1
G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY
PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO
CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of
the decision of the Court of Appeals, 1 rejecting his appeal from the decision of the
Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in
particular, the guaranty against unreasonable searches and seizures of the
Constitution, as well as its prohibition against deprivation of property without due
process of law. There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor
of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics
Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan
Police Force of Manila, seized and confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and indecent and later burned
the seized materials in public at the University belt along C.M. Recto Avenue, Manila,
in the presence of Mayor Bagatsing and several officers and members of various
student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of
the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as
superintendent of Western Police District of the City of Manila, seeking to enjoin
and/or restrain said defendants and their agents from confiscating plaintiffs magazines
or from otherwise preventing the sale or circulation thereof claiming that the magazine
is a decent, artistic and educational magazine which is not per se obscene, and that
the publication is protected by the Constitutional guarantees of freedom of speech and
of the press.
By order dated December 8, 1 983 the Court set the hearing on the petition for
preliminary injunction on December 14,1983 and ordered the defendants to show
cause not later than December 13, 1983 why the writ prayed for should not be
granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order. against indiscriminate seizure, confiscation and burning of plaintiff's
"Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction
in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign.
The Court granted the temporary restraining order on December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscence reading materials on December 1
and 3, 1983, but claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended
Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ
of preliminary injunction, defendant pointed out that in that anti- smut campaign
conducted on Dece bmber 1 and 3, 1983, the materials confiscated belonged to the
magazine stand owners and peddlers who voluntarily surrendered their reading
materials, and that the plaintiffs establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the
writ of preliminary injunction, raising the issue as to "whether or not the defendants
and/or their agents can without a court order confiscate or seize plaintiffs magazine
before any judicial finding is made on whether said magazine is obscene or not".
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The restraining order issued on December 14,1983 having lapsed on January 3,1984,
the plaintiff filed an urgent motion for issuance of another restraining order, which was
opposed by defendant on the ground that issuance of a second restraining order
would violate the Resolution of the Supreme Court dated January 11, 1983, providing
for the Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129,
which provides that a temporary restraining order shall be effective only for twenty
days from date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in
support of his opposition to the issuance of a writ of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 "for the parties to adduce evidence on the question of whether the
publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned
by the defendants, are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given
three days "to file a reply to defendants' opposition dated January 9, 1984, serving a
copy thereof to the counsel for the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of Preliminary Injunction shall be
resolved".
Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed
his Comment on plaintiff s supplemental Memorandum on January 20, 1984, and
plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as
follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the
press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201,
Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled
is the rule that the right against unreasonable searches and seizures recognizes
certain exceptions, as when there is consent to the search or seizure, (People vs.
Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48
Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or movable
structure (See Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioner's magazines on the basis simply of their determination that they
are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.4
The Court states at the outset that it is not the first time that it is being asked to
pronounce what "obscene" means or what makes for an obscene or pornographic
literature. Early on, in People vs. Kottinger,5 the Court laid down the test, in
determining the existence of obscenity, as follows: "whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to such
immoral influences and into whose hands a publication or other article charged as
being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which
shocks the ordinary and common sense of men as an indecency.
" 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent
must depend upon the circumstances of the case, 8 and that ultimately, the question is
to be decided by the "judgment of the aggregate sense of the community reached by
it." 9
Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in
generalizing a problem that has grown increasingly complex over the years. Precisely,
the question is: When does a publication have a corrupting tendency, or when can it
be said to be offensive to human sensibilities? And obviously, it is to beg the question
 3
to say that a piece of literature has a corrupting influence because it is obscene,
and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in the same breath, it
would leave the final say to a hypothetical "community standard" — whatever that is —
and that the question must supposedly be judged from case to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution
under Article 201 of the Revised Penal Code. Go Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures, sculptures and
paintings are shown in art exhibit and art galleries for the cause of art, to be viewed
and appreciated by people interested in art, there would be no offense committed.
However, the pictures here in question were used not exactly for art's sake but rather
for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so,
were not exactly artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, but rather people
desirous of satisfying their morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures.11
xxx xxx xxx
As the Court declared, the issue is a complicated one, in which the fine lines have
neither been drawn nor divided. It is easier said than done to say, indeed, that if "the
pictures here in question were used not exactly for art's sake but rather for commercial
purposes," 12 the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence
the "redeeming" element that should accompany the work, to save it from a valid
prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in
sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual
act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is
no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency, and an offense to public morals, inspiring and causing as it does, nothing
but lust and lewdness, and exerting a corrupting influence specially on the youth of the
land. ...14
Padan y Alova, like Go Pin, however, raised more questions than answers. For one
thing, if the exhibition was attended by "artists and persons interested in art and who
generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes,"15 could the same legitimately lay claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of [art], and painters and sculptors
might find inspiration,"16 in it, would it cease to be a case of obscenity?
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which
has permitted an ad lib of Ideas and "two-cents worths" among judges as to what is
obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in
the United States, adopted the test: "Whether to the average person, applying
contemporary standards, the dominant theme of the material taken as a whole
appeals to prurient interest."18 Kalaw-Katigbak represented a marked departure
from Kottinger in the sense that it measured obscenity in terms of the "dominant
theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community
standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak undertook
moreover to make the determination of obscenity essentially a judicial question and as
a consequence, to temper the wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to
journey from development to development, which, states one authoritative
commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19
Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one
"utterly without any redeeming social value,"21 marked yet another development.
 4
The latest word, however, is Miller v. California,22 which expressly
abandoned Massachusettes, and established "basic guidelines,"23 to wit: "(a) whether
'the average person, applying contemporary standards' would find the work, taken as
a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value."24
(A year later, the American Supreme Court decided Hamling v. United States 25 which
repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration of Miller. Jenkins,
curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the
absence of "genitals" portrayed on screen, although the film highlighted contemporary
American sexuality.)
The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has
been attributed to the reluctance of the courts to recognize the constitutional
dimension of the problem .27 Apparently, the courts have assumed that "obscenity" is
not included in the guaranty of free speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates predicated upon arbitrary, if vague
theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe,
"that this development has reached a state of rest, or that it will ever do so until the
Court recognizes that obscene speech is speech nonetheless, although it is subject —
as in all speech — to regulation in the interests of [society as a whole] — but not in the
interest of a uniform vision of how human sexuality should be regarded and
portrayed."28
In the case at bar, there is no challenge on the right of the State, in the legitimate
exercise of police power, to suppress smut provided it is smut. For obvious reasons,
smut is not smut simply because one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five decades ago, is
not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence
were censored in the thirties yet their works are considered important literature
today.29 Goya's La Maja desnuda was once banned from public exhibition but now
adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun intended) matter of
opinion. As we said earlier, it is the divergent perceptions of men and women that have
probably compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question is not, and has
not been, an easy one to answer, as it is far from being a settled matter. We share
Tribe's disappointment over the discouraging trend in American decisional law on
obscenity as well as his pessimism on whether or not an "acceptable" solution is in
sight.
In the final analysis perhaps, the task that confronts us is less heroic than rushing to a
"perfect" definition of "obscenity", if that is possible, as evolving standards for proper
police conduct faced with the problem, which, after all, is the plaint specifically raised
in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has consistently been
on the side of the exercise of the right, barring a "clear and present danger" that would
warrant State interference and action.30 But, so we asserted in Reyes v.
Bagatsing,31"the burden to show the existence of grave and imminent danger that
would justify adverse action ... lies on the. . . authorit[ies]."32
"There must be objective and convincing, not subjective or conjectural, proof of the
existence of such clear and present danger."33 "It is essential for the validity of ...
previous restraint or censorship that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety may require."34
"To justify such a limitation, there must be proof of such weight and sufficiency to
satisfy the clear and present danger test."35
The above disposition must not, however, be taken as a neat effort to arrive at a
solution-so only we may arrive at one-but rather as a serious attempt to put the
question in its proper perspective, that is, as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts constitutional issues,
mainly, due process and illegal search and seizure.
 5
As we so strongly stressed in Bagatsing, a case involving the delivery of a political
speech, the presumption is that the speech may validly be said. The burden is on the
State to demonstrate the existence of a danger, a danger that must not only be: (1)
clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no choice. However, if it acts
notwithstanding that (absence of evidence of a clear and present danger), it must
come to terms with, and be held accountable for, due process.
The Court is not convinced that the private respondents have shown the required
proof to justify a ban and to warrant confiscation of the literature for which mandatory
injunction had been sought below. First of all, they were not possessed of a lawful
court order: (1) finding the said materials to be pornography, and (2) authorizing them
to carry out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without
restraint, as the state has the right to protect society from pornographic literature that
is offensive to public morals." 36 Neither do we. But it brings us back to square one:
were the "literature" so confiscated "pornographic"? That we have laws punishing the
author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal
Code, as amended by P.D. No. 960 and P.D. No. 969)," 37 is also fine, but the question,
again, is: Has the petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by "police power" is
no license to seize property in disregard of due process. In Philippine Service
Exporters, Inc. v. Drilon,38 We defined police power as "state authority to enact
legislation that may interfere with personal liberty or property in order to promote the
general welfare ."39 Presidential Decrees Nos. 960 and 969 are, arguably, police power
measures, but they are not, by themselves, authorities for high-handed acts. They do
not exempt our law enforcers, in carrying out the decree of the twin presidential
issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due
process of law and the right against unreasonable searches and seizures, specifically.
Significantly, the Decrees themselves lay down procedures for implementation. We
quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a) Upon conviction of the offender, to be forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator of this decree results in an acquittal,
the obscene/immoral literature, films, prints, engravings, sculptures, paintings or other
materials and articles involved in the violation referred to in Section 1 (referring to Art.
201) hereof shall nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may,
within fifteen (15) days after his receipt of a copy of the decision, appeal the matter to
the Secretary of National Defense for review. The decision of the Secretary of National
Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No.
969.)
Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations
of Section I hereof, the penalty as provided herein shall be imposed in the maximum
period and, in addition, the accessory penalties provided for in the Revised Penal
Code, as amended, shall likewise be imposed .40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched, and the persons or things to be seized.
It is basic that searches and seizures may be done only through a judicial warrant,
otherwise, they become unreasonable and subject to challenge. In Burgos v. Chief of
Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing the
search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies,
by reason of a defective warrant. We have greater reason here to reprobate the
questioned raid, in the complete absence of a warrant, valid or invalid. The fact that
 6
the instant case involves an obscenity rap makes it no different from Burgos, a political
case, because, and as we have indicated, speech is speech, whether political or
"obscene".
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the
Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. — A person charged with an
offense may be searched for dangerous weapons or anything which may be used as
proof of the commission of the offense.44
but as the provision itself suggests, the search must have been an incident to a lawful
arrest, and the arrest must be on account of a crime committed. Here, no party has
been charged, nor are such charges being readied against any party, under Article
201, as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision
which would free the accused of all criminal responsibility because there had been no
warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is
no "accused" here to speak of, who ought to be "punished". Second, to say that the
respondent Mayor could have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his opinion, "violation of penal
laws" has been committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint of the petitioner.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal
Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not
the properties seized are indeed "obscene".
These do not foreclose, however, defenses under the Constitution or applicable
statutes, or remedies against abuse of official power under the Civil Code" 47 or the
Revised Penal code .48
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the
search and seizure ave been destroyed, the Court declines to grant affirmative relief.
To that extent, the case is moot and academic.
SO ORDERED.
Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.

We make this resume. Gutierrez, Jr., J., is on leave.

1. The authorities must apply for the issuance of a search warrant from a judge, if in
their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to
warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the
question is to be resolved on a case-to-case basis and on His Honor's sound
discretion.
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G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Herminio T. Llariza counsel de-officio for defendant-appellant.
CRUZ, J.:
The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial
court, disbelieving him, held it was high time to put him away and sentenced him to life
imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the
M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in
fact waiting for him simply accosted him, inspected his bag and finding what looked
liked marijuana leaves took him to their headquarters for investigation. The two
bundles of suspect articles were confiscated from him and later taken to the NBI
laboratory for examination. When they were verified as marijuana leaves, an
information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the
information was amended to include Farida Ali y Hassen, who had also been arrested
with him that same evening and likewise investigated. 3 Both were arraigned and
pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge
against Ali on the basis of a sworn statement of the arresting officers absolving her
after a 'thorough investigation." 5 The motion was granted, and trial proceeded only
against the accused-appellant, who was eventually convicted .6
According to the prosecution, the PC officers had earlier received a tip from one of
their informers that the accused-appellant was on board a vessel bound for Iloilo City
and was carrying marijuana. 7 He was Identified by name. 8Acting on this tip, they
waited for him in the evening of June 25, 1984, and approached him as he descended
from the gangplank after the informer had pointed to him. 9 They detained him and
inspected the bag he was carrying. It was found to contain three kilos of what were
later analyzed as marijuana leaves by an NBI forensic examiner, 10who testified that
she conducted microscopic, chemical and chromatographic tests on them. On the
basis of this finding, the corresponding charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag
was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged
that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated
without a search warrant. At the PC headquarters, he was manhandled to force him to
admit he was carrying the marijuana, the investigator hitting him with a piece of wood
in the chest and arms even as he parried the blows while he was still
handcuffed. 12 He insisted he did not even know what marijuana looked like and that
his business was selling watches and sometimes cigarettes. 13 He also argued that the
marijuana he was alleged to have been carrying was not properly Identified and could
have been any of several bundles kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused that
he claimed to have come to Iloilo City to sell watches but carried only two watches at
the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to
mention his other expenses. 15 Aminnudin testified that he kept the two watches in a
secret pocket below his belt but, strangely, they were not discovered when he was
bodily searched by the arresting officers nor were they damaged as a result of his
manhandling. 16 He also said he sold one of the watches for P400.00 and gave away
the other, although the watches belonged not to him but to his cousin, 17 to a friend
whose full name he said did not even know. 18 The trial court also rejected his
allegations of maltreatment, observing that he had not sufficiently proved the injuries
sustained by him. 19
There is no justification to reverse these factual findings, considering that it was the
trial judge who had immediate access to the testimony of the witnesses and had the
opportunity to weigh their credibility on the stand. Nuances of tone or voice,
meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the
 8
truth or expose the lie, are not described in the impersonal record. But the trial judge A Yes, sir, two days before June 25, 1984 when we received this information from that
sees all of this, discovering for himself the truant fact amidst the falsities. particular informer, prior to June 25, 1984 we have already reports of the particular
operation which was being participated by Idel Aminnudin.
The only exception we may make in this case is the trial court's conclusion that the
accused-appellant was not really beaten up because he did not complain about it later Q You said you received an intelligence report two days before June 25, 1984 with
nor did he submit to a medical examination. That is hardly fair or realistic. It is possible respect to the coming of Wilcon 9?
Aminnudin never had that opportunity as he was at that time under detention by the
PC authorities and in fact has never been set free since he was arrested in 1984 and A Yes, sir.
up to the present. No bail has been allowed for his release.
Q Did you receive any other report aside from this intelligence report?
There is one point that deserves closer examination, however, and it is Aminnudin's
claim that he was arrested and searched without warrant, making the marijuana A Well, I have received also other reports but not pertaining to the coming of Wilcon 9.
allegedly found in his possession inadmissible in evidence against him under the Bill For instance, report of illegal gambling operation.
of Rights. The decision did not even discuss this point. For his part, the Solicitor
General dismissed this after an all-too-short argument that the arrest of Aminnudin COURT:
was valid because it came under Rule 113, Section 6(b) of the Rules of Court on
warrantless arrests. This made the search also valid as incidental to a lawful arrest. Q Previous to that particular information which you said two days before June 25,
1984, did you also receive daily report regarding the activities of Idel Aminnudin
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized the A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.
bag he was carrying. Their only justification was the tip they had earlier received from
a reliable and regular informer who reported to them that Aminnudin was arriving in
Q What were those activities?
Iloilo by boat with marijuana. Their testimony varies as to the time they received the
tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third
"weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of A Purely marijuana trafficking.
the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:
Q From whom did you get that information?
Q You mentioned an intelligence report, you mean with respect to the coming of Idel
Aminnudin on June 25, 1984? A It came to my hand which was written in a required sheet of information, maybe for
security reason and we cannot Identify the person.
A Yes, sir.
Q But you received it from your regular informer?
Q When did you receive this intelligence report?
A Yes, sir.
A Two days before June 25, 1984 and it was supported by reliable sources.
ATTY. LLARIZA:
Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of
marijuana leaves on that date?
 9
Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is
coming with drugs?
A Marijuana, sir.
Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was
received by you many days before you received the intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.
Q You only knew that he was coming on June 25,1984 two days before?
A Yes, sir.
Q You mean that before June 23, 1984 you did not know that minnudin was coming?
A Before June 23,1984, I, in my capacity, did not know that he was coming but on
June 23, 1984 that was the time when I received the information that he was coming.
Regarding the reports on his activities, we have reports that he was already
consummated the act of selling and shipping marijuana stuff.
COURT:
Q And as a result of that report, you put him under surveillance?
A Yes, sir.
Q In the intelligence report, only the name of Idel Aminnudin was mentioned?
A Yes, sir.
Q Are you sure of that?
A On the 23rd he will be coming with the woman.
Q So that even before you received the official report on June 23, 1984, you had
already gathered information to the effect that Idel Aminnudin was coming to Iloilo on
June 25, 1984?
A Only on the 23rd of June.
Q You did not try to secure a search warrant for the seizure or search of the subject
mentioned in your intelligence report?
A No, more.
Q Why not?
A Because we were very very sure that our operation will yield positive result.
Q Is that your procedure that whenever it will yield positive result you do not need a
search warrant anymore?
A Search warrant is not necessary. 23
That last answer is a cavalier pronouncement, especially as it comes from a mere
lieutenant of the PC. The Supreme Court cannot countenance such a statement. This
is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
In the case at bar, there was no warrant of arrest or search warrant issued by a judge
after personal determination by him of the existence of probable cause. Contrary to
the averments of the government, the accused-appellant was not caught in
 10
flagrante nor was a crime about to be committed or had just been committed to justify
the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency
could not be invoked to dispense with the obtention of the warrant as in the case of
Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these
vehicles may be quickly moved out of the locality or jurisdiction before the warrant can
be secured.
The present case presented no such urgency. From the conflicting declarations of the
PC witnesses, it is clear that they had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival
was certain. And from the information they had received, they could have persuaded a
judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet
they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team,
had determined on his own authority that a "search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of violators of
the Dangerous Drugs Act, it has always been shown that they were caught red-
handed, as a result of what are popularly called "buy-bust" operations of the narcotics
agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and
there was no outward indication that called for his arrest. To all appearances, he was
like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It was the furtive finger that triggered
his arrest. The Identification by the informer was the probable cause as determined by
the officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen
years of the despised dictatorship, when any one could be picked up at will, detained
without charges and punished without trial, we will have only ourselves to blame if that
kind of arbitrariness is allowed to return, to once more flaunt its disdain of the
Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very own
words suggest that he is lying, that fact alone does not justify a finding that he is guilty.
The constitutional presumption is that he is innocent, and he will be so declared even
if his defense is weak as long as the prosecution is not strong enough to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of
the prosecution must fall. That evidence cannot be admitted, and should never have
been considered by the trial court for the simple fact is that the marijuana was seized
illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase.
The search was not an incident of a lawful arrest because there was no warrant of
arrest and the warrantless arrest did not come under the exceptions allowed by the
Rules of Court. Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law-enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high- handedness
from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the rights
of the individual in the name of order. Order is too high a price for the loss of liberty. As
Justice Holmes, again, said, "I think it a less evil that some criminals should escape
than that the government should play an ignoble part." It is simply not allowed in the
free society to violate a law to enforce another, especially if the law violated is the
Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence against
the accused-appellant, his guilt has not been proved beyond reasonable doubt and he
must therefore be discharged on the presumption that he is innocent.
 11
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-
appellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea, JJ., concur.
Separate Opinions
AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante, for he was
carrying marijuana leaves in his bag at the moment of his arrest. He was not
"innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No.
6425). Since he was committing a crime, his arrest could be lawfully effected without a
warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded
the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126,
Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of
illegally transporting marijuana.
Separate Opinions
AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante, for he was
carrying marijuana leaves in his bag at the moment of his arrest. He was not
"innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No.
6425). Since he was committing a crime, his arrest could be lawfully effected without a
warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his bag (which yielded
the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126,
Rules of Court). I vote to affirm the judgment of the trial court finding him guilty of
illegally transporting marijuana.
G.R. No. 87059 June 22, 1992
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
CRUZ, J.:
Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on
the strength mainly of the stolen pistol found on his person at the moment of his
warrantless arrest. In this appeal, he pleads that the weapon was not admissible as
evidence against him because it had been illegally seized and was therefore the fruit
of the poisonous tree. The Government disagrees. It insists that the revolver was
validly received in evidence by the trial judge because its seizure was incidental to an
arrest that was doubtless lawful even if admittedly without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western Police
District received a telephone call from an informer that there were three suspicious-
looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila.
A surveillance team of plainclothesmen was forthwith dispatched to the place. As later
narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw
two men "looking from side to side," one of whom was holding his abdomen. They
approached these persons and identified themselves as policemen, whereupon the
two tried to run away but were unable to escape because the other lawmen had
surrounded them. The suspects were then searched. One of them, who turned out to
be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver
 12
with six live bullets in the chamber. His companion, later identified as Nicanor
Morellos, had a fan knife secreted in his front right pants pocket. The weapons were
taken from them. Mengote and Morellos were then turned over to police headquarters
for investigation by the Intelligence Division.
On August 11, 1987, the following information was filed against the accused-appellant
before the Regional Trial Court of Manila:
obtained. Neither could it have been seized as an incident of a lawful arrest because
the arrest of Mengote was itself unlawful, having been also effected without a warrant.
The defense also contends that the testimony regarding the alleged robbery in
Danganan's house was irrelevant and should also have been disregarded by the trial
court.
The following are the pertinent provision of the Bill of Rights:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Sec. 2. The right of the people to be secure in their persons, houses, papers, and
Decree No. 1866, committed as follows: effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
That on or about August 8, 1987, in the City of Manila, Philippines, the said accused except upon probable cause to be determined personally by the judge after
did then and there wilfully, unlawfully and knowingly have in his possession and under examination under oath or affirmation of the complainant and the witnesses he may
his custody and control a firearm, to wit: produce, and particularly describing the place to be searched and the persons or
things to be seized.
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T Sec. 3 (1). The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
without first having secured the necessary license or permit therefor from the proper otherwise as prescribed by law.
authorities.
(2) Any evidence obtained in violation of this or the preceding section shall be
Besides the police officers, one other witness presented by the prosecution was inadmissible for any purpose in any proceeding.
Rigoberto Danganan, who identified the subject weapon as among the articles stolen
from him during the robbery in his house in Malabon on June 13, 1987. He pointed to There is no question that evidence obtained as a result of an illegal search or seizure
Mengote as one of the robbers. He had duly reported the robbery to the police, is inadmissible in any proceeding for any purpose. That is the absolute prohibition of
indicating the articles stolen from him, including the revolver. 2 For his part, Mengote Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule
made no effort to prove that he owned the firearm or that he was licensed to possess it based on the justification given by Judge Learned Hand that "only in case the
and claimed instead that the weapon had been "Planted" on him at the time of his prosecution, which itself controls the seizing officials, knows that it cannot profit by
arrest. 3 their wrong will the wrong be repressed." The Solicitor General, while conceding the
rule, maintains that it is not applicable in the case at bar. His reason is that the arrest
The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and search of Mengote and the seizure of the revolver from him were lawful under
and C and admitted over the objection of the defense. As previously stated, the Rule 113, Section 5, of the Rules of Court reading as follows:
weapon was the principal evidence that led to Mengote's conviction for violation of
P.D. 1866. He was sentenced to reclusion Sec. 5. Arrest without warrant when lawful. — A peace officer or private person may,
perpetua. 4 without a warrant, arrest a person;

