, 1.5 x 1.0 cms., left middle, ring and little fingers, dorsal aspect, .50 x 4.0 cm
s. knees, right, 3.0 x 2.0 cms. and left, 8.0- x 5.0 cms., legs, right anterior aspect, upper and middle 3r
d 3.0 x 2.5 cms. foot right, dorsal aspect.
"Hematoma, periorbital right, 5.0 x 3.0 cms. and left, 4.5 x 3.0 cms.
"Fracture, tracheal rings.
"Hemorrhages, interstitial, neck, underneath, nailmarks. "Petechial hemorrhages, subendocardial, subpleur
al.
"Brain and other visceral organs are congested.
"Stomach, contains ½ rice and other food particles.
"CAUSE OF DEATH: -Asphyxia by Manual Strangulation.

"GENITAL EXAMINATION: - Pubic hair, no growth. Labia majora and minora, gaping and congested. Hy
men, moderately tall, thick with fresh lacerations, complete at 3:00, 6:00 and 9:00 o'clock positions, edg
es with blood clots." [Autopsy Report No. BTNO-99-152]
Renato Abutan, Municipal Mayor of Rosario, Cavite, testified that he was informed of the rape and murd
er at past 10:00 o'clock in the evening of June 11, 1999. The mayor said he immediately proceeded to
the municipal jail, where accused-appellant was detained, and talked to the latter. Accused-appellant at f
irst denied having anything to do with the killing and rape of the child. The mayor said he told accused-
appellant that he could not help him if he did not tell the truth. At that point, accused-appellant started c
rying and told the mayor that he killed the victim by strangling her. Accused-appellant claimed that he w
as under the influence of drugs. The mayor asked accused-appellant if he wanted to have the services
of Atty. Lupo Leyva, a resident of Rosario, as his lawyer. When accused-appellant said he did, Mayor A
butan fetched Atty. Leyva from his house and took him to the police station about 11:00 o'clock that ev
ening.9
Atty. Lupo Leyva corroborated Mayor Abutan's testimony. He said that upon arriving at the police station
, he asked accused-appellant if he wanted his services as counsel in the investigation. After accused-ap
pellant assented, Atty. Leyva testified that he "sort of discouraged" the former from making statements a
s anything he said could be used against him. But, as accused-appellant was willing to be investigated,
Atty. Leyva said he advised him to tell the truth. PO2 Garcia, the investigator, informed accused-appella
nt of his constitutional rights to remain silent and to be assisted by counsel and warned him that any an
swer he gave could and might be used against him in a court of law. PO2 Garcia asked questions from
accused-appellant, who gave his answers in the presence of Atty. Leyva. After the statement was take
n, Atty. Leyva and accused-appellant read it and afterwards signed it. Atty. Leyva testified that he did n
ot see or notice any indication that accused-appellant had been maltreated by the police. In his sworn s
tatement (Exh. M), accused-appellant confessed to killing the victim by strangling her to death, but denie
d having molested her.10
Pet Byron Buan, Forensic Biologist of the NBI, testified that on July 12, 1999, he took blood samples fr
om accused-appellant in his office for laboratory examination to determine his blood type. Likewise, the
basketball shorts and shirt worn by accused-appellant on the day the victim was missing and the victim'
s clothing were turned over to the Forensic Chemistry Division of the NBI by PO1 Amoranto of the Ros
ario, Cavite police for the purpose of determining the presence of human blood and its groups.11
The results of the examinations conducted by Pet Byron T. Buan showed accused-appellant to belong t
o Group "O". The following specimens: (1) one (1) white no. 13 athletic basketball shirt, with patches "G
rizzlies" in front and "SAMARTINO" at the back; (2) one (1) violet no. 9 athletic basketball short pants; (
3) one (1) white small "Hello Kitty" T-shirt with reddish brown stains; (4) one (1) "cut" pink short pants
with reddish brown stains; (5) one (1) "cut" dirty white small panty with reddish brown stains, were all p
ositive for the presence of human blood showing the reactions of Group "A".12
Pet Byron Buan also testified that before he took the blood samples, he had a conversation with accuse
d-appellant during which the latter admitted that he had raped and later killed the victim by strangulation
and stated that he was willing to accept the punishment that would be meted out on him because of th
e grievous offense he had committed. Mr. Buan observed that accused-appellant was remorseful and wa
s crying when he made the confession in the presence of SPO1 Amoranto at the NBI laboratory. 13

When accused-appellant was brought before Inquest Prosecutor Elpidia J. Itoc at around noon of July 1
3, 1999 in Cavite City, accused-appellant had with him a handwritten confession which he had executed
inside his cell at the Municipal Jail of Rosario. In his confession, accused-appellant admitted not only th
at he killed the victim but that he had before that raped her. Accused-appellant said he laid down the vi
ctim on a grassy area near the dike. He claimed that she did not resist when he removed her undergar
ments but that when he tried to insert his penis into the victim's vagina, she struggled and resisted. Acc
used-appellant said he panicked and killed the child. He then dumped her body in the shallow river near
the "compuerta" and went home.14
Atty. Sikat Agbunag, a lawyer from the Public Attorney's Office, testified that at noon of July 13, 1999,
while she was in their office in Cavite City, Prosecutor Itoc came together with accused-appellant and s
ome policemen. Prosecutor Itoc asked Atty. Agbunag to assist accused-appellant about his confession.
Atty. Agbunag read the document, informed accused-appellant of his constitutional rights, and warned hi
m that the document could be used against him and that he could be convicted of the case against him
, but, according to her, accused-appellant said that he had freely and voluntarily executed the document
because he was bothered by his conscience. Accused-appellant, assisted by Atty. Agbunag, then affixed
his signature to the document and swore to it before Prosecutor Itoc.15
At the instance of City Prosecutor Agapito S. Lu of Cavite City, NBI Forensic Biologist Pet Byron Buan t
ook buccal swabs and hair samples from accused-appellant, as well as buccal swabs and hair samples
from the parents of the victim, namely, Ma. Nida Diolola and Arnulfo Diolola. The samples were submitt
ed to the DNA Laboratory of the NBI for examination.
Aida Viloria-Magsipoc, Forensic Chemist of the NBI, conducted DNA tests on the specimens collected b
y Dr. Vertido. She testified that the vaginal swabs of the victim taken by Dr. Vertido during the autopsy
contained the DNA profiles of accused-appellant and the victim.16
The defense then presented as witnesses accused-appellant Gerrico Vallejo and his sister Aimee Vallejo
. Their testimonies show that at about 1:00 o'clock in the afternoon of July 10, 1999, accused-appellant,
Aimee, and their sister Abigail were in their house in Barangay Talisay, Ligtong I, Rosario, Cavite when
Daisy Diolola came to ask accused-appellant to draw her school project. After making the request, Daisy
left.17 Accused-appellant did not immediately make the drawing because he was watching television. Ac
cused-appellant said that he finished the drawing at about 3:00 o'clock in the afternoon and gave it to t
he victim's aunt, Glory. He then returned home to watch television again. He claimed he did not go out
of the house until 7:00 o'clock in the evening when he saw Ma. Nida, who was looking for her daughter
. Accused-appellant said he told her that he had not seen Daisy. After that, accused-appellant said he
went to the "pilapil" and talked with some friends, and, at about 8:00 o'clock that evening, he went hom
e.
At 9:00 o'clock in the morning of July 11, 1999, barangay officials fetched accused-appellant from his ho
use and took him to the barangay hall, where he was asked about the disappearance of Daisy. He clai
med that he did not know anything about it. Accused-appellant was allowed to go home, but, at 11:00 o
'clock that morning, policemen came and invited him to the police headquarters for questioning. His mot
her went with him to the police station. There, accused-appellant was asked whether he had something
to do with the rape and killing of Daisy. He denied knowledge of the crime.
At 4:00 o'clock that afternoon, accused-appellant accompanied the police to his house to get the basket
ball shorts and shirt he was wearing the day before, which were placed together with other dirty clothes
at the back of their house. According to accused-appellant, the police forced him to admit that he had r
aped and killed Daisy and that he admitted having committed the crime to stop them from beating him
up. Accused-appellant claimed the police even burned his penis with a lighted cigarette and pricked it wi
th a needle.
Accused-appellant confirmed that Mayor Renato Abutan and Atty. Lupo Leyva went to see him in the in
vestigation room of the police station and told him that they would help him if he told the truth. Atty. Le
yva asked him whether he wanted him to be his counsel, and accused-appellant said he answered in th
e affirmative. He said Atty. Leyva informed him of his constitutional rights. Accused-appellant claimed th
at, although he admitted to Mayor Abutan and Atty. Leyva the commission of the crime, this was becau
se the police had maltreated him. Accused-appellant said he did not tell the mayor or Atty. Leyva that h
e had been tortured because the policemen were around and he was afraid of them. It appears that the
family of accused-appellant transferred their residence to Laguna on July 12, 1999 because of fear of r
eprisal by residents of their barangay. 18 According to accused-appellant, Mayor Abutan and Atty. Leyva
were not present when he gave his confession to the police and signed the same. Accused-appellant cl
aims that although Exhibit "N" was in his own handwriting, he merely copied the contents thereof from a
pattern given to him by the police.19
On July 31, 2000, the trial court rendered a decision finding accused-appellant guilty of the offense char
ged. The dispositive portion of its decision reads:
"WHEREFORE, in view of all the foregoing considerations, the Court finds the accused Gerrico Vallejo y
Samartino GUILTY beyond reasonable doubt of the crime of Rape with Homicide, as charged in the Inf
ormation, accordingly hereby sentences him to the supreme penalty of DEATH. The accused is directed
to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,000.00 as
moral damages.

