Crimpro - Warrantless Arrest

CRIMINAL PROCEDURE
WARRANTLESS ARREST CASES

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
NAZARENO VILLAREAL y LUALHATI, Accused-Appellant.
G.R. No. 201363; March 18, 2013
D E C I S I O N
PERLAS-BERNABE, J.:
This is an appeal from the May 25, 2011 Decision
1
of the Court of Appeals (CA) in CA-G.R. CR No. 31320
which affirmed in toto the December 11, 2007 Decision
2

of the Regional Trial Court of Caloocan City, Branch 123 (RTC), convicting appellant Nazareno Villareal y
Lualhati (appellant) of violation of Section 11, Article II of Republic Act No. 9165
3
(RA 9165) and
sentencing him to suffer the penalty of imprisonment for twelve (12) years and one (1) day to fourteen
(14) years and eight (8) months and to pay a fine of P300,000.00.
The Factual Antecedents
On December 25, 2006 at around 11:30 in the morning, as PO3 Renato de Leon (PO3 de Leon) was
driving his motorcycle on his way home along 5th Avenue, he saw appellant from a distance of about 8
to 10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a
member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan City, alighted
from his motorcycle and approached the appellant whom he recognized as someone he had previously
arrested for illegal drug possession.
4

Upon seeing PO3 de Leon, appellant tried to escape but was quickly apprehended with the help of a
tricycle driver. Despite appellants attempts to resist arrest, PO3 de Leon was able to board appellant
onto his motorcycle and confiscate the plastic sachet of shabu in his possession. Thereafter, PO3 de
Leon brought appellant to the 9th Avenue Police Station to fix his handcuffs, and then they proceeded
to the SAID-SOU office where PO3 de Leon marked the seized plastic sachet with "RZL/NV 12-25-06,"
representing his and appellants initials and the date of the arrest.
5

Subsequently, PO3 de Leon turned over the marked evidence as well as the person of appellant to the
investigator, PO2 Randulfo Hipolito (PO2 Hipolito) who, in turn, executed an acknowledgment
receipt
6
and prepared a letter request
7
for the laboratory examination of the seized substance. PO2
Hipolito personally delivered the request and the confiscated item to the Philippine National Police
(PNP) Crime Laboratory, which were received by Police Senior Inspector Albert Arturo (PSI Arturo), the
forensic chemist.
8

Upon qualitative examination, the plastic sachet, which contained 0.03 gram of white crystalline
substance, tested positive for methylamphetamine hydrochloride, a dangerous drug.
9

Consequently, appellant was charged with violation of Section 11, Article II of RA 9165 for illegal
possession of dangerous drugs in an Information
10
which reads:
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That on or about the 25th day of December, 2006 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did
then and there willfully, unlawfully and feloniously have in his possession, custody and control,
METHYLAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.03 gram which, when subjected to
chemistry examination gave positive result of METHYLAMPHETAMIME HYDROCHLORIDE, a dangerous
drug.
CONTRARY TO LAW.
When arraigned, appellant, assisted by counsel de oficio, entered a plea of not guilty to the offense
charged.
11

In his defense, appellant denied PO3 de Leons allegations and instead claimed that on the date and
time of the incident, he was walking alone along Avenida, Rizal headed towards 5th
Avenue when someone who was riding a motorcycle called him from behind. Appellant approached the
person, who turned out to be PO3 de Leon, who then told him not to run, frisked him, and took his
wallet which containedP1,000.00.
12

Appellant was brought to the 9th Avenue police station where he was detained and mauled by eight
other detainees under the orders of PO3 de Leon. Subsequently, he was brought to the Sangandaan
Headquarters where two other police officers, whose names he recalled were "Michelle" and "Hipolito,"
took him to the headquarters firing range. There, "Michelle" and "Hipolito" forced him to answer
questions about a stolen cellphone, firing a gun right beside his ear each time he failed to answer and
eventually mauling him when he continued to deny knowledge about the cellphone.
13
Thus, appellant
sustained head injuries for which he was brought to the Diosdado Macapagal Hospital for proper
treatment.
14