It is submitted in the Appellant's Brief that the revolver should not have been admitted (a) When, in his presence, the person to be arrested has committed, is actually
in evidence because of its illegal seizure. no warrant therefor having been previously committing, or is attempting to commit an offense;
 13
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases failing under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot see how we can
agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a
penal institution when he was arrested. We therefore confine ourselves to determining
the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is
actually committing or is at least attempting to commit an offense, (2) in the presence
of the arresting officer.
These requirements have not been established in the case at bar. At the time of the
arrest in question, the accused-appellant was merely "looking from side to side" and
"holding his abdomen," according to the arresting officers themselves. There was
apparently no offense that had just been committed or was being actually committed
or at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part of
the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is, What
offense? What offense could possibly have been suggested by a person "looking from
side to side" and "holding his abdomen" and in a place not exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less so, if
at all. It might have been different if Mengote bad been apprehended at an ungodly
hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in
the morning. But he was arrested at 11:30 in the morning and in a crowded street
shortly after alighting from a passenger jeep with I his companion. He was not skulking
in the shadows but walking in the clear light of day. There was nothing clandestine
about his being on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innocent,
why his eyes were darting from side to side and be was holding his abdomen. If they
excited suspicion in the minds of the arresting officers, as the prosecution suggests, it
has nevertheless not been shown what their suspicion was all about. In fact, the
policemen themselves testified that they were dispatched to that place only because of
the telephone call from the informer that there were "suspicious-looking" persons in
that vicinity who were about to commit a robbery at North Bay Boulevard. The caller
did not explain why he thought the men looked suspicious nor did he elaborate on the
impending crime.
In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest
of the accused because there was a bulge in his waist that excited the suspicion of the
arresting officer and, upon inspection, turned out to be a pouch containing hashish.
In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was
carrying behind the seat of the arresting officer while she herself sat in the seat before
him. His suspicion aroused, be surreptitiously examined the bag, which he found to
contain marijuana. He then and there made the warrantless arrest and seizure that we
subsequently upheld on the ground that probable cause had been sufficiently
established.
The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his abdomen.
By no stretch of the imagination could it have been inferred from these acts that an
offense had just been committed, or was actually being committed, or was at least
being attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while be
was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was be actually committing or
attempting to commit an offense in the presence of the arresting officers. He was not
even acting suspiciously. In short, there was no probable cause that, as the
 14
prosecution incorrectly suggested, dispensed with the constitutional requirement of a
warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not
been satisfied. The prosecution has not shown that at the time of Mengote's arrest an
offense had in fact just been committed and that the arresting officers had personal
knowledge of facts indicating that Mengote had committed it. All they had was hearsay
information from the telephone caller, and about a crime that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been committed and
neither were they aware of the participation therein of the accused-appellant. It was
only later, after Danganan had appeared at the Police headquarters, that they learned
of the robbery in his house and of Mengote's supposed involvement therein. 8 As for
the illegal possession of the firearm found on Mengote's person, the policemen
discovered this only after he had been searched and the investigation conducted later
revealed that he was not its owners nor was he licensed to possess it.
Before these events, the Peace officers had no knowledge even of Mengote' identity,
let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was
involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed,
is committing, or is about to commit an offense must have personal knowledge of the
fact. The offense must also be committed in his presence or within his view. (Sayo v.
Chief of Police, 80 Phil. 859). (Emphasis supplied)
xxx xxx xxx
In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually have been committed first. That a crime has actually
been committed is an essential precondition. It is not enough to suspect that a crime
may have been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of the
perpetrator. (Emphasis supplied)
This doctrine was affirmed in Alih v. Castro, 10 thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection
with a crime about to be committed, being committed, or just committed, what was that
crime? There is no allegation in the record of such a falsification. Parenthetically, it
may be observed that under the Revised Rule 113, Section 5(b), the officer making
the arrest must have personal knowledge of the ground therefor as stressed in the
recent case of People v. Burgos. (Emphasis supplied)
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because of a
stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty
look on suspicion that he may have committed a criminal act or is actually committing
or attempting it. This simply cannot be done in a free society. This is not a police state
where order is exalted over liberty or, worse, personal malice on the part of the
arresting officer may be justified in the name of security.
There is no need to discuss the other issues raised by the accused-appellant as the
ruling we here make is sufficient to sustain his exoneration. Without the evidence of
the firearm taken from him at the time of his illegal arrest, the prosecution has lost its
most important exhibit and must therefore fail. The testimonial evidence against
Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond
reasonable doubt of the crime imputed to him.
We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did not
have to file but did so just the same to stress the constitutional rights of her client. The
fact that she was acting only as a counsel de oficio with no expectation of material
reward makes her representation even more commendable.
The Court feels that if the peace officers had been more mindful of the provisions of
the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As
it happened, they allowed their over-zealousness to get the better of them, resulting in
their disregard of the requirements of a valid search and seizure that rendered
inadmissible the vital evidence they had invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the very
cause of the acquittal of persons who deserve to be convicted, escaping the clutches
 15
of the law because, ironically enough, it has not been observed by those who are
supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-
appellant is ACQUITTED and ordered released immediately unless he is validly
detained for other offenses. No costs.
SO ORDERED.Griño-Aquino, Medialdea and Bellosillo, JJ., concur.
G.R. No. 96177 January 27, 1993
Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3
At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani,
Jr. of the 9th Narcotics Command (NARCOM) of Zamboanga City, who acted as
poseur-buyer in the buy-bust operation made against the appellant; (2) T/Sgt. Jesus
Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the
NARCOM team leader of the buy-bust operation; and (3) Athena Elisa P. Anderson,
the Document Examiner and Forensic Chemist of PC-INP Crime Laboratory of
Regional Command (RECOM) 9. The evidence of the prosecution was summarized by
the trial court as follows:

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus
vs. Belarga, leader of a NARCOTICS COMMAND (NARCOM) team based at Calarian,
MARI MUSA y HANTATALU, accused-appellant. Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a
certain Mari Musa of Suterville, Zamboanga City. Information received from civilian
The Solicitor General for plaintiff-appellee. informer was that this Mari Musa was engaged in selling marijuana in said place. So
Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with a
Pablo L. Murillo for accused-appellant. NARCOM civilian informer, to the house of Mari Musa to which house the civilian
informer had guided him. The same civilian informer had also described to him the
appearance of Mari Musa. Amado Ani was able to buy one newspaper-wrapped dried
marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and turned
over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga
ROMERO, J.: inspected the stuff turned over to him and found it to be marijuana.

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
August 31, 1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, Amado Ani was assigned as the poseur buyer for which purpose he was given P20.00
finding him guilty of selling marijuana in violation of Article II, Section 4 of Republic Act (with SN GA955883) by Belarga. The
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt (Exh.
The information filed on December 15, 1989 against the appellant reads: "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up security. A pre-
arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he
That on or about December 14, 1989, in the City of Zamboanga, Philippines, and had succeeded to buy the marijuana. The two NARCOM teams proceeded to the
within the jurisdiction of this Honorable Court, the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team
above-named accused, not being authorized by law, did then and there, wilfully, leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers containing
dried marijuana leaves, knowing the same to be a prohibited drug. Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest
of the NARCOM group positioned themselves at strategic places about 90 to 100
CONTRARY TO LAW.2 meters from Mari Musa's house. T/Sgt. Belarga could see what went on between Ani
 16
and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out
of his house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani
gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musa
went back to his house and came back and gave Amado Ani two newspaper wrappers
containing dried marijuana. Ani opened the two wrappers and inspected the contents.
Convinced that the contents were marijuana, Ani walked back towards his companions
and raised his right hand. The two NARCOM teams, riding the two civilian vehicles,
sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.
At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga later
came to know to be Mari Musa's wife. The second time, Ani with the NARCOM team
returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife,
slipped away from the house. Sgt. Belarga frisked Mari Musa but could not find the
P20.00 marked money with him. Mari Musa was then asked where the P20.00 was
and he told the NARCOM team he has given the money to his wife (who had slipped
away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Mari Musa was then placed under arrest and brought to the
NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the two newspaper-
wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").
In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari
Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the two
newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-wrapped
marijuana (bought at the test-buy) and the plastic bag containing more marijuana
(which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime
Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuana
specimen to the PC Crime Laboratory was by way of a letter-request, dated December
14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory
(Exh. "B-1") on the same day.
Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her Chemistry
Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-
5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at
the
buy-bust on December 14, 1989, through her initial and the weight of each specimen
written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also identified the
one newspaper-wrapped marijuana bought at the test-buy on December 13, 1989,
through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report
(Exh. "J" & sub-markings.)
T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his
initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on
Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked money (with
SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to
the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the
stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4
For the defense, the following testified as witnesses: (1) the accused-appellant Mari H.
Musa; and (2) Ahara R. Musa, his wife. The trial court summarized the version of the
defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house
at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known as Ara, his
one-year old child, a woman manicurist, and a male cousin named Abdul Musa. About
1:30 that afternoon, while he was being manicured at one hand, his wife was inside
the one room of their house, putting their child to sleep. Three NARCOM agents, who
introduced themselves as NARCOM agents, dressed in civilian clothes, got inside Mari
Musa's house whose door was open. The NARCOM agents did not ask permission to
enter the house but simply announced that they were NARCOM agents. The
NARCOM agents searched Mari Musa's house and Mari Musa asked them if they had
a search warrant. The NARCOM agents were just silent. The NARCOM agents found
a red plastic bag whose contents, Mari Musa said, he did not know. He also did not
know if the plastic bag belonged to his brother, Faisal, who was living with him, or his
father, who was living in another house about ten arms-length away. Mari Musa, then,
was handcuffed and when Mari Musa asked why, the NARCOM agents told him for
clarification.
Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was investigated by
one NARCOM agent which investigation was reduced into writing. The writing or
document was interpreted to Mari Musa in Tagalog. The document stated that the
 17
marijuana belonged to Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him. Mari Musa said he was
not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the fingers of his right hand and
his fingers were pressed which felt very painful. The NARCOM agents boxed him and
Mari Musa lost consciousness. While Mari Musa was maltreated, he said his wife was
outside the NARCOM building. The very day he was arrested (on cross-examination
Mari Musa said it was on the next day), Mari Musa was brought to the Fiscal's Office
by three NARCOM agents. The fiscal asked him if the marijuana was owned by him
and he said "not." After that single question, Mari Musa was brought to the City Jail.
Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given to
his wife. He did not sell marijuana because he was afraid that was against the law and
that the person selling marijuana was caught by the authorities; and he had a wife and
a very small child to support. Mari Musa said he had not been arrested for selling
marijuana before.5
After trial, the trial court rendered the assailed decision with the following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable
doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he is
sentenced to life imprisonment and to pay the fine of P20,000.00, the latter imposed
without subsidiary imprisonment.6
In this appeal, the appellant contends that his guilt was not proved beyond reasonable
doubt and impugns the credibility of the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible
because: (1) prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM
agents were personally known by the appellant or vice-versa; and (2) there was no
witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt.
Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus
Belarga, he conducted a test-buy operation on the appellant whereby he bought one
wrapper of marijuana for P15.00 from the latter.7 He reported the successful operation
to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt. Belarga conducted a
conference to organize a buy-bust operation for the following day.9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles
headed by T/Sgt. Belarga and a certain Sgt. Foncardas went to the place of operation,
which was the appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members
were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked P20.00 bill by T/Sgt.
Belarga, which was to be used in the operation.
Upon reaching the place, the NARCOM agents positioned themselves at strategic
places.11 Sgt. Ani approached the house. Outside the house, the appellant asked Sgt.
Ani what he wanted. Sgt. Ani asked him for some more marijuana. 12 Sgt. Ani gave him
the marked P20.00 bill and the appellant went inside the house and brought back two
paper wrappers containing marijuana which he handed to Sgt. Ani. 13 From his position,
Sgt. Ani could see that there were other people in the house.14
After the exchange, Sgt. Ani approached the other NARCOM agents and made the
pre-arranged signal of raising his right hand. 15 The NARCOM agents, accompanied by
Sgt. Ani, went inside the house and made the arrest. The agents searched the
appellant and unable to find the marked money, they asked him where it was. The
appellant said that he gave it to his wife.16
The Court, after a careful reading of the record, finds the testimony of Sgt. Ani
regarding the buy-bust operation, which resulted in the apprehension, prosecution and
subsequent conviction of the appellant, to be direct, lucid and forthright. Being totally
untainted by contradictions in any of the material points, it deserves credence.
The contention that the appellant could not have transacted with Sgt. Ani because they
do not know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a
wrapper of marijuana from the appellant. Through this previous transaction, Sgt. Ani
was able to gain the appellant's confidence for the latter to sell more marijuana to Sgt.
Ani the following day, during the buy-bust operation. Moreover, the Court has held that
what matters is not an existing familiarity between the buyer and the seller, for quite
 18
often, the parties to the transaction may be strangers, but their agreement and the
acts constituting the sale and delivery of the marijuana. 17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was
impossible for the appellant to sell marijuana while his wife, cousin and manicurist
were present. But the place of the commission of the crime of selling prohibited drugs
has been held to be not crucial18 and the presence of other people apart from the
buyer and seller will not necessarily prevent the consummation of the illegal sale. As
the Court observed in People v. Paco,19 these factors may sometimes camouflage the
commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance
that these people will not report him to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of
T/Sgt. Belarga. The appellant submits that since T/Sgt. Belarga admitted that he was
about 90 meters away from Sgt. Ani and the appellant, he could not have possibly
witnessed the sale. The appellant invokes People v.
Ale20 where the Court observed that from a distance of 10-15 meters, a policeman
cannot distinguish between marijuana cigarette from ordinary ones by the type of
rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did not see the
sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not
stand as basis for his conviction.
People v. Ale does not apply here because the policeman in that case testified that he
and his companion were certain that the appellant therein handed marijuana cigarettes
to the poseur-buyer based on the appearance of the cigarette sticks. The Court
rejected this claim, stating that:
This Court cannot give full credit to the testimonies of the prosecution witnesses
marked as they are with contradictions and tainted with inaccuracies.
Biñan testified that they were able to tell that the four cigarettes were marijuana
cigarettes because according to him, the rolling of ordinary cigarettes are different
from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).
It is however, incredible to believe that they could discern the type of rolling done on
those cigarettes from the distance where they were observing the alleged sale of more
or less 10 to 15 meters.21
In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the
appellant hand over marijuana to Sgt. Ani. What he said was that there was an
exchange of certain articles between the two. The relevant portion of T/Sgt. Belarga's
testimony reads:22
Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari
Musa?
A Yes, ma'am.
Q After reaching Mari Musa, did you see what happened (sic)?
A Yes, ma'am.
Q Could you please tell us?
A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were
boarded, I saw that Sgt. Ani proceeded to the house near the road and he was met by
one person and later known as Mari Musa who was at the time wearing short pants
and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari
Musa and went inside the house and came back later and handed something to Sgt.
Ani.
Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to
have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant
"something" and for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt.
Ani received from the appellant was marijuana because of the distance, his testimony,
nevertheless, corroborated the direct evidence, which the Court earlier ruled to be
convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga
instructed Sgt. Ani to conduct a surveillance and test-buy operation on the appellant at
Suterville, Zamboanga City on December 13, 1989; 23 (2) later that same day, Sgt. Ani
went back to their office and reported a successful operation and turned over to T/Sgt.
Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to
conduct a buy-bust operation the following day; 25 (4) on December 14, 1989, T/Sgt.
Belarga led a team of NARCOM agents who went to Suterville, Zamboanga City; 26 (5)
T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-
 19
bust operation; 27 (6) upon the arrival of the NARCOM agents in Suterville,
Zamboanga City, Sgt. Ani proceeded to the house of the appellant while some agents
stayed in the vehicles and others positioned themselves in strategic places; 28 the
appellant met Sgt. Ani and an exchange of articles took place.29
The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given
by Sgt. Ani. Additionally, the Court has ruled that the fact that the police officers who
accompanied the poseur-buyer were unable to see exactly what the appellant gave
the poseur-buyer because of their distance or position will not be fatal to the
prosecution's case30 provided there exists other evidence, direct or circumstantial, e.g.,
the testimony of the poseur-buyer, which is sufficient to prove the consummation of the
sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag
containing marijuana which the NARCOM agents found in the appellant's kitchen. It
appears that after Sgt. Ani gave the pre-arranged signal to the other NARCOM agents,
the latter moved in and arrested the appellant inside the house. They searched him to
retrieve the marked money but didn't find it. Upon being questioned, the appellant said
that he gave the marked money to his wife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego
went to the kitchen and noticed what T/Sgt. Belarga described as a "cellophane
colored white and stripe hanging at the corner of the kitchen." 32 They asked the
appellant about its contents but failing to get a response, they opened it and found
dried marijuana leaves. At the trial, the appellant questioned the admissibility of the
plastic bag and the marijuana it contains but the trial court issued an Order ruling that
these are admissible in evidence.33
Built into the Constitution are guarantees on the freedom of every individual against
unreasonable searches and seizures by providing in Article III, Section 2, the following:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witness he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v.
Diokno, 34 declares inadmissible, any evidence obtained in violation of the freedom
from unreasonable searches and seizures.35
While a valid search warrant is generally necessary before a search and seizure may
be effected, exceptions to this rule are recognized. Thus, in Alvero v. Dizon,36 the
Court stated that. "[t]he most important exception to the necessity for a search warrant
is the right of search and seizure as an incident to a lawful arrest."37
Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search
and seizure incident to a lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant.
There is no doubt that the warrantless search incidental to a lawful arrest authorizes
the arresting officer to make a search upon the person of the person arrested. As early
as 1909, the Court has ruled that "[a]n officer making an arrest may take from the
person arrested any money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might furnish the
prisoner with the means of committing
violence or of escaping, or which may be used as evidence in the trial of the cause . . .
"38 Hence, in a buy-bust operation conducted to entrap a drug-pusher, the law
enforcement agents may seize the marked money found on the person
of the pusher immediately after the arrest even without arrest and search warrants.39
In the case at bar, the NARCOM agents searched the person of the appellant after
arresting him in his house but found nothing. They then searched the entire house
and, in the kitchen, found and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a suspect's lawful arrest, may
extend beyond the person of the one arrested to include the premises or surroundings
under his immediate control.40 Objects in the "plain view" of an officer who has the
right to be in the position to have that view are subject to seizure and may be
presented as evidence.41
 20
In Ker v. California42 police officers, without securing a search warrant but having
information that the defendant husband was selling marijuana from his apartment,
obtained from the building manager a passkey to defendants' apartment, and entered
it. There they found the defendant husband in the living room. The defendant wife
emerged from the kitchen, and one of the officers, after identifying himself, observed
through the open doorway of the kitchen, a small scale atop the kitchen sink, upon
which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in
prosecuting defendants for violation of the Narcotic Law. The admissibility of the
package was challenged before the U.S. Supreme Court, which held, after observing
that it was not unreasonable for the officer to walk to the doorway of the adjacent
kitchen on seeing the defendant wife emerge therefrom, that "the discovery of the
brick of marijuana did not constitute a search, since the officer merely saw what was
placed before him in full view.43 The U.S. Supreme Court ruled that the warrantless
seizure of the marijuana was legal on the basis of the "plain view" doctrine and upheld
the admissibility of the seized drugs as part of the prosecution's evidence. 44
The "plain view" doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find
evidence of defendant's guilt. The "plain view" doctrine is usually applied where a
police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. 45 Furthermore, the U.S. Supreme
Court stated the following limitations on the application of the doctrine:
What the "plain view" cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification — whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused — and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the "plain view" doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating at last emerges.46
It has also been suggested that even if an object is observed in "plain view," the "plain
view" doctrine will not justify the seizure of the object where the incriminating nature of
the object is not apparent from the "plain view" of the object.47 Stated differently, it
must be immediately apparent to the police that the items that they observe may be
evidence of a crime, contraband, or otherwise subject to seizure.
In the instant case, the appellant was arrested and his person searched in the living
room. Failing to retrieve the marked money which they hoped to find, the NARCOM
agents searched the whole house and found the plastic bag in the kitchen. The plastic
bag was, therefore, not within their "plain view" when they arrested the appellant as to
justify its seizure. The NARCOM agents had to move from one portion of the house to
another before they sighted the plastic bag. Unlike Ker vs. California, where the police
officer had reason to walk to the doorway of the adjacent kitchen and from which
position he saw the marijuana, the NARCOM agents in this case went from room to
room with the obvious intention of fishing for more evidence.
Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the
kitchen, they had no clue as to its contents. They had to ask the appellant what the
bag contained. When the appellant refused to respond, they opened it and found the
marijuana. Unlike Ker v. California, where the marijuana was visible to the police
officer's eyes, the NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not forcibly opened it. Even
assuming then, that the NARCOM agents inadvertently came across the plastic bag
because it was within their "plain view," what may be said to be the object in their
"plain view" was just the plastic bag and not the marijuana. The incriminating nature of
the contents of the plastic bag was not immediately apparent from the "plain view" of
said object. It cannot be claimed that the plastic bag clearly betrayed its contents,
whether by its distinctive configuration, its transprarency, or otherwise, that its contents
are obvious to an observer.48
We, therefore, hold that under the circumstances of the case, the "plain view" doctrine
does not apply and the marijuana contained in the plastic bag was seized illegally and
cannot be presented in evidence pursuant to Article III, Section 3(2) of the
Constitution.
The exclusion of this particular evidence does not, however, diminish, in any way, the
damaging effect of the other pieces of evidence presented by the prosecution to prove
that the appellant sold marijuana, in violation of Article II, Section 4 of the Dangerous
Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt.
Belarga and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among
 21
other pieces of evidence, the guilt of the appellant of the crime charged has been
proved beyond reasonable doubt.
WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial
Court AFFIRMED.
SO ORDERED.
Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.
PADILLA, J.:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt
(hereinafter referred to as the accused) was charged before the Regional Trial Court
(RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for
violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act of 1972, as amended. The factual background of the case is
as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third
time in December 1988 as a tourist. He had visited the country sometime in 1982 and
1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in
the morning of the following day, he took a bus to Sagada and stayed in that place for
two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From
Baguio City, accused planned to take a late afternoon trip to Angeles City, then
proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989.
From Sagada, accused took a Skyline bus with body number 8005 and Plate number
AVC 902.1
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen
Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed
at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14,
Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from
the Cordillera Region. The order to establish a checkpoint in the said area was
prompted by persistent reports that vehicles coming from Sagada were transporting
marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from
Sagada had in his possession prohibited drugs.2
The group composed of seven (7) NARCOM officers, in coordination with Tublay
Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the
morning and inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped.
Sgt. Fider and CIC Galutan boarded the bus and announced that they were members
of the NARCOM and that they would conduct an inspection. The two (2) NARCOM
officers started their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting
the bulge on accused's waist to be a gun, the officer asked for accused's passport and
other identification papers. When accused failed to comply, the officer required him to
 22
bring out whatever it was that was bulging on his waist. The bulging object turned out
to be a pouch bag and when accused opened the same bag, as ordered, the officer
noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting
the officer to open one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he alighted
from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear
was found in each bag. Feeling the teddy bears, the officer noticed that there were
bulges inside the same which did not feel like foam stuffing. It was only after the
officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La
Trinidad, Benguet for further investigation. At the investigation room, the officers
opened the teddy bears and they were found to also contain hashish. Representative
samples were taken from the hashish found among the personal effects of accused
and the same were brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish. a
prohibited drug which is a derivative of marijuana. Thus, an information was filed
against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he
raised the issue of illegal search of his personal effects. He also claimed that the
hashish was planted by the NARCOM officers in his pouch bag and that the two (2)
travelling bags were not owned by him, but were merely entrusted to him by an
Australian couple whom he met in Sagada. He further claimed that the Australian
couple intended to take the same bus with him but because there were no more seats
available in said bus, they decided to take the next ride and asked accused to take
charge of the bags, and that they would meet each other at the Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his passport
and other Identification papers, he handed to one of the officers his pouch bag which
was hanging on his neck containing, among others, his passport, return ticket to
Sweden and other papers. The officer in turn handed it to his companion who brought
the bag outside the bus. When said officer came back, he charged the accused that
there was hashish in the bag. He was told to get off the bus and his picture was taken
with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was
belied by his failure to raise such defense at the earliest opportunity. When accused
was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his
lawyer that the hashish was planted by the NARCOM officers in his bag. It was only
two (2) months after said investigation when he told his lawyer about said claim,
denying ownership of the two (2) travelling bags as well as having hashish in his
pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art.
II of RA 6425, as amended.3 The dispositive portion of the decision reads as follows:
WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with
subsidiary imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First Narcotics Regional Unit
at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20,
Article IV of Republic Act 6425, as amended.
SO ORDERED.4
Seeking the reversal of the decision of the trial court finding him guilty of the crime
charged, accused argues that the search of his personal effects was illegal because it
was made without a search warrant and, therefore, the prohibited drugs which were
discovered during the illegal search are not admissible as evidence against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures. 5 However,
where the search is made pursuant to a lawful arrest, there is no need to obtain a
search warrant. A lawful arrest without a warrant may be made by a peace officer or a
private person under the following circumstances.6
 23
Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A
crime was actually being committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a warrantless search
incident to a lawful arrest.7
While it is true that the NARCOM officers were not armed with a search warrant when
the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.
Probable cause has been defined as such facts and circumstances which could lead a
reasonable, discreet and prudent man to believe that an offense has been committed,
and that the objects sought in connection with the offense are in the place sought to
be searched.8 The required probable cause that will justify a warrantless search and
seizure is not determined by any fixed formula but is resolved according to the facts of
each case.9
Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused, 10 or where the accused was
acting suspiciously,11 and attempted to flee.12
Aside from the persistent reports received by the NARCOM that vehicles coming from
Sagada were transporting marijuana and other prohibited drugs, their Commanding
Officer also received information that a Caucasian coming from Sagada on that
particular day had prohibited drugs in his possession. Said information was received
by the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City.
When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In
the Tangliben case,13 the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against
persons engaged in the traffic of dangerous drugs, based on information supplied by
some informers. Accused Tangliben who was acting suspiciously and pointed out by
an informer was apprehended and searched by the police authorities. It was held that
when faced with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer
that accused was trying to hide his identity. For is it not a regular norm for an innocent
man, who has nothing to hide from the authorities, to readily present his identification
papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch
 24
bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) travelling bags containing two (2)
teddy bears with hashish stuffed inside them, were prompted by accused's own
attempt to hide his identity by refusing to present his passport, and by the information
received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession. To deprive the NARCOM agents of the ability and facility to act
accordingly, including, to search even without warrant, in the light of such
circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of conviction by the trial
court is hereby AFFIRMED. Costs against the accused-appellant.
SO ORDERED.
Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and
Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.
Separate Opinions
NARVASA, J., concurring and dissenting:
The ancient tradition that a man's home is his castle, safe from intrusion even by the
king, has not only found its niche in all our charters, from 1935 to the present; it has
also received unvarying recognition and acceptance in our case law. 1 The present
Constitution2 declares that —
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose,
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.
It further ordains that any evidence obtained in violation of said right, among others,
"shall be inadmissible for any purpose in any proceeding."3
The rule is that no person may be subjected by the police or other government
authority to a search of his body, or his personal effects or belongings, or his
residence except by virtue of a search warrant or on the occasion of a legitimate
arrest.4
An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even
without a warrant, an arrest may also be lawfully made by a peace officer or a private
person:5
(a) when, in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
In any of these instances of a lawful arrest, the person arrested "may be searched for
dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant."6 And it has been held that the search may extend
to the area "within his immediate control," i.e., the area from which said person
arrested might gain possession of a weapon or destructible evidence.7
Apart from "search incidental to an arrest," a warrantless search has also been held to
be proper in cases of "search of a moving vehicle, 8 and "seizure of evidence in plain
view."9 This was the pronouncement in Manipon, Jr. v. Sandiganbayan, 143 SCRA
267, 276, which drew attention to Moreno v. Ago Chi;10 Alvero v. Dizon,11 Papa v.
Mago,12 and an American precedent, Harris v. U.S.13
 25
If, on the other, a person is searched without a warrant, or under circumstances other
than those justifying an arrest without warrant in accordance with law, supra, merely
on suspicion that he is engaged in some felonious enterprise, and in order to discover
if he has indeed committed a crime, it is not only the arrest which is illegal but also, the
search on the occasion thereof, as being "the fruit of the poisonous tree.14 In that
event, any evidence taken, even if confirmatory of the initial suspicion, is inadmissible
"for any purpose in any proceeding."15 But the right against an unreasonable search
and seizure may be waived by the person arrested, provided he knew of such right
and knowingly decided not to invoke it.16
There is unanimity among the members of the Court upon the continuing validity of
these established principles. However, the Court is divided as regards the ultimate
conclusions which may properly be derived from the proven facts and consequently,
the manner in which the principles just cited should apply thereto.
The proofs of the prosecution and those of the defense are diametrically at odds. What
is certain, however, is that the soldiers had no warrant of arrest when they conducted
a search of Malmstedt's person and the things in his possession at the time. Indeed,
the Court a quo acknowledged that the soldiers could "not be expected to be armed
with a warrant or arrest nor a search warrant everytime they establish a temporary
checkpoint . . . (and) no judge would issue them one considering that searching
questions have to be asked before a warrant could be issued." Equally plain is that
prior to the search, a warrantless arrest of Malmstedt could not validly have been in
accordance with the norms of the law. For Malmstedt had not committed, nor was he
actually committing or attempting to commit a crime, in the soldiers' presence, nor did
said soldiers have personal and competent knowledge that Malmstedt had in fact just
committed a crime. All they had was a suspicion that Malmstedt might have some
prohibited drug on him or in his bags; all they had was, in the words of the Trial Court,
"the hope of intercepting any dangerous drug being transported," or, as the Office of
the Solicitor General asserts, "information that most of the buses coming . . . (from the
Cordillera) were transporting marijuana and other prohibited drugs."
This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by
the First Division.17 There, Aminnudin was arrested without a warrant by PC officers as
he was disembarking from an inter-island vessel. The officers were waiting for him
because he was, according to an informer's report, then transporting marijuana. The
search of Aminnudin's bag confirmed the informer's report; the bag indeed contained
marijuana. The Court nevertheless held that since the PC officers had failed to procure
a search warrant although they had sufficient time (two days) to do so and therefore,
the case presented no such urgency as to justify a warrantless search, the search of
Aminnudin's person and bag, the seizure of the marijuana and his subsequent arrest
were illegal; and the marijuana was inadmissible in evidence in the criminal action
subsequently instituted against Aminnudin for violating the Dangerous Drugs Act.
There are, on the other hand, other cases adjudicated by this Court in which
apparently different conclusions were reached. It is needful to devote a few words to
them so that the relevant constitutional and legal propositions are not misunderstood.
In People v. Claudio (decision promulgated on April 15, 1988),18 the accused boarded
a "Victory Liner" passenger bus going to Olongapo from Baguio City. She placed the
plastic bag she was carrying at the back of the seat then occupied by Obiña, an INP
member "on Detached Service with the Anti-Narcotics Unit." This avowedly aroused
Obiña's suspicion, and at the first opportunity, and without Claudio's knowledge, he
surreptitiously looked into the plastic bag and noted that it contained camote tops as
well as a package, and that there emanated from the package the smell of marijuana
with which he had become familiar on account of his work. So when the bus stopped
at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his ID, identified
himself as a policeman, and announced his intention to search her bag which he said
contained marijuana because of the distinctive odor detected by him. Ignoring her plea
— "Please go with me, let us settle this at home" — he brought her to the police
headquarters., where examination of the package in Claudio's bag confirmed his
suspicion that it indeed contained marijuana. The Court held the warrantless arrest
under the circumstances to be lawful, the search justified, and the evidence thus
discovered admissible in evidence against the accused.
In People v. Tangliben (decision promulgated on April 6, 1990),19 two police officers
and a barangay tanod were conducting a "surveillance mission" at the Victory Liner
Terminal at San Nicolas, San Fernando, Pampanga, "aimed not only against persons
who may commit misdemeanors . . . (there) but also on persons who may be engaging
in the traffic of dangerous drugs based on information supplied by informers; . . . they
noticed a person carrying a red travelling bag . . who was acting suspiciously;" they
asked him to open the bag; the person did so only after they identified themselves as
peace officers; found in the bag were marijuana leaves wrapped in plastic weighing
one kilogram, more or less; the person was then taken to the police headquarters at
San Fernando, Pampanga, where he was investigated; and an information was
thereafter filed against that person, Tangliben, charging him with a violation of the
 26
Dangerous Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was
ruled, citing Claudio, supra, that there was a valid warrantless arrest and a proper
warrantless search incident thereto.
The facts in Tangliben were pronounced to be different from those in People v.
Aminnudin, supra. "In contrast" to Aminnudin where the Court perceived no urgency
as to preclude the application for and obtention of a search warrant, it was declared
that the Tangliben case —
. . . presented urgency. . . (The evidence revealed) that there was an informer who
pointed to the accused-appellant as carrying marijuana . . . Faced with such on-the-
spot information, the police officers had to act quickly. There was not enough time to
secure a search warrant . . . To require search warrants during on-the-spot
apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robber, etc. would make it extremely difficult, if not
impossible to contain the crimes with which these persons are associated.
In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to
enable the PC officers to secure a search warrant, had there been time. But because
there was actually no time to get the warrant, and there were "on-the-spot" indications
that Tangliben was then actually committing a crime, the search of his person and his
effects was considered valid.
Two other decisions presented substantially similar circumstance instances: Posadas
v. C.A., et al., decided on August 2, 1990,20 and People v. Moises Maspil, Jr., et al.,
decided on August 20, 1990.21
In the first case, Posadas was seen to be acting suspiciously by two members of the
INP, Davao Metrodiscom, and when he was accosted by the two, who identified
themselves as police officers, he suddenly fled. He was pursued, overtaken and,
notwithstanding his resistance, placed in custody. The buri bag Posadas was then
carrying was found to contain a revolver, for which he could produce no license or
authority to possess, four rounds of live ammunition, and a tear gas grenade. He was
prosecuted for illegal possession of firearms and ammunition and convicted after trial.
This Court affirmed Posadas' conviction, holding that there was, in the premises,
probable cause for a search without warrant, i.e., the appellant was acting suspiciously
and attempted to flee with the buri bag he had with him at the time. The Court cited
with approval the ruling of the U.S. Federal Supreme Court in John W. Terry v. State of
Ohio,22 a 1968 case, which the Solicitor General had invoked to justify the search.
In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics
Regional Unit of the Narcotics Command at Sayangan, Atok, Benguet, to monitor,
inspect and scrutinize vehicles on the highway going towards Baguio City. This was
done because of a confidential report by informers that Maspil and another person,
Bagking, would be transporting a large quantity of marijuana to Baguio City. In fact, the
informers were with the policemen manning the checkpoint. As expected, at about 2
o'clock in the early morning of November 1, 1986, a jeepney approached the
checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the
vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin
cans. When opened, the sacks and cans were seen to contain what appeared to be
marijuana leaves. The policemen thereupon placed Maspil and Bagking under arrest,
and confiscated the leaves which, upon scientific examination, were verified to be
marijuana leaves. The Court upheld the validity of the search thus conducted, as being
incidental to a lawful warrantless arrest,23 and declared that, as in Tangliben, supra,
Maspil and Bagking had been caught in flagrante delictotransporting prohibited drugs
at the time of their arrest. Again, the Court took occasion to distinguish the case
from Aminnudin24 in which, as aforestated, it appeared that the police officers were
aware of Aminnudin's identity, his projected criminal enterprise and the vessel on
which he would be arriving, and, equally as importantly, had sufficient time and
opportunity to obtain a search warrant. In the case of Maspil and Bagking, the Court
found that the officers concerned had no exact description of the vehicle the former
would be using to transport marijuana, and no inkling of the definite time of the
suspects' arrival, and pointed out that a jeepney on the road is not the same as a
passenger boat on the high seas whose route and time of arrival are more or less
certain, and which ordinarily cannot deviate from or otherwise alter its course, or select
another destination.25
The most recent decision treating of warrantless search and seizure appears to
be People v. Lo Ho Wing; et al., G.R. No. 88017, decided on January 21, 1991 (per
Gancayco, J.). In that case, an undercover or "deep penetration" agent, Tia, managed
somehow to gain acceptance into a group of suspected drug smugglers, which
included Peter Lo and Lim Ching Huat. Tia accompanied Peter Lo to Guangzhou,
China, where he saw him and other person empty the contents of six (6) tins of tea
and replace them with white powder. On their return to Manila with the cans of
substituted "tea," they were met at the airport by Lim. As they were leaving the airport
 27
in separate vehicles, they were intercepted by officers and operatives of the Narcotics
Command (NARCOM), who had earlier been tipped off by Tia, and placed under
arrest. As search of the luggage brought in by Tia and Peter Lo, loaded on the group's
vehicles, quickly disclosed the six (6) tin cans containing fifty-six (56) bags of white
crystalline powder which, upon analysis, was identified as metamphetamine. Tia, Lo
and Lim were indicted for violation of the Dangerous Drugs Act of 1972. Tia was
discharged as state witness. Lo and Lim were subsequently convicted and sentenced
to life imprisonment. One of the questions raised by them in this Court on appeal was
whether the warrantless search of their vehicles and personal effects was legal. The
Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 (1986),26 held legal the
search of the appellants' moving vehicles and the seizure therefrom of the dangerous
drug, considering that there was intelligence information, including clandestine reports
by a planted spy actually participating in the activity, that the appellants were bringing
prohibited drugs into the country; that the requirement of obtaining a search warrant
"borders on the impossible in the case of smuggling effected by the use of a moving
vehicle that can transport contraband from one place to another with impunity," and "it
is not practicable to secure a warrant because the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant must be sought.27
In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed
which were found by the Court as justifying warantless arrests. In Claudio, the
arresting officer had secretly ascertained that the woman he was arresting was in fact
in possession of marijuana; he had personally seen that her bag contained not only
vegetables but also a package emitting the odor of marijuana. In Tangliben, the person
arrested and searched was acting suspiciously, and had been positively pointed to as
carrying marijuana. And in both cases, the accused were about to board passenger
buses, making it urgent for the police officers concerned to take quick and decisive
action. In Posadas, the person arrested and searched was acting suspiciously, too,
and when accosted had attempted to flee from the police officers. And
in Maspil and Lo Ho Wing, there was definite information of the precise identity of the
persons engaged in transporting prohibited drugs at a particular time and place.
Now, as regards the precise issue at hand, whether or not the facts in the case at bar
make out a legitimate instance of a warrantless search and seizure, there is, as earlier
pointed out, a regrettable divergence of views among the members of the Court.
Contrary to the conclusion reached by the majority, I believe that the appellant should
be absolved on reasonable doubt. There was in this case no confidential report from,
or positive identification by an informer; no attempt to flee; no bag or package emitting
tell-tale odors; no other reasonably persuasive indications that Malmstedt was at the
time in process of perpetrating the offense for which he was subsequently prosecuted.
Hence, when the soldiers searched Malmstedt's pouch and the bags in his
possession, they were simply "fishing" for evidence. It matters not that the search
disclosed that the bags contained prohibited substances, confirming their initial
information and suspicion. The search was not made by virtue of a warrant or as an
incident of a lawful warrantless arrest, i.e., under circumstances sufficient to engender
a reasonable belief that some crime was being or about to be committed, or adjust
been committed. There was no intelligent and intentional waiver of the right against
unreasonable searches and seizure. The search was therefore illegal, since the law
requires that there first be a lawful arrest of an individual before a search of his body
and his belongings may licitly be made. The process cannot be reversed, i.e., a search
be first undertaken, and then an arrest effected, on the strength of the evidence
yielded by the search. An arrest made in that case would be unlawful, and the search
undertaken as an incident of such an unlawful arrest, also unlawful.
The fact that when investigated at the headquarters of the Narcotic Command at
Camp Dangwa, La Trinidad, Malmstedt had, it is said, willingly admitted that there
were was hashish inside the "teddy bears" in the luggage found in his possession —
an admission subsequently confirmed by laboratory examination — does not help the
cause of the prosecution one bit. Nothing in the record even remotely suggests that
Malmstedt was accorded the rights guaranteed by the Constitution to all persons
under custodial investigation.28 He was not informed, prior to being interrogated, that
he had the "right to remain silent and to have competent and independent counsel
preferably of his own choice," and that if he could not afford the services of counsel,
he would be provided with one; not does it appear at all that he waived those rights "in
writing and in the presence of counsel." The soldiers and the police officers simply
went ahead with the investigation of Malmstedt, without counsel. The admissions
elicited from Malmstedt under these circumstances, as the Constitution clearly states,
are "inadmissible in evidence against him.29
The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken
in violation of the constitutional right against unreasonable searches and seizures, are
inadmissible against him "for any purpose in any proceeding." Also pronounced as
incompetent evidence against him are the admissions supposedly made by him
without his first being accorded the constitutional rights of persons under custodial
 28
investigation. Without such object evidence and admissions, nothing remains of the
case against Malmstedt.
It may be conceded that, as the Trial Court points out, the evidence presented by
Malmstedt in his defense is feeble, unworthy of credence. This is beside the point; for
conformably to the familiar axiom, the State must rely on the strength of its evidence
and not on the weakness of the defense. The unfortunate fact is that although the
existence of the hashish is an objective physical reality that cannot but be conceded,
there is in law no evidence to demonstrate with any degree of persuasion, much less
beyond reasonable doubt, that Malmstedt was engaged in a criminal activity. This is
the paradox created by the disregard of the applicable constitutional safeguards. The
tangible benefit is that the hashish in question has been correctly confiscated and thus
effectively withdrawn from private use.
What is here said should not by any means be taken as a disapproval or a
disparagement of the efforts of the police and military authorities to deter and detect
offenses, whether they be possession of and traffic in prohibited drugs, or some other.
Those efforts obviously merit the support and commendation of the Courts and indeed
of every responsible citizen. But those efforts must take account of the basic rights
granted by the Constitution and the law to persons who may fall under suspicion of
engaging in criminal acts. Disregard of those rights may not be justified by the
objective of ferreting out and punishing crime, no matter how eminently desirable
attainment of that objective might be. Disregard of those rights, as this Court has
earlier stressed, may result in the escape of the guilty, and all because the "constable
has blundered," rendering the evidence inadmissible even if truthful or otherwise
credible.30
I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit
the appellant on reasonable doubt.
CRUZ, J., dissenting:
I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the
correct application to the facts of this case of the provisions of the Bill of Rights and
the Rules of Court on searches and seizures. It is consistent with my ponencia in
People v. Aminnudin, 163 SCRA 402, and also with Alih v. Castro, 151 SCRA 279, the
latter being a unanimous decision of the Court en banc, and my dissents in Umil v.
Ramos (on warrantless arrests, 187 SCRA 311, Valmonte v. De Villa (on checkpoints),
178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"), 181 SCRA 623.
I write this separate opinion merely to remark on an observation made during the
deliberation on this case that some members of the Court seem to be coddling
criminals instead of extending its protection to society, which deserves our higher
concern. The inference is that because of our wrong priorities, criminals are being
imprudently let free, to violate our laws again; and it is all our fault.
Believing myself to be among those alluded to, I will say without apology that I do not
consider a person a criminal, until he is convicted by final judgment after a fair trial by
a competent and impartial court. Until then, the Constitution bids us to presume him
innocent. He may seem boorish or speak crudely or sport tattoos or dress weirdly or
otherwise fall short of our own standards of propriety and decorum. None of these
makes him a criminal although he may look like a criminal.
It is so easy to condemn a person on the basis of his appearance but it is also so
wrong.
On the question before us, it seems to be the inclination of some judges to wink at an
illegal search and seizure as long as the suspect has been actually found in
possession of a prohibited article That fact will retroactively validate the violation of the
Bill of Rights for after all, as they would rationalize, the suspect is a criminal. What
matters to them is the fact of illegal possession, not the fact of illegal search and
seizure.
This kind of thinking takes us back to the intolerant days of Moncado v. People's
Court, 80 Phil. 1, which was discredited in Stonehill v. Diokno, 20 SCRA 383, even
before it was definitely rejected by an express provision in the 1973 Constitution. That
provision, which has been retained in the present Constitution, again explicitly
declares that any evidence illegally obtained "shall be inadmissible for any purpose in
any proceeding."
The fruit of the poisonous tree should not be allowed to poison our system of criminal
justice.1âwphi1 In the case at bar, the search was made at a checkpoint established
for the preposterous reason that the route was being used by marijuana dealers and
on an individual who had something bulging at his waist that excited the soldier's
 29
suspicion. Was that probable cause? The ponencia notes that the military had
advance information that a Caucasian was coming from the Sagada with prohibited
drugs in his possession. This is what the military says now, after the fact, to justify the
warrantless search. It is so easy to make such a claim, and I am surprised that the
majority should readily accept it.