"SO ORDERED."20
Hence this appeal. Accused-appellant contends that:
"I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WI
TH HOMICIDE DESPITE THE INSUFFICIENCY AND WEAKNESS OF THE CIRCUMSTANTIAL EVIDEN
CE OF THE PROSECUTION.
"II. THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED OR
AL CONFESSIONS OF THE ACCUSED-APPELLANT DESPITE ITS BEING HEARSAY IN NATURE.
"III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GIVING PROBATIVE VALUE TO THE
WRITTEN EXTRA-JUDICIAL CONFESSION OF THE ACCUSED-APPELLANT DESPITE THE FACT THA
T THE SAME WAS OBTAINED THROUGH FORCE AND INTIMIDATION AND THAT THE LAWYER W
HO ASSISTED HIM DURING HIS CUSTODIAL INVESTIGATION DID NOT AND COULD NOT POSSIBL
Y GIVE HIM EFFECTIVE LEGAL ASSISTANCE."
We find accused-appellant's contentions to be without merit.
First. An accused can be convicted even if no eyewitness is available, provided sufficient circumstantial
evidence is presented by the prosecution to prove beyond reasonable doubt that the accused committed
the crime.21 In rape with homicide, the evidence against an accused is more often than not circumstanti
al. This is because the nature of the crime, where only the victim and the rapist would have been prese
nt at the time of its commission, makes the prosecution of the offense particularly difficult since the victi
m could no longer testify against the perpetrator. Resort to circumstantial evidence is inevitable and to d
emand direct evidence proving the modality of the offense and the identity of the perpetrator is unreaso
nable.22
Under Rule 133, section 4 of the Revised Rules on Evidence, circumstantial evidence is sufficient to sus
tain a conviction if:
"(a) there is more than one circumstance;

"(b) the facts from which the inferences are derived are proven; and
"(c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt." 23
In the case at bar, the following circumstantial evidence establish beyond reasonable doubt the guilt of
accused-appellant:
1. The victim went to Aimee Vallejo's house, where accused-appellant was residing, at 1:00 o'clock in th
e afternoon of July 10, 1999, for tutoring.
2. At around 2:00 o'clock in the afternoon, accused-appellant and Daisy went together to the latter's hou
se to get a book from which the former could copy Daisy's school project. After getting the book, they p
roceeded to accused-appellant's residence.
3. From accused-appellant's house, Daisy then went to the house of Jessiemin Mataverde where she w
atched television. Accused-appellant thereafter arrived and whispered something to Daisy, and the latter
went with him towards the "compuerta."
4. At about 4:30 o'clock in the afternoon, the spouses Iluminado and Charito Yepes saw accused-appell
ant coming out of the "compuerta," with his clothes, basketball shorts, and t-shirt wet, although his face
and hair were not. According to these witnesses, he looked pale, uneasy, and troubled (balisa). He kept
looking around and did not even greet them as was his custom to do so.
5. The fishing boat which accused-appellant used as a bomber (a boat for catching fish with dynamite)
was docked by the seashore.
6. A little before 5:00 o'clock in the afternoon, Jessiemin Mataverde also saw accused-appellant buying
a Marlboro cigarette from a store. Jessiemen also noticed that accused-appellant's clothes were wet but
not his face nor his hair.
7. By 5:30 o'clock in the afternoon, as Ma. Nida Diolola looked for her daughter, she was told by accus
ed-appellant that Daisy had gone to her classmate Rosario's house. The information proved to be false.
8. Daisy's body was found tied to an aroma tree at the part of the river near the "compuerta."
9. During the initial investigation, accused-appellant had scratches on his feet similar to those caused by
the thorns of an aroma tree.
10. The clothes which accused-appellant wore the day before were bloodstained. The bloodstains on ac
cused-appellant's clothes and on Daisy's clothes were found positive of human blood type "A."
11. Accused-appellant has blood type "O."
12. The vaginal swabs from Daisy's body contained her DNA profile as well as that of accused-appellan
t.
Accused-appellant contends that the bloodstains found on his garments were not proven to have been t
hat of the victim as the victim's blood type was not determined.
The contention has no merit. The examination conducted by Forensic Biologist Pet Byron Buan of both
accused-appellant's and the victim's clothing yielded bloodstains of the same blood type "A".24 Even if th
ere was no direct determination as to what blood type the victim had, it can reasonably be inferred that
the victim was blood type "A" since she sustained contused abrasions all over her body which would ne
cessarily produce the bloodstains on her clothing.25 That it was the victim's blood which predominantly re
gistered in the examination was explained by Mr. Buan, thus:26
"ATTY. ESPIRITU
Q: But you will agree with me that more probably than not, if a crime is being committed, and it
results in a bloody death, it is very possible that the blood of the victim and the blood of the assailant
might mix in that particular item like the t-shirt, shorts or pants?
A: It is possible when there is a huge amount of blood coming from the victim and the suspect,
Sir. It is possible. It will mix. Whichever is the dominant blood in it, it will be the one which will register.
For example, if there is more blood coming from the victim, that blood will be the one to register, on o
ccasions when the two blood mix.
Q: But in these specimens number 1 to 5, it is very clear now that only type A and no type O
blood was found?

A: Yes, sir."
Accused-appellant also questions the validity of the method by which his bloodstained clothes were reco
vered. According to accused-appellant, the policemen questioned him as to the clothes he wore the day
before. Thereafter, they took him to his house and accused-appellant accompanied them to the back of
the house where dirty clothes were kept.27 There is no showing, however, that accused-appellant was co
erced or forced into producing the garments. Indeed, that the accused-appellant voluntarily brought out t
he clothes sought by the police becomes more convincing when considered together with his confession
s. A consented warrantless search is an exception to the proscription in Section 2 of Article III of the C
onstitution. As we have held, the consent of the owner of the house to the search effectively removes a
ny badge of illegality.28
The DNA analysis conducted by NBI Forensic Chemist Aida Viloria-Magsipoc is also questioned by accu
sed-appellant. He argues that the prosecution failed to show that all the samples submitted for DNA test
ing were not contaminated, considering that these specimens were already soaked in smirchy waters bef
ore they were submitted to the laboratory.
DNA is an organic substance found in a person's cells which contains his or her genetic code. Except f
or identical twins, each person's DNA profile is distinct and unique.29
When a crime is committed, material is collected from the scene of the crime or from the victim's body f
or the suspect's DNA. This is the evidence sample. The evidence sample is then matched with the refer
ence sample taken from the suspect and the victim.30
The purpose of DNA testing is to ascertain whether an association exists between the evidence sample
and the reference sample.31 The samples collected are subjected to various chemical processes to estab
lish their profile.32The test may yield three possible results:
1) The samples are different and therefore must have originated from different sources (exclusion). This
conclusion is absolute and requires no further analysis or discussion;

2) It is not possible to be sure, based on the results of the test, whether the samples have similar DNA
types (inconclusive). This might occur for a variety of reasons including degradation, contamination, or f
ailure of some aspect of the protocol. Various parts of the analysis might then be repeated with the sa
me or a different sample, to obtain a more conclusive result; or

3) The samples are similar, and could have originated from the same source (inclusion).33 In such a cas
e, the samples are found to be similar, the analyst proceeds to determine the statistical significance of t
he Similarity.34
In assessing the probative value of DNA evidence, therefore, courts should consider, among others thing
s, the following data: how the samples were collected, how they were handled, the possibility of contami
nation of the samples, the procedure followed in analyzing the samples, whether the proper standards a
nd procedures were followed in conducting the tests, and the qualification of the analyst who conducted
the tests.

In the case at bar, the bloodstains taken from the clothing of the victim and of accused-appellant, the s
mears taken from the victim as well as the strands of hair and nails taken from her tested negative for t
he presence of human DNA,35 because, as Ms. Viloria-Magsipoc explained:
"PROSECUTOR LU:
Q: I noticed that specimens 1 to 5 consisting of bloodstains taken from the clothing of the victim
and of the accused gave negative results for the presence of human DNA. Why is it so? What is the r
eason for this when there are still bloodstains on the clothing?
A: After this Honorable Court issued an Order for DNA analysis, serological methods were alrea
dy conducted on the said specimens. And upon inquiry from Mr. Buan and as far as he also knew of th
is case, and we also interviewed the mother who came over to the laboratory one time on how was the
state of the specimens when they were found out. We found that these specimens were soaked in smi
rchy water before they were submitted to the laboratory. The state of the specimens prior to the DNA a
nalysis could have hampered the preservation of any DNA that could have been there before. So when
serological methods were done on these specimens, Mr. Byron could have taken such portion or stains
that were only amenable for serological method and were not enough for DNA analysis already. So neg
ative results were found on the clothings that were submitted which were specimens no. 1 to 5 in my re
port, Sir.
Q: I also noticed that specimen no. 6-B consisting of the smears taken from the victim also prov
ed negative for human DNA, why is it so?
A: Because when we received the vaginal smears submitted by Dr. Vertido, the smear on the sli
de was very, very dry and could have chipped off. I already informed Dr. Vertido about it and he confir
med the state of the specimen. And I told him that maybe it would be the swab that could help us in th
is case, Sir. And so upon examination, the smears geared negative results and the swabs gave positive
results, Sir.
Q: How about specimen no. 7, the hair and nails taken from the victim, why did they show nega
tive results for DNA?
A: The hair samples were cut hair. This means that the hair did not contain any root. So any ha
ir that is above the skin or the epidermis of one's skin would give negative results as the hair shaft is n
egative for DNA. And then the nails did not contain any subcutaneous cells that would be amenable for
DNA analysis also, Sir.
Q: So it's the inadequacy of the specimens that were the reason for this negative result, not the
inadequacy of the examination or the instruments used?
A: Yes, Sir."
Thus, it is the inadequacy of the specimens submitted for examination, and not the possibility that the s
amples had been contaminated, which accounted for the negative results of their examination. But the v
aginal swabs taken from the victim yielded positive for the presence of human DNA. Upon analysis by t
he experts, they showed the DNA profile of accused-appellant:36
"PROSECUTOR LU:
Q: So based on your findings, can we say conclusively that the DNA profile of the accused in th
is case was found in the vaginal swabs taken from the victim?
A: Yes, Sir.
Q: That is very definite and conclusive?

A: Yes, Sir."
In conclusion, we hold that the totality of the evidence points to no other conclusion than that accused-a
ppellant is guilty of the crime charged. Evidence is weighed not counted. When facts or circumstances
which are proved are not only consistent with the guilt of the accused but also inconsistent with his inno
cence, such evidence, in its weight and probative force, may surpass direct evidence in its effect upon t
he court.37 This is how it is in this case.
Second. Accused-appellant challenges the validity of the oral and written confessions presented as evid
ence against him. He alleges that the oral confessions were inadmissible in evidence for being hearsay,
while the extrajudicial confessions were obtained through force and intimidation.
The claim is untenable. Section 12 of Art. III of the Constitution provides in pertinent parts:
"(1) Any person under investigation for the commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and independent counsel, preferably of his own cho
ice. If the person cannot afford the services of counsel, he must be provided with one. These rights can
not be waived except in writing and in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.