The following day, he underwent inquest proceedings before one Fiscal Guiyab, who informed him that
he was being charged with resisting arrest and "Section 11."
15
The first charge was eventually dismissed.
The RTC Ruling
After trial on the merits, the RTC convicted appellant as charged upon a finding that all the elements of
the crime of illegal possession of dangerous drugs have been established, to wit: (1) the appellant is in
possession of an item or object which is identified to be a prohibited drug; (2) that such possession is
not authorized by law; and (3) that the accused freely and consciously possesses said drug. Finding no ill
motive on the part of PO3 de Leon to testify falsely against appellant, coupled with the fact that the
former had previously arrested the latter for illegal possession of drugs under Republic Act No.
6425
16
(RA 6425), the RTC gave full faith and credit to PO3 de Leons testimony. Moreover, the RTC
found the plain view doctrine to be applicable, as the confiscated item was in plain view of PO3 de Leon
at the place and time of the arrest.
On the other hand, the RTC gave scant consideration to the defenses of denial and frame-up proffered
by the appellant, being uncorroborated, and in the light of the positive assertions of PO3 de Leon. It
refused to give credence to appellants claim that PO3 de Leon robbed him of his money, since he failed
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to bring the incident to the attention of PO3 de Leons superiors or to institute any action against the
latter.
Consequently, the RTC sentenced appellant to suffer the penalty of imprisonment of twelve (12) years
and one (1) day to fourteen (14) years and eight (8) months and to pay a fine of P300,000.00.
The CA Ruling
In its assailed Decision, the CA sustained appellants conviction, finding "a clear case of in flagrante
delicto warrantless arrest"
17
as provided under Section 5, Rule 113 of the Revised Rules of Criminal
Procedure. The CA held that appellant "exhibited an overt act or strange conduct that would reasonably
arouse suspicion,"
18
aggravated by the existence of his past criminal citations and his attempt to flee
when PO3 de Leon approached him.
Citing jurisprudence, the appellate court likewise ruled that the prosecution had adequately shown the
continuous and unbroken chain of custody of the seized item, from the time it was confiscated from
appellant by PO3 de Leon, marked at the police station, turned over to PO2 Hipolito and delivered to the
crime laboratory, where it was received by PSI Arturo, the forensic chemist, up to the time it was
presented in court for proper identification.
The Issue
The sole issue advanced before the Court for resolution is whether the CA erred in affirming in toto the
RTCs Decision convicting appellant of the offense charged.
The Ruling of the Court
The appeal is meritorious.
Section 5, Rule 113 of the Revised Rules of Criminal Procedure lays down the basic rules on lawful
warrantless arrests, either by a peace officer or a private person, as 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 just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances 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 is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to another.
x x x
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For the warrantless arrest under paragraph (a) of Section 5 to operate, two elements must concur: (1)
the person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer.
19
On the other hand, paragraph (b) of Section 5 requires for its
application that at the time of the arrest, an offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the appellant had committed it.
20