The conclusion that there was probable cause may have been influenced by the
subsequent discovery that the accused was carrying a prohibited drug. This is
supposed to justify the soldier's suspicion. In other words, it was the fact of illegal
possession that retroactively established the probable cause that validated the illegal
search and seizure. It was the fruit of the poisonous tree that washed clean the tree
itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available
evidence should be used.1avvphi1 It is also desirable that the government should not
itself foster and pay for other crimes, when they are the means by which the evidence
is to be obtained. If it pays its officers for having got evidence by crime, I do not see
why it may not as well pay them for getting it in the same way, and I can attach no
importance to protestations of disapproval if it knowingly accepts and pays and
announces that in the future it will pay for the fruits. We have to choose, and for my
part I think it a less evil that some criminals should escape than that the government
should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am "coddling

criminals," I welcome the accusation and take pride in it. I would rather err in favor of G.R. No. 81561 January 18, 1991
the accused who is impaled with outlawed evidence than exalt order at the price of
liberty. PEOPLE OF THE PHILIPPINES, plaintiff-appellee
vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:
 30
This is an appeal from a decision * rendered by the Special Criminal Court of Manila
(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of
Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article
1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.
The facts as summarized in the brief of the prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-
law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export
Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four
(4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley
Reyes) attended to them. The appellant informed Anita Reyes that he was sending the
packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary
for the transaction, writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II,
8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could examine and inspect the packages.
Appellant, however, refused, assuring her that the packages simply contained books,
cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four
(4) packages were then placed inside a brown corrugated box one by two feet in size
(1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the
box was sealed with masking tape, thus making the box ready for shipment (Decision,
p. 8).
Before delivery of appellant's box to the Bureau of Customs and/or Bureau of
Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard
operating procedure, opened the boxes for final inspection. When he opened
appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he
squeezed one of the bundles allegedly containing gloves and felt dried leaves inside.
Opening one of the bundles, he pulled out a cellophane wrapper protruding from the
opening of one of the gloves. He made an opening on one of the cellophane wrappers
and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987;
Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting
a laboratory examination of the samples he extracted from the cellophane wrapper
(tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's shipment to the Narcotics Section of
the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of
that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section.
Job Reyes informed the NBI that the rest of the shipment was still in his office.
Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the
Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's packages were placed and, in the
presence of the NBI agents, opened the top flaps, removed the styro-foam and took
out the cellophane wrappers from inside the gloves. Dried marijuana leaves were
found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6,
1987; Emphasis supplied).
The package which allegedly contained books was likewise opened by Job Reyes. He
discovered that the package contained bricks or cake-like dried marijuana leaves. The
package which allegedly contained tabacalera cigars was also opened. It turned out
that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39,
October 6, 1987).
The NBI agents made an inventory and took charge of the box and of the contents
thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-
3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated
address in his passport being the Manila Central Post Office, the agents requested
assistance from the latter's Chief Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day the Narcotics Section
of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory
examination. It turned out that the dried leaves were marijuana flowering tops as
certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation of RA 6425,
otherwise known as the Dangerous Drugs Act.
 31
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY
SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE
UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION
OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)
1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2),
Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against unreasonable search
and seizure had its origin in the 1935 Charter which, worded as follows:
The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized. (Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the United
States Federal Supreme Court and State Appellate Courts which are considered
doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court,
in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure warrant, abandoning in the
process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure.
The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the constitutional
safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v.
Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v.
Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its law
enforcers or other authorized government agencies.
On the other hand, the case at bar assumes a peculiar character since the evidence
sought to be excluded was primarily discovered and obtained by a private person,
acting in a private capacity and without the intervention and participation of State
 32
authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated?
Stated otherwise, may an act of a private individual, allegedly in violation of appellant's
constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked against the State.
As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:
1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .
. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his house,
however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966]
and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared
that:
(t)he Fourth Amendment gives protection against unlawful searches and seizures, and
as shown in previous cases, its protection applies to governmental action. Its origin
and history clearly show that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon other than
governmental agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested occupation of his dwelling
and the possession of his property, subject to the right of seizure by process duly
served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof found
marijuana instead, without the knowledge and participation of police authorities, was
declared admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not
upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr,
892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d
938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there
said:
The search of which appellant complains, however, was made by a private citizen —
the owner of a motel in which appellant stayed overnight and in which he left behind a
travel case containing the evidence***complained of. The search was made on the
motel owner's own initiative. Because of it, he became suspicious, called the local
police, informed them of the bag's contents, and made it available to the authorities.
The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment only
proscribes governmental action."
The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
seizure, the Court sees no cogent reason why the same should not be admitted
against him in the prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which
resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified in two days. In
both instances, the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that
NBI agents conducted an illegal search and seizure of the prohibited merchandise.
Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made search/inspection of the packages. Said inspection was
reasonable and a standard operating procedure on the part of Mr. Reyes as a
precautionary measure before delivery of packages to the Bureau of Customs or the
 33
Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp.
119-122; 167-168).
It will be recalled that after Reyes opened the box containing the illicit cargo, he took
samples of the same to the NBI and later summoned the agents to his place of
business. Thereafter, he opened the parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents
made no search and seizure, much less an illegal one, contrary to the postulate of
accused/appellant.
Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a search.
Having observed that which is open, where no trespass has been committed in aid
thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband
articles are identified without a trespass on the part of the arresting officer, there is not
the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State,
429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager
and where the search was initially made by the owner there is no unreasonable search
and seizure within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to be invoked against
acts of private individuals finds support in the deliberations of the Constitutional
Commission. True, the liberties guaranteed by the fundamental law of the land must
always be subject to protection. But protection against whom? Commissioner Bernas
in his sponsorship speech in the Bill of Rights answers the query which he himself
posed, as follows:
First, the general reflections. The protection of fundamental liberties in the essence of
constitutional democracy. Protection against whom? Protection against the state. The
Bill of Rights governs the relationship between the individual and the state. Its concern
is not the relation between individuals, between a private individual and other
individuals. What the Bill of Rights does is to declare some forbidden zones in the
private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July
17, 1986; Emphasis supplied)
The constitutional proscription against unlawful searches and seizures therefore
applies as a restraint directed only against the government and its agencies tasked
with the enforcement of the law. Thus, it could only be invoked against the State to
whom the restraint against arbitrary and unreasonable exercise of power is imposed.
If the search is made upon the request of law enforcers, a warrant must generally be
first secured if it is to pass the test of constitutionality. However, if the search is made
at the behest or initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention of police
authorities, the right against unreasonable search and seizure cannot be invoked for
only the act of private individual, not the law enforcers, is involved. In sum, the
protection against unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
Appellant argues, however, that since the provisions of the 1935 Constitution has been
modified by the present phraseology found in the 1987 Charter, expressly declaring as
inadmissible any evidence obtained in violation of the constitutional prohibition against
illegal search and seizure, it matters not whether the evidence was procured by police
authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not govern
relationships between individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of
the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or inhibition
against unreasonable search and seizure is directed against. The restraint stayed with
the State and did not shift to anyone else.
Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
 34
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the constitution.
Similarly, the admissibility of the evidence procured by an individual effected through
private seizure equally applies, in pari passu, to the alleged violation, non-
governmental as it is, of appellant's constitutional rights to privacy and communication.
2. In his second assignment of error, appellant contends that the lower court erred in
convicting him despite the undisputed fact that his rights under the constitution while
under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the
case and found nothing to indicate, as an "undisputed fact", that appellant was not
informed of his constitutional rights or that he gave statements without the assistance
of counsel. The law enforcers testified that accused/appellant was informed of his
constitutional rights. It is presumed that they have regularly performed their duties
(See. 5(m), Rule 131) and their testimonies should be given full faith and credence,
there being no evidence to the contrary. What is clear from the records, on the other
hand, is that appellant refused to give any written statement while under investigation
as testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here,
did you investigate the accused together with the girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the accused availed of
his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p.
62; Original Records, p. 240)
The above testimony of the witness for the prosecution was not contradicted by the
defense on cross-examination. As borne out by the records, neither was there any
proof by the defense that appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed judgment of the trial court
and nowhere is there any reference made to the testimony of appellant while under
custodial investigation which was utilized in the finding of conviction. Appellant's
second assignment of error is therefore misplaced.
3. Coming now to appellant's third assignment of error, appellant would like us to
believe that he was not the owner of the packages which contained prohibited drugs
but rather a certain Michael, a German national, whom appellant met in a pub along
Ermita, Manila: that in the course of their 30-minute conversation, Michael requested
him to ship the packages and gave him P2,000.00 for the cost of the shipment since
the German national was about to leave the country the next day (October 15, 1987,
TSN, pp. 2-10).
Rather than give the appearance of veracity, we find appellant's disclaimer as
incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour could not
have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00
for the purpose and for appellant to readily accede to comply with the undertaking
without first ascertaining its contents. As stated by the trial court, "(a) person would not
simply entrust contraband and of considerable value at that as the marijuana flowering
tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The
Accused, on the other hand, would not simply accept such undertaking to take custody
of the packages and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant
failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are
negative self-serving evidence which deserve no weight in law and cannot be given
greater evidentiary weight than the testimony of credible witnesses who testify on
affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174
SCRA 237 [1989]).
Appellant's bare denial is even made more suspect considering that, as per records of
the Interpol, he was previously convicted of possession of hashish by the Kleve Court
in the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for
drug abuse and is just about an hour's drive from appellant's residence in Zurich,
Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p.
21; Rollo, p. 93).
Evidence to be believed, must not only proceed from the mouth of a credible witness,
but it must be credible in itself such as the common experience and observation of
 35
mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA
342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda,
172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92
SCRA 567 [1979]). As records further show, appellant did not even bother to ask
Michael's full name, his complete address or passport number. Furthermore, if indeed,
the German national was the owner of the merchandise, appellant should have so
indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the
contrary, appellant signed the contract as the owner and shipper thereof giving more
weight to the presumption that things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is
therefore estopped to claim otherwise.
Premises considered, we see no error committed by the trial court in rendering the
assailed judgment.
WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable
doubt of the crime charged is hereby AFFIRMED. No costs.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE
LUKBAN, in his capacity as Acting Director, National Bureau of Investigation;
SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL
VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO
ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of
Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon
City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon
City, respondents.
Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David
for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P.
de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason
and Solicitor C. Padua for respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government named on the margin 1 —
hereinafter referred to as Respondents-Prosecutors — several judges2 — hereinafter
referred to as Respondents-Judges — issued, on different dates, 3 a total of 42 search
warrants against petitioners herein4 and/or the corporations of which they were
officers,5 directed to the any peace officer, to search the persons above-named and/or
the premises of their offices, warehouses and/or residences, and to seize and take
possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts, ledgers,
journals, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursements receipts, balance sheets
and profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the offense,"
which is described in the applications adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal
Code."
Alleging that the aforementioned search warrants are null and void, as contravening
the Constitution and the Rules of Court — because, inter alia: (1) they do not describe
with particularity the documents, books and things to be seized; (2) cash money, not
mentioned in the warrants, were actually seized; (3) the warrants were issued to fish
evidence against the aforementioned petitioners in deportation cases filed against
them; (4) the searches and seizures were made in an illegal manner; and (5) the
 36
documents, papers and cash money seized were not delivered to the courts that
issued the warrants, to be disposed of in accordance with law — on March 20, 1962,
said petitioners filed with the Supreme Court this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending final disposition of the
present case, a writ of preliminary injunction be issued restraining Respondents-
Prosecutors, their agents and /or representatives from using the effects seized as
aforementioned or any copies thereof, in the deportation cases already adverted to,
and that, in due course, thereafter, decision be rendered quashing the contested
search warrants and declaring the same null and void, and commanding the
respondents, their agents or representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers,
things and cash moneys seized or confiscated under the search warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search
warrants are valid and have been issued in accordance with law; (2) that the defects of
said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the
effects seized are admissible in evidence against herein petitioners, regardless of the
alleged illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in
the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or
dissolved, insofar as the papers, documents and things seized from the offices of the
corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of
petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely: (a) those found
and seized in the offices of the aforementioned corporations, and (b) those found and
seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action to
assail the legality of the contested warrants and of the seizures made in pursuance
thereof, for the simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein petitioners,
regardless of the amount of shares of stock or of the interest of each of them in said
corporations, and whatever the offices they hold therein may be. 8 Indeed, it is well
settled that the legality of a seizure can be contested only by the party whose rights
have been impaired thereby,9 and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third parties. 10 Consequently,
petitioners herein may not validly object to the use in evidence against them of the
documents, papers and things seized from the offices and premises of the
corporations adverted to above, since the right to object to the admission of said
papers in evidence belongs exclusively to the corporations, to whom the seized effects
belong, and may not be invoked by the corporate officers in proceedings against them
in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to
the corporation did not relate to nor did it affect the personal defendants. If these
papers were unlawfully seized and thereby the constitutional rights of or any one were
invaded, they were the rights of the corporation and not the rights of the other
defendants. Next, it is clear that a question of the lawfulness of a seizure can be
raised only by one whose rights have been invaded. Certainly, such a seizure, if
unlawful, could not affect the constitutional rights of defendants whose property had
not been seized or the privacy of whose homes had not been disturbed; nor could they
claim for themselves the benefits of the Fourth Amendment, when its violation, if any,
was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F.
501, 511. It follows, therefore, that the question of the admissibility of the evidence
based on an alleged unlawful search and seizure does not extend to the personal
defendants but embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis
supplied.)
With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of
preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining
herein Respondents-Prosecutors from using them in evidence against petitioners
herein.
In connection with said documents, papers and things, two (2) important questions
need be settled, namely: (1) whether the search warrants in question, and the
searches and seizures made under the authority thereof, are valid or not, and (2) if the
answer to the preceding question is in the negative, whether said documents, papers
and things may be used in evidence against petitioners herein.1äwphï1.ñët
 37
Petitioners maintain that the aforementioned search warrants are in the nature of
general warrants and that accordingly, the seizures effected upon the authority there
of are null and void. In this connection, the Constitution 13provides:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be
seized.
Two points must be stressed in connection with this constitutional mandate, namely:
(1) that no warrant shall issue but upon probable cause, to be determined by the judge
in the manner set forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants.
Indeed, the same were issued upon applications stating that the natural and juridical
person therein named had committed a "violation of Central Ban Laws, Tariff and
Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words,
no specific offense had been alleged in said applications. The averments thereof with
respect to the offense committed were abstract. As a consequence, it
was impossible for the judges who issued the warrants to have found the existence of
probable cause, for the same presupposes the introduction of competent proof that the
party against whom it is sought has performed particular acts, or
committed specific omissions, violating a given provision of our criminal laws. As a
matter of fact, the applications involved in this case do not allege any specific acts
performed by herein petitioners. It would be the legal heresy, of the highest order, to
convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and Revised Penal Code," — as alleged in the
aforementioned applications — without reference to any determinate provision of said
laws or
To uphold the validity of the warrants in question would be to wipe out completely one
of the most fundamental rights guaranteed in our Constitution, for it would place the
sanctity of the domicile and the privacy of communication and correspondence at the
mercy of the whims caprice or passion of peace officers. This is precisely the evil
sought to be remedied by the constitutional provision above quoted — to outlaw the
so-called general warrants. It is not difficult to imagine what would happen, in times of
keen political strife, when the party in power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities committed in connection with the disputed
search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the
former Rules of Court 14 by providing in its counterpart, under the Revised Rules of
Court 15 that "a search warrant shall not issue but upon probable cause in connection
with one specific offense." Not satisfied with this qualification, the Court added thereto
a paragraph, directing that "no search warrant shall issue for more than one specific
offense."
The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to be
searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or papers
showing all business transactions including disbursement receipts, balance sheets
and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights — that the things to be seized
be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors
maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against unreasonable
searches and seizures is protected by means other than the exclusion of evidence
 38
unlawfully obtained, 17 such as the common-law action for damages against the
searching officer, against the party who procured the issuance of the search warrant
and against those assisting in the execution of an illegal search, their criminal
punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical means
of enforcing the constitutional injunction against unreasonable searches and seizures.
In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass against the
offending official may have been protection enough; but that is true no longer. Only in
case the prosecution which itself controls the seizing officials, knows that it cannot
profit by their wrong will that wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already declared:
If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment,
declaring his rights to be secure against such searches and seizures, is of no value,
and, so far as those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on
the same Federal Court. 20After reviewing previous decisions thereon, said Court held,
in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation of the right
of privacy free from unreasonable state intrusion, and after its dozen years on our
books, are led by it to close the only courtroom door remaining open to evidence
secured by official lawlessness in flagrant abuse of that basic right, reserved to all
persons as a specific guarantee against that very same unlawful conduct. We hold
that all evidence obtained by searches and seizures in violation of the Constitution is,
by that same authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared enforceable against
the States through the Due Process Clause of the Fourteenth, it is enforceable against
them by the same sanction of exclusion as it used against the Federal Government.
Were it otherwise, then just as without the Weeks rule the assurance against
unreasonable federal searches and seizures would be "a form of words," valueless
and underserving of mention in a perpetual charter of inestimable human liberties, so
too, without that rule the freedom from state invasions of privacy would be so
ephemeral and so neatly severed from its conceptual nexus with the freedom from all
brutish means of coercing evidence as not to permit this Court's high regard as a
freedom "implicit in the concept of ordered liberty." At the time that the Court held in
Wolf that the amendment was applicable to the States through the Due Process
Clause, the cases of this Court as we have seen, had steadfastly held that as to
federal officers the Fourth Amendment included the exclusion of the evidence seized
in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right
to when conceded operatively enforceable against the States, was not susceptible of
destruction by avulsion of the sanction upon which its protection and enjoyment had
always been deemed dependent under the Boyd, Weeks and Silverthorne Cases.
Therefore, in extending the substantive protections of due process to all
constitutionally unreasonable searches — state or federal — it was logically and
constitutionally necessarily that the exclusion doctrine — an essential part of the right
to privacy — be also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new constitutional Right
by Wolf could not tolerate denial of its most important constitutional privilege, namely,
the exclusion of the evidence which an accused had been forced to give by reason of
the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment. Only last year the Court itself recognized that the purpose of
the exclusionary rule to "is to deter — to compel respect for the constitutional guaranty
in the only effectively available way — by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire
system of constitutional restraints on which the liberties of the people rest. Having
once recognized that the right to privacy embodied in the Fourth Amendment is
enforceable against the States, and that the right to be secure against rude invasions
of privacy by state officers is, therefore constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable in the same
 39
manner and to like effect as other basic rights secured by its Due Process Clause, we
can no longer permit it to be revocable at the whim of any police officer who, in the
name of law enforcement itself, chooses to suspend its enjoyment. Our decision,
founded on reason and truth, gives to the individual no more than that which the
Constitution guarantees him to the police officer no less than that to which honest law
enforcement is entitled, and, to the courts, that judicial integrity so necessary in the
true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the
spirit of the constitutional injunction against unreasonable searches and seizures. To
be sure, if the applicant for a search warrant has competent evidence to establish
probable cause of the commission of a given crime by the party against whom the
warrant is intended, then there is no reason why the applicant should not comply with
the requirements of the fundamental law. Upon the other hand, if he has no such
competent evidence, then it is not possible for the Judge to find that there is probable
cause, and, hence, no justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity of fishing evidence of the
commission of a crime. But, then, this fishing expedition is indicative of the absence of
evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal
search warrant and/or make unreasonable searches or seizures would suffice to
protect the constitutional guarantee under consideration, overlooks the fact that
violations thereof are, in general, committed By agents of the party in power, for,
certainly, those belonging to the minority could not possibly abuse a power they do not
have. Regardless of the handicap under which the minority usually — but,
understandably — finds itself in prosecuting agents of the majority, one must not lose
sight of the fact that the psychological and moral effect of the possibility 21 of securing
their conviction, is watered down by the pardoning power of the party for whose
benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this Court
dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen
Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street,
and Room No. 304 of the Army-Navy Club, should be included among the premises
considered in said Resolution as residences of herein petitioners, Harry S. Stonehill,
Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the
records, papers and other effects seized in the offices of the corporations above
referred to include personal belongings of said petitioners and other effects under their
exclusive possession and control, for the exclusion of which they have a standing
under the latest rulings of the federal courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of and
control over the aforementioned records, papers and effects, and the alleged
"personal" nature thereof, has Been Advanced, not in their petition or amended
petition herein, but in the Motion for Reconsideration and Amendment of the
Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the
Resolution sought to be reconsidered and amended. Then, too, some of the affidavits
or copies of alleged affidavits attached to said motion for reconsideration, or submitted
in support thereof, contain either inconsistent allegations, or allegations inconsistent
with the theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said
motion for reconsideration, and the contents of the aforementioned affidavits and other
papers submitted in support of said motion, have sufficiently established the facts or
conditions contemplated in the cases relied upon by the petitioners; to warrant
application of the views therein expressed, should we agree thereto. At any rate, we
do not deem it necessary to express our opinion thereon, it being best to leave the
matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; that the warrants for the search of three (3) residences of herein
petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the
searches and seizures therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and other effects thus
seized in said residences of herein petitioners is hereby made permanent; that the
writs prayed for are granted, insofar as the documents, papers and other effects so
seized in the aforementioned residences are concerned; that the aforementioned
motion for Reconsideration and Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the twenty-nine (29) places, offices and
other premises enumerated in the same Resolution, without special pronouncement
as to costs.
It is so ordered.
 40
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
From my analysis of the opinion written by Chief Justice Roberto Concepcion and from
the import of the deliberations of the Court on this case, I gather the following distinct
conclusions:
1. All the search warrants served by the National Bureau of Investigation in this case
are general warrants and are therefore proscribed by, and in violation of, paragraph 3
of section 1 of Article III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under the authority of the said search
warrants were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be,
and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction heretofore issued
against the use of the documents, papers and effect seized in the said residences is
made permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily
demonstrated that they have legal standing to move for the suppression of the
documents, papers and effects seized in the places other than the three residences
adverted to above, the opinion written by the Chief
Justice refrains from expressly declaring as null and void the such warrants served at
such other places and as illegal the searches and seizures made therein, and leaves
"the matter open for determination in appropriate cases in the future."
It is precisely the position taken by the Chief Justice summarized in the immediately
preceding paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the
nullity of the search warrants served at places other than the three residences, and the
illegibility of the searches and seizures conducted under the authority thereof. In my
view even the exacerbating passions and prejudices inordinately generated by the
environmental political and moral developments of this case should not deter this
Court from forthrightly laying down the law not only for this case but as well for future
cases and future generations. All the search warrants, without exception, in this case
are admittedly general, blanket and roving warrants and are therefore admittedly and
indisputably outlawed by the Constitution; and the searches and seizures made were
therefore unlawful. That the petitioners, let us assume in gratia argumente, have no
legal standing to ask for the suppression of the papers, things and effects seized from
places other than their residences, to my mind, cannot in any manner affect, alter or
otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of
the searches and seizures made thereunder. Whether or not the petitioners possess
legal standing the said warrants are void and remain void, and the searches and
seizures were illegal and remain illegal. No inference can be drawn from the words of
the Constitution that "legal standing" or the lack of it is a determinant of the nullity or
validity of a search warrant or of the lawfulness or illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings
submitted to this Court the petitioners have the requisite legal standing to move for the
suppression and return of the documents, papers and effects that were seized from
places other than their family residences.
Our constitutional provision on searches and seizures was derived
almost verbatim from the Fourth Amendment to the United States Constitution. In the
many years of judicial construction and interpretation of the said constitutional
provision, our courts have invariably regarded as doctrinal the pronouncement made
on the Fourth Amendment by federal courts, especially the Federal Supreme Court
and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or
return of documents, papers and effects which are the fruits of an unlawful search and
seizure, may be summarized as follows; (a) ownership of documents, papers and
effects gives "standing;" (b) ownership and/or control or possession — actual or
constructive — of premises searched gives "standing"; and (c) the "aggrieved person"
doctrine where the search warrant and the sworn application for search warrant are
"primarily" directed solely and exclusively against the "aggrieved person," gives
"standing."
 41
An examination of the search warrants in this case will readily show that, excepting
three, all were directed against the petitioners personally. In some of them, the
petitioners were named personally, followed by the designation, "the President and/or
General Manager" of the particular corporation. The three warrants excepted named
three corporate defendants. But the "office/house/warehouse/premises" mentioned in
the said three warrants were also the same "office/house/warehouse/premises"
declared to be owned by or under the control of the petitioners in all the other search
warrants directed against the petitioners and/or "the President and/or General
Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2,
1962). The searches and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion to
return and suppress, and gives them standing as persons aggrieved by an unlawful
search and seizure regardless of their location at the time of seizure. Jones vs. United
States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the
defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal
and corporate papers of corporation of which the defendant was president), United
States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging
to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books
seized from the defendant's sister but belonging to the defendant); Cf. Villano vs.
United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither
owned by nor in exclusive possession of the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it
was held that under the constitutional provision against unlawful searches and
seizures, a person places himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental nature and
scope of Fourth Amendment protection. What the Fourth Amendment protects is the
security a man relies upon when he places himself or his property within a
constitutionally protected area, be it his home or his office, his hotel room or his
automobile. There he is protected from unwarranted governmental intrusion. And
when he puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he
has the right to know it will be secure from an unreasonable search or an
unreasonable seizure. So it was that the Fourth Amendment could not tolerate the
warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private
papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless
other cases which have come to this Court over the years have involved a myriad of
differing factual contexts in which the protections of the Fourth Amendment have been
appropriately invoked. No doubt, the future will bring countless others. By nothing we
say here do we either foresee or foreclose factual situations to which the Fourth
Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966).
See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis
supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents
seized, the petitioners have standing to move for return and suppression by virtue of
their proprietary or leasehold interest in many of the premises searched. These
proprietary and leasehold interests have been sufficiently set forth in their motion for
reconsideration and need not be recounted here, except to emphasize that the
petitioners paid rent, directly or indirectly, for practically all the premises searched
(Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey
Boulevard; 1436 Colorado Street); maintained personal offices within the corporate
offices (IBMC, USTC); had made improvements or furnished such offices; or had paid
for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club);
and individually, or through their respective spouses, owned the controlling stock of
the corporations involved. The petitioners' proprietary interest in most, if not all, of the
premises searched therefore independently gives them standing to move for the return
and suppression of the books, papers and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and
extent of the interest in the searched premises necessary to maintain a motion to
suppress. After reviewing what it considered to be the unduly technical standard of the
then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):
We do not lightly depart from this course of decisions by the lower courts. We are
persuaded, however, that it is unnecessarily and ill-advised to import into the law
surrounding the constitutional right to be free from unreasonable searches and
seizures subtle distinctions, developed and refined by the common law in evolving the
body of private property law which, more than almost any other branch of law, has
 42
been shaped by distinctions whose validity is largely historical. Even in the area from
which they derive, due consideration has led to the discarding of those distinctions in
the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c.
31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such
as those between "lessee", "licensee," "invitee," "guest," often only of gossamer
strength, ought not be determinative in fashioning procedures ultimately referable to
constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17
(1961).
It has never been held that a person with requisite interest in the premises searched
must own the property seized in order to have standing in a motion to return and
suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for
several corporations from whose apartment the corporate records were seized
successfully moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F.
Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved for
the return and suppression is to him of both personal and corporate documents seized
from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his own or the
corporation's was entitled to protection against unreasonable search and seizure.
Under the circumstances in the case at bar, the search and seizure were
unreasonable and unlawful. The motion for the return of seized article and the
suppression of the evidence so obtained should be granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place
searched or the articles seize had the necessary standing to invoke the protection of
the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice
Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a
guest may expect the shelter of the rooftree he is under against criminal intrusion."
This view finally became the official view of the U.S. Supreme Court and was
articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960,
in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step
further. Jones was a mere guest in the apartment unlawfully searched but the Court
nonetheless declared that the exclusionary rule protected him as well. The concept of
"person aggrieved by an unlawful search and seizure" was enlarged to include
"anyone legitimately on premise where the search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for
the Fifth Circuit held that the defendant organizer, sole stockholder and president of a
corporation had standing in a mail fraud prosecution against him to demand the return
and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652
(5th Cir. 1961), supra. The court conclude that the defendant had standing on two
independent grounds: First —he had a sufficient interest in the property seized,
and second — he had an adequate interest in the premises searched (just like in the
case at bar). A postal inspector had unlawfully searched the corporation' premises and
had seized most of the corporation's book and records. Looking to Jones, the court
observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person
aggrieved by an unlawful search and seizure." It tells us that appellant should not have
been precluded from objecting to the Postal Inspector's search and seizure of the
corporation's books and records merely because the appellant did not show ownership
or possession of the books and records or a substantial possessory interest in the
invade premises . . . (Henzel vs. United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir.
1962). In Villano, police officers seized two notebooks from a desk in the defendant's
place of employment; the defendant did not claim ownership of either; he asserted that
several employees (including himself) used the notebooks. The Court held that the
employee had a protected interest and that there also was an invasion of privacy.
Both Henzel and Villano considered also the fact that the search and seizure were
"directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano
vs. United States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and
went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his
standing to move to quash as unreasonable search and seizure under the Fourth
Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to
the custodian of his files. The Government contended that the petitioner had no
standing because the books and papers were physically in the possession of the
custodian, and because the subpoena was directed against the custodian. The court
rejected the contention, holding that
Schwimmer legally had such possession, control and unrelinquished personal rights in
the books and papers as not to enable the question of unreasonable search and
 43
seizure to be escaped through the mere procedural device of compelling a third-party
naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F.
2d 855, 861 (8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against said
person gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242 F.
Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney
certain files and papers, which attorney, by the name of Dunn, was not, at the time of
the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the
records at his home in the country and on a farm which, according to Dunn's affidavit,
was under his (Dunn's) "control and management." The papers turned out to be
private, personal and business papers together with corporate books and records of
certain unnamed corporations in which Birrell did not even claim ownership. (All of
these type records were seized in the case at bar). Nevertheless, the search in Birrell
was held invalid by the court which held that even though Birrell did not own the
premises where the records were stored, he had "standing" to move for the return
ofall the papers and properties seized. The court, relying on Jones vs.
U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d
631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that
It is overwhelmingly established that the searches here in question were directed
solely and exclusively against Birrell. The only person suggested in the papers as
having violated the law was Birrell. The first search warrant described the records as
having been used "in committing a violation of Title 18, United States Code, Section
1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant
was captioned: "United States of America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing to move to
suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the records stored
with Dunn, it matters not whether he had any interest in the premises searched. See
also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed
432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United
States did not appeal from this decision. The factual situation in Birrell is strikingly
similar to the case of the present petitioners; as in Birrell, many personal and
corporate papers were seized from premises not petitioners' family residences; as
in Birrell, the searches were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY"
against the petitioners. Still both types of documents were suppressed
in Birrell because of the illegal search. In the case at bar, the petitioners connection
with the premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants
regardless whether these were directed against residences in the narrow sense of the
word, as long as the documents were personal papers of the petitioners or (to the
extent that they were corporate papers) were held by them in a personal capacity or
under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return to
the petitioners all personal and private papers and effects seized, no matter where
these were seized, whether from their residences or corporate offices or any other
place or places. The uncontradicted sworn statements of the petitioners in their,
various pleadings submitted to this Court indisputably show that amongst the things
seized from the corporate offices and other places were personal and private papers
and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which
where the objects of the unlawful searches and seizures, I submit that the grouping
should be: (a) personal or private papers of the petitioners were they were unlawfully
seized, be it their family residences offices, warehouses and/or premises owned
and/or possessed (actually or constructively) by them as shown in all the search and
in the sworn applications filed in securing the void search warrants and (b)
purely corporate papers belonging to corporations. Under such categorization or
grouping, the determination of which unlawfully seized papers, documents and things
are personal/private of the petitioners or purely corporate papers will have to be left to
the lower courts which issued the void search warrants in ultimately effecting the
suppression and/or return of the said documents.
And as unequivocally indicated by the authorities above cited, the petitioners likewise
have clear legal standing to move for the suppression of purely corporate papers as
 44
"President and/or General Manager" of the corporations involved as specifically FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
mentioned in the void search warrants. MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

Finally, I must articulate my persuasion that although the cases cited in my disquisition G.R. Nos. 84581-82 October 3, 1991
were criminal prosecutions, the great clauses of the constitutional proscription on
illegal searches and seizures do not withhold the mantle of their protection from cases AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
not criminal in origin or nature. vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.

