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 December 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".

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 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.

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.

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 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.
We make this resume.

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.

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.
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 truth or expose the lie, are not described in the impersonal
record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities.

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 nor did he submit to
a medical examination. That is hardly fair or realistic. It is possible 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 up to the present. No bail has been allowed for his
release.

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 allegedly found in his
possession inadmissible in evidence against him under the Bill 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 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.

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 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 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 the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to

the coming of Idel Aminnudin on June 25, 1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable
sources.

Q Were you informed of the coming of the Wilcon 9 and the

possible trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this
information from that particular informer, prior to June 25, 1984 we
have already reports of the particular operation which was being
participated by Idel Aminnudin.

Q You said you received an intelligence report two days before

June 25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.
Q Did you receive any other report aside from this intelligence
report?

A Well, I have received also other reports but not pertaining to the
coming of Wilcon 9. For instance, report of illegal gambling
operation.

COURT:

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

A Previous to June 25, 1984 we received reports on the activities

of Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

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.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

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 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.

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.
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 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:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and knowingly have in his possession and
under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T

without first having secured the necessary license or permit therefor from the
proper authorities.

Besides the police officers, one other witness presented by the prosecution was 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 Mengote as one of the robbers.
He had duly reported the robbery to the police, indicating the articles stolen from him, including the
revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time
of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and
admitted over the objection of the defense. As previously stated, the weapon was the principal
evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion
perpetua. 4

It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence
because of its illegal seizure. no warrant therefor having been previously 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:

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.

There is no question that evidence obtained as a result of an illegal search or seizure is

inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III,
Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification
given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing
officials, knows that it cannot profit by 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 and search of Mengote and the seizure of the revolver from him were lawful under
Rule 113, Section 5, of the Rules of Court reading as follows:

Sec. 5. Arrest without warrant when lawful. — A peace officer or 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 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
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 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

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARI MUSA y HANTATALU, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo L. Murillo for accused-appellant.

ROMERO, J.:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31,
1990,1 of the Regional Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling
marijuana in violation of Article II, Section 4 of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused, not being authorized by law, did then and there, wilfully,
unlawfully and feloniously sell to one SGT. AMADO ANI, two (2) wrappers
containing dried marijuana leaves, knowing the same to be a prohibited drug.

CONTRARY TO LAW.2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the
9th Narcotics Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-
bust operation made against the appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics
Command of Zamboanga City, who was the NARCOM team leader of the buy-bust operation; and
(3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP Crime
Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized
by the trial court as follows:

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

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt.
Amado Ani was assigned as the poseur buyer for which purpose he was given
P20.00 (with SN GA955883) by Belarga. The
buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali
Mihasun, Chief of Investigation Section, and for which Belarga signed a receipt
(Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up
security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his
right hand, after he had succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's team was composed
of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt.
Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the
rest of the NARCOM group positioned themselves at strategic places about 90 to
100 meters from Mari Musa's house. T/Sgt. Belarga could see what went on
between Ani and suspect Mari Musa from where he was. Ani approached Mari
Musa, who came out of his house, and asked Ani what he wanted. Ani said he
wanted some more stuff. Ani gave Mari Musa the P20.00 marked money. After
receiving the money, Mari Musa went back to his house and came back and gave
Amado Ani two newspaper wrappers containing dried marijuana. Ani opened the
two wrappers and inspected the contents. Convinced that the contents were
marijuana, Ani walked back towards his companions and raised his right hand. The
two NARCOM teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani
joined Belarga's team and returned to the house.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his
house: Mari Musa, another boy, and two women, one of whom Ani and Belarga
later came to know to be Mari Musa's wife. The second time, Ani with the NARCOM
team returned to Mari Musa's house, the woman, who was later known as Mari
Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but
could not find the P20.00 marked money with him. Mari Musa was then asked
where the P20.00 was and he told the NARCOM team he has given the money to
his wife (who had slipped away). Sgt. Belarga also found a plastic bag containing
dried marijuana inside it somewhere in the kitchen. Mari Musa was then placed
under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over
to Sgt. Belarga the two newspaper-wrapped marijuana he had earlier bought from
Mari Musa (Exhs. "C" & "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on,
Mari Musa gave his true name — Mari Musa. T/Sgt. Jesus Belarga turned over the
two newspaper-wrapped marijuana (bought at the buy-bust), the one newspaper-
wrapped marijuana (bought at the test-buy) and the plastic bag containing more
marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to
the PC Crime Laboratory, Zamboanga City, for laboratory examination. The
turnover of the marijuana specimen to the PC Crime Laboratory was by way of a
letter-request, dated December 14, 1989 (Exh. "B"), which was stamped
"RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her three tests. All
submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her Chemistry
Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and
"J-5"). Mrs. Anderson identified in court the two newspaper wrapped marijuana
bought at the
buy-bust on December 14, 1989, through her initial and the weight of each
specimen written with red ink on each wrapper (Exhs. "C-1" and "D-1"). She also
identified the one newspaper-wrapped marijuana bought at the test-buy on
 December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also
identified her Chemistry Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through
his initial, the words "buy-bust" and the words "December 14, 1989, 2:45 P.M."
(written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20 marked
money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his
signature thereon (Exh.
"L-1"). He also identified the letter-request, dated December 14, 1989, addressed
to the PC Crime Laboratory (Exh. "B") and his signature thereon (Exh. "B-2") and
the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and
(2) Ahara R. Musa, his wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his
house at Suterville, Zamboanga City. With him were his wife, Ahara Musa, known
as Ara, his one-year old child, a woman manicurist, and a male cousin named
Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand,
his wife was inside the one room of their house, putting their child to sleep. Three
NARCOM agents, who introduced themselves as NARCOM agents, dressed in
civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM
agents did not ask permission to enter the house but simply announced that they
were NARCOM agents. The NARCOM agents searched Mari Musa's house and
Mari Musa asked them if they had a search warrant. The NARCOM agents were
just silent. The NARCOM agents found a red plastic bag whose contents, Mari
Musa said, he did not know. He also did not know if the plastic bag belonged to his
brother, Faisal, who was living with him, or his father, who was living in another
house about ten arms-length away. Mari Musa, then, was handcuffed and when
Mari Musa asked why, the NARCOM agents told him for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at
Calarian, Zamboanga City. Inside the NARCOM Office, Mari Musa was
investigated by one NARCOM agent which investigation was reduced into writing.
The writing or document was interpreted to Mari Musa in Tagalog. The document
stated that the marijuana belonged to Mari Musa and Mari Musa was asked to sign
it. But Mari Musa refused to sign because the marijuana did not belong to him. Mari
Musa said he was not told that he was entitled to the assistance of counsel,
although he himself told the NARCOM agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand
and his fingers were pressed which felt very painful. The NARCOM agents boxed
him and Mari Musa lost consciousness. While Mari Musa was maltreated, he said
his wife was outside the NARCOM building. The very day he was arrested (on
cross-examination Mari Musa said it was on the next day), Mari Musa was brought
to the Fiscal's Office by three NARCOM agents. The fiscal asked him if the
marijuana was owned by him and he said "not." After that single question, Mari
Musa was brought to the City Jail. Mari Musa said he did not tell the fiscal that he
had been maltreated by the NARCOM agents because he was afraid he might be
maltreated in the fiscal's office.

Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of
marijuana to them; that he had received from them a P20.00 bill which he had given
to his wife. He did not sell marijuana because he was afraid that was against the
law and that the person selling marijuana was caught by the authorities; and he
 had a wife and a very small child to support. Mari Musa said he had not been
arrested for selling marijuana before.5

After trial, the trial court rendered the assailed decision with the following disposition:

WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable

doubt of selling marijuana and pursuant to Sec. 4, Art II of Rep. Act No. 6425, he
is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment.6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and
impugns the credibility of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1)
prior to the buy-bust operation, neither Sgt. Ani nor the other NARCOM agents were personally
known by the appellant or vice-versa; and (2) there was no witness to the alleged giving of the two
wrappers of marijuana by the appellant to Sgt. Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he
conducted a test-buy operation on the appellant whereby he bought one wrapper of marijuana for
P15.00 from the latter.7 He reported the successful operation to T/Sgt. Belarga on the same
day.8 Whereupon, T/Sgt. Belarga conducted a conference to organize a buy-bust operation for the
following day.9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt.
Belarga and a certain Sgt. Foncardas went to the place of operation, which was the appellant's
house located in Laquian Compound, Suterville, Zamboanga City. Sgt. Ani was with the team of
T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt. Ani was given a marked
P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places.11 Sgt.
Ani approached the house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt.
Ani asked him for some more marijuana.12 Sgt. Ani gave him the marked P20.00 bill and the
appellant went inside the house and brought back two paper wrappers containing marijuana which
he handed to Sgt. Ani.13 From his position, Sgt. Ani could see that there were other people in the
house.14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged
signal of raising his right hand.15 The NARCOM agents, accompanied by Sgt. Ani, went inside the
house and made the arrest. The agents searched the appellant and unable to find the marked
money, they asked him where it was. The appellant said that he gave it to his wife.16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-
bust operation, which resulted in the apprehension, prosecution and subsequent conviction of the
appellant, to be direct, lucid and forthright. Being totally untainted by contradictions in any of the
material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not
know each other is without merit. The day before the
buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of
marijuana from the appellant. Through this previous transaction, Sgt. Ani was able to gain the
appellant's confidence for the latter to sell more marijuana to Sgt. Ani the following day, during the
buy-bust operation. Moreover, the Court has held that what matters is not an existing familiarity
between the buyer and the seller, for quite often, the parties to the transaction may be strangers,
but their agreement and the acts constituting the sale and delivery of the marijuana.17
The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for
the appellant to sell marijuana while his wife, cousin and manicurist were present. But the place of
the commission of the crime of selling prohibited drugs has been held to be not 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-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