In both instances, the officers personal knowledge of the fact of the commission of an offense is
absolutely required. Under paragraph (a), the officer himself witnesses the crime while under paragraph
(b), he knows for a fact that a crime has just been committed.
In sustaining appellants conviction in this case, the appellate court ratiocinated that this was a clear
case of an "in flagrante delicto warrantless arrest" under paragraphs (a) and (b) of Section 5, Rule 113 of
the Revised Rules on Criminal Procedure, as above-quoted.
The Court disagrees.
A punctilious assessment of the factual backdrop of this case shows that there could have been no
lawful warrantless arrest. A portion of PO3 de Leons testimony on direct examination in court is
revelatory:
FISCAL LARIEGO: While you were there at 5th
Avenue, was there anything unusual that transpired?
PO3 DE LEON: Yes Maam.
Q: What was this incident?
A: While I was on board my motorcycle on my home, I saw a man looking at the shabu in his hand,
Maam.
Q: And exactly what time was this?
A: Around 11:30 in the morning, Maam.
Q: How far were you from this person that you said was verifying something in his hand?
A: Eight to ten meters, Maam.
Q: What exactly did you see he was verifying? A: The shabu that he was holding, Maam.
Q: After seeing what the man was doing, what did you do next?
A: I alighted from my motorcycle and approached him, Maam.
Q: In the first place why do you say that what he was examining and holding in his hand was a shabu?
A: Because of the numerous arrests that I have done, they were all shabu, Maam.
21
(Underscoring
supplied)
On the basis of the foregoing testimony, the Court finds it inconceivable how PO3 de Leon, even with his
presumably perfect vision, would be able to identify with reasonable accuracy, from a distance of about
8 to 10 meters and while simultaneously driving a motorcycle, a negligible and minuscule amount of
powdery substance (0.03 gram) inside the plastic sachet allegedly held by appellant. That he had
previously effected numerous arrests, all involving shabu, is insufficient to create a conclusion that what
he purportedly saw in appellants hands was indeed shabu.
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Absent any other circumstance upon which to anchor a lawful arrest, no other overt act could be
properly attributed to appellant as to rouse suspicion in the mind of PO3 de Leon that he (appellant) had
just committed, was committing, or was about to commit a crime, for the acts per se of walking along
the street and examining something in ones hands cannot in any way be considered criminal acts. In
fact, even if appellant had been exhibiting unusual or strange acts, or at the very least appeared
suspicious, the same would not have been sufficient in order for PO3 de Leon to effect a lawful
warrantless arrest under paragraph (a) of Section 5, Rule 113.
Neither has it been established that the rigorous conditions set forth in paragraph (b) of Section 5, Rule
113 have been complied with, i.e., that an offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the appellant had committed it.
The factual circumstances of the case failed to show that PO3 de Leon had personal knowledge that a
crime had been indisputably committed by the appellant. It is not enough that PO3 de Leon had
reasonable ground to believe that appellant had just committed a crime; a crime must in fact have been
committed first, which does not obtain in this case.
Without the overt act that would pin liability against appellant, it is therefore clear that PO3 de Leon
was merely impelled to apprehend appellant on account of the latters previous charge
22
for the same
offense. The CA stressed this point when it said:
It is common for drugs, being illegal in nature, to be concealed from view.1wphi1 PO3 Renato de Leon
saw appellant holding and scrutinizing a piece of plastic wrapper containing a white powderly substance.
PO3 Renato de Leon was quite familiar with appellant, having arrested him twice before for the same
illegal possession of drug. It was not just a hollow suspicion. The third time around, PO3 de Leon had
reasonably assumed that the piece of plastic wrapper appellant was holding and scrutinizing also
contained shabu as he had personal knowledge of facts regarding appellants person and past criminal
record. He would have been irresponsible to just wait and see and give appellant a chance to scamper
away. For his part, appellant being, in fact, in possession of illegal drug, sensing trouble from an equally
familiar face of authority, ran away. Luckily, however, PO3 de Leon caught up with him through the aid
of a tricycle driver. Appellants act of running away, indeed, validated PO3 de Leons reasonable
suspicion that appellant was actually in possession of illegal drug. x x x
23

However, a previous arrest or existing criminal record, even for the same offense, will not suffice to
satisfy the exacting requirements provided under Section 5, Rule 113 in order to justify a lawful
warrantless arrest. "Personal knowledge" of the arresting officer that a crime had in fact just been
committed is required. To interpret "personal knowledge" as referring to a persons reputation or past
criminal citations would create a dangerous precedent and unnecessarily stretch the authority and
power of police officers to effect warrantless arrests based solely on knowledge of a persons previous
criminal infractions, rendering nugatory the rigorous requisites laid out under Section 5.
It was therefore error on the part of the CA to rule on the validity of appellants arrest based on
"personal knowledge of facts regarding appellants person and past criminal record," as this is
unquestionably not what "personal knowledge" under the law contemplates, which must be strictly
construed.
24