G.R. Nos. 84583-84 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO

T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIÑO,
LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN,
and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon
City, respondents.

G.R. No. 83162 October 3, 1991

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A.

OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL.
NESTOR MARIANO, respondents.

G.R. No. 85727 October 3, 1991

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS

G.R. No. 81567 October 3, 1991
ESPIRITU, petitioner,
vs.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and
NICANOR P. DURAL, FELICITAS V. SESE, petitioners,
G.R. No. 86332 October 3, 1991
vs.
 45
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B.
NAZARENO: ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE,
P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
RESOLUTION
PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled
petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990
(the decision, for brevity) which dismissed the petitions, with the following dispositive
part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that
the decision did not rule — as many misunderstood it to do — that mere suspicion that
one is Communist Party or New People's Army member is a valid ground for his arrest
without warrant. Moreover, the decision merely applied long existing laws to the factual
situations obtaining in the several petitions. Among these laws are th outlawing the
Communist Party of the Philippines (CPP) similar organizations and penalizing
membership therein be dealt with shortly). It is elementary, in this connection, if these
laws no longer reflect the thinking or sentiment of the people, it is Congress as the
elected representative of the people — not the Court — that should repeal, change or
modify them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests made
without warrant, and in relying on the provisions of the Rules of Court, particularly
Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the
constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;
3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the
Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at
the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions;
4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the writ of  habeas corpus, filed by petitioners under the Rules of Court. 3
The
writ of habeas corpus exists as a speedy and effective remedy to relieve persons
from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas
corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be
ordered forthwit released.
 46
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked
into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would
follow that the detention resulting from such arrests also in accordance with law.
There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest,  several persons who the day before his arrest, without warrant, at the St. Agnes
except in those cases express authorized by law. 6
The law expressly allowing arrests witho warrant is
found in Section 5, Rule 113 of the Rules of Court which states the grounds upon
which a valid arrest, without warrant, can be conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b)
of the said Rule 113, which read:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to he arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No.
81567) without warrant is justified it can be said that, within the contemplation
of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because
Dural was arrested for being a member of the New People's Army, an outlawed
organization, where membership penalized, 7 and for subversion which, like rebellion
is, under the doctrine of Garcia vs. Enrile, 8a continuing offense, thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses committed in the furtherance (sic) on the
occasion thereof, or incident thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed
struggle for the overthrow of organized government, Dural did not cease to be, or
became less of a subversive, FOR PURPOSES OF ARREST, simply because he was,
at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of
Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot
the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity, would have
shot or would shoot other policemen anywhere as agents or representatives of
organized government. It is in this sense that subversion like rebellion (or insurrection)
is perceived here as a continuing offense. Unlike other so-called "common" offenses,
i.e. adultery, murder, arson, etc., which generally end upon their commission,
subversion and rebellion are anchored on an ideological base which compels the
repetition of the same acts of lawlessness and violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting
officers of his membership in the CPP/NPA. His arrest was based on "probable
cause," as supported by actual facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of
the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of
the Rules of Court, which requires two (2) conditions for a valid arrestt without
warrant: first, that the person to be arrested has just committed an offense,
and second, that the arresting peace officer or private person has personal knowledge
of facts indicating that the person to be arrested is the one who committed the offense.
Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on
"personal knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must
be based upon probable cause, which means an actual belief or reasonable grounds
of suspicion 9
 47
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. 10
A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the
arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to
verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital
with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who
murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining
St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie
Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot
wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to
engender a belief that an NPA member was truly in the said hospital. The actual facts supported by circumstances are:  first — the day before, or on
31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural;  second — a
wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound;  third
— as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man
was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true.
Even the petitioners in their motion for reconsideration, 13
believe that the confidential information of the
arresting officers to the effect that Dural was then being treated in St. Agnes Hospital
was actually received from the attending doctor and hospital management in
compliance with the directives of the law, 14 and, therefore, came from reliable
sources.
As to the condition that "probable cause" must also be coupled with acts done in good
faith by the officers who make the arrest, the Court notes that the peace officers wno
arrested Dural are deemed to have conducted the same in good faith, considering that
law enforcers are presumed to regularly perform their official duties. The records show
that the arresting officers did not appear to have been ill-motivated in arresting
Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in
compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest, without
warrant, an information charging double murder with assault against agents of persons
in authority was filed against Dural in the Regional Trial Court of Caloocan City
(Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as
distinguished fro custody of the arresting officers). On 31 August 1988, he wa
convicted of the crime charged and sentenced to reclusion perpetua. The judgment of
conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo
Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No.
83162), their arrests, without warrant, are also justified. They were searched pursuant
to search warrants issued by a court of law and were found wit unlicensed firearms,
explosives and/or ammunition in their persons. They were, therefore, caught
in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a),
Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs
after their arrests without warrant, informations were filed in court against said
petitioners, thereby placing them within judicial custody and disposition. Furthermore,
Buenaobra mooted his own petition fo habeas corpus by announcing to this Court
during the hearing of these petitions that he had chosen to remain in detention in the
custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by a former
NPA about the operations of the CPP and NPA in Metro Manila and that a certain
house occupied by one Renato Constantine, located in the Villaluz Compound, Molave
St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that
in view of this information, the said house was placed under military surveillance and
on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the
house was conducted; that when Renato Constantine was then confronted he could
 48
not produce any permit to possess the firearms, ammunitions, radio and other
communications equipment, and he admitted that he was a ranking member of the
CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an
NPA courier and he had with him letters to Renato Constantine and other members of the rebel group.
3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the
whereabouts of Roque;17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then
that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house
of Renato Constantine in the evening of said date; that when the agents frisked them, subversive documents, and loaded guns were found in the
latter's possession but failing to show a permit to possess them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito
Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of
her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make
the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the
other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato
Constantine and Benito Tiamzon as residents or occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which  Civil Code 26 and/or for other administrative sanctions.
confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the
commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the
safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were
unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions
and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests,
they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made
by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly
performed.
With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo,
Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That
would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom
devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21
An
arrest is therefore in the nature of an administrative measure. The power to arrest
without warrant is without limitation as long as the requirements of Section 5, Rule 113
are met. This rule is founded on an overwhelming public interest in peace and order in
our communities.
In ascertaining whether the arrest without warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this Court determines not whether the
persons arrested are indeed guilty of committing the crime for which they were
arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly
compel the peace officers, in the performance of their duties and in the interest of
public order, to conduct an arrest without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113,
particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 
24
But if they do not strictly comply with the said conditions, the arresting officers can
be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the
 49
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on
the basis of the attestation of certain witnesses: that about 5:00 o'clock in the
afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia
St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers,
where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu
called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28
Espiritu was arrested without
warrant, not for subversion or any "continuing offense," but for uttering the above-
quoted language which, in the perception of the arresting officers, was inciting to
sedition.
Many persons may differ as to the validity of such perception and regard the language
as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not
lost the right to insist, during the pre-trial or trial on the merits, that he was just
exercising his right to free speech regardless of the charged atmosphere in which it
was uttered. But, the authority of the peace officers to make the arrest, without
warrant, at the time the words were uttered, or soon thereafter, is still another thing. In
the balancing of authority and freedom, which obviously becomes difficult at times, the
Court has, in this case, tilted the scale in favor of authority but only for purposes of the
arrest(not conviction). Let it be noted that the Court has ordered the bail for Espiritu's
release to be reduced from P60,000.00 to P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and
academic. For Espiritu had before arraignment asked the court a quo for re-
investigation, the peace officers did not appear. Because of this development, the
defense asked the court a quo at the resumption of the hearings to dismiss the case.
Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed
and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December
1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro
Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala,
one of the suspects in the said killing, was arrested and he pointed to Narciso
Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the
same morning (28 December 1988), the police agents arrested Nazareno, without
warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14
days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police
were alerted) and despite the lapse of fourteen (14) days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events
surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others,
with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No.
731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even
as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued
the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the
case on 30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan, Laguna issued a resolution denying
the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed
against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail
filed by said Narciso Nazareno (presumably because of the strength of the evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The
arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in
Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua.
He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).
 50
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30
that he was an NPA courier. On the other hand,
in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition
and subversive documents found in her possession during her arrest, belonged to her.
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds upon
which the arresting officers based their arrests without warrant, are supported by
probable cause, i.e. that the persons arrested were probably guilty of the commission
of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To
note these admissions, on the other hand, is not to rule that the persons arrested are
already guilty of the offenses upon which their warrantless arrests were predicated.
The task of determining the guilt or innocence of persons arrested without warrant is
not proper in a petition for habeas corpus. It pertains to the trial of the case on the
merits.
As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should
be abandoned, this Court finds no compelling reason at this time to disturb the same,
particularly ln the light of prevailing conditions where national security and liability are
still directly challenged perhaps with greater vigor from the communist rebels. What is
important is that everv arrest without warrant be tested as to its legality via habeas
corpus proceeding. This Court. will promptly look into — and all other appropriate
courts are enjoined to do the same — the legality of the arrest without warrant so that
if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this
Resolution, are not met, then the detainee shall forthwith be ordered released; but if
such conditions are met, then the detainee shall not be made to languish in his
detention but must be promptly tried to the end that he may be either acquitted or
convicted, with the least delay, as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a
Communist Party member or a subversive is absolutely not a ground for the arrest
without warrant of the suspect. The Court predicated the validity of the questioned
arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but
on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a
long existing law, and which, for stress, are probable cause and good faith of the
arresting peace officers, and, further, on the basis of, as the records show, the actual
facts and circumstances supporting the arrests. More than the allure of popularity or
palatability to some groups, what is important is that the Court be right.
ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990,
are DENIED. This denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea and
Davide, Jr., JJ., concur.
Separate Opinions
FERNAN, C.J., concurring and dissenting:
After a deep and thorough reexamination of the decision of Julv 9, 1990 and an
exhaustive evaluation of the motions for reconsideration of the said decision, I am
inclined to agree with the, majority's resolution on said motions for reconsideration
except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for
the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of
murder.
In the words of the resolution, Espiritu "was arrested without warrant, not for
subversion or any 'continuing offense,' but for uttering" the following: "Bukas tuloy ang
welga natin . . . hanggang sa magkagulo na." Apparently, such statement was, in the
perception of the arresting officers, inciting to sedition. While not conceding the validity
of such perception, realizing that it is indeed possible that Espiritu was merely
 51
exercising his right to free speech, the resolution nonetheless supports the authority of
peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution which sanctions
warrantless arrests provided they are made in accordance with law. In the first place,
Espiritu mav not be considered as having "just committed" the crime charged. He
allegedly first uttered seditious remarks at the National Press Club in the afternoon of
November 12, 1988. The second allegedly seditious remark aforequoted was made at
around 5:00 o'clock in the same afternoon (Decision, pp. 23-24). Under these
circumstances, the law enforcement agents had time, short though it might seem, to
secure a warrant for his arrest. Espiritu's apprehension may not therefore be
considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests
"when an offense has in fact just been committed."
The same observation applies with greater force in the case of Nazareno who was
arrested 14 days after the commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure
what particular provision of law had beeri violated by the person arrested. True it is
that law en.orcement agents and even prosecutors are not all adept at the However,
errneous perception, not to mention ineptitude among their ranks, especially if it would
result in the violation of any right of a person, may not be tolerated. That the arrested
person has the "right to insist during the pre-trial or trial on the merits" (Resolution., p.
18) that he was exercising a right which the arresting officer considered as contrary to
law, is beside the point. No person should be subjected to the ordeal of a trial just
because the law enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the offender may be
arrested without a warrant duly issued by the proper authority. By its nature, a single
act of urging others to commit any of the acts enumerated in Article 142 of the Revised
Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is
aimed at anarchy and radicalism and presents largely a question of policy (Espuelas
vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited
acts in Article 142 may infringe upon the fundamental freedoms of speech and
expression. There arises, therefore, the necessity of balancing interests; those of the
State as against those of its individual citizen. Here lies the urgency of judicial
intervention before an arrest is made. Added to this is the subjectivity of the
determination of what may incite other people to sedition. Hence, while the police
should act swiftly when a seditious statement has been uttered in view of the jeopardy
it may cause the government, speedy action should consist not in warrantless arrests
but in securing warrants for such arrests.
On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should
be underscored that anyone who undertakes such arrest must see to it that the
alleged violator is knowing member of a subversive organization as distinguished from
a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382).
Thus, a subversive may be arrested even if has not committed overt act of
overthrowing the government such as bombing of government offices trie
assassination of government officials provided there is probable cause to believe that
he is in the roll of members of a subversive organization. It devolves upon the accused
to prove membership by force or ciorcion. Certainly, one may not be in such a roll
without undergoing the concious act of enlistment.
It bears repeating theat warrantless arrests are governed by law and subject to
stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now
requires that an offense "has in fact just been committed. "connotes immediacy in
point of time and excludes cases under the old rule where an offense 'has in fact been
committed' no how long ago. Similarly, the arrestor must have 'personal knowledge of
the facts indicating that the [arrestee] has committed it' (instead of just 'reasonable
ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting
opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests
without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144
SCRA 1), the Court considered as illegal the warrantless arrest of a
subversive not based on the arresting officer's personal knowledge such subversion
and held that any rule on arrests witho warrants must be strictly construed. We
categorically state therein that warrantless arrests should "clearly fall within the
situations when securing a warrant be absurd or is manifestly unnecessary was
provided by the Rules" (144 SCRA at 14). Moreover. "it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A
crime must in fact or actually (has just) been committed first. That crime has actually
been committed is an essential precondition. It is not enough to suspect that a crime
may have been committed. The fact of the commission of the offense must be
undisputed. The test of reasonable ground applies only to the identity of the
perpetrator. (Supra, at p. 15).
 52
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the
Court laid out the procedure to be observed the moment a person is arrested:
At the time a person is arrested, it shall be the duty of the arresting officer to imform
him of the reason for the arrest and he must be shown the warrant of arrest, if any. He
shall be informed of his constitutional rights to remain silent and to counsel, and that
any statement he might make could be used against him. The person shall have the
right to communicate with his lawyer, a relative, or anyone he chooses by the most
expedient means — by telephone if possible — or by letter or messenger. It shall be
the responsibility of the arresting officer to see to it that this is accomplished. No
custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arressted, by any person on his behalf, or appointed by the
court upon petition on his behalf, or appointed the court upon the petition either of the
detainee himself or by anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether exculpatory
or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).
These judicial pronouncements must be observed by everyone concerned: the military
and civilian components of the government tasked with law enforcement as well as the
ordinary citizen who faces a situation wherein civic duty demands his intervention to
preserve peace in the community.
I am not unmindful of the fact that abuses occur in arrests especially of offenders of
crimes with a political or ideological element. Such abuses are more often than not,
triggered by the difficulty in finding evidence that could stand judicial scrutiny — to
pinpoint a subversive, police officers usually have to make long persistent
surveillance. However, for the orderly administration of government and the
maintenance of peace and order in the country, good faith should be reposed on the
officials implementing the law. After all, we are not wanting in laws to hold any
offending peace officer liable both administratively and criminally for abuses in the
performance of their duties. Victims of abuses should resort to legal remedies to
redress their grievances.
If existing laws are inadequate, the policy-determining branches of the government
may be exhorted peacefully by the citizenry to effect positive changes. This Court,
mandated b the Constitution to uphold the law, can only go as far as inter pruting
existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous
ground of judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an essential condition for
order, It is disturbing whenever the Court leans in the direction of order instead of
liberty in har cases coming before us.
People all over the world are fast accepting the theory that only as a society
encourages freedom and permits dissent can it have lasting security and real
progress, the theory that enhancing order through constraints on freedom is deceptive
because restrictions on liberty corrode the very values Govenment pretends to
promote. I believe we should move with the people of the world who are fast liberating
themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on
arrests without warrant, to wit:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests without warrants. In case
of doubt, the tendency should be to declare the warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving
Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky
Ocaya are concerned, the petitioners were arrested after having been apprehended
while in possession of illegal firearms and ammunitions. They were actually
 53
committing a crime when arrested. I concur in the denial of their motions for
reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias
Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport
workers on the ground that that was inciting to sedition.
This impresses me as Court validation of a clear infringement of an individual's
freedom of speech. "Inciting to sedition" is a term over which the most learned writers
and jurists will differ when applied to actual cases. I doubt if there are more than a
handful of policemen in the whole country who would know the full dimensions of the
fine distinctions which separate the nation's interest in the liberty to fully anfd freely
discuss matters of national importance on one hand and the application of the clear
and present danger rule as the test when claims of national security and public safety
are asserted, on the other. In fact, the percentage of knowledgeability would go down
further if we consider that "inciting to sedition" requires the ability to define, among
other (1) what kinds of speeches or writings fall lander the term "inciting" (2) the
meaning of rising publicly and tumultously; (3,) when does a certain effort amount to
force, intimidation. or illegal method; (4) what constitute the five objects or ends of
sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public
speakers to be picked up simply because what they say is irritating or obnoxious to the
ears of a peace officer or critical of government policy and action, we will undermine
all pronouncements of this Court on the need to protect that matrix of all freedoms,
which is freedom of expression. At the very least, a warrant of arrest after a
preliminary examination by a Judge is essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their
observations regarding "continuing oftenses." To base warrantless arrests on the
doctrine of continuing offense is to give a license for the illegal detention of persons on
pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line
between overt acts and simple advocacy or adherence to a belief is extremely thin. If a
court has convicted an accused of rebellion and he is found roaming around, he may
be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a
personal conclusion that the suspect is indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the majority opinion is too broad. If
warrantless searches are to be validated, it should be Congress and not this Court
which should draw strict and narrow standards. Otherwise, the non-rebels who are
critical, noisy, or obnoxious will be indiscriminately lumped up with those actually
taking up arms against the Government.
The belief of law enforcement authorities, no matter how well grounded on past
events, that the petitioner would probably shoot other policemen whom he may meet
does not validate warrantless arrests. I cannot understand why the authorities
preferred to bide their time, await the petitioner's surfacing from underground, and
pounce on him with no legal authority instead of securing warrants of arrest for his
apprehension. The subsequent conviction of a person arrested illegally does not the
warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information
that Narciso Nazareno was one of the killers came to the attention of peace officers
only on December 28, 1988 or fourteen (14) days later. To say that the offense "has in
fact just been committed" even if 14 days have lapsed is to stretch Rule 11 3 on
warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I
vote to grant the motion for reconsideration.
The subsequent conviction of a person arrested illegally does not reach back into the
past and render legal what was illegal. The violation of the constitutional right against
illegal seizures is not cured by the fact that the arrested person is indeed guilty of the
offense for which he was seized. A government of laws must abide by its own
Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84;
and G.R. No. 83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
 54
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of
those who were arrested inflagrante, or subsequently posted bail or chose to remain in
the custody of the military, or voluntarily permitted the search of the house without
warrant. I do not think that under the applicable circumstances the petitioners can
validly complain that they are being unlawfully detained.
But I must again express may dissent to the continued observance of Garcia-Padilla
vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other
petitioners on the ground that they were apprehended for the continuing offenses of
rebellion and other allied crimes.
We find in the said decision this partltularly disturbing observation, which was quoted
with approval in the originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting armed elements,
or for committing non-violent acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the prosecution of offenses which
requires the determination by a judge of the existence of probable cause before the
issuance of arrest and the granting of bail of the offense is bailable. Obviously, the
absence of a judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against govenment forces, or any other milder acts
but equally in pursuance of the rebellious movement. (Emphasis supplied.)
The treatment suggested envisions an actual state of war and is justified only when a
recognition of beuigerency is accorded by the legitimate government to the rebels,
resulting in the application of the laws of war in the regulation of their relations. The
rebels are then considered alien enemies-to be treated as prisoners of war when
captured-and cannot invoke the municipal law of the legitimate government they have
disowned. It is in such a situation that the processes of the local courts are not
observed and the rebels cannot demand the protection of the Bill of Rights that they
are deemed to have renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the legitimate govenment
must treat the rebels as its citizens, subject to its municipal law and entitled to all the
rights provided thereunder, including and especially those guaranteed by the
Constitution. Principal among these — in our country — are whose embodied in the
Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable
searches and seizures, allowing bail, and presuming the innocence of the accused.
The legitimate government cannot excuse the suppression of these rights by the
"exigencies" of an armed conflict that at this time remains an intemal matter governed
exclusively by the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders — or combatants — is not
justified in the present situation as our government continues to prosecute them as
violators of our own laws. Under the doctrine announced in Garcia-Padilla, however,
all persons suspected as rebels are by such suspicion alone made subject to
summary arrest no different from the unceremonious capture of an enemy soldier in
the course of a battle. The decision itself says that the arrest "need not follow the
usual procedure in the prosecution of offenses" and "the absence of a judicial warrant
is no impediment" as long as the person arrested is suspected by the authorities of the
"continuing offense" of subversion or rebellion or other related crimes. International
law is thus substituted for municipal law in regulating the relations of the Republic with
its own citizens in a purely domestic matter.
As for the duration of the offenses, the decision contained the following
pronouncement which this Court has also adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and other crimes and offenses committed in the furtherance on
the occasion thereof, or incident thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing offenseswhich set them
apart from the common offenses, aside front their essentially involving a massive
conspiracy of nationwide manitude. (Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed by the authorities,
usually by simply placing the suspect "under surveillance," to lay the basis for his
eventual apprehension. Once so placed, he may at any time be arrested without
warrant on the specious pretext that he is in the process of committing the "continuing
offense," no matter that what he may be actuallly doing at the time is a perfectly
innocent act.
In the case of Dural. the arrest was made while he was engaged in the passive and
innocuous act of undergoing medical treatment. The fiction was indulged that he was
even then, as he lay supine in his sickbed, engaged in the continuing offense of
 55
rebellion against the State. In further justification, the Court says that the arresting
officers acted on "confidential information" that he was in the hospital, which
information "was found to be true." This is supposed to have validated the
determination of the officers that there was "probable cause" that excused the
absence of a warrant.
My own impression is that probable cause must be established precisely to justify the
issuance of a warrant, not to dispense with it; moreover, probable cause must be
determined by the judge issuing the warrant, not the arresting officer who says it is not
necessary.
In the case of Espiritu, the arrest was made while he was actually sleeping, and for
allegedly seditious remarks made by him the day before. The Court says his case is
not covered by the Garcia-Padilla doctrine but approves the arrest just the same
because the remarks were supposed to continue their effects even to the following
day. The offense was considered as having been just committed (to make it come
under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without warrant, and no
less than fourteen days after the killing. In sustaining this act, the Court says that it
was only on the day of his arrest that he was identified as one of the probable killers,
thus suggesting that the validity of a warrantless arrest is reckoned not from the time
of the commission of an offense but from the time of the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant
if the latter "has committed, is actually committing, or is attempting to commit an
offense" or when an offense "has in fact just been committed." The requirement of
immediacy is obvious from the word "just," which, according to Webster, means "a
very short time ago." The arrest must be made almost immediately or soon after these
acts, not at any time after the suspicion of the arresting officer begins, no matter how
long ago the offense was committed.
I am also uneasy over the following observations in the present resolution which I
hope will not be the start of another dangerous doctrine:
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds upon
wmch the arresting officers based their arrests without warrant, are supported by
probable cause, i.e., that the persons arrested were probably guilty of the commission
of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.
I can only repeat my own misgivings when I dissented in the recent case of People vs.
Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there
was probable cause may have been influenced by the subsequent discovery that the
accused was carrying a prohibited drug. This is supposed to justify the soldier's
suspicion. In other words, it was the fact of illegal possession that retroactively
established the probable cause that validated the illegal search and seizure. It was the
fruit of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the
illegal arrests made in the cases before us is a step back to that shameful past when
individual rights were wantonly and systematically violated by the Marcos dictatorship.
It seems some of us have short memories of that repressive regime, but I for one am
not one to forget so soon. As the ultimate defender of the Constitution, this Court
should not gloss over the abuses of those who, out of mistaken zeal, would violate
individual liberty in the dubious name of national security. Whatever their ideology and
even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of
Rights, no more and no less than any other person in this country. That is what
democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution disposing of the Motion
for Reconsideration.
At the same time, however, I feel compelled to dissent from certain statements made
by the majority principally concerning the applicability of the "continuing crimes"
doctrine to the problem of arrests without warrants. It seems clear that these
statements are really obiter dicta, since they are quite unnecessary for sustaining the
actual results reached in the majority Resolution. This was summarily pointed out in
my very brief statement concurring in the result reached in the original Decision of the
Court dated 9 July 1990. The subsequent developments in several of the cases here
consolidated, which are carefully detailed in the majority Resolution, make this even
clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly
 56
to reiterate the "continuing crimes" doctrine as applicable in respect of warrantless
arrests. Although the above statements are obiter, they have been made and, I
believe, need to be addressed to some extent and the inter-relation of the "continuing
crimes" doctrine with constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable
seizures of persons. Article III Section 2 of the Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized. (Emphais supplied)
Under the above provision, arrests, i.e., the constraint and seizure of the persons of
individual members of society, must, as a general rule, be preceded by the securing of
a warrant of arrest, the rendition of which complies with the constitutional procedure
specified in Article III Section 2. Arrests made without a warrant issued by a judge after
complying with the constitutional procedure, are prima facie unreasonable seizures of
persons within the meaning of Article III Section 2.
2. There are, however, certain well-recognized exceptions to the norm that warrantless
arrests are unreasonable seizures of persons. Those exceptions are, in our day,
essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section
5(a) and (b) mark out the situations where an officer of the law, or a private person for
that matter, may lawfully arrest a person without previously securing a warrant of
arrest. The full text of Section 5, Rule 113 follows:
Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b), it is important
to recall that judicial interpretation and application of Section 5(a) and (b) must take
those provision for what they are: they are exceptions to a vital constitutional norm
enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so
as not to render futile and meaningless the constitutional rule requiring warrants of
arrests before the persons of individuals may be lawfully constrained and seized. The
ordinary rule generally applicable to statutory provisions is that exceptions to such
provisions must not be stretched beyond what the language in which they are cast
fairly warrants, and all doubts should be resolved in favor of the general provision,
rather than the exception. 1This rule must apply with special exigency and cogency
where we deal, not with an ordinary statutory provision, but with a constitutional
guarantee. 2 Exceptions to such a guarantee must be read with especial care and
sensitivity and kept within the limits of their language so to keep vital and significant
the general constitutional norms warrantless arrests. In Alvarez vs. Court of First
Instance, 3 this Court, stressing that:
II. As the protection of the citizen and the maintenance of his constitutional rights is
one of the highest duties and privileges of the court. these constitutional guaranties
should be given a liberal construction or a strict construction in favor of the individual,
to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured
by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965;
237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that
statutes authorizing searches and seizures or search warrants must be strictly
construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353;
Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)
held that:
 57
. . . All illegal searches and seizures are unreasonable whith lawful ones are
reasonable. 4
In People vs. Burgos, 5
this Court reiterated the above rule in the following terms:
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the appellant's
wife.
At the time of the appellant's arrest, he was not in actual possession of any firearm or
subversive document. Neither was he commit ting any act which could be described
as subversive. He was, in fact plowing his field at the time of the arrest.
The right of a person to be secure against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and fundamental one. The statute or rule
which allows exceptions the requirement of warrants of arrest is strictly construed. Any
exception must clearly fall within the situations when securing a warrant would be
absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its application beyond the cases
specifically provided by law. To do so would infringe upon personal liberty and set
back a basic right so often vilated and so deserving of full protection. 6 (emphasis supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the
occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the
circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the
part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be
seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term "presence" in this connection is
properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer. 7
If no
overt, recognizably criminal, acts occur which are perceptible through the senses of
the arresting officer, such officer could not, of course, become aware at all that a crime
is being committed or attempted to be committed in his presence. 8It is elementary that
purely mental or psychological phenomena, not externalized in overt physical acts of a
human person, cannot constitute a crime in our legal system. For a crime to exist in
our legal law, it is not enough that mens rea be shown; there must also be an actus
reus. If no such overt acts are actually taking place in the presence or within the
sensor perception of the arresting officer, there would, in principle, be ample time to go
to a magistrate and ask for a warrant of arrest. There would, in other words, not be
that imperious necessity for instant action to prevent an attempted crime, to repress
the crime being committed, or to capture the doer of the perceive criminal act, the
necessity which serves as the justification in law of warrantless arrests under Section
5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless
arrest may be sustained under this subsection: 1) the offense must have "just been
committed" when the arresting officer arrived in the scene; and 2) the officer must
have "personal knowledge" of facts indicating tha the person to be arrested has
committed the offense. In somewhat different terms, the first requirement imports that
th effects or corpus of the offense which has just been committed are still visible: e.g.
a person sprawled on the ground, dead of gunshot wound; or a person staggering
around bleeding profusely from stab wounds. The arresting officer may not ha seen
the actual shooting or stabbing of the victim, and thereto the offense can not be said to
have been committed "in [his] presence." The requirement of "personal knowledge" on
the part of the arresting officer is a requirement that such knowledge must have been
obtained directly from sense perception the arresting officer. That requirement would
exclude informtion conveyed by another person, no matter what his reputation for,
truth and reliability might be. 9 Thus, where the arresting officer comes upon a person
dead on the street and sees a person running away with a knife from where the victim
is sprawled the ground, he has personal knowledge of facts which render it highly
probable that the person fleeing was the doer of the criminal deed. The arresting
officer must, in other words, perceive through his own senses some act which directly
connects the person to be arrested with the visible effects or corpus of a crime which
has "just been committed."
6. The use of the words "has in fact just been committed" underscores the requirement
that the time interval between the actual commission of the crime and the arrival of the
arresting officer must be brief indeed. In the first place, the word "just" was fairly
recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt
in order to underscore the point here being made. In the second place, a latitudinarian
view of the phrase "has in fact just been committed" would obviously render pointless
 58
the requirement in Section 5(a) that the crime must have been committed "[in] the
presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo
Nazareno 14-days after the occurrence of the killing with which he was charged along
with other persons, cannot by any standard be justified under Section 5(b). In G.R. No.
81567, Dural was arrested without warrant while being treated in a hospital the day
after the shooting of the policemen in which he was suspected to have been a
participant. While 1-day may be substantially different from 14-days, still it must be
pointed out that at the time Dural was arrested in the hospital, the killing of the two (2)
policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could
not reasonably be said to have been just committed. There was no showing, nor did
the Court require it, that the arresting officers had been in "hot pursuit" of Dural
beginning at the scene of the killing and ending the next day in the hospital.
7. It is worth noting that the requisite of "personal knowledge" on the part of the
arresting officer who is determining "probable cause" right at the scene of the crime, is
in a sense more exacting than the standard imposed by the Constitution upon the
judge who, in the seclusion of his chambers, ascertains "probable cause" by
examining the evidence submitted before him. The arresting officer must himself have
"personal knowledge"; the magistrate may rely upon the personal knowledge of the
witnesses examined by or for him in issuing a warrant of arrest. In the present
Resolution, the majority begins with noting the requirement of "personal knowledge" in
Section 5(b), but winds up in the next page with a very diluted standard of "reasonable
belief and "good faith" on the part of the arresting officers. The stricter standard is
properly applicable to the officers seizing a person without a warrant of arrest, for they
are acting in derogation of a constitutional right. That the person unlawfully arrested
without a warrant may later turn out to be guilty of the offense he was suspected of in
the first place is, course, quite beside the point. Even a person secretly guilty some
earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he
has in fact committed physically observable criminal acts in the presence of the
arresting officer or hadjust committed such acts when the arresting officer burst upon
the scene.
8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing
crimes," shows that doctrine is here being used as a substitute for the requirement
under Section 5(a) that the offense "has in fact just been presence of the arresting
officer arrived, but rather because the person to be arrested is suspected of having
committed a crime in the future. The pertinent portion of the majority Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF
ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his
mission as a "sparrow" (NPA member) did not end there and then. Dural, given
another opportunity, would have shot or would shoot other policemen anywhere as
agents or representatives of organized government. It is in this sense that subversion
like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other
so-called "common" offenses, i.e., adultery, murder, arson, etc., which generally end
upon their commission, subversion and rebellion are anchored on an ideological base
which compels the repetition of the same acts of lawlessness and violence until the
overriding objectives of overthrowing organized government is attained. (Emphasis
supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as
actually found in our case law offers no reasonable basis for such use of the dotrine.
More specifically, that doctrine, in my submission, does notdispence with the
requirement that overt acts recognizably criminal in character must take place in the
presence of the arresting officer, or must have just been committed when the arresting
officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes" doctrine
in our case law (before rendition of Garcia-Padilla vs. Enrile 10 does not sustain
warrantless arrests of person to be arrested is, as it were, merely resting in between
specific lawless and commit the moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been used basically in
relation to two (2) problems: the first problem is that of determination of whether or not
a particular offense was committed within the territorial jurisdiction of the trial court; the
second problem is that of determining whether a single crime or multiple crimes were
committed where the defense of double jeopardy is raised.
10. In respect of the first problem, the gist of our case law is that where some of the
ingredients or elements of an offense taken place within the territorial jurisdiction of
one court and some other ingredients or elements of the same offense occur in the
territory of another court, (e.g., estafa or malversation) either one of the two courts has
jurisdiction to try the offense. Where all of the essential elements of a crime take place
within the territory of one court but "by reason of he very nature of the offense
committed" the violation of the law is deemed to be "continuing," then the court within
whose territorial jurisdiction the offense continues to be committed, has jurisdiction to
try a person charged with such offense. In the latter case, the offense is deemed to be
 59
a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization;
continuing because some or all of the elements constituting the offense occurred
within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel;
evasion of service of sentence). The criminal acts are regarded as repeated or as b) Subjecting himself to the discipline of such association or organization in any form whatsoever;