"(3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evid
ence against him."
There are two kinds of involuntary or coerced confessions treated in this constitutional provision: (1) coe
rced confessions, the product of third degree methods such as torture, force, violence, threat, and intimi
dation, which are dealt with in paragraph 2 of Section 12, and (2) uncounselled statements, given witho
ut the benefit of Miranda warnings, which are the subject of paragraph 1 of the same section. 38
Accused-appellant argues that the oral confessions given to Mayor Abutan of Rosario, Cavite and to NB
I Forensic Biologist should be deemed inadmissible for being violative of his constitutional rights as thes
e were made by one already under custodial investigation to persons in authority without the presence o
f counsel. With respect to the oral confessions, Atty. Leyva testified:39
"PROSECUTOR LU:
Q: Upon meeting this Gerrico Vallejo at the police station were you able to confer with him?
A: Yes, Sir.
Q: Did you ask him whether he really wants you to represent or assist him as a lawyer during t
hat investigation?
A: I did, as a matter of fact, I asked him whether he would like me to represent him in that inve
stigation, Sir.
Q: And what was his answer?
A: He said "yes".
Q: After agreeing to retain you as his counsel, what else did you talk about?

A: I told him that in the investigation, whatever he will state may be used against him, so it's a
sort of discouraging him from making any statement to the police, Sir."

Upon cross-examination, Atty. Leyva testified as follows:40

Q: You stated that you personally read this recital of the constitutional rights of the accused?
A: Yes, Sir.
Q: But it will appear in this recital of constitutional rights that you did not inform the accused tha
t the statement that he will be giving might be used against him in a court of justice?
A: I did that, Sir.
Q: But it does not appear in this statement?

PROSECUTOR LU
The best evidence will be the statement, your Honor.
ATTY ESPIRITU
The only thing that is stated here is that "Maaaring gamitin pabor o laban sa iyo."

COURT
Let the witness answer.
A: I told him that, as a matter of fact, and I also told him to tell the truth and nothing but the tr
uth."
The testimony of Atty. Leyva is not only corroborated by the testimony of Mayor Renato Abutan,41 it is a
lso confirmed by accused-appellant who testified as follows:42
"ATTY. ESPIRITU:
Q: Did Atty. Leyva explain to you the meaning and significance of that document which you are
supposed to have executed and signed?
A: Yes, Sir.
Q: What did Atty. Leyva tell you?
A: That they are allowing me to exercise my constitutional right to reveal or narrate all what I kn
ow about this case, Sir.
Q: Did Atty. Leyva tell you that if you do not want, nobody can force you to give that statement
?
A: Yes, Sir.
Q: And did he tell you that what you would be giving is an extra-judicial confession?

A: Yes, Sir."
Clearly, accused-appellant cannot now claim that he was not apprised of the consequences of the state
ments he was to make as well as the written confessions he was to execute. Neither can he question t
he qualifications of Atty. Lupo Leyva who acted as his counsel during the investigation. To be an effecti
ve counsel, a lawyer need not challenge all the questions being propounded to his client. The presence
of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, ra
ther, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to
admit something false. Indeed, counsel should not prevent an accused from freely and voluntarily telling
the truth.43

Indeed, accused-appellant admitted that he was first asked whether he wanted the services of Atty. Ley
va before the latter acted as his defense counsel.44 And counsel who is provided by the investigators is
deemed engaged by the accused where the latter never raised any objection against the former's appoi
ntment during the course of the investigation but, on the contrary, thereafter subscribed to the veracity o
f his statement before the swearing officer.45Contrary to the assertions of accused-appellant, Atty. Leyva
was not the municipal attorney of Rosario, Cavite but only a legal adviser of Mayor Renato Abutan.46

Accused-appellant contends that the rulings in People vs. Andan47 and People vs. Mantung48 do not appl
y to this case. We disagree. The facts of these cases and that of the case at bar are similar. In all the
se cases, the accused made extrajudicial confessions to the municipal mayor freely and voluntarily. In al
l of them, the extrajudicial confessions were held admissible in evidence, being the spontaneous, free, a
nd voluntary admissions of the guilt of the accused. We note further that the testimony of Mayor Abutan
was never objected to by the defense.
Indeed, the mayor's questions to accused-appellant were not in the nature of an interrogation, but rather
an act of benevolence by a leader seeking to help one of his constituents. Thus, Mayor Abutan testifie
d:49
"PROSECUTOR LU:

Q: And during the conversation you had with Accused Gerrico Vallejo, what exactly did he tell y
ou?
A: At first he said that he did not do that. That was the first thing he told me. Then I told him t
hat I will not be able to help him if he will not tell me the truth.
Q: And what was the reply of the accused?
A: He had been silent for a minute. Then we talked about the incident, Sir.

Q: And what exactly did he tell you about the incident?

A: I asked him, "Were you under the influence of drugs at that time"?
Q: What else did he tell you?
A: I told him, "What reason pushed you to do that thing?" x x x
Q: Please tell us in tagalog, the exact words that the accused used in telling you what happene
d.

A: He told me that he saw the child as if she was headless at that time. That is why he strangl
ed the child, Sir. ("Ang sabi niya po sa 'kin, nakita niya raw 'yung bata na parang walang ulo na naglal
akad. Kaya po sinakal niya.")
x x x x x x x x x
COURT:
Q: When you told the accused that you will help him, what kind of help were you thinking at tha
t time?
A: I told him that if he will tell the truth, I could help give him legal counsel.

Q: And what was the answer of the accused?

A: Yes, he will tell me the truth, Your Honor."
In People vs. Mantung,50 this Court said:
"Never was it raised during the trial that Mantung's admission during the press conference was coerced
or made under duress. As the records show, accused-appellant voluntarily made the statements in respo
nse to Mayor Marquez' question as to whether he killed the pawnshop employees. Mantung answered i
n the affirmative and even proceeded to explain that he killed the victims because they made him eat p
ork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides,
he could have chosen to remain silent or to do deny altogether any participation in the robbery and killi
ngs but he did not; thus accused-appellant sealed his own fate. As held in People v. Montiero, a confes
sion constitutes evidence of high order since it is supported by the strong presumption that no person of
normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his con
science."
And in People vs. Andan, it was explained:
"Thus, it has been held that the constitutional procedures on custodial investigation do not apply to a sp
ontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner
whereby appellant orally admitted having committed the crime. What the Constitution bars is the compu
lsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to pre
clude the slightest use of coercion by the state as would lead the accused to admit something false, not
prevent him from freely and voluntarily telling the truth."51
For the same reason, the oral confession made by accused-appellant to NBI Forensic Biologist Pet Byro
n Buan is admissible. Accused-appellant would have this Court exclude this confession on the ground th
at it was uncounselled and that Mr. Buan, who initiated the conversation with accused-appellant, was pa
rt of the NBI. The issue concerning the sufficiency of the assistance given by Atty. Leyva has already b
een discussed. On the other hand, the questions put by Mr. Buan to accused-appellant were asked out
of mere personal curiosity and clearly not as part of his tasks. As Buan testified: 52
"PROSECUTOR LU:
Q: What was the subject of your conversation with him?
A: It is customary when we examine the accused. During the examination, we talk to them for
me to add knowledge on the case, Sir.
Q: What did you talk about during your conversation?
A: I asked him if he was the one who did the killing on this victim, Daisy Diolola, Sir.
Q: And what was the reply of the accused?

A: He said yes, Sir.

Q: What else did you ask the accused?
A: I remember that while asking him, he was crying as if feeling remorse on the killing, Sir.
. . . .

Q: And it was you who initiated the conversation?

A: Yes, Sir.
Q: Do you usually do that?
A: Yes, Sir. We usually do that.

Q: Is that part of your procedure?

A: It is not SOP. But for me alone, I want to know more about the case, Sir. And any informatio
n either on the victim or from the suspect will help me personally. It's not an SOP, Sir."

The confession, thus, can be likened to one freely and voluntarily given to an ordinary individual and is,
therefore, admissible as evidence.
Third. The admissibility of the extrajudicial confessions of accused-appellant is also attacked on the gro
und that these were extracted from him by means of torture, beatings, and threats to his life. The bare
assertions of maltreatment by the police authorities in extracting confessions from the accused are not s
ufficient. The standing rule is that "where the defendants did not present evidence of compulsion, or dur
ess nor violence on their person; where they failed to complain to the officer who administered their oat
hs; where they did not institute any criminal or administrative action against their alleged intimidators for
maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not
have themselves examined by a reputable physician to buttress their claim," all these will be considere
d as indicating voluntariness.53 Indeed, extrajudicial confessions are presumed to be voluntary, and, in th
e absence of conclusive evidence showing that the declarant's consent in executing the same has been
vitiated, the confession will be sustained.54
Accused-appellant's claim that he was tortured and subjected to beatings by policemen in order to extra
ct the said confession from him is unsupported by any proof:55
"ATTY. ESPIRITU:
Q: Did they further interrogate you?

A: Yes, sir.
Q: What else did they ask you?
A: They were asking me the project, Sir.
Q: What else?

A: That is the only thing, Sir.

Q: Who was doing the questioning?
A: The investigator, Sir.
Q: How many were they inside that room?

A: Five, Sir.
Q: They are all policemen?
A: Yes, Sir.
x x x x x x x x x

Q: Until what time did they keep you inside that room?
A: Up to 11:00 in the evening, Sir.
Q: Between 10:30 in the morning up to 11:00 o'clock in the evening, what did you do there?
A: They were interrogating and forcing me to admit something, Sir.

Q: In what way did they force you to admit something?

A: They were mauling me, Sir.
Q: The 5 of them?
A: Yes, Sir.

Q: The 5 of them remained inside that room with you throughout the questioning?
A: Yes, Sir.
Q: In what way did they hurt you?
A: They burned my private part with a lighted cigarette butt and pierced me with a needle, Sir.