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Furthermore, appellants act of darting away when PO3 de Leon approached him should not be
construed against him. Flight per se is not synonymous with guilt and must not always be attributed to
ones consciousness of guilt.
25
It is not a reliable indicator of guilt without other circumstances,
26
for even
in high crime areas there are many innocent reasons for flight, including fear of retribution for speaking
to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty
party.
27
Thus, appellants attempt to run away from PO3 de Leon is susceptible of various explanations;
it could easily have meant guilt just as it could likewise signify innocence.
In fine, appellants acts of walking along the street and holding something in his hands, even if they
appeared to be dubious, coupled with his previous criminal charge for the same offense, are not by
themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify
a warrantless arrest under Section 5 above-quoted. "Probable cause" has been understood to mean a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant
a cautious man's belief that the person accused is guilty of the offense with which he is
charged.
28
Specifically with respect to arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed by the person
sought to be arrested,
29
which clearly do not obtain in appellants case.
Thus, while it is true that the legality of an arrest depends upon the reasonable discretion of the officer
or functionary to whom the law at the moment leaves the decision to characterize the nature of the act
or deed of the person for the urgent purpose of suspending his liberty,
30
it cannot be arbitrarily or
capriciously exercised without unduly compromising a citizens constitutionally-guaranteed right to
liberty. As the Court succinctly explained in the case of People v. Tudtud:
31

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 to 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 violated and so deserving of full protection.
Consequently, there being no lawful warrantless arrest, the shabu purportedly seized from appellant is
rendered inadmissible in evidence for being the proverbial fruit of the poisonous tree. As the
confiscated shabu is the very corpus delicti of the crime charged, appellant must be acquitted and
exonerated from all criminal liability.
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 31320 is REVERSED and SET
ASIDE. Appellant Nazareno Villareal y Lualhati is ACQUITTED on reasonable doubt of the offense charged
and ordered immediately released from detention, unless his continued confinement is warranted by
some other cause or ground.
SO ORDERED.

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PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN MARTINEZ Y CAROLINO, and RAFAEL
GONZALES Y CUNANAN, Accused-Appellants.
G.R. No. 191366; December 13, 2010
D E C I S I O N
MENDOZA, J.:
This is an appeal from the August 7, 2009 Decision
1
of the Court of Appeals (CA), in CA-G.R. HC-NO.
03269, which affirmed the February 13, 2008 Decision
2
of the Regional Trial Court, Branch 41, Dagupan
City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section 13, in
relation to Section 11, Article II of Republic Act No. 9165 for Possession of Dangerous Drugs During
Parties, Social Gatherings or Meetings.
The Facts
The Information indicting the accused reads:
That on or about the 2nd day of September 2006, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR
DIZON y FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y
CUNANAN, without authority of law, confederating together, acting jointly and helping one another, did
then and there wilfully, unlawfully and criminally, sniff and possess dangerous drugs (shabu residues)
contained in empty plastic sachets and rolled aluminum foil, during a party, or at a social gathering or
meeting, or in the proximate company of at least two (2) person[s].
Contrary to Section 13, Article II, R.A. 9165.
3