continuing within the province or city where the defendant was found and
arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms;

charged must be shown to have been committed within the territorial jurisdiction of the
court where he is charged. x x x           x x x          x x x

11. Turning to the second type of problem, the question is normally presented in terms f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof;

of whether one crime or multiple crimes were committed by the accused. Where the
series of acts actually alleged and proven to have been committed by the accused x x x           x x x          x x x
constituted only one and the same crime, the defense of double jeopardy becomes
available where a second information is filed covering acts later in the series. Upon the h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or
other hand, where the acts of the accused constituted discrete, multiple offenses, each organization;
act comprising a distinct and separate offense, the double jeopardy defense is non-
available. 12 The point worth stressing is that in passing upon the issue relating to the x x x           x x x          x x x
unity or multiplicity of offense committed, the overt acts of the accused constitutive
either of the single offense or of the plural offenses, must be shown. k) Participating in any was in the activities, planning action, objectives, or purposes of such association or organization;

12. My final submission, is that, the doctrine of "continuing crimes," which has its own x x x           x x x          x x x
legitimate function to serve in our criminal law jurisprudence, cannot be invoked for
weakening and dissolving the constitutional guarantee against warrantless arrest.
It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police
Where no overt acts comprising all or some of the elements of the offense charged are
agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces
shown to have been committed by the person arrested without warrant, the
but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce
"continuing crime" doctrine should not be used to dress up the pretense that a crime,
the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness
begun or committed elsewhere, continued to be committed by the person arrested in
or excess of zeal, the very freedoms which make our polity worth protecting and saving.
the presence of the arresting officer. The capacity for mischief of such a utilization of
the "continuing crimes" doctrine, is infinitely increased where the crime charged does
REGALADO, J.: Separate Opinion:
not consist of unambiguous criminal acts with a definite beginning and end in time and
space (such as the killing or wounding of a person or kidnapping and illegal dentention
or arson) but rather of such problematic offenses as membership in or affiliation with While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such concurrence, I wish to unburden myself of some

or becoming a member of, a subversive association or organization. For in such reservations on the rationale adopted in G.R. No. 86332.

cases, the overt constitutive acts may be morally neutral in themselves, and the
unlawfulness of the acts a function of the aims or objectives of the organization It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was

involved. Note, for instance, the following acts which constitute prima facie evidence of made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the

"membership in any subversive association:" 13 police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."
 60
I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing a peace officer or a private person to effect a SARMIENTO, J.: dissenting:
warrantless arrest, specifically conditions that grant of authority upon the situation "(w)hen an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has committed it."

It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in the 1985 Rules of Criminal Procedure, the I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1
the majority has not shown why the
particular revision of paragraph (b) of the aforesaid section consisted in imposing the requirements that the person making the arrest has personal
arrests in question should after all be sustained.
knowledge of the facts indicating that the arrestee is responsible for an offense which has just been committed.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested
Now, according to the resolution, "the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in
without a warrant and that his arrest was sufficient compliance with the provisions of
Alabang, Muntinlupa, Metro Manila; that at about 5 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing,
Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority,
was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28
he, Dural, was after all committing an offense (subversion being supposedly a
December 1988), the police agents arrested Nazareno, without warrant, for investigation."
continuing offense) and that the military did have personal knowledge that he had
committed it. "Personal knowledge," according to the majority, is supposedly no more
Since, clearly, the arresting police agents merely acted upon the information imparted by one of the suspects, Ramil Regala, the resolution has
than "actual belief or reasonable grounds . . . of suspicion," and suspicion is
emasculated the requirement in Section 5(b) that the person making the arrest must have had personal knowledge of factual indications regarding the
supposedly reasonable:
complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal knowledge must have been designed to obviate the
practice in the past of warrantless arrests being effected on the basis of or supposed reliance upon information obtained from third persons who
. . . when, in the absence of actual belief of the arresting officers, the suspicion that the
merely professed such knowledge or, worse, concocted such reports for variant reasons not necessarily founded on truth.
person to be arrested is probably guilty of committing the offense, is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves to create the
Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may result from imputations based on dubious
probable cause of guilty of the person to be arrested. A reasonable suspicion therefore
motives, it is now required that the crime must have just been committed. The recency contemplated here, in relation to the making of the warrantless
must be founded on probable cause, coupled with good faith on the part of the peace
arrest, is the time when the crime was in fact committed, and not the time when the crime was in fact committed, and not the time when the person
officers making the arrest. 2
making the arrest learned or was informed of such commission. Otherwise, at the risk of resorting to  reductio ad absurdum, such warrantless arrests
could be validly made even for a crime committed, say, more than a year ago but of which the arresting officer received information only today.

The brevity in the interval of time between the commission of the crime and the arrest, as now required by Section 5(b), must have been dictated by
the consideration, among others, that by reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring personal As I said, I dissent.
and/or reliable knowledge of such fact and the identity of the offender is necessarily enhanced, if not assured. The longer the interval, the more
attenuated are the chances of his obtaining such verifiable knowledge. In the case under consideration, the obtention of information of a crime
committed fourteen (14) days earlier necessarily undermines the capacity of the arresting officer to ascertain the reliability of the information he is
acting upon and to acquire personal knowledge thereof after such verification. First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic
Act No. 1700, 3
is made up of "overt acts." 4 In People vs. Ferrer 5 this Court defined "overt
It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable cause and it was not whimsical, at least, in this
acts" as follows:
instance. It is correct to say that prevailing conditions affecting national security and stability must also be taken into account. However, for the
reasons above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113 had been complied with in this case. It is
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally
true that the corresponding information was filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy.
unnecessary to charge Communists in court, as the law alone, without more would
Definitely, if the rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan as a curative balm for
suffice to secure their punishment. But the undeniable fact is that their guilt still has to
unwarranted incursions into civil liberties.
be judicially established. The Government has yet to prove at the trial that the accused
 61
joined the Party knowingly, willfully and by overt acts, and that they joined the Party,
knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing government by force, deceit, and other illegal
means and place the country under the control and domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as
Ferrer has taken pains to explain, the law requires more than mere membership in a
subversive organization to make the accused liable. I respectfully submit that for
purposes of arrest without a warrant, that above "overt acts" should be visible to the
eyes of the police officers (if that is possible), otherwise the accused can not be said to
be committing any offense within the contemplation of the Rules of Court, to justify
police action, and otherwise, we would have made "subversion" to mean mere
"membership" when, as Ferrer tells us, subversion means more that mere
membership.
I find strained that majority's interpretation of "personal knowledge," as the majority
would interpret it, as no more than "actual belief or reasonable suspicion," that is,
"suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled
with good faith . . . " 6 I submit that personal knowledge means exactly what it says —
that the peace officer is aware that the accused has committed an offense, in this
case, membership in a subversive organization with intent to further the objectives
thereof. It is to be noted that prior to their amendment, the Rules (then Section 6)
spoke of simple "reasonable ground" — which would have arguably encompassed
"actual belief or suspicion . . . coupled with good faith" referred to by the majority.
Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully
submit that to give to "personal knowledge" the same meaning as "reasonable ground"
is to make the amendment as useless exercise.
What, furthermore, we have here was a mere "confidential information" that a
"sparrow man" had been wounded and was recuperating in the hospital, and that that
person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay,
information, and needless to say, not personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this Court rejected a
similar arrest because of lack of personal knowledge, and, as the Court held,
"[w]hatever knowledge was possessed by the arresting officers came in its entirety
from the information furnished by [another] . . ." 8 I do not see how We can act
differently here.
I do not find the majority's reliance on the case of United States vs. Santos 9 to be
well-taken. Santos involved a prosecution for coercion (against a peace officer for
affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality
of the arrest but absolved the peace officer on grounds of good faith. Santos did not
say that so long as he, the peace officer, was acting in good faith, as the majority here
says that the military was acting in good faith, the arrest is valid. Quite to the contrary,
Santos suggested that notwithstanding good faith on the part of the police, the arrest
is nevertheless subject to question.
As far as the information leading to the arrest of Dural is concerned, the majority would
quite evidently swallow the version of the military as if in the first place, there truly was
an information, and that it was reliable, and that "it was found to be true;" 10 and as if,
in the second place, the hospital authorities (the alleged informants) could have legally
tipped the military under existing laws. We have, it should be noted, previously
rejected such a species of information because of the lack of "compulsion for [the
informant] to state truthfully his charges under pain of criminal prosecution." 11 Here, it
is worse, because we do not even know who that informant was.
The majority is apparently unaware that under Executive Order No. 212, amending
Presidential Decree No. 169, hospital establishments are required to report cases of
acts of violence to "government health authorities" — not to the military.
I am concerned that if the military were truly armed with reliable information and if it
did have personal knowledge to believe that Dural had committed an offense, there
was no reason for the military to ignore the courts, to which the Constitution after all,
gives the authority to issue warrants. As People vs. Burgos held:
More important, we find no compelling reason for the haste with which the arresting
officers sought to arrest the accused. We fail to see why they failed to first go through
the process of obtaining a warrant of arrest, if indeed they had reasonable ground to
believe that the accused had truly committed a crime. There is no showing that there
was a real apprehension that the accused was on the verge of flight or escape.
Likewise, there is no showing that the whereabouts of the accused were unknown. 12
 62
I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Caspile, and Vicky Ocaya (G.R. Nos.
84581-82; 83162) could have been lawfully picked up under similar circumstances. As the majority points out, the military had (again) acted on a mere
tip-the military had no personal knowledge (as I elaborated what personal knowledge means). Second, I do not think that the majority can say that
since Amelia Roque, et al. "were NPA's anyway" (As Roque, et al. allegedly admitted), immediate arrests were "prudent" and necessary. As I said,
that Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the subject of controversy. I think it is imprudent for
this Court to pass judgment on the guilt of the petitioners-since after all, and as the majority points out, we are talking simply of the legality of the
petitioner's arrests.
More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military, and evidently, the Court is not bound by bare say-
so's. Evidently, we can not approve an arrest simply because the military says it is a valid arrest (the accused being "NPA's anyway")— that would be
abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious "confidential information."
According to the majority, we are speaking of simple arrests; we are not talking of the guilt or innocence of the accused. I certainly hope not, after the
majority referred to Rolando Dural as a "sparrow man" and having Amelia Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial that the guilt of the accused still has to be
established, since meanwhile, the accused are in fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the
majority, it is nothing to crow about (a mere "administrative measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R. Nos. 85727; 86332). Espiritu was supposedly
picked up for inciting to sedition, in uttering supposedly, on November 22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to sedition" a continuing offense. Obviously, the majority is
not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech
regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time
the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times,
the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has
ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all, protected speech, but apparently, that is also of no
moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case,
titled in favor of authority," 15
and (3) we have, anyway, given a reduced bail to the accused.
First, that the accused's statement is in the category of free speech is not only plain to
my mind, it is a question I do not think the majority can rightly evade in these petitions
without shirking the Court's constitutional duty. It is to my mind plain, because it does
not contain enough "fighting words" recognized to be seditious. 16 Secondly, it is the
very question before the Court—whether or not the statement in question constitutes
an offense for purposes of a warrantless arrest. It is a perfectly legal question to my
mind and I am wondering why we can not answer it.
What the majority has not answered, as I indicated, is that inciting to sedition is in no
way a continuing offense, and as I said, the majority is not apparently convicted that it
is, either. Of course, the majority would anyway force the issue: "But the authority of
the peace officers to make the arrest, without warrant, at the time the words were
uttered, or soon thereafter, is still another thing." 17 First, Espiritu was picked up the
following day, and in no way is "the following day" "soon thereafter". Second, we would
have stretched the authority of peace officers to make warrantless arrests for acts
done days before. I do not think this is the contemplation of the Rules of Court.
As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of
flight or escape" 19 and there was no impediment for the military to go through the
judicial processes, as there was none in the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime
about to be committed or had just been committed," and unless there existed an
urgency as where a moving vehicle is involved, instant police action can not be
justified.
"In the balancing of authority and freedom," states the majority, "the Court has, in this
case, titled in favor of authority but only for purposes of the arrest (not conviction)." 21 It
 63
is a strange declaration, first, because it is supported by no authority (why the Court
should "tilt" on the side of Government), and second, because this Court has leaned,
by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we
were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in
this case," 22 as if to say that normally, this Court would have tilted the scales the other
way. I do not understand why these cases are apparently, special cases, and
apparently, the majority is not telling us neither. I am wondering why, apart from the
fact that these cases involved, incidentally, people who think differently from the rest of
us.
The majority goes on:
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's
arrest without warrant was made only on 28 December 1988, or 14 days later, the
arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988
that the police authorities came to know that Nazareno was probably one of those
guilty in the killing of Bunye II. 23
With all due respect, I do not think that the majority is aware of the serious implications of its pronouncement on individual rights (and statutory
construction in general), and I feel I am appropriately concerned because as a member of the Court, I am co-responsible for the acts of my colleagues
and I am afraid that I may, rightly or wrongly, be in time made to defend such an indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and the authorities must have "personal knowledge."
In no way can an offense be said to have been "just committed" fourteen days after it was in fact (allegedly) committed. In no way can the authorities
be said to have "personal knowledge" two weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal knowledge" of a
crime that had "just been committed;" whatever "personal knowledge" they have is necessarily "personal knowledge" of a crime committed two weeks
before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of the Rules.
I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I am saying it, (or worse, that I am "coddling
criminals"). I am not saying that a suspected criminal, if he can not be arrested without a warrant, can not be arrested at all — but that the military
should first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to
the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given
the military the broadest discretion to act, a discretion the law denies even judges 24
— today it is fourteen days,
tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not
be in fact unreasonable, following the theory of the majority, since the military can
claim anytime that it "found out only later," as the majority did not find it unreasonable
for the Capital Command to claim that it"came to know that Nazareno was probably
one of those guilty in the killing of Bunye II" 25—and none of us can possibly dispute it.
I would like to stress strongly that we are not talking of a simple "administrative
measure" alone—we are talking of arrests, of depriving people of liberty—even if we
are not yet talking of whether or not people are guilty. That we are not concerned with
guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the
significance of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of
Amelia Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually,
an uncounselled confession) was precisely, the basis for Buenaobra's arrest. It is to
beg the question, I respectfully submit, to approve the military's action for the reason
that Buenaobra confessed, because Buenaobra confessed for the reason that the
military, precisely, pounced on him. I am not to be mistaken for prejudging
Buenaobra's innocence (although it is supposed to be presumed) but I can not
imagine that Buenaobra would have voluntarily proclaimed to the military that he was
an NPA courier so that the military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have
been better days. I do not see how this court can continuously sustain them "where
national security and stability are still directly challenged perhaps with greater vigor
from the communist rebels." 28 First and foremost, and as the majority has conceded,
we do not know if we are in fact dealing with "Communists." The case of Deogracias
Espiritu, for one, hardly involves subversion. Second, "Communism" and "national
security" are old hat — the dictator's own excuses to perpetuate tyranny, and I am
 64
genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan
rested on supposed grounds that can not be possibly justified in a regime that
respects the rule of law — that the Presidential Commitment Order (PCO) is a valid
presidential document (Garcia) and that the filing of an information cures a defective
arrest (Ilagan). Fourth and finally, it is evident that neither "Communist threat" nor
"national security" are valid grounds for warrantless arrests under Section 5(b) of Rule
113.
Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and
Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I
indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition;
Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority
would approve the police's actions nonetheless because the police supposedly "found
out only later." I submit that the majority has read into Section 5(b) a provision that has
not been written there.

I most respectfully submit that Garcia and Ilagan have not only been diluted by "More than the allure of popularity of palatability to some groups," concludes the
subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of majority, "what is important is that the Court be right." 33
authoritarian rule that can no longer be defended, if they could have been defended, in
Plaza Miranda or before our own peers in the bar.