Q: Who did these things to you?

A: Mercado, Sir.
Q: Who is this Mercado?
A: EPZA policemen, Sir.

Q: Did the other policemen help in doing these things to you?

A: No, Sir.
Q: Were you asked to undress or you were forced to do that?

A: They forced me to remove my clothes, Sir.

Q: In what way did they force you to remove your clothes?
A: They were asking me to take off the pants which I was wearing at the time, Sir.
Q: Did they do anything to you to force you to remove your pants?

A: Yes, Sir.
Q: What?
A: They boxed me, Sir.
Q: What else, if any?

A: They hit me with a piece of wood, Sir.

Q: What did you feel when your private part was burned with a cigarette butt?
A: It was painful, Sir.
Q: In what part of your body were you pricked by a needle?
A: At my private part, Sir."
These bare assertions cannot be given weight. Accused-appellant testified that he was made to stay in t
he municipal hall from 10:00 o'clock in the morning until 11:00 o'clock that night of July 10, 1999, durin
g which time he was boxed, tortured, and hit with a piece of wood by policemen to make him admit to
the crime. However, accused-appellant was physically examined by Dr. Antonio Vertido at about 9:00 o'c
lock in the evening of the same day. While the results show that accused-appellant did sustain injuries,
the same are incompatible with his claim of torture. As Dr. Vertido testified:56
"PROSECUTOR LU:
Q: What were your findings when you conducted the physical examination of the suspect?

A: I found abrasions, your Honor, abrasions on the thigh, knees, legs and feet of the suspect, a
nd I also found hematoma on the left ring finger, posterior aspect and at the same time, a laceration on
the left ring finger.
x x x x x x x x x
Q: In your findings, it appears that the accused in this case suffered certain physical injuries on
his person like this abrasion on the thigh, right anterior lateral aspect lower third of the knee, what coul
d have caused this injury?
A: Abrasions are usually caused when the skin comes in contact with a rough surface, Sir. Hem
atoma are usually caused by a blunt instrument or object and laceration is the forcible contact of the ski
n from that blunt object.
Q: I am particularly interested in your findings hematoma on the left ring finger, posterior aspect
and laceration left ring finger posterior aspect, what could have caused those injuries on the accused?
A: My opinion to these hematoma and laceration found on the said left ring finger was that it wa
s caused by a bite, Sir."
If the account of accused-appellant that he was beaten up is true, Dr. Antonio Vertido would have found
more than mere abrasions and hematoma on his left finger. Dr. Vertido's findings are more consistent
with the theory that accused-appellant sustained physical injuries as a result of the struggle made by th
e victim during the commission of the rape in the "compuerta."
At all events, even if accused-appellant was truthful and his assailed confessions are inadmissible, the c
ircumstantial evidence, as already shown, is sufficient to establish his guilt beyond all reasonable doubt.
The prosecution witnesses presented a mosaic of circumstances showing accused-appellant's guilt. Their
testimonies rule out the possibility that the crime was the handiwork of some other evil mind. These wit
nesses have not been shown to have been motivated by ill will against accused-appellant.

On the other hand, no other witness not related to accused-appellant was ever called to corroborate his
claim. The defense presented only accused-appellant's sister, Aimee Vallejo, to corroborate his story. W
e have held time and again that alibi cannot prosper if it is established mainly by the accused and his r
elatives, and not by credible persons.57 It is well settled that alibi is the weakest of all defenses as it is
easy to contrive and difficult to disprove. For this reason, this Court looks with caution upon the defense
of alibi, especially when, as in this case, it is corroborated only by relatives or friends of the accused.58

Article 266-B of the Revised Penal Code provides that "When by reason or on the occasion of the rape,
homicide is committed, the penalty shall be death."59 Therefore, no other penalty can be imposed on ac
cused-appellant.
WHEREFORE, in view of all the foregoing considerations, the decision of the Regional Trial Court, Bran
ch 88, Cavite City, finding accused-appellant Gerrico Vallejo y Samartino GUILTY beyond reasonable do
ubt of the crime of Rape with Homicide and sentencing him to the supreme penalty of DEATH and dire
cting him to indemnify the heirs of the victim in the amount of P100,000.00 as civil indemnity and P50,0
00.00 as moral damages, is hereby AFFIRMED.
In accordance with Section 25 of R.A. 7659, amending Art. 83 of the Revised Penal Code, upon the fin
ality of this decision, let the records of this case be forthwith forwarded to the President of the Philippin
es for the possible exercise of the pardoning power.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 200748 July 23, 2014

JAIME D. DELA CRUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
SERENO, CJ:

This is a Petition for Review on Certiorari, filed by petitioner Jaime D. dela Cruz, from the Decision 1 dat
ed 22 June 2011 issued by the Twentieth Division of the Court of Appeals (CA) and Resolution2 dated
2 February 2012 issued by the Former Twentieth Division of the CA in CA-G.R. C.R. No. 00670.
THE ANTECEDENT FACTS
Petitioner Jaime D. dela Cruz was charged with violation of Section 15, Article II of Republic Act No. (R
.A.) 9165, or The Comprehensive Dangerous Drugs Act of 2002, by the Graft Investigation and Prosecut
ion Officer of the Office of the Ombudsman - Visayas, in an Information3 dated 14 February 2006, which
reads:
That on or about the 31st day of January 2006, at Cebu City, Philippines, and within the jurisdiction of t
his Honorable Court, the abovenamed accused, JAIME D. DE LA CRUZ, a public officer, having been d
uly appointed and qualified to such public position as Police Officer 2 of the Philippine National Police (
PNP) assigned in the Security Service Group of the Cebu City Police Office, after having beenarrested
by agents of the National Bureau of Investigation (NBI) in an entrapment operation, was found positive f
or use of METHAMPHETAMINE HYDROCHLORIDEcommonly known as "Shabu", the dangerous drug af
ter a confirmatory test conducted on said accused.
CONTRARY TO LAW.
When arraigned, petitioner, assisted by counsel de parte, pleaded not guilty to the charge. The records
do not reveal whether De la Cruz was likewise charged for extortion.
VERSION OF THE PROSECUTION
The evidence of the prosecution reveals that at 8:00 a.m. of 31 January 2006, the agents and special i
nvestigators of the National Bureau of Investigation, Central Visayas Regional Office (NBI-CEVRO) or si
mply NBI, received a Complaint from Corazon Absin (Corazon) and Charito Escobido (Charito). The com
plainants claimed that at 1:00 a.m. of that same day, Ariel Escobido (Ariel), the live-in partner of Corazo
n and son of Charito, was picked up by several unknown male persons believed to be police officers for
allegedly selling drugs. An errand boy gave a number to the complainants, and when the latter gave th
e number a ring, they were instructed to proceed to the Gorordo Police Office located along Gorordo Av
enue, Cebu City. In the said police office, they met "James" who demanded from them ₱100,000, later l
owered to ₱40,000, in exchange for the release of Ariel. After the meeting, the complainants proceeded
to the NBI-CEVRO to file a complaint and narrate the circumstances of the meeting to the authorities.
While at the NBI-CEVRO, Charitoeven received calls supposedly from "James" instructing her to bring th
e money as soon as possible.
The special investigators at the NBI-CEVRO verified the text messages received by the complainants. A 1âw phi1

team was immediately formed to implement an entrapment operation, which took place inside a Jollibee
branch at the corner of Gen. Maxilom and Gorordo Avenues, Cebu City. The officers were able to nab
Jaime dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder, which was made part o
f the amount demanded by "James" and handed by Corazon. Petitioner was later brought to the forensi
c laboratory of the NBI-CEVRO where forensic examination was done by forensic chemist Rommel Pagli
nawan. Petitioner was required to submit his urine for drug testing. It later yielded a positive result for p
resence of dangerous drugs as indicated in the confirmatory test result labeled as Toxicology (Dangerou
sDrugs) Report No. 2006-TDD-2402 dated 16 February 2006.
VERSION OF THE DEFENSE
The defense presented petitioner as the lone witness. He denied the charges and testified that while eat
ing at the said Jollibee branch, he was arrested allegedly for extortion by NBI agents. When he was at
the NBI Office, he was required to extract urine for drug examination, but he refused saying he wanted
it to be done by the Philippine National Police (PNP) Crime Laboratory and not by the NBI. His request
was, however, denied. He also requested to be allowed to call his lawyer prior to the taking of his urine
sample, to no avail.

THE RULING OF THE RTC

The Regional Trial Court (RTC) Branch 58 of Cebu City, in its Decision 4 dated 6 June 2007, found the
accused guilty beyond reasonable doubt of violating Section 15, Article II of R.A. 9165 and sentenced hi
m to suffer the penalty of compulsory rehabilitation for a period of not less than six (6) months at the C
ebu Center for the Ultimate Rehabilitation of Drug Dependents located at Salinas, Lahug, Cebu City.5
Petitioner filed an appeal assigning as error the RTC’s validation of the result of the urine test despite it
s dubiousness having been admitted in spite of the lack of legal basis for itsadmission. First, he alleges
that the forensic laboratory examination was conducted despite the fact that he was not assisted by cou
nsel, in clear violation of his constitutional right. Secondly, he was allegedly held guilty beyond reasonab
le doubt notwithstanding the lack of sufficient basis to convict him.
THE RULING OF THE CA