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 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.
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 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

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 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

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 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 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 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. In 1âwphi1

the case at bar, the search was made at a checkpoint established for the preposterous reason that
the route was being used by marijuana dealers and on an individual who had something bulging
at his waist that excited the soldier's suspicion. Was that probable cause? The ponencia notes that
the military had advance information that 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. It is also desirable that the government should not itself foster
1avvphi1

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

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome
the accusation and take pride in it. I would rather err in favor of the accused who is impaled with
outlawed evidence than exalt order at the price of liberty.
G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

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

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional
Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in
relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

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.

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 authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable searches and
seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by
the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

 1. This constitutional right (against unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien, from interference by government,
included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under
the circumstances above noted, for in the traditional formulation, his house, however
humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is
called upon to refrain from any invasion of his dwelling and to respect the privacies of his
life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116
US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as
shown in previous cases, its protection applies to governmental action. Its origin and
history clearly show that it was intended as a restraint upon the activities of sovereign
authority, and was not intended to be a limitation upon other than governmental agencies;
as against such authority it was the purpose of the Fourth Amendment to secure the citizen
in the right of unmolested occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government and its agents, not upon private individuals
(citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391
S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the
owner of a motel in which appellant stayed overnight and in which he left behind a travel
case containing the evidence***complained of. The search was made on the motel owner's
own initiative. Because of it, he became suspicious, called the local police, informed them
of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action."

The contraband in the case at bar having come into possession of the Government without the
latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no
cogent reason why the same should not be admitted against him in the prosecution of the offense
charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the
Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original
Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of
the same to the NBI and later summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted the care and custody thereof
to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one,
contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by
Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and
look at that which is in plain sight is not a search. Having observed that which is open, where no
trespass 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 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 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 margin1 — 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 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
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 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 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.

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."

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 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 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 "President and/or
General Manager" of the corporations involved as specifically mentioned in the void search
warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition 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 not criminal in origin or nature.
G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,

ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P.
DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG.
GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 October 3, 1991

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

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

ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 October 3, 1991

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.

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, 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 several persons who the day before his arrest,
without warrant, at the St. Agnes 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

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 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 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 Civil Code 26 and/or for other
administrative sanctions.
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).

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 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).

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 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:

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 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 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:

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

11. Turning to the second type of problem, the question is normally presented in terms 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 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 other hand, where the acts of the accused constituted
discrete, multiple offenses, each 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 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.

12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate
function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving
the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some
of the elements of the offense charged are shown to have been committed by the person arrested
without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that
a crime, begun or committed elsewhere, continued to be committed by the person arrested in 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 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 or becoming a member of, a subversive association or
organization. For in such 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 involved.
Note, for instance, the following acts which constitute prima facie evidence of "membership in any
subversive association:" 13

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;

b) Subjecting himself to the discipline of such association or organization in any form

whatsoever;

c) Giving financial contribution to such association or organization in dues, assessments,

loans or in any other forms;

xxx xxx xxx

f) Conferring with officers or other members of such association or organization in

furtherance of any plan or enterprise thereof;

xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication to

promote the objectives and purposes of such association or organization;

xxx xxx xxx

k) Participating in any was in the activities, planning action, objectives, or purposes of such
association or organization;

xxx xxx xxx

It may well be, as the majority implies, that the constitutional rule against warrantless arrests and
seizures makes the law enforcement work of police 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 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 the law by modalities which themselves
comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer
ineptness or excess of zeal, the very freedoms which make our polity worth protecting and saving.

REGALADO, J.: Separate Opinion:

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 reservations on the rationale adopted in G.R. No.
86332.

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 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."

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 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 particular revision of paragraph (b) of the aforesaid
section consisted in imposing the requirements that the person making the arrest has personal
knowledge of the facts indicating that the arrestee is responsible for an offense which has just
been committed.