"What is important," says the majority, "is that every arrest without warrant be tested Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability. Umil is a question, on the contrary, of whether or

as to its legality, via habeas corpus proceedings." 29 I supposed that goes without not the military (or police), in effecting the arrests assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of

saying. But it is also to patronize the petitioners and simply, to offer a small whether or not this Court, in approving the military's actions, is right.

consolation, when after all, this Court is validating their continued detention. 30 With all
due respect, I submit that it is nothing for which the public should be elated. In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture, hamletting, bombings, saturation drives, and
various human rights violations increase in alarming rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:

A Final Word
An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;

As I began my dissent, in this Resolution and the Decision sought to be reconsidered,

I reiterate one principle: The State has no right to bother citizens without infringing Four thousand four hundred eight (4,408) political detentions from January, 1989 to September, 1990, 4,419, illegally;

their right against arbitrary State action. "The right of the people," states the
Constitution, "to be secure in their persons, houses, papers, and effects against Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated salvage, and 109 remained missing after their arrest;

unreasonable searchers and seizures of whatever nature and for any purpose shall be
inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were wounded;
human person and guarantees full respect for human rights." 32 The Constitution states
the general rule — the majority would make the exception the rule, and the rule the The victims belonged to neighborhood and union organizations;
exception. With all due respect, this is not what constitutionalism is all about.
Since February, 1986, 532 of those illegally arrested were women;
I submit that the "actual facts and circumstances" the majority refers to are, in the first
place, doubtful, the "actual facts and circumstances" being no more than "confidential From January to June 1990, 361 children were detained for no apparent reason;
information" (manufactured or genuine, we have no way of telling) and in the second
place, any information with which the military (or police) were armed could no more
than be hearsay, not personal, information. I submit that the "actual facts and
circumstances" the majority insists on can not justify the arrests in question under
Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.
 65
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken
This is an appeal from the decision of the Regional Trial Court of Olongapo City,
by the military since 1988. 34
Branch 73 finding the accused Anita Claudio y Bagtang guilty beyond reasonable
doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine
of P 20,000.00, and to pay the costs.
It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also disappointed that it is the portrait of the Court I am
soon leaving. Nonetheless, I am hopeful that despite my departure, it will not be too late.
The information filed against the accused alleged:

Motions denied.
That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and
within the jurisdiction of this Honorable Court, the above-named ACCUSED without
being lawfully authorized, did then and there wilfully, unlawfully and knowingly
transport 1.1 kilos of Marijuana dried leaves, which are prohibited drugs for the
purpose of selling the same from Baguio City to Olongapo City. (Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of the
prosecution's evidence as follows:

To prove the guilt of the accused, the prosecution offered the following document and
testimonial evidence as follows: Exhibit "A" Letter request for Examination of
suspected marijuana dried leaves weighing approximately 1.1 kilos dated July 25,
1981; "B" plastic container; "B- 1"-marijuana contained in the plastic container; "B-1-
a"—another plastic container; "C"—Chemistry Report No. D-668-81;"C-1" Findings:
Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E" and "E-1" photographs of
accused with Pat. Daniel Obiña and Pauline Tiongco showing the marijuana, "F"—
G.R. No. 72564 April 15, 1988 Victory Liner Ticket No. 84977;"G"—Sworn Statement of Pat. Daniel Obiña, "H"
Request for Field Test on suspected marijuana from accused by P/Lt. Antonio V.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Galindo;"H-1"—date of of the request; "L"—Certificate of Field Test dated July 22,
vs. 1981; "B-2" and "B-2a" additional Wrapping paper; and the testimonies of witnesses of
ANITA CLAUDIO Y BAGTANG, accused-appellant. the prosecution, Theresa Ann Bugayong; Pat. Daniel Obiño, Cpl. Paulino Tiongco, Cpl.
Ernesto Abello and Sgt. Leoncio Bagang.
The Solicitor General for plaintiff-appellee.
Theresa Ann Bugayong—22 years old, single, Forensic Chemist and a resident of
Romeo C. Alinea for accused-appellant. 1150 Sampaloc, Metro Manila testified that she received a request from the Task
Force Bagong Buhay, Olongapo City, dated July 25, 1981, on specimen marijuana
submitted for examination. The specimen consisted of 900 grams of suspected dried
marijuana flowering tops wrapped in a newspaper placed in a plastic bag with a
marking "MB Store" (Exh. "B").
GUTIERREZ, JR., J.:
 66
The examination conducted by her proved to be positive for marijuana. After her
examination, she prepared Chemistry Report No. D-668-81 dated July 29,1981 (Exhs.
"C" and "C-l"). She conducted three eliminations; microscopic examination, the
duguenoi levine test and thirdly, the confirmatory examination of thin layer
chromatographic test. The said specimen was submitted to them by OIC Danilo
Santiago, a representative of the CANU, Olongapo City.
The second witness for the prosecution was Daniel Obiña, 37 years old, married,
policeman and residing at 34 Corpuz St., East Tapinac, Olongapo City. Obiña testified
that he has been a member of the INP, since 1970 up to the present. He was assigned
in June, 1972 at the Investigation Division as operative. His job then was among other
things to follow up reports in their office, recover stolen items and apprehend
suspects. On July 21,1981, he was on Detached Service with the ANTI-NARCOTICS
Unit; and that on that date, he came from Baguio City and arrived in Olongapo City at
about 1:30 o'clock in the afternoon having left Baguio at about 8:30 o'clock in the
morning. He took the Victory Liner in going back to Olongapo City. His family lives in
Baguio City. On board the Victory Liner, he was seated on the second seat at the
back. While he was thus seated, suspect Anita Claudio boarded the same bus and
took the seat in front of him after putting a bag which she was carrying at the back of
the seat of Obiña. The bag placed by suspect behind his seat was a wooven buri bag
made of plastic containing some vegetables. The act of the accused putting her bag
behind Pat. Obiña's seat aroused his suspicion and made him felt (sic) nervous. With
the feeling that there was some unusual, he had the urge to search the woven plastic
bag. But it was only at San Fernando, Pampanga when he was able to go to the bag.
He inserted one of his fingers in a plastic bag located at the bottom of the woven bag
and smelt marijuana. The plastic woven bag appearing to contain camote tops on the
top has a big bundle of plastic of marijuana at the bottom. He could recognize the
smell of marijuana because he was assigned at that time at the ANTI-NARCOTICS
Unit. He did not, however, do anything after he discovered that there was marijuana
inside the plastic bag of the accused until they reached Olongapo City and the
accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right
after the accused alighted from the bus, policeman Obina intercepted her and showed
her his Id Identifying himself as a policeman and told her he will search her bag
because of the suspicion that she was carrying marijuana inside said bag. In reply,
accused told him, "Please go with me, let us settle this at home." However, the witness
did not heed her plea and instead handcuffed her right hand and with her, boarded a
tricycle right away and brought the suspect to the police headquarters with her bag
appearing to contain vegetables.
At the police headquarters Investigation Section, the bag was searched in the
presence of Investigator Cpl. Tiongco; Pat. Obiña, the accused and Sgt. Leoncio
Bagang. Inside the plastic bag was found a big bundle of plastic containing marijuana
weighing about one kilo. Witness stated that he could detect marijuana even before
the application of chemicals because of one year and a half assignment with the
CANU. After the marijuana was taken from the bag of the accused, photographs were
taken of the accused and the marijuana confiscated from her possession with Pat.
Obiña and that of Investigator Tiongco, accused and himself Identified photographs
shown to him in open Court. (Exhs. "D," "D-l," "D-2" and "D-3"). Witness was likewise
shown a plastic bag of marijuana contained in a plastic container (Exhs. "B," "B-1" and
"B-1 -a") and Identified it as the one confiscated from the accused and pointed to his
initials on the newspaper wrapping which also shows the date and time, although the
wrapper at the time he testified appeared to be soiled already. The marijuana was
allegedly still fresh when confiscated.
To prove further that the accused transported the confiscated marijuana from Baguio
City to Olongapo City, witness Identified Victory Liner Ticket No. 684977 which was
confiscated from the accused and for Identification purposes, the witness presented
the body number of the bus he wrote at the back of the ticket which is "309" (Exhs. "F"
and "F-l"). Regarding himself, he did not pay his fare from Baguio City because as a
policeman, he used his badge and a free ride.
On cross-examination, witness stated that he went to Baguio City on July 15,1981 and
underwent treatment of his heart while he was there. He was given a furlough for
medical treatment. He stayed in Baguio City for about five days and returned to
Olongapo City on July 21, 1981. Prior to July 21, 1981, witness never knew the
accused, and the first time he saw her was in Baguio when she boarded the same
Victory Liner he took. When the accused who was bringing with her a woven plastic
bag placed the bag right behind his seat instead of placing it in front of her or beside
her seat. Witness Obiña became suspicious and his suspicion was confirmed when
they reached San Fernando, Pampanga, after he checked the buri bag. The bus
stopped at said town to load some gasoline. Witness inserted one of his fingers inside
the buri bag and thereafter smelt marijuana. He confirmed his testimony on direct that
when witness confronted accused he was invited to go with her in order to settle the
matter to which he refused. Accused further testified that from the time the accused
placed her bag behind his seat from Baguio City, he felt so nervous and had to take
his medicine at the Tarlac Station. It was only after having taken his medicine that his
apprehension was contained and thus was able to insert his right hand inside the buri
 67
bag in San Fernando, Pampanga. His fingers reached the very bottom of the bag. He
Identified his sworn statement regarding this incident given on July 21, 1981 which is
Exhibit "G." Witness likewise Identified accused Anita Claudio in open court.
Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac
Bajac, Olongapo City, testified that as a policeman on the afternoon of July 21, 1981,
he was inside the Investigation Division of the Police Station, Olongapo City. As Duty
Investigator, between 1:45 and 2:00 o'clock in the afternoon of the same day, Pat.
Daniel Obiña arrived at the Police Station with a woman and Identified her in the
courtroom as Anita Claudio. Pat. Obiña reported to him that he apprehended Anita
Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The
marijuana leaves were contained in a buri bag with some vegetables such as camote
tops, bananas and some other vegetables. The marijuana was placed in a plastic
wrapper with the name National Book Store colored black and white. Witness
Identified the wrapper (Exh. "B-2"). The bag contained the markings of Pat. Obiña
which are his initials, (Exhs. "B-2-a"), and numbers 210781 representing the date
which was placed by Pat. Obiña after Cpl. Tiongco examined the suspected
marijuana.
After examining and seeing the marijuana together with the vegetables, he interviewed
apprehending officer Obiña and reduced his statements in writing. Cpl. Tiongco
Identifled the sworn statement of Obiña (Exh. "G"). He also interviewed accused Anita
Claudio who was all the while inside the Investigation room seated on a chair. After
appraising her of her constitutional rights, he asked the accused whether she was
willing to give her written statements to which the accused refused. Hence, no
statements were taken of her. However, pictures were taken inside the investigation
room. Exhs. "D" and "E," series which were already previously Identified by Pat.
Obiña, Witness Identified the persons appearing in the pictures as that of Pat. Obiña
and the accused and also of himself. Thereafter, the marijuana contained in the plastic
bag were turned over to Lt. Galindo and Anita Claudio was detained.
Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East Tapinac,
Olongapo City, testified he was since March 1972 a policeman and was stationed at
Police Station 21, Olongapo City, Metrodiscom. However, in 1981, he was already
assigned to the CANU General Anti-NARCOTICS Unit. On July 22, 1981, he reported
for work at the CANU and received from Lt. Galindo more than a kilo of suspected
marijuana dried leaves. As requested by Lt. Galindo he conducted a field test on this
marijuana which he received from Lt. Galindo, as evidenced by a request signed by
him dated July 22,1981 (Exh. "H").
In connection with the field test conducted by him on the specimen, he prepared a
Certificate of Fleld Test dated July 22,1981 (Exhs. "I"). The Certificate of Field Test
indicated the presence of tetra-hydrocannabinol (THC), an active substance that can
be only be found in marijuana, a prohibited drug. Cpl. Abello Identified a plastic bag of
marijuana received from Lt. Galindo which he later give to CIC Danilo Santiago, the
Evidence Custodian, for the latter to bring the specimen to the PC Crime Laboratory.
The last witness for the prosecution was Leoncio Bagang, 40 years old, married,
residing at No. 27 Jones St., East Tapinac, Olongapo City, a policeman of Olongapo
City, assigned with Police Station "21." He has been a policeman since 1966 up to the
present. In July, 1981, he was then assigned at the Patrol Division and his duty was to
patrol the city proper from Magsaysay Drive up to east Bajac Bajac.
He narrated that on July 21,1981, between the hours of 1:00 and 2:00 o'clock in the
afternoon, he was at the Caltex Gasoline Station, East Bajac Bajac, Olongapo City
along Rizal Avenue. He was then on duty patrol using a motorcycle. While he was at
the said place, he saw Pat. Obiña alighted from the Victory Liner bus ordering
somebody to alight from the same bus. When he heard Pat. Obiña he approached him
and asked him what was happening. Pat. Obiña told him he apprehended a certain
woman possessing dried marijuana. The woman was still then inside the bus. Pat.
Obiña then brought the woman to the police department who was bringing with her a
buri bag. They boarded a tricycle, the woman riding inside the tricycle while Pat. Obiña
sat behind the driver. He then followed in his motorcycle the said tricycle to police
station. He went inside the Investigation Section of the Police Station and he was
there when Pat. Obiña reported to Cpl. Tiongco his apprehension of the woman
possessing marijuana. He saw the marijuana for the first time inside the Investigation
Section placed in a buri bag covered with newspaper. He witnessed the taking out of
the marijuana from inside the bag by Pat. Obiña in the presence of Cpl. Tiongco and
the woman or the accused in this case, and himself. Policeman Bagang Identified the
accused in open Court. When asked about the nature of the marijuana when it was
brought out from the bag, he said that the marijuana was dried but not well dried.
Aside from the marijuana inside the buri bag, there were vegetables and bananas,
Witness Identified in open Court, the marijuana he saw found in the buri bag of the
accused. His means of Identification was the signature of Pat. Obiña, (Exh. "B-1"). He
likewise Identified a newspaper wrapping which was already torn.
 68
While in the Investigation Division, witness Bagang heard the accused's answer to
Cpl. Tiongco's questions that she was going to deliver the marijuana to Sta. Rita. He,
however, did not linger long at the investigation Division. After he saw the marijuana
and heard the answer of the accused to Cpl. Tiongcos question the place of delivery of
the marijuana, he left the police station. Witness likewise Identified an initial DO-21-07-
81 already marked as Exhibit "B-2." DO which is an initial, and not a signature, stands
for Daniel Obiña. After the testimony of Leoncio Bagang, the prosecution rested its
case. (Rollo, pp. 42-47)
Accused Claudio raised the following assignments of errors in this appeal:
I
CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR
SOME OF THE ELEMENTS OF THE OFFENSE IS OR ARE ABSENT.
II
CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE
ALLEGED BUYMAN WAS NOT PRESENTED TO TESTIFY.
III
APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS
WRONG BECAUSE SOME MATERIAL FACTS WERE OVERLOOKED AND NOT
CONSIDERED IN FAVOR OF APPELLANT. (Rollo, p. 91)
The accused alleges that she is only liable, at the most, for possession under Sec. 8,
Art. II of Rep. Act No. 6425 and not for violating Sec. 4 of the same Act.
The latter section, Sec. 4 provides:
Sec. 4. Sale, Administration, Delivery Distribution and Transportation of Prohibited
Drugs.—The penalty of life imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any person who, unless
authorized by law, shall sell, administer, deliver, give away to another, distribute,
dispatch in transit or transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or should a prohibited drug
involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed.
Claudio contends that there was no delivery as there was no recipient of the prohibited
drugs. Therefore, she may not be convicted under Sec. 4 of Rep. Act No. 6425.
The contention is without merit. A closer perusal of the subject provision shows that it
is not only delivery which is penalized but also the sale, administration, distribution
and transportation of probihited drugs. Claudio was caught transporting 1.1 kilos of
marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of the
possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her possession
1.1 kilos of marijuana. This is a considerable quantity. As held in the case of People v.
Toledo, (140 SCRA 259, 267) "the possession of such considerable quantity as three
plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user
of prohibited drugs cannot indicate anything except the intention of the accused to sell,
distribute and deliver said marijuana.
The accused next contends the warrantless search, seizure and apprehension as
unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal
Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:
.. A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
xxx xxx xxx
 69
Meanwhile, its Rule 126, Sec. 12 provides: WHEREFORE, the judgment appealed from is AFFIRMED.

Section 12. Search incident to lawful arrest.— A person lawfully arrested may be SO ORDERED.
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. (12a) Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obiña did not
need a warrant to arrest Claudio as the latter was caught in flagrante delicto. The
warrantless search being an incident to a lawful arrest is in itself lawful. (Nolasco v.
Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos
of marijuana.

The accused takes inconsistent positions in her appellant's brief. At first, she does not
deny having had with her marijuana at the time of her arrest. Instead, she claims that
she should just be guilty of possession. In a complete turnabout, in the latter portion of
said brief, she claims that the evidence against her were mere fabrications and the
marijuana allegedly found in her possession was only planted.

We have carefully examined the records of the case and we find no ground to alter the
trial court's findings and appreciation of the evidence presented.

Credence is accorded to the prosecution's evidence, more so as it consisted mainly of

testimonies of policemen. Law enforcers are presumed to have regularly performed
their duty in the absence of proof to the contrary (People v. De Jesus, 145 SCRA 521).
We also find no reason from the records why the prosecution witnesses should
fabricate their testimonies and implicate appellant in such a serious crime (See People G.R. No. 104961 October 7, 1994
v. Bautista, 147 SCRA 500).
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,
The accused testified that she was not on that bus that came from Baguio City but vs.
rather she was in Olongapo City all that time. She alleged that she was arrested by COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK
Pat. Obiña for no reason at all. FORCE, respondents.

In the case at bar, alibi does not deserve much credit as it was established only by the Ronolfo S. Pasamba for petitioner.
accused herself (People v. De la Cruz, 148 SCRA 582).

Moreover, it is a well-established rule that alibi cannot prevail over positive testimony
(People v. De La Cruz, supra). BELLOSILLO, JR., J.:
 70
PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition)
the following resolutions of the Commission on Elections: Resolution No. 2327 dated
26 December 1991 for being unconstitutional, and Resolution No. 92-0829 dated 6
April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and
factual bases.
The factual backdrop: In preparation for the synchronized national and local elections
scheduled on 11 May 1992, the Commission on Elections (COMELEC) issued on 11
December 1991 Resolution No. 2323 otherwise referred to as the "Gun Ban,"
promulgating rules and regulations on bearing, carrying and transporting of firearms or
other deadly weapons, on security personnel or bodyguards, on bearing arms by
members of security agencies or police organizations, and organization or
maintenance of reaction forces during the election period.1 Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for the summary
disqualification of candidates engaged in gunrunning, using and transporting of
firearms, organizing special strike forces, and establishing spot checkpoints.2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-
Arms, House of Representatives, wrote petitioner who was then Congressman of the
1st District of Bulacan requesting the return of the two (2) firearms 3 issued to him by
the House of Representatives. Upon being advised of the request on 13 January 1992
by his staff, petitioner immediately instructed his driver, Ernesto Arellano, to pick up
the firearms from petitioner's house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine
National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a
checkpoint outside the Batasan Complex some twenty (20) meters away from its
entrance. About thirty minutes later, the policemen manning the outpost flagged down
the car driven by Arellano as it approached the checkpoint. They searched the car and
found the firearms neatly packed in their gun cases and placed in a bag in the trunk of
the car. Arellano was then apprehended and detained. He explained that he was
ordered by petitioner to get the firearms from the house and return them to Sergeant-
at-Arms Taccad of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for
inquest. The referral did not include petitioner as among those charged with an
election offense. On 15 January 1992, the City Prosecutor ordered the release of
Arellano after finding the latter's sworn explanation meritorious.4
On 28 January 1992, the City Prosecutor invited petitioner to shed light on the
circumstances mentioned in Arellano's sworn explanation. Petitioner not only
appeared at the preliminary investigation to confirm Arellano's statement but also
wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano
did not violate the firearms ban as he in fact was complying with it when apprehended
by returning the firearms to Congress; and, that he was petitioner's driver, not a
security officer nor a bodyguard.5
On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among
other matters, recommended that the case against Arellano be dismissed and that the
"unofficial" charge against petitioner be also dismissed.6
Nevertheless, on 6 April 1992, upon recommendation of its Law Department,
COMELEC issued Resolution No. 92-0829 directing the filing of information against
petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise
known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166; 7 and
petitioner to show cause why he should not be disqualified from running for an elective
position, pursuant to COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35
of R.A. 7166, and
Sec. 52, par. (c), of B.P. Blg. 881. 8
On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the
administrative proceedings as well as the filing of the information in court. 9 On 23 April
1992, the COMELEC denied petitioner's motion for reconsideration.10 Hence, this
recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He argues that the
rules and regulations of an administrative body must respect the limits defined by law;
that the Omnibus Election Code provides for the disqualification of any
person/candidate from running for or holding a public office, i.e., any person who has
either been declared by competent authority as insane or incompetent or has been
sentenced by final judgment for subversion, insurrection, rebellion or for any offense
for which he has been sentenced to a penalty of more than eighteen months or for a
crime involving moral turpitude; that gunrunning, using or transporting firearms or
similar weapons and other acts mentioned in the resolution are not within the letter or
spirit of the provisions of the Code; that the resolution did away with the requirement of
final conviction before the commission of certain offenses; that instead, it created a
presumption of guilt as a candidate may be disqualified from office in situations (a)
 71
where the criminal charge is still pending, (b) where there is no pending criminal case,
and (c) where the accused has already been acquitted, all contrary to the requisite
quantum of proof for one to be disqualified from running or holding public office under
the Omnibus Election Code, i.e., proof beyond reasonable doubt. As a result,
petitioner concludes, Resolution No. 2327 violates the fundamental law thus rendering
it fatally defective.
But, the issue on the disqualification of petitioner from running in the
11 May 1992 synchronized elections was rendered moot when he lost his bid for a
seat in Congress in the elections that ensued. Consequently, it is now futile to discuss
the implications of the charge against him on his qualification to run for public office.
However, there still remains an important question to be resolved, i.e., whether he can
be validly prosecuted for instructing his driver to return to the Sergeant-at-Arms of the
House of Representatives the two firearms issued to him on the basis of the evidence
gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP conducted the
search. According to him, without a warrant and without informing the driver of his
fundamental rights the policemen searched his car. The firearms were not tucked in
the waist nor within the immediate reach of Arellano but were neatly packed in their
gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search of his
car that yielded the evidence for the prosecution was clearly violative of Secs. 2 and 3,
par. (2), Art. III, of the Constitution. 11
Petitioner further maintains that he was neither impleaded as party respondent in the
preliminary investigation before the Office of the City Prosecutor nor included in the
charge sheet. Consequently, making him a respondent in the criminal information
would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits
any candidate for public office during the election period from employing or availing
himself or engaging the services of security personnel or bodyguards since,
admittedly, Arellano was not a security officer or bodyguard but a civilian employee
assigned to him as driver by the House of Representatives. Specifically, petitioner
further argues, Arellano was instructed to return to Congress, as he did, the firearms in
compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban," thus,
no law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its own comment on the
petition13 upon manifestation of the Solicitor General that it could not take the position
of COMELEC and prayed instead to be excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in
relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals, accomplices
and accessories, as defined in the Revised Penal Code, shall be criminally liable for
election offenses." It points out that it was upon petitioner's instruction that Arellano
brought the firearms in question outside petitioner's residence, submitting that his right
to be heard was not violated as he was invited by the City Prosecutor to explain the
circumstances regarding Arellano's possession of the firearms. Petitioner also filed a
sworn written explanation about the incident. Finally, COMELEC claims that violation
of
the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15
Be that as it may, we find no need to delve into the alleged constitutional infirmity of
Resolution No. 2327 since this petition may be resolved without passing upon this
particular issue. 16
As a rule, a valid search must be authorized by a search warrant duly issued by an
appropriate authority. However, this is not absolute. Aside from a search incident to a
lawful arrest, a warrantless search had been upheld in cases of moving vehicles and
the seizure of evidence in plain view, 17 as well as the search conducted at police or
military checkpoints which we declared are not illegal per se, and stressed that
the warrantless search is not violative of the Constitution for as long as the vehicle is
neither searched nor its occupants subjected to a body search, and the inspection of
the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in Arellano's waist nor placed within
his reach, and that they were neatly packed in gun cases and placed inside a bag at
the back of the car. Significantly, COMELEC did not rebut this claim. The records do
not show that the manner by which the package was bundled led the PNP to suspect
that it contained firearms. There was no mention either of any report regarding any
nervous, suspicious or unnatural reaction from Arellano when the car was stopped and
searched. Given these circumstances and relying on its visual observation, the PNP
could not thoroughly search the car lawfully as well as the package without violating
the constitutional injunction.
 72
An extensive search without warrant could only be resorted to if the officers
conducting the search had reasonable or probable cause to believe before the search
that either the motorist was a law offender or that they would find the instrumentality or
evidence pertaining to the commission of a crime in the vehicle to be searched. 19 The
existence of probable cause justifying the warrantless search is determined by the
facts of each case.20 Thus, we upheld the validity of the warrantless search in
situations where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant conducted by police officers
on the basis of prior confidential information which were reasonably corroborated by
other attendant matters, e.g., where a confidential report that a sizeable volume of
marijuana would be transported along the route where the search was conducted and
appellants were caught in flagrante delicto transporting drugs at the time of their
arrest; 22 where apart from the intelligence information, there were reports by an
undercover "deep penetration" agent that appellants were bringing prohibited drugs
into the country; 23 where the information that a Caucasian coming from Sagada
bringing prohibited drugs was strengthened by the conspicuous bulge in accused's
waistline, and his suspicious failure to produce his passport and other identification
papers;24 where the physical appearance of the accused fitted the description given in
the confidential information about a woman transporting marijuana; 25 where the
accused carrying a bulging black leather bag were suspiciously quiet and nervous
when queried about its contents; 26 or where the identity of the drug courier was
already established by police authorities who received confidential information about
the probable arrival of accused on board one of the vessels arriving in Dumaguete
City. 27
In the case at bench, we find that the checkpoint was set up twenty (20) meters from
the entrance to the Batasan Complex to enforce Resolution
No. 2327. There was no evidence to show that the policemen were impelled to do so
because of a confidential report leading them to reasonably believe that certain
motorists matching the description furnished by their informant were engaged in
gunrunning, transporting firearms or in organizing special strike forces. Nor, as
adverted to earlier, was there any indication from the package or behavior of Arellano
that could have triggered the suspicion of the policemen. Absent such justifying
circumstances specifically pointing to the culpability of petitioner and Arellano, the
search could not be valid. The action then of the policemen unreasonably intruded into
petitioner's privacy and the security of his property, in violation of Sec. 2, Art. III, of the
Constitution. Consequently, the firearms obtained in violation of petitioner's right
against warrantless search cannot be admitted for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to the search constitutes
an implied waiver of petitioner's right to question the reasonableness of the search of
the vehicle and the seizure of the firearms.
While Resolution No. 2327 authorized the setting up of checkpoints, it however
stressed that "guidelines shall be made to ensure that no infringement of civil and
political rights results from the implementation of this authority," and that "the places
and manner of setting up of checkpoints shall be determined in consultation with the
Committee on Firearms Ban and Security Personnel created under Sec. 5, Resolution
No. 2323."28 The facts show that PNP installed the checkpoint at about five o'clock in
the afternoon of 13 January 1992. The search was made soon thereafter, or thirty
minutes later. It was not shown that news of impending checkpoints without
necessarily giving their locations, and the reason for the same have been announced
in the media to forewarn the citizens. Nor did the informal checkpoint that afternoon
carry signs informing the public of the purpose of its operation. As a result, motorists
passing that place did not have any inkling whatsoever about the reason behind the
instant exercise. With the authorities in control to stop and search passing vehicles,
the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise,
any attempt to turnabout albeit innocent would raise suspicion and provide probable
cause for the police to arrest the motorist and to conduct an extensive search of his
vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped for
inspection. As conceded by COMELEC, driver Arellano did not know the purpose of
the checkpoint. In the face of fourteen (14) armed policemen conducting the
operation,29 driver Arellano being alone and a mere employee of petitioner could not
have marshalled the strength and the courage to protest against the extensive search
conducted in the vehicle. In such scenario, the "implied acquiescence," if there was
any, could not be more than a mere passive conformity on Arellano's part to the
search, and "consent" given under intimidating or coercive circumstances is no
consent within the purview of the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against petitioner runs counter
to the due process clause of the Constitution. The facts show that petitioner was not
among those charged by the PNP with violation of the Omnibus Election Code. Nor
 73
was he subjected by the City Prosecutor to a preliminary investigation for such inclusion in the charge, and did not ease up even after COMELEC's denial of his
offense. The non-disclosure by the City Prosecutor to the petitioner that he was a motion for reconsideration. This is understandably so since the prohibition against
respondent in the preliminary investigation is violative of due process which requires carrying firearms bears the penalty of imprisonment of not less than one (1) year nor
that the procedure established by law should be obeyed. 30 more than six (6) years without probation and with disqualification from holding public
office, and deprivation of the right to suffrage. Against such strong stance, petitioner
COMELEC argues that petitioner was given the change to be heard because he was clearly did not waive his right to a preliminary investigation.
invited to enlighten the City Prosecutor regarding the circumstances leading to the
arrest of his driver, and that petitioner in fact submitted a sworn letter of explanation WHEREFORE, the instant petition is GRANTED. The warrantless search conducted
regarding the incident. This does not satisfy the requirement of due process the by the Philippine National Police on 13 January 1992 is declared illegal and the
essence of which is the reasonable opportunity to be heard and to submit any firearms seized during the warrantless search cannot be used as evidence in any
evidence one may have in support of his defense.31 Due process guarantees the proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829
observance of both substantive and procedural rights, whatever the source of such dated 6 April 1992 being violative of the Constitution is SET ASIDE.
rights, be it the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of
Appeals,33 we held The temporary restraining order we issued on 5 May 1992 is made permanent.
that —
SO ORDERED.
While the right to preliminary investigation is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a component part of Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.
due process in criminal justice. The right to have a preliminary investigation conducted
before being bound over to trial for a criminal offense and hence formally at risk of Feliciano, Padilla and Bidin, JJ., are on leave.
incarceration or some other penalty is not a mere formal or technical right; it is
a substantive right . . . . [T]he right to an opportunity to avoid a process painful to
anyone save, perhaps, to hardened criminals is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him of the full measure of his
right to due process.