The CA found the appeal devoid of merit and affirmed the ruling of the RTC.
Petitioner filed a timely Motion for Reconsideration. He argued that the CA overlooked prevailing jurispru
dence, which states that drug testing conducted under circumstancessimilar to his would violate a perso
n’s right to privacy. The appellate court nevertheless denied the motion.
Petitioner thus filed the present Petition for Review on certiorari. He assigns as errors the use of hearsa
y evidence as basis for his conviction and the questionable circumstances surrounding his arrest and dr
ug test.
Respondent, through the Office of the Solicitor General, filed its Comment, 6 saying that "petitioner’s argu
ments cannot be the subject of a petition for review on certiorariunder Rule 45, as they involve question
s of facts which may not be the subject thereof; after his arraignment, he can no longer contest the vali
dity of his arrest, less so at this stage of the proceedings; his guilt has been adequately established by
direct evidence; and the manner in which the laboratory examination was conducted was grounded on a
valid and existing law.
THE ISSUE
We deem it proper to give due course to this Petition by confronting head-on the issue of whether or n
ot the drug test conducted upon the petitioner is legal.
OUR RULING
We declare that the drug testconducted upon petitioner is not grounded upon any existing law or jurispr
udence.
We gloss over petitioner’s non-compliance with the Resolution 7 ordering him to submit clearly legible du
plicate originals or certified true copies of the assailed Decision and Resolution. Petitioner was charged
with use of dangerous drugs in violation of the law, the pertinent provision of which reads:
Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive
for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of si
x (6) months rehabilitation in a government center for the first offense, subject to the provisions of Articl
e VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the
penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine rang
ing from Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos (₱200,000.00): Provided,Th
at this Section shall not be applicable where the person tested is also found to have in his/her possessi
on such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the pr
ovisions stated therein shall apply.8
The RTC subsequently convicted petitioner, ruling that the following elements of Section 15 were establi
shed: (1) the accused was arrested; (2) the accused was subjected to drug test; and (3) the confirmator
y test shows that he used a dangerous drug.
Disregarding petitioner’s objection regarding the admissibility of the evidence, the lower court also reaso
ned that "a suspect cannot invoke his right to counsel when he is required to extract urine because, whi
le he is already in custody, he is not compelled to make a statement or testimony against himself. Extra
cting urine from one’s body is merely a mechanical act, hence, falling outside the concept of a custodial
investigation."
We find the ruling and reasoning of the trial court, as well as the subsequent affirmation by the CA, err
oneous on three counts.
The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful act, but o
nly for unlawful acts listed under Article II of R.A. 9165.
First, "[a] person apprehended orarrested" cannot literally mean any person apprehended or arrested for
any crime.The phrase must be read in context and understood in consonance with R.A. 9165. Section 1
5 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law.
Hence, a drug test can be made upon persons who are apprehended or arrested for, among others, the
"importation,"9 "sale, trading, administration, dispensation, delivery, distribution and transportation", 10"man
ufacture"11 and "possession"12 of dangerous drugs and/or controlled precursors and essential chemicals;
possession thereof "during parties, social gatherings or meetings"13 ; being "employees and visitors of a
den, dive or resort";14 "maintenance of a den, dive or resort";15 "illegal chemical diversion of controlled pr
ecursors and essential chemicals"16 ; "manufacture or delivery"17 or "possession"18 of equipment, instrum
ent, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential
chemicals; possession of dangerous drugs "during parties, social gatherings or meetings"19 ; "unnecessar
y"20 or "unlawful"21 prescription thereof; "cultivation or culture of plantsclassified as dangerous drugs or a
re sources thereof";22 and "maintenance and keeping of original records of transactions on dangerous dr
ugs and/orcontrolled precursors and essential chemicals."23 To make the provision applicable to all perso
ns arrested or apprehended for any crime not listed under Article II is tantamount to unduly expanding it
s meaning. Note thataccused appellant here was arrested in the alleged act of extortion.

A charge for violation of Section 15 of R.A. 9165 is seen as expressive of the intent of the law to reha
bilitate persons apprehended or arrested for the unlawful acts enumerated above instead of charging an
d convicting them of other crimes with heavier penalties. The essence of the provision is more clearly ill
ustrated in People v. Martinez24 as follows:

On a final note, this Court takes the opportunity to be instructive on Sec. 11 (Possession of Dangerous
Drugs) and Sec. 15 (Use of Dangerous Drugs) of R.A. No. 9165, withregard to the charges that are file
d by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cas
es where the presence of dangerous drugs as basis for possession is only and solely in the form of res
idue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in
keeping withthe intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time
offenders of drug use, provided thatthere is a positive confirmatory test result as required under Sec. 15
.The minimum penalty under the last paragraph of Sec. 11 for the possession of residue isimprisonment
of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a m
inimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis
of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with
an opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug par
aphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest w
as legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should ha
ve filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no resid
ue at all, they should have been charged under Sec. 14 (Possession of Equipment, Instrument, Apparat
us and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings). Sec. 1
4 provides that the maximum penalty under Sec. 12(Possession of Equipment, Instrument, Apparatus an
d Other Paraphernalia for Dangerous Drugs) shall be imposed on any person who shall possess any eq
uipment, instrument, apparatus and other paraphernalia for dangerous drugs. Under Sec. 12, the maxim
um penalty is imprisonment of four years and a fine of ₱50,000.00. In fact, under the same section, the
possession of such equipment, apparatus or other paraphernalia is prima facieevidence that the possess
or has used a dangerous drug and shall be presumed to have violated Sec. 15.
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law e
nforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when t
he presence of dangerous drugs isonly and solely in the form of residue and the confirmatory test requir
ed under Sec. 15 is positive for use of dangerous drugs.In such cases, to afford the accused a chance
to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be d
one when another separate quantity of dangerous drugs, other than mere residue, is found in the posse
ssion of the accused as provided for in Sec. 15. (Emphasis supplied)

Furthermore, making the phrase "a person apprehended or arrested" in Section 15 applicable to all pers
ons arrested or apprehended for unlawful acts, not only under R.A. 9165 but for all other crimes, is tant
amount to a mandatory drug testing of all persons apprehended or arrested for any crime. To overexten
d the application of thisprovision would run counter to our pronouncement in Social Justice Society v. D
angerous Drugs Board and Philippine Drug Enforcement Agency,25 to wit:
x x x [M]andatory drug testing can never be random and suspicionless. The ideas of randomness and b
eing suspicionless are antithetical to their being made defendants in a criminal complaint. They are not r
andomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are
charged, they are singled out and are impleaded against their will. The persons thus charged, by the ba
re fact of being haled before the prosecutor’s office and peaceably submitting themselves to drug testing
, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.
To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a t
ool for criminal prosecution, contrary to the stated objectives of RA 6195. Drug testing in this case woul
d violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves. (Emphasis supplied)
The drug test is not covered by allowable non-testimonial compulsion.
We find that petitioner never raisedthe alleged irregularity of his arrest before his arraignment and raises
the issue only now before this tribunal; hence, he is deemed to have waived his right to question the v
alidity of his arrest curing whatever defect may have attended his arrest. 26 However, "a waiver of an ille
gal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized during an illegal
warrantless arrest."27
We are aware of the prohibition against testimonial compulsion and the allowable exceptions to such pro
scription. Cases where non-testimonial compulsion has been allowed reveal, however, that the pieces of
evidence obtained were all material to the principal cause of the arrest.
The constitutional right of an accused against self-incrimination proscribes the use of physical or moral c
ompulsion to extort communications from the accused and not the inclusion of his body in evidence whe
n it may be material. Purely mechanical acts are not included in the prohibition as the accused does no
t thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs.
Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion,
that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA
777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Henc
e,it has been held that a woman charged with adultery may be compelled to submit to physical examina
tion to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be co
mpelled to submit to physical examination and to have a substance taken from his body for medical det
ermination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs.
Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735
[1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Sal
as, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his
garments or shoes removed or replaced, or to move his body to enable the foregoing things to be don
e.(People vs. Otadora, 86 Phil. 244 [1950])28(Emphasis supplied)
In the instant case, we fail to see howa urine sample could be material to the charge of extortion. The 1âwp hi1

RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purpos
es of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial invest
igation."
We note a case where a urine sample was considered as admissible. In Gutang v. People, 29 the petitio
ner therein and his companions were arrested in connection with the enforcement of a search warrant in
his residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The
petitioner and his companions in that case were also asked to give urine samples, which yielded positiv
e results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of pro
hibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it was d
erived in effect from an uncounselled extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical o
r moral compulsion to extort communication from the accused, but not an inclusion of his body in evide
nce, when it may be material." The situation in Gutangwas categorized as falling among the exemptions
under the freedom from testimonial compulsion since what was sought tobe examined came from the bo
dy of the accused. The Court said:
This was a mechanical act the accused was made to undergo which was not meant to unearth undisclo
sedfacts but to ascertain physical attributes determinable by simple observation. In fact, the record show
s that petitioner and his co-accused were not compelled to give samples of their urine but they in fact v
oluntarily gave the same when they were requested to undergo a drug test.
Assuming arguendothat the urine samples taken from the petitioner are inadmissible in evidence, we agr
ee with the trial court that the record is replete with other pieces of credible evidence including the testi
monial evidence of the prosecution which point to the culpability of the petitioner for the crimes charged.

We emphasize that the circumstances in Gutangare clearly different from the circumstances of petitioner
in the instant case. First, Gutang was arrested in relation to a drug case. Second, he volunteered to giv
1awp++i1

e his urine. Third, there were other pieces of evidence that point to his culpability for the crimes charge
d. In the present case, though, petitioner was arrested for extortion; he resisted having his urine sample
taken; and finally, his urine sample was the only available evidencethat was used as basis for his convi
ction for the use of illegal drugs.

The drug test was a violation of petitioner’s right to privacy and right against self-incrimination.
It is incontrovertible that petitioner refused to have his urine extracted and tested for drugs. He also ask
ed for a lawyer prior to his urine test. He was adamant in exercising his rights, but all of his efforts pro
ved futile, because he was still compelled to submit his urine for drug testing under those circumstances
.
The pertinent provisions in Article III of the Constitution are clear:
Section 2. The right of the people to be securein their persons, houses, papers, and effects against unr
easonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no se
arch warrant or warrant of arrest shall issue except upon probable cause to be determined personally b
y the judge after examination under oath or affirmation of the complainant and the witnesses he may pr
oduce, and particularly describing the place to be searched and the persons or things to be seized.
Section 17. No person shall be compelled to be a witness against himself.
In the face of these constitutional guarantees, we cannot condone drug testing of all arrested persons re
gardless of the crime or offense for which the arrest is being made.
While we express our commendation of law enforcement agents as they vigorously track down offenders
intheir laudable effort to curb the pervasive and deleterious effects of dangerous drugs on our society, t
hey must, however, be constantly mindful of the reasonable limits of their authority, because it is not unl
ikely that in their clear intent to purge society of its lawless elements, they may be knowingly or unknow
ingly transgressing the protected rights of its citizens including even members of its own police force.
WHEREFORE, premises considered, the assailed Decision dated 22 June 2011 issued by the Twentieth
Division, and the Resolution dated 2 February 2012 issued by the former Twentieth Division of the Cour
t of Appeals, in CA-G.R. C.R. No. 00670 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.