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 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, 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."

Since, clearly, the arresting police agents merely acted upon the information imparted by one of
the suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that
the person making the arrest must have had personal knowledge of factual indications regarding
the 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 merely professed such knowledge or, worse, concocted such reports for variant reasons not
necessarily founded on truth.

Further, and obviously as an added deterrent to the possibility that such arrest without a warrant
may result from imputations based on dubious 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
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 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 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.

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 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 true that the corresponding information was
filed against Nazareno shortly after his arrest but that, precisely, is another cause for controversy.
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 unwarranted incursions into civil liberties.

SARMIENTO, J.: dissenting:

I reiterate my dissent. I submit that in spite of its "clarificatory" resolution, 1 the majority has not
shown why the arrests in question should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant
and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule
113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense
(subversion being supposedly a 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 than "actual belief or reasonable grounds . . . of suspicion," and suspicion is
supposedly 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 guilty of the person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest. 2

As I said, I dissent.

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 acts" as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary
to charge Communists in court, as the law alone, without more would suffice to secure their
punishment. But the undeniable fact is that their guilt still has to be judicially established.
The Government has yet to prove at the trial that the accused 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

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 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 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.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent
jurisprudence (e.g., People vs. Burgos, supra), they are relics of 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 as to its
legality, via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to
patronize the petitioners and simply, to offer a small 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.

A Final Word
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 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 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 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
exception. With all due respect, this is not what constitutionalism is all about.

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 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.

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.

"More than the allure of popularity of palatability to some groups," concludes the majority, "what is
important is that the Court be right." 33

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 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
whether or not this Court, in approving the military's actions, is right.

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:

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

Four thousand four hundred eight (4,408) political detentions from January, 1989 to September,
1990, 4,419, illegally;

Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated
salvage, and 109 remained missing after their arrest;

Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were
wounded;

The victims belonged to neighborhood and union organizations;

Since February, 1986, 532 of those illegally arrested were women;

From January to June 1990, 361 children were detained for no apparent reason;
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of
bombing, shellings, and food blockades undertaken by the military since 1988. 34

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.

Motions denied.
G.R. No. 72564 April 15, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANITA CLAUDIO Y BAGTANG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Romeo C. Alinea for accused-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Olongapo City, 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.

The information filed against the accused alleged:

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"—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. Galindo;"H-1"—date of of the request; "L"—Certificate of Field Test
dated July 22, 1981; "B-2" and "B-2a" additional Wrapping paper; and the
testimonies of witnesses of the prosecution, Theresa Ann Bugayong; Pat. Daniel
Obiño, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.

Theresa Ann Bugayong—22 years old, single, Forensic Chemist and a resident of
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").

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 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.

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

Meanwhile, its Rule 126, Sec. 12 provides:

Section 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. (12a)

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 v. Bautista, 147 SCRA 500).

The accused testified that she was not on that bus that came from Baguio City but rather she was
in Olongapo City all that time. She alleged that she was arrested by Pat. Obiña for no reason at
all.

In the case at bar, alibi does not deserve much credit as it was established only by the 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).

WHEREFORE, the judgment appealed from is AFFIRMED.

SO ORDERED.
G.R. No. 104961 October 7, 1994

CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE, respondents.

Ronolfo S. Pasamba for petitioner.

BELLOSILLO, JR., J.:

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) firearms3 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) 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.

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 was he subjected by the City
Prosecutor to a preliminary investigation for such offense. The non-disclosure by the City
Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative of
due process which requires that the procedure established by law should be obeyed. 30
COMELEC argues that petitioner was given the change to be heard because he was 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 regarding the incident. This does not
satisfy the requirement of due process the essence of which is the reasonable opportunity to be
heard and to submit any evidence one may have in support of his defense.31 Due process
guarantees the observance of both substantive and procedural rights, whatever the source of such
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
that —

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 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 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 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.

Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with
COMELEC cannot be considered as a waiver of his claim to a separate 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 inclusion in the charge, and did not ease up even
after COMELEC's denial of his motion for reconsideration. This is understandably so since the
prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1)
year nor 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 clearly did not
waive his right to a preliminary investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the
Philippine National Police on 13 January 1992 is declared illegal and the firearms seized during
the warrantless search cannot be used as evidence in any proceeding against petitioner.
Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the
Constitution is SET ASIDE.

The temporary restraining order we issued on 5 May 1992 is made permanent.

SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Feliciano, Padilla and Bidin, JJ., are on leave.

 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 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.

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" 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.