Apparently, petitioner was merely invited during the preliminary investigation of

Arellano to corroborate the latter's explanation. Petitioner then was made to believe
that he was not a party respondent in the case, so that his written explanation on the Separate Opinions
incident was only intended to exculpate Arellano, not petitioner himself. Hence, it
cannot be seriously contended that petitioner was fully given the opportunity to meet
the accusation against him as he was not apprised that he was himself a respondent
when he appeared before the City Prosecutor. CRUZ, J., concurring:

Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration I concur, and reiterate my objections to checkpoints in general as originally expressed
with COMELEC cannot be considered as a waiver of his claim to a separate in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said:
preliminary investigation for himself. The motion itself expresses petitioner's vigorous
insistence on his right. Petitioner's protestation started as soon as he learned of his
 74
The sweeping statements in the majority opinion are as dangerous as the checkpoints
it would sustain and fraught with serious threats to individual liberty. The bland
declaration that individual rights must yield to the demands of national security ignores
the fact that the Bill of Rights was intended precisely to limit the authority of the State
even if asserted on the ground of national security. What is worse is that the searches
and seizures are peremptorily pronounced to be reasonable even without proof of
probable cause and much less the required warrant. The improbable excuse is that
they are aimed at "establishing an effective territorial defense, maintaining peace and
order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual
may be stopped and searched at random and at any time simply because he excites
the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on
pain of arrest or worse, even being shot to death, if he resists.
xxx xxx xxx
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own complaisance
and sitting at the death-bed of liberty.
I hope the colleagues I have behind on my retirement will reconsider the stand of the
Court on checkpoints and finally dismantle them altogether as an affront to individual
liberty.
VITUG, J., concurring:
The ultimate hypothesis of sound governance is not might but the willingness of the
governed to accept and subordinate themselves to authority.
When our people gave their consent to the fundamental law of the land, they did not
renounce but, to the contrary, reserved for themselves certain rights that they held
sacred and inviolable.
One such right is the privilege to be so secured "in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose." Their sole conceded proviso to this rule is when a search warrant or a
warrant of arrest is lawfully issued. There are, to be sure, known exceptions,
predicated on necessity and justified by good reasons, when warrantless searches
and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the
Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the
installation of checkpoints, the Court clearly has based its decision on the existence at
the time of what has been so described as an "abnormal" situation that then prevailed.
Evidently, the Court did not have the intention to have its ruling continue to apply to
less aberrant circumstances than previously obtaining.
The question has been asked: Between the security of the State and its due
preservation, on the one hand, and the constitutionally-guaranteed right of an
individual, on the other hand, which should be held to prevail? There is no choice to
my mind not for any other reason than because there is, in the first place, utterly no
need to make a choice. The two are not incompatible; neither are they necessarily
opposed to each other. Both can be preserved; indeed, the vitality of one is the
strength of the other.
There should be ways to curb the ills of society so severe as they might seem. A
disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is
not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when
he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark
era of the truncheon and the barbed wire, with the Court itself a captive of its own
complaisance and sitting at the death-bed of liberty."
It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198
SCRA 614), the Court has expressed:
This guaranty is one of the greatest of individual liberties and was already recognized
even during the days of the absolute monarchies, when the king could do no wrong.
On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the
humblest subject might shut the door of his cottage against him and defend from
intrusion that privacy which was as sacred as the kingly prerogatives.
The provision protects not only those who appear to be innocent but also those who
appear to be guilty but are nevertheless to be presumed innocent until the contrary is
proved. The mere fact that in the private respondent's view the crime involved is
"heinous" and the victim was "a man of consequence" did not authorize disregard of
the constitutional guaranty. Neither did "superior orders" condone the omission for
they could not in any case be superior to the Constitution.
 75
While it gives me great comfort to concur with my esteemed colleague, Mr. Justice
Josue N. Bellosillo, in hisponencia, I would express, nonetheless, the humble view that
even on the above constitutional aspect, the petition could rightly be granted.
REGALADO, J., concurring and dissenting:
I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling
that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent
commission should be set aside, not because of an unconstitutional warrantless
search but by reason of the fact that he was not actually charged as a respondent in
the preliminary investigation of the case.
With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as
a co-petitioner in the present recourse, the nullification of said Resolution No. 92-0829
necessarily applies to him and redounds to his benefit. To the extent, therefore, that
the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor
dismissing the charge against Arellano, I concur in that result.
However, even as a simple matter of consistency but more in point of law, I dissent
from the rationale submitted therefor, that is, that Arellano was the victim of an
unlawful search without a warrant. The pertinent facts stated by the majority readily
yield the conclusion that there was consent on the part of Arellano to the search of the
car then under his control, particularly of its baggage compartment where the firearms
were discovered. As held in People vs. Excela, et al.,1 consent to a search may be
given expressly or impliedly, and as early as People vs. Malasugui,2the settled rule is
that a search may be validly conducted without a warrant if the person searched
consented thereto.
I would prefer to sustain the exoneration of Ernesto Arellano on the justifying
circumstance that he was acting in obedience to what he innocently believed to be a
lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who
was himself acting upon and in compliance with Resolution No. 2323 of respondent
commission which was implemented by the Sergeant-at-Arms of the House of
Representatives.
The said justifying circumstance provided in paragraph 6, Article 11 of the Revised
Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A.
No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in
the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal
impossibility for such suppletory application whether by express provision or by
necessary implication. And even if the order of petitioner Aniag may be considered as
illegal, Arellano acted thereon in good faith3 and under a mistake of fact as to its
legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.
It being evident from the very records and the factual findings adopted in the majority
opinion that no error was committed by the Office of the City Prosecutor in dismissing
the charge against Ernesto Arellano for lack of sufficient grounds to engender a well
founded belief that a crime had been committed and that he was probably guilty
thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a
contrary conclusion and directing his prosecution in its Resolution No. 92-0829.
DAVIDE, JR., J., concurring and dissenting:
I regret that I can concur only in the result, viz., the granting of the petition.
Considering the specific issues raised by the petitioner which, as stated in
the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327,
dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 92-
0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and
factual bases, I am unable to agree with the specific disposition declaring (a) illegal the
warrantless search conducted by the Philippine National Police (PNP) on 13 January
1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such
warrantless search, and (c) unconstitutional COMELEC Resolution
No. 92-0829.
1. Having declined to rule on the constitutionality of Resolution
No. 2327 because "this petition may be resolved without passing upon this particular
issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the
constitutionality of the spot checkpoints authorized to be established thereunder. And
whether the warrantless search conducted by the PNP at the checkpoint was valid, it
being assumed that it would have been, provided there existed a probable cause
therefor, is a question of fact whose presentation in this case is either procedurally
premature, or one which this Court cannot, with definiteness, resolve considering the
obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a
 76
confidential report leading them to reasonably believe that certain motorists matching
the description furnished by their informant were engaged in gunrunning, transporting
firearms or in organizing special strike forces. Nor, as adverted to earlier, was there
any indication from the package or behavior of Arellano that could have triggered the
suspicion of the policemen." Nothing more could be expected at this stage since the
records of the proceedings conducted by the Office of the City Prosecutor and the
COMELEC are not before this Court. A declaration of invalidity of the warrantless
search and of the inadmissibility in evidence of the firearms seized would thus be
premature.
It may additionally be relevant to state that the search was not in connection with the
crime of illegal possession of firearms, which would have been factually and legally
baseless since the firearms involved were licensed and were duly issued to the
petitioner by the House of Representatives, but for the violation of the gun ban which
was validly decreed by the COMELEC pursuant to its constitutional power to enforce
and administer all laws and regulations relative to the conduct of elections, plebiscite,
initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its
statutory authority to have exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections for the purpose of ensuring free, orderly,
and honest elections (Section 52, Omnibus Election Code), and its statutory authority
to promulgate rules and regulations implementing the provisions of the Omnibus
Election Code or other laws which the COMELEC is required to enforce and
administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q),
Section 261 of the Omnibus Election Code which prohibits the carrying of firearms
outside the residence or place of business during the election period unless authorized
in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any
person from bearing, carrying, or transporting firearms or other deadly weapons in
public places, including any building, street, park, private vehicle, or public
conveyance, even if such person is licensed to possess or carry the same during the
election period, unless authorized in writing by the COMELEC.
In this case, the petitioner himself admits that on 10 January 1992 he was requested
by the Sergeant-at-Arms of the House of Representatives to return the two firearms
issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano,
to pick up the firearms from his (petitioner's) house at Valle Verde and to return them
to the House of Representatives. That day was already within the election period,
which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The
Matter of Fixing The Schedule of Activities in Connection With the Elections of
National and Local Officials on May 11, 1992), promulgated on 20 November 1991.
Considering then that the offense for which he was to be charged was for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32
of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the
offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the
admissibility in evidence of the firearms.
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on
the ground of unconstitutionality. It simply directed the filing of an information against
the petitioner and Arellano for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32
of R.A. No. 7166, and directed the petitioner to show cause why he should not be
disqualified from running for an elective position, pursuant to COMELEC Resolution
No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c),
Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a
petitioner in this case. Moreover, as to him, the resolution was nothing more than a
disapproval of the recommendation of the Office of the City Prosecutor to dismiss the
complaint against him. As against the petitioner, there was no denial of due process
because the petitioner was later heard on his motion for reconsideration. Moreover,
the right of an accused to a preliminary investigation is not a creation of the
Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda
ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92
[1992]).
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information
against the petitioner despite the fact that he was never formally charged before the
Office of the City Prosecutor. There was only an "'unofficial' charge imputed against"
him. The COMELEC then acted with grave abuse of discretion amounting to want or
excess of jurisdiction.
I vote then to grant the petition, but solely on the ground that the COMELEC acted
with grave abuse of discretion in directing the filing of an information against the
petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code,
in relation to Section 32 of R.A. No. 7166.
Melo, J., concurs.
 77
# Separate Opinions
CRUZ, J., concurring:
I concur, and reiterate my objections to checkpoints in general as originally expressed
in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I said:
The sweeping statements in the majority opinion are as dangerous as the checkpoints
it would sustain and fraught with serious threats to individual liberty. The bland
declaration that individual rights must yield to the demands of national security ignores
the fact that the Bill of Rights was intended precisely to limit the authority of the State
even if asserted on the ground of national security. What is worse is that the searches
and seizures are peremptorily pronounced to be reasonable even without proof of
probable cause and much less the required warrant. The improbable excuse is that
they are aimed at "establishing an effective territorial defense, maintaining peace and
order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region." For these purposes, every individual
may be stopped and searched at random and at any time simply because he excites
the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on
pain of arrest or worse, even being shot to death, if he resists.
xxx xxx xxx
Unless we are vigilant of our rights, we may find ourselves back to the dark era of the
truncheon and the barbed wire, with the Court itself a captive of its own complaisance
and sitting at the death-bed of liberty.
I hope the colleagues I have behind on my retirement will reconsider the stand of the
Court on checkpoints and finally dismantle them altogether as an affront to individual
liberty.
VITUG, J., concurring:
The ultimate hypothesis of sound governance is not might but the willingness of the
governed to accept and subordinate themselves to authority.
When our people gave their consent to the fundamental law of the land, they did not
renounce but, to the contrary, reserved for themselves certain rights that they held
sacred and inviolable.
One such right is the privilege to be so secured "in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose." Their sole conceded proviso to this rule is when a search warrant or a
warrant of arrest is lawfully issued. There are, to be sure, known exceptions,
predicated on necessity and justified by good reasons, when warrantless searches
and seizures are allowed. It is in this context that I appreciate the ratio decidendi of the
Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the
installation of checkpoints, the Court clearly has based its decision on the existence at
the time of what has been so described as an "abnormal" situation that then prevailed.
Evidently, the Court did not have the intention to have its ruling continue to apply to
less aberrant circumstances than previously obtaining.
The question has been asked: Between the security of the State and its due
preservation, on the one hand, and the constitutionally-guaranteed right of an
individual, on the other hand, which should be held to prevail? There is no choice to
my mind not for any other reason than because there is, in the first place, utterly no
need to make a choice. The two are not incompatible; neither are they necessarily
opposed to each other. Both can be preserved; indeed, the vitality of one is the
strength of the other.
There should be ways to curb the ills of society so severe as they might seem. A
disregard of constitutional mandates or an abuse on the citizenry, I am most certain, is
not the answer. It might pay to listen to the words of Mr. Justice Isagani A. Cruz when
he said, "(u)nless we are vigilant of our rights, we may find ourselves back to the dark
era of the truncheon and the barbed wire, with the Court itself a captive of its own
complaisance and sitting at the death-bed of liberty."
It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198
SCRA 614), the Court has expressed:
This guaranty is one of the greatest of individual liberties and was already recognized
even during the days of the absolute monarchies, when the king could do no wrong.
On this right, Cooley wrote: "Awe surrounded and majesty clothed the King, but the
 78
humblest subject might shut the door of his cottage against him and defend from
intrusion that privacy which was as sacred as the kingly prerogatives.
The provision protects not only those who appear to be innocent but also those who
appear to be guilty but are nevertheless to be presumed innocent until the contrary is
proved. The mere fact that in the private respondent's view the crime involved is
"heinous" and the victim was "a man of consequence" did not authorize disregard of
the constitutional guaranty. Neither did "superior orders" condone the omission for
they could not in any case be superior to the Constitution.
While it gives me great comfort to concur with my esteemed colleague, Mr. Justice
Josue N. Bellosillo, in hisponencia, I would express, nonetheless, the humble view that
even on the above constitutional aspect, the petition could rightly be granted.
REGALADO, J., concurring and dissenting:
I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority ruling
that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent
commission should be set aside, not because of an unconstitutional warrantless
search but by reason of the fact that he was not actually charged as a respondent in
the preliminary investigation of the case.
With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded as
a co-petitioner in the present recourse, the nullification of said Resolution No. 92-0829
necessarily applies to him and redounds to his benefit. To the extent, therefore, that
the majority opinion thereby reinstate the resolution of the Office of the City Prosecutor
dismissing the charge against Arellano, I concur in that result.
However, even as a simple matter of consistency but more in point of law, I dissent
from the rationale submitted therefor, that is, that Arellano was the victim of an
unlawful search without a warrant. The pertinent facts stated by the majority readily
yield the conclusion that there was consent on the part of Arellano to the search of the
car then under his control, particularly of its baggage compartment where the firearms
were discovered. As held in People vs. Excela, et al.,1 consent to a search may be
given expressly or impliedly, and as early as People vs. Malasugui,2the settled rule is
that a search may be validly conducted without a warrant if the person searched
consented thereto.
I would prefer to sustain the exoneration of Ernesto Arellano on the justifying
circumstance that he was acting in obedience to what he innocently believed to be a
lawful order of a superior, that is, the instructions of his employer, petitioner Aniag, who
was himself acting upon and in compliance with Resolution No. 2323 of respondent
commission which was implemented by the Sergeant-at-Arms of the House of
Representatives.
The said justifying circumstance provided in paragraph 6, Article 11 of the Revised
Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A.
No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in
the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any legal
impossibility for such suppletory application whether by express provision or by
necessary implication. And even if the order of petitioner Aniag may be considered as
illegal, Arellano acted thereon in good faith3 and under a mistake of fact as to its
legality, hence his exculpation is ineludibly dictated. Ignorantia facti excusat.
It being evident from the very records and the factual findings adopted in the majority
opinion that no error was committed by the Office of the City Prosecutor in dismissing
the charge against Ernesto Arellano for lack of sufficient grounds to engender a well
founded belief that a crime had been committed and that he was probably guilty
thereof, 4 respondent commission acted with grave abuse of discretion in arriving at a
contrary conclusion and directing his prosecution in its Resolution No. 92-0829.
DAVIDE, JR., J., concurring and dissenting:
I regret that I can concur only in the result, viz., the granting of the petition.
Considering the specific issues raised by the petitioner which, as stated in
the exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327,
dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No. 92-
0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and
factual bases, I am unable to agree with the specific disposition declaring (a) illegal the
warrantless search conducted by the Philippine National Police (PNP) on 13 January
1992, (b) inadmissible
in evidence in any proceeding against the petitioner the firearms seized during such
warrantless search, and (c) unconstitutional COMELEC Resolution
No. 92-0829.
 79
1. Having declined to rule on the constitutionality of Resolution
No. 2327 because "this petition may be resolved without passing upon this particular
issue" (first paragraph, page 10, Ponencia), this Court may no longer inquire into the
constitutionality of the spot checkpoints authorized to be established thereunder. And
whether the warrantless search conducted by the PNP at the checkpoint was valid, it
being assumed that it would have been, provided there existed a probable cause
therefor, is a question of fact whose presentation in this case is either procedurally
premature, or one which this Court cannot, with definiteness, resolve considering the
obvious paucity of the facts before it. The most the majority opinion can state is that
"[t]here was no evidence to show that the police were impelled to do so because of a
confidential report leading them to reasonably believe that certain motorists matching
the description furnished by their informant were engaged in gunrunning, transporting
firearms or in organizing special strike forces. Nor, as adverted to earlier, was there
any indication from the package or behavior of Arellano that could have triggered the
suspicion of the policemen." Nothing more could be expected at this stage since the
records of the proceedings conducted by the Office of the City Prosecutor and the
COMELEC are not before this Court. A declaration of invalidity of the warrantless
search and of the inadmissibility in evidence of the firearms seized would thus be
premature.
It may additionally be relevant to state that the search was not in connection with the
crime of illegal possession of firearms, which would have been factually and legally
baseless since the firearms involved were licensed and were duly issued to the
petitioner by the House of Representatives, but for the violation of the gun ban which
was validly decreed by the COMELEC pursuant to its constitutional power to enforce
and administer all laws and regulations relative to the conduct of elections, plebiscite,
initiative, referendum; and recall (Section 2(1), Article IX-C, 1987 Constitution), its
statutory authority to have exclusive charge of the enforcement and administration of
all laws relative to the conduct of elections for the purpose of ensuring free, orderly,
and honest elections (Section 52, Omnibus Election Code), and its statutory authority
to promulgate rules and regulations implementing the provisions of the Omnibus
Election Code or other laws which the COMELEC is required to enforce and
administer (Section 52(c), Id.; Section 35, R.A. No. 7166), in relation to paragraph (q),
Section 261 of the Omnibus Election Code which prohibits the carrying of firearms
outside the residence or place of business during the election period unless authorized
in writing by the COMELEC, and Section 32 of R.A. No. 7166 which prohibits any
person from bearing, carrying, or transporting firearms or other deadly weapons in
public places, including any building, street, park, private vehicle, or public
conveyance, even if such person is licensed to possess or carry the same during the
election period, unless authorized in writing by the COMELEC.
In this case, the petitioner himself admits that on 10 January 1992 he was requested
by the Sergeant-at-Arms of the House of Representatives to return the two firearms
issued to him, and that on 13 January 1992, he instructed his driver, Ernesto Arellano,
to pick up the firearms from his (petitioner's) house at Valle Verde and to return them
to the House of Representatives. That day was already within the election period,
which commenced the day earlier pursuant to COMELEC Resolution No. 2314 (In The
Matter of Fixing The Schedule of Activities in Connection With the Elections of
National and Local Officials on May 11, 1992), promulgated on 20 November 1991.
Considering then that the offense for which he was to be charged was for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32
of R.A. No. 7166, which, in view of his aforesaid admissions, renders unnecessary the
offer in evidence of the seized firearms, I fail to grasp the rationale of a ruling on the
admissibility in evidence of the firearms.
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on
the ground of unconstitutionality. It simply directed the filing of an information against
the petitioner and Arellano for the violation
of paragraph (q), Section 261 of the Omnibus Election Code, in relation to Section 32
of R.A. No. 7166, and directed the petitioner to show cause why he should not be
disqualified from running for an elective position, pursuant to COMELEC Resolution
No. 2327, in relation to Sections 32, 33, and 35 of R.A. No. 7166 and paragraph (c),
Section 52 of the Omnibus Election Code. Insofar as Arellano is concerned, he is not a
petitioner in this case. Moreover, as to him, the resolution was nothing more than a
disapproval of the recommendation of the Office of the City Prosecutor to dismiss the
complaint against him. As against the petitioner, there was no denial of due process
because the petitioner was later heard on his motion for reconsideration. Moreover,
the right of an accused to a preliminary investigation is not a creation of the
Constitution; its origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda
ng Bagong Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92
[1992]).
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information
against the petitioner despite the fact that he was never formally charged before the
Office of the City Prosecutor. There was only an "'unofficial' charge imputed against"
 80
him. The COMELEC then acted with grave abuse of discretion amounting to want or
excess of jurisdiction.

I vote then to grant the petition, but solely on the ground that the COMELEC acted
with grave abuse of discretion in directing the filing of an information against the
petitioner for the violation of paragraph (q), Section 261 of the Omnibus Election Code,
in relation to Section 32 of R.A. No. 7166.

Melo, J., concurs.

#Footnotes