Dela Cruz vs. People GR No. 200748 July 23, 2014

Ponente: Sereno, CJ

FACTS:
The petitioner here was Jaime De La Cruz, a police officer, who was charged of viol
ation of Sec 15, Art 2 of RA 9165 or “Comprehensive Dangerous Drugs Act of 2002”. Acc
ording to the prosecution, the NBI received a complaint from Corazon and Charito that Arie
l, who was the live-in partner of Corazon and the son of Charito was picked up by unknow
n persons whom were believed to be police officers for allegedly selling drugs. After that, a
n errand boy came and gave a phone number to the complainants. During the call, compla
inants were instructed to go to Gorordo Police Office wherein they met James who deman
ded them money worth P100,000 which was lowered to P40,000 in exchange of the releas
e of Ariel. After the meeting, they went to the NBI to file a complaint. Thus, the NBI condu
cted an entrapment operation. During the course of entrapment, the officers were able to n
ab Jaime Dela Cruz by using a pre-marked 500 bill dusted with fluorescent powder which
was made part of the amount demanded by James and handed by Corazon. After that, pet
itioner Jaime was required to submit his urine for drug testing which produces a positive re
sult for having presence of dangerous drug. However, petitioner denied the charge against
him.
RTC and CA found the accused guilty.
Issue:
WON the drug test conducted upon the petitioner is legal
Held:
No. Drug test can be made upon persons who were apprehended or arrested under
the situations listed in Art 2 of RA 9165. It must be noted that the accused was here was
arrested in the alleged act of extortion. Extortion is not listed in Art 2 of RA 9165. Thus, d
rug test in Sec 15 does not cover persons apprehended or arrested for any crime, but only
for unlawful acts listed under Art 2 of RA 9165.
 FIRST DIVISION
G.R. No. 148220 June 15, 2005
ROSENDO HERRERA, petitioner,
vs.
ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VI
LCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents.
D E C I S I O N
CARPIO, J.:
The Case
This is a petition for review1 to set aside the Decision2 dated 29 November 2000 of the Court of Appeal
s ("appellate court") in CA-G.R. SP No. 59766. The appellate court affirmed two Orders 3 issued by Bran
ch 48 of the Regional Trial Court of Manila ("trial court") in SP No. 98-88759. The Order dated 3 Febru
ary 2000 directed Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid ("DNA") paternity tes
ting, while the Order dated 8 June 2000 denied petitioner’s motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba ("respondent"), represented by his mother Armi A
lba, filed before the trial court a petition for compulsory recognition, support and damages against petitio
ner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biol
ogical father of respondent. Petitioner also denied physical contact with respondent’s mother.
Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. T
o support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testifi
ed, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She
was also head of the University of the Philippines Natural Sciences Research Institute ("UP-NSRI"), a D
NA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quez
on City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testi
mony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accu
racy rate of 99.9999% in establishing paternity.4
Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner fu
rther argued that DNA paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted respondent’s motion to conduct DNA paternit
y testing on petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namel
y: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a la
boratory of their common choice within a period of thirty (30) days from receipt of the Order, and to sub
mit the results thereof within a period of ninety (90) days from completion. The parties are further remin
ded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petitio
n.
IT IS SO ORDERED.5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that "under the
present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the
coercive process to obtain the requisite specimen…, unconstitutional."
In an Order dated 8 June 2000, the trial court denied petitioner’s motion for reconsideration.6
On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the
1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 20
00 and 8 June 2000 "in excess of, or without jurisdiction and/or with grave abuse of discretion amountin
g to lack or excess of jurisdiction." Petitioner further contended that there is "no appeal nor any [other]
plain, adequate and speedy remedy in the ordinary course of law." Petitioner maintained his previous ob
jections to the taking of DNA paternity testing. He submitted the following grounds to support his objecti
on:
1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions prec
edent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of t
he test as admitted by private respondent’s "expert" witness.
3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and
conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive
, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional
.7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision denying the petition and affirming the ques
tioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the tri
al court’s evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the
court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed D
NA paternity testing does not violate his right against self-incrimination because the right applies only to
testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible a
dverse result of the DNA paternity testing. The dispositive portion of the appellate court’s decision reads:
WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and order
ed dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner.
SO ORDERED.8
Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 20
01.9
Issues
Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determin
e filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judi
cial system and the prerequisites for the admissibility of DNA test results in a paternity suit.10
Petitioner further submits that the appellate court gravely abused its discretion when it authorized the tri
al court "to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation
to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appea
ls and the presence of technical and legal constraints in respect of [sic] its implementation." 11 Petitioner
maintains that the proposed DNA paternity testing violates his right against self-incrimination.12
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a
paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Co
de and of the Rules of Evidence to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right ass
ociated with paternity, such as citizenship,13 support (as in the present case), or inheritance. The burden
of proving paternity is on the person who alleges that the putative father is the biological father of the
child. There are four significant procedural aspects of a traditional paternity action which parties have to
face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance betw
een the putative father and child.14
A prima facie case exists if a woman declares that she had sexual relations with the putative father. In
our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative fat
her.15
There are two affirmative defenses available to the putative father. The putative father may show incapa
bility of sexual relations with the mother, because of either physical absence or impotency. 16 The putativ
e father may also show that the mother had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate. 17 The child’s legitima
cy may be impugned only under the strict standards provided by law.18
Finally, physical resemblance between the putative father and child may be offered as part of evidence
of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although liken
ess is a function of heredity, there is no mathematical formula that could quantify how much a child mu
st or must not look like his biological father.19 This kind of evidence appeals to the emotions of the trier
of fact.
In the present case, the trial court encountered three of the four aspects. Armi Alba, respondent’s mothe
r, put forward a prima facie case when she asserted that petitioner is respondent’s biological father. Aw
are that her assertion is not enough to convince the trial court, she offered corroborative proof in the for
m of letters and pictures. Petitioner, on the other hand, denied Armi Alba’s assertion. He denied ever ha
ving sexual relations with Armi Alba and stated that respondent is Armi Alba’s child with another man. A
rmi Alba countered petitioner’s denial by submitting pictures of respondent and petitioner side by side, to
show how much they resemble each other.
Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, an
d governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiat
ion are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument and sign
ed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.—The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be receive
d in evidence where it occurred before the controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the
names of the relatives. It embraces also facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.—The reputation or tradition existing in a famil
y previous to the controversy, in respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or aff
inity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Court’s rulings further specify what incriminating acts are acceptable as evidence to establish filiatio
n. In Pe Lim v. CA,20 a case petitioner often cites, we stated that the issue of paternity still has to be r
esolved by such conventional evidence as the relevant incriminating verbal and written acts by the put
ative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made i
n the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effe
ctive, the claim of filiation must be made by the putative father himself and the writing must be the writi
ng of the putative father.21 A notarial agreement to support a child whose filiation is admitted by the put
ative father was considered acceptable evidence.22 Letters to the mother vowing to be a good father to t
he child and pictures of the putative father cuddling the child on various occasions, together with the cer
tificate of live birth, proved filiation.23 However, a student permanent record, a written consent to a father
’s operation, or a marriage contract where the putative father gave consent, cannot be taken as authenti
c writing.24 Standing alone, neither a certificate of baptism 25 nor family pictures26 are sufficient to establis
h filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminati
ng acts alone. However, advances in science show that sources of evidence of paternity and filiation ne
ed not be limited to incriminating acts. There is now almost universal scientific agreement that blood gro
uping tests are conclusive on non-paternity, although inconclusive on paternity.27
In Co Tao v. Court of Appeals,28 the result of the blood grouping test showed that the putative father
was a "possible father" of the child. Paternity was imputed to the putative father after the possibility of p
aternity was proven on presentation during trial of facts and circumstances other than the results of the
blood grouping test.
In Jao v. Court of Appeals,29 the child, the mother, and the putative father agreed to submit themselve
s to a blood grouping test. The National Bureau of Investigation ("NBI") conducted the test, which indica
ted that the child could not have been the possible offspring of the mother and the putative father. We
held that the result of the blood grouping test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are now asked whether DNA analysis may be ad
mitted as evidence to prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human
cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s D
NA profile can determine his identity.30
DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individu
al is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from w
hom the sample is taken. This DNA profile is unique for each person, except for identical twins.31 We q
uote relevant portions of the trial court’s 3 February 2000 Order with approval:
Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to
an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and D
NA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an i
ndividual’s blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from b
uccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosi
ne) and T(thymine). The order in which the four bases appear in an individual’s DNA determines his or
her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific pair
ed bases, A-T or T-A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs distributed in a particular sequence. This give
s a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that d
iffer. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests,
fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing
simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may pr
oceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the
RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was us
ed in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA
process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([p
olymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of
by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evid
ence sample a million times through repeated cycling of a reaction involving the so-called DNA polymeri
ze enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2)
samples with a reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fin
gerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime sc
ene is compared with the "known" print. If a substantial amount of the identifying features are the same,
the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fing
erprint is different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations between people. In each of these regio
ns, a person possesses two genetic types called "allele", one inherited from each parent. In [a] paternity
test, the forensic scientist looks at a number of these variable regions in an individual to produce a DN
A profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which hal
f of the child’s DNA was inherited from the mother. The other half must have been inherited from the bi
ological father. The alleged father’s profile is then examined to ascertain whether he has the DNA types
in his profile, which match the paternal types in the child. If the man’s DNA types do not match that of
the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the f
ather.32 (Emphasis in the original)
Although the term "DNA testing" was mentioned in the 1995 case of People v. Teehankee, Jr.,33 it was
only in the 2001 case of Tijing v. Court of Appeals34 that more than a passing mention was given to
DNA analysis. In Tijing,we issued a writ of habeas corpus against respondent who abducted petitioners’
youngest son. Testimonial and documentary evidence and physical resemblance were used to establish
parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless we adopt the modern and scientific w
ays available. Fortunately, we have now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) anal
ysis. xxx For it was said, that courts should apply the results of science when completely obtained in ai
d of situations presented, since to reject said result is to deny progress. Though it is not necessary in t
his case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolu
tion of parentage and identity issues.
Admissibility of DNA Analysis as Evidence
The 2002 case of People v. Vallejo35 discussed DNA analysis as evidence. This may be considered a
180 degree turn from the Court’s wary attitude towards DNA testing in the 1997 Pe Lim case,36 where
we stated that "DNA, being a relatively new science, xxx has not yet been accorded official recognition
by our courts." In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched t
he accused’s DNA profile. We affirmed the accused’s conviction of rape with homicide and sentenced hi
m to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things
, the following data: how the samples were collected, how they were handled, the possibility of contamin
ation of the samples, the procedure followed in analyzing the samples, whether the proper standards an
d procedures were followed in conducting the tests, and the qualification of the analyst who conducted t
he tests.37
Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer
any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue
of according "official recognition" to DNA analysis as evidence to the issue of observance of procedures
in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: Peo
ple v.Yatar38 and In re: The Writ of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a match exist
ed between the DNA profile of the semen found in the victim and the DNA profile of the blood sample
given by appellant in open court. The Court, following Vallejo’s footsteps, affirmed the conviction of app
ellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of
rape with homicide. In De Villa, the convict-petitioner presented DNA test results to prove that he is no
t the father of the child conceived at the time of commission of the rape. The Court ruled that a differen
ce between the DNA profile of the convict-petitioner and the DNA profile of the victim’s child does not p
reclude the convict-petitioner’s commission of rape.
In the present case, the various pleadings filed by petitioner and respondent refer to two United States
cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.
S.40 and Daubert v. Merrell Dow Pharmaceuticals.41 In Frye v. U.S., the trial court convicted Frye of
murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Frye
’s counsel offered an expert witness to testify on the result of a systolic blood pressure deception test 42
made on defendant. The state Supreme Court affirmed Frye’s conviction and ruled that "the systolic blo
od pressure deception test has not yet gained such standing and scientific recognition among physiologi
cal and psychological authorities as would justify the courts in admitting expert testimony deduced from t
he discovery, development, and experiments thus far made." The Fryestandard of general acceptance st
ates as follows:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrabl
e stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must b
e recognized, and while courts will go a long way in admitting expert testimony deduced from a well rec
ognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz43 modified the Frye standard. Schwartz was charged with stabbing and mur
der. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA test
ing to a government facility and a private facility. The prosecution introduced the private testing facility’s
results over Schwartz’s objection. One of the issues brought before the state Supreme Court included th
e admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has gained general acceptance in the scien
tific community, we hold that admissibility of specific test results in a particular case hinges on the labor
atory’s compliance with appropriate standards and controls, and the availability of their testing data and
results.44
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further modified the Frye-Schwartz standard.
Daubertwas a product liability case where both the trial and appellate courts denied the admissibility of
an expert’s testimony because it failed to meet the Frye standard of "general acceptance." The United
States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Fr
ye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibilit
y of evidence. Thus:
Rule 401. "Relevant evidence" is defined as that which has any "tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than it w
ould be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the U
nited States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pur
suant to statutory authority. Evidence which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert testimony provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the eviden
ce or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, train
ing, or education, may testify thereto in the form of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general acceptance does not mean that the
Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensu
re that the testimony’s reasoning or method is scientifically valid and is relevant to the issue. Admissibilit
y would depend on factors such as (1) whether the theory or technique can be or has been tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3) the known or po
tential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation
; and (5) whether the theory or technique is generally accepted in the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael,46 further modified the Daubert standard
. This led to the amendment of Rule 702 in 2000 and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the eviden
ce or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, train
ing, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is base
d upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (
3) the witness has applied the principles and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Fr
ye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.47 At best, Amer
ican jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when i
t is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court.48 Eviden
ce is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-
existence.49 Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as foll
ows:
The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he
is shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, ev
en evidence on collateral matters is allowed "when it tends in any reasonable degree to establish the pr
obability or improbability of the fact in issue."50
Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and
Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for
admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence.
Probative Value of DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to
DNA analysis as evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts should consider, among other things
, the following data: how the samples were collected, how they were handled, the possibility of contamin
ation of the samples, the procedure followed in analyzing the samples, whether the proper standards an
d procedures were followed in conducting the tests, and the qualification of the analyst who conducted t
he tests.51]
We also repeat the trial court’s explanation of DNA analysis used in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to deter
mine which half of the child’s DNA was inherited from the mother. The other half must have been inheri
ted from the biological father. The alleged father’s profile is then examined to ascertain whether he has
the DNA types in his profile, which match the paternal types in the child. If the man’s DNA types do not
match that of the child, the man is excluded as the father. If the DNA types match, then he is not ex
cluded as the father.52
It is not enough to state that the child’s DNA profile matches that of the putative father. A complete mat
ch between the DNA profile of the child and the DNA profile of the putative father does not necessarily
establish paternity. For this reason, following the highest standard adopted in an American jurisdiction, 53
trial courts should require at least 99.9% as a minimum value of the Probability of Paternity ("W") prior t
o a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father com
pared to the probability of a random match of two unrelated individuals. An appropriate reference popula
tion database, such as the Philippine population database, is required to compute for W. Due to the pro
babilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estima
tes is higher when the putative father, mother and child are subjected to DNA analysis compared to tho
se conducted between the putative father and child alone.54
DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity
. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corrobo
rative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.55
This refutable presumption of paternity should be subjected to the Vallejo standards.
Right Against Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that "no person shall be compelled to be a witne
ss against himself." Petitioner asserts that obtaining samples from him for DNA testing violates his right
against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable o
nly to testimonial evidence. Again, we quote relevant portions of the trial court’s 3 February 2000 Order
with approval:
Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case,
contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This
privilege applies only to evidence that is "communicative" in essence taken under duress (People vs. Ol
vis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just
a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) f
rom a defendant, not an exclusion of evidence taken from his body when it may be material. As such,
a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Ol
vis, Supra); the substance emitting from the body of the accused was received as evidence for acts of l
asciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof
(US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for
size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of ad
ultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is t
he restriction on "testimonial compulsion."56
The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of c
hildren, especially of illegitimate children, is without prejudice to the right of the putative parent to claim
his or her own defenses.57 Where the evidence to aid this investigation is obtainable through the facilitie
s of modern science and technology, such evidence should be considered subject to the limits establish
ed by the law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 No
vember 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 Ju
ne 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190710 June 6, 2011
JESSE U. LUCAS, Petitioner,
vs.
JESUS S. LUCAS, Respondent.

D E C I S I O N
NACHURA, J.:
Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for re
view on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively
new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision 1 dated September
25, 2009 and Resolution dated December 17, 2009.
The antecedents of the case are, as follows:
On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motio
n for the Submission of Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72, Val
enzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila
from Davao and stayed with a certain "Ate Belen (Belen)" who worked in a prominent nightspot in Man
ila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with respo
ndent, Jesus S. Lucas, at Belen’s workplace, and an intimate relationship developed between the two. E
lsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The
name of petitioner’s father was not stated in petitioner’s certificate of live birth. However, Elsie later on t
old petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Par
ish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for
a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to acc
ept respondent’s offer of support and decided to raise petitioner on her own. While petitioner was growi
ng up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioner’s certificate of live birth; (b) petitioner’s baptism
al certificate; (c) petitioner’s college diploma, showing that he graduated from Saint Louis University in B
aguio City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certi
ficate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several
articles from different newspapers about petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition
to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a co
py of the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3,
2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order 3 setting the
case for hearing and urging anyone who has any objection to the petition to file his opposition. The cou
rt also directed that the Order be published once a week for three consecutive weeks in any newspaper
 of general circulation in the Philippines, and that the Solicitor General be furnished with copies of the
Order and the petition in order that he may appear and represent the State in the case.
On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a S
pecial Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons an
d a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be ser
ved on him as respondent; (3) should the court agree that summons was required, he was waiving servi
ce of summons and making a voluntary appearance; and (4) notice by publication of the petition and th
e hearing was improper because of the confidentiality of the subject matter.4
On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioner’s Very Urgent
Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial i
n nature; hence, he should be served with summons.

After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. 5 Responde
nt averred that the petition was not in due form and substance because petitioner could not have perso
nally known the matters that were alleged therein. He argued that DNA testing cannot be had on the ba
sis of a mere allegation pointing to respondent as petitioner’s father. Moreover, jurisprudence is still uns
ettled on the acceptability of DNA evidence.
On July 30, 2008, the RTC, acting on respondent’s motion for reconsideration, issued an Order6 dismissi
ng the case. The court remarked that, based on the case of Herrera v. Alba, 7 there are four significant
procedural aspects of a traditional paternity action which the parties have to face: a prima facie case, af
firmative defenses, presumption of legitimacy, and physical resemblance between the putative father and
the child. The court opined that petitioner must first establish these four procedural aspects before he c
an present evidence of paternity and filiation, which may include incriminating acts or scientific evidence
like blood group test and DNA test results. The court observed that the petition did not show that these
procedural aspects were present. Petitioner failed to establish a prima facie case considering that (a) his
mother did not personally declare that she had sexual relations with respondent, and petitioner’s statem
ent as to what his mother told him about his father was clearly hearsay; (b) the certificate of live birth w
as not signed by respondent; and (c) although petitioner used the surname of respondent, there was no
allegation that he was treated as the child of respondent by the latter or his family. The court opined th
at, having failed to establish a prima facie case, respondent had no obligation to present any affirmative
defenses. The dispositive portion of the said Order therefore reads:
WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a
traditional paternity action in his petition, his motion for the submission of parties to DNA testing to esta
blish paternity and filiation is hereby denied. This case is DISMISSED without prejudice.
SO ORDERED.8

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RT
C resolved in his favor. Thus, on October 20, 2008, it issued the Order 9 setting aside the court’s previo
us order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set
aside.
Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on Januar
y 22, 2009 at 8:30 in the morning.

x x x x
SO ORDERED.10
This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is
premature considering that a full-blown trial has not yet taken place. The court stressed that the petition
was sufficient in form and substance. It was verified, it included a certification against forum shopping, a
nd it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on f
or his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the al
legation that the statements in the petition were not of petitioner’s personal knowledge is a matter of evi
dence. The court also dismissed respondent’s arguments that there is no basis for the taking of DNA te
st, and that jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new R
ule on DNA Evidence11 allows the conduct of DNA testing, whether at the court’s instance or upon appli
cation of any person who has legal interest in the matter in litigation.
Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Pe
tition,12reiterating that (a) the petition was not in due form and substance as no defendant was named in
the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which mad
e the petition susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. 13
Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 2
0, 2008 and January 19, 2009.
On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed
Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch
172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE. Accordin
gly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED.14
The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons h
ad been served on him. Respondent’s special appearance could not be considered as voluntary appear
ance because it was filed only for the purpose of questioning the jurisdiction of the court over responde
nt. Although respondent likewise questioned the court’s jurisdiction over the subject matter of the petition
, the same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his per
son.
The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a
DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four sign
ificant procedural aspects of a traditional paternity action had been met. The CA further held that a DNA
testing should not be allowed when the petitioner has failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really
have been intended to trample on the substantive rights of the parties. It could have not meant to be a
n instrument to promote disorder, harassment, or extortion. It could have not been intended to legalize u
nwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court ma
y at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immedi
ately available to the petitioner/complainant without requiring first the presentation of corroborative proof,
then a dire and absurd rule would result. Such will encourage and promote harassment and extortion.
x x x x
At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an abs
olute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima
facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed order the
taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of our
society will be easy prey for opportunists and extortionists. For no cause at all, or even for [sic] casual
sexual indiscretions in their younger years could be used as a means to harass them. Unscrupulous wo
men, unsure of the paternity of their children may just be taking the chances-just in case-by pointing to
a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA
test for compulsory recognition case opens wide the opportunities for extortionist to prey on victims wh
o have no stomach for scandal.15
Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit
.16
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK
OF JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME W AS NEVE
R RAISED IN THE PETITION FOR CERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WA
S NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE
RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT
A QUO.
I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE
TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF T
HE PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A
QUO) FOR THE CONDUCT OF DNA TESTING.

II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA
TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF
OF FILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE
CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE ‘FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL
PATERNITY ACTION.’17
Petitioner contends that respondent never raised as issue in his petition for certiorari the court’s lack of j
urisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not
raised are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to t
he jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (
a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve M
otion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of t
he Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent eve
n expressly admitted that he has waived his right to summons in his Manifestation and Comment on Pe
titioner’s Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic
.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not s
tate respondent’s name, the body of the petition clearly indicates his name and his known address. He
maintains that the body of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of th
e petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to
the propriety of DNA testing, it should have simply denied the motion.18 Petitioner points out that Sectio
n 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before D
NA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural as
pects of a paternity case, as enunciated in Herrera v. Alba. 19Petitioner avers that these procedural aspe
cts are not applicable at this point of the proceedings because they are matters of evidence that should
be taken up during the trial.20
In his Comment, respondent supports the CA’s ruling on most issues raised in the petition for certiorari
and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent c
ounters that, contrary to petitioner’s assertion, he raised the issue before the CA in relation to his claim
that the petition was not in due form and substance. Respondent denies that he waived his right to the
service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon
a finding by the court that summons is indeed required. He avers that the assertion of affirmative defen
ses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of
the defense of lack of jurisdiction over such person.
The petition is meritorious.
Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondent’s mo
tion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocuto
ry order which neither terminates nor finally disposes of a case, as it leaves something to be done by t
he court before the case is finally decided on the merits. As such, the general rule is that the denial of
a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy desig
ned to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dism
iss be the subject of an appeal unless and until a final judgment or order is rendered. In a number of c
ases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss
but only when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdi
ction.21 In the present case, we discern no grave abuse of discretion on the part of the trial court in den
ying the motion to dismiss.
The grounds for dismissal relied upon by respondent were (a) the court’s lack of jurisdiction over his per
son due to the absence of summons, and (b) defect in the form and substance of the petition to establi
sh illegitimate filiation, which is equivalent to failure to state a cause of action.
We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the c
ourt acquired jurisdiction over the person of respondent, or whether respondent waived his right to the s
ervice of summons. We find that the primordial issue here is actually whether it was necessary, in the fi
rst place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other
words, was the service of summons jurisdictional? The answer to this question depends on the nature o
f petitioner’s action, that is, whether it is an action in personam, in rem, or quasi in rem.
An action in personam is lodged against a person based on personal liability; an action in rem is directe
d against the thing itself instead of the person; while an action quasi in rem names a person as defend
ant, but its object is to subject that person's interest in a property to a corresponding lien or obligation.
A petition directed against the "thing" itself or the res, which concerns the status of a person, like a peti
tion for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in re
m.22
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to vali
dly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction
over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal pr
ocess, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal p
roceedings, in which the power of the court is recognized and made effective. 23
The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition
to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject mat
ter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is validate
d essentially through publication. Publication is notice to the whole world that the proceeding has for its
object to bar indefinitely all who might be minded to make an objection of any sort to the right sought t
o be established.24 Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the
court with jurisdiction, but merely for satisfying the due process requirements.25 This is but proper in ord
er to afford the person concerned the opportunity to protect his interest if he so chooses.26 Hence, failur
e to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a ca
se, the lack of summons may be excused where it is determined that the adverse party had, in fact, the
opportunity to file his opposition, as in this case. We find that the due process requirement with respec
t to respondent has been satisfied, considering that he has participated in the proceedings in this case
and he has the opportunity to file his opposition to the petition to establish filiation.
To address respondent’s contention that the petition should have been adversarial in form, we further ho
ld that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature
despite its caption which lacked the name of a defendant, the failure to implead respondent as defenda
nt, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeki
ng relief has given legal warning to the other party and afforded the latter an opportunity to contest it. 27
In this petition—classified as an action in rem—the notice requirement for an adversarial proceeding was
likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as
directed by the trial court.
The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of
Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate fact
s upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without leaving
the statement of the cause of action inadequate.28 A complaint states a cause of action when it contains
the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and
(3) the act or omission of the defendant in violation of said legal right.29
The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to resp
ondent. Respondent, however, contends that the allegations in the petition were hearsay as they were n
ot of petitioner’s personal knowledge. Such matter is clearly a matter of evidence that cannot be determi
ned at this point but only during the trial when petitioner presents his evidence.
In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the cour
t for determination is the sufficiency of the allegations made in the complaint to constitute a cause of ac
tion and not whether those allegations of fact are true, for said motion must hypothetically admit the trut
h of the facts alleged in the complaint.30
The inquiry is confined to the four corners of the complaint, and no other.31 The test of the sufficiency o
f the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render
a valid judgment upon the same in accordance with the prayer of the complaint.32
If the allegations of the complaint are sufficient in form and substance but their veracity and correctness
are assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to
answer and go to trial to prove his defense. The veracity of the assertions of the parties can be ascerta
ined at the trial of the case on the merits.33
The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional pater
nity case which parties have to face has been widely misunderstood and misapplied in this case. A part
y is confronted by these so-called procedural aspects during trial, when the parties have presented their
respective evidence. They are matters of evidence that cannot be determined at this initial stage of the
proceedings, when only the petition to establish filiation has been filed. The CA’s observation that petitio
ner failed to establish a prima facie case—the first procedural aspect in a paternity case—is therefore m
isplaced. A prima facie case is built by a party’s evidence and not by mere allegations in the initiatory p
leading.
Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis-à-vis the
motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it
is premature to discuss whether, under the circumstances, a DNA testing order is warranted considering
that no such order has yet been issued by the trial court. In fact, the latter has just set the said case fo
r hearing.
At any rate, the CA’s view that it would be dangerous to allow a DNA testing without corroborative proo
f is well taken and deserves the Court’s attention. In light of this observation, we find that there is a ne
ed to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing ord
er, particularly in paternity and other filiation cases. We, thus, address the question of whether a prima f
acie showing is necessary before a court can issue a DNA testing order.
The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use o
f DNA evidence in the judicial system. It provides the "prescribed parameters on the requisite elements f
or reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the p
ossible sources of error, the available objections to the admission of DNA test results as evidence as w
ell as the probative value of DNA evidence." It seeks "to ensure that the evidence gathered, using vario
us methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abus
ed and, more importantly, shall continue to ensure that DNA analysis serves justice and protects, rather
than prejudice the public."35
Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed t
o safeguard the accuracy and integrity of the DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any time, either motu propri
o or on application of any person who has a legal interest in the matter in litigation, order a DNA testin
g. Such order shall issue after due hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or
(ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper
resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accur
acy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any pa
rty, including law enforcement agencies, before a suit or proceeding is commenced.
This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the
hearing, the said conditions are established.
In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing
wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasona
ble possibility of paternity or "good cause" for the holding of the test. 36 In these states, a court order fo
r blood testing is considered a "search," which, under their Constitutions (as in ours), must be preceded
by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or re
asonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The S
upreme Court of Louisiana eloquently explained —
Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searc
hes and seizures is still applicable, and a proper showing of sufficient justification under the particular fa
ctual circumstances of the case must be made before a court may order a compulsory blood test. Court
s in various jurisdictions have differed regarding the kind of procedures which are required, but those jur
isdictions have almost universally found that a preliminary showing must be made before a court can co
nstitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary
matter, before the court may issue an order for compulsory blood testing, the moving party must show
that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is c
ontested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing mu
st be held in which the court can determine whether there is sufficient evidence to establish a prima fac
ie case which warrants issuance of a court order for blood testing.37 1avvphi1

The same condition precedent should be applied in our jurisdiction to protect the putative father from m
ere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must prese
nt prima facie evidence or establish a reasonable possibility of paternity.
Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretion
ary upon the court. The court may, for example, consider whether there is absolute necessity for the D
NA testing. If there is already preponderance of evidence to establish paternity and the DNA test result
would only be corroborative, the court may, in its discretion, disallow a DNA testing.
WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated Se
ptember 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Ord
ers dated October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are A
FFIRMED.
SO ORDERED.