Version of the Prosecution
As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard Azardon (PO1
Azardon), one of the apprehending officers, and Police Inspector Lady Ellen Maranion (P/Insp.
Maranion), the forensic chemical officer, it appears that on September 2, 2006, at around 12:45 oclock
in the afternoon, PO1 Azardon was on duty at the Police Community Precinct II along Arellano Street,
Dagupan City, when a concerned citizen entered the precinct and reported that a pot session was going
on in the house of accused Rafael Gonzales (Gonzales) in Trinidad Subdivision, Dagupan City. Upon
receipt of the report, PO1 Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the
Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City. Upon inquiry
from people in the area, the house of Gonzales was located.
As the police officers entered the gate of the house, they saw accused Orlando Doria (Doria) coming out
of the side door and immediately arrested him. Inside the house, they saw accused Gonzales, Arnold
Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were
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surprised by the presence of the police. In front of them were open plastic sachets (containing shabu
residue), pieces of rolled used aluminum foil and pieces of used aluminum foil.
The accused were arrested and brought to the police precinct. The items found in the room were seized
and turned over to the Pangasinan Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The
latter conducted a laboratory examination on the seized items and all 115 plastic sachets, 11 pieces of
rolled used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive for
methamphetamine hydrochloride. The accused were subjected to a drug test and, except for Doria, they
were found to be positive for methamphetamine hydrochloride.
Version of the Defense
The defense, through its witnesses, accused A. Martinez, Dizon, and R. Martinez, claimed that in the
morning of September 2, 2006, the three of them were along Arellano Street in Trinidad Subdivision,
Dagupan City, to meet with a certain Apper who bumped the passenger jeep of R. Martinez and who
was to give the materials for the painting of said jeep. As they were going around the subdivision looking
for Apper, they saw Gonzales in front of his house and asked him if he noticed a person pass by. While
they were talking, Doria arrived. It was then that five to seven policemen emerged and apprehended
them. They were handcuffed and brought to the police station in Perez, Dagupan City, where they were
incarcerated and charged with sniffing shabu.
The Ruling of the RTC
The case against Doria was dismissed on a demurrer to evidence.
On February 13, 2008, the RTC rendered its decision, the dispositve portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered finding accused ARNOLD MARTINEZ y
Angeles, EDGAR DIZON y Ferrer, REZIN MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY
beyond reasonable doubt of the crime of Possession of Dangerous Drugs During Parties, Social
Gatherings or Meetings defined and penalized under Section 13 in relation to Section 11, Article II of
Republic Act 9165, and each of them is sentenced to suffer the penalty of life imprisonment and to pay
the fine in the amount of P500,000.00, and to pay the cost of suit.
The subject items are hereby forfeited in favor of the government and to be disposed of in accordance
with the law.
SO ORDERED.
4

The RTC was of the view that the positive testimony of prosecution witness PO1 Azardon, without any
showing of ill-motive on his part, prevailed over the defenses of denial and alibi put up by the accused.
The accused were held to have been in constructive possession of the subject items. A conspiracy was
also found present as there was a common purpose to possess the dangerous drug.
The Ruling of the CA
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The CA ruled that there was sufficient evidence to support the findings of the RTC as to the constructive
possession of the dangerous drugs by the accused. It further held that although the procedure regarding
the custody and disposition of evidence prescribed by Section 21 of R.A. No. 9165 was not strictly
complied with, the integrity and evidentiary value of the evidence were nonetheless safeguarded. The
CA was of the view that the presumption of regularity in the performance of official duty was not
sufficiently controverted by the accused.
Not in conformity, the accused now interposes this appeal before this Court praying for the reversal of
the subject decision, presenting the following
Assignment of Errors
For accused Arnold Martinez, Edgar Dizon and Rezin Martinez
1. The lower court erred in finding the accused-appellants to be having a pot session at the
time of their arrest;
2. The lower court erred in not seeing through the antics of the police to plant the shabu
paraphernalia to justify the arrest of the accused-appellants without warrant;
3. The lower court erred in not finding that the corpus delicti has not been sufficiently
established;
4. The lower court erred in not finding the uncorroborated testimony of PO1 Azardon
insufficient to convict the accused-appellants of the crime charged;
5. The lower court erred in not acquitting the accused-appellants.
For accused Rafael Gonzales
I
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
PROSECUTIONS FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
PROSECUTIONS FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.
After an assiduous assessment of the evidentiary records, the Court finds that the prosecution failed to
prove the guilt of the accused. The principal reasons are 1] that the evidence against the accused are
inadmissible; and 2] that granting the same to be admissible, the chain of custody has not been duly
established.
Illegal Arrest, Search and Seizure
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Indeed, the accused is estopped from assailing the legality of his arrest if he fails to raise such issue
before arraignment.
5
However, this waiver is limited only to the arrest. The legality of an arrest affects
only the jurisdiction of the court over the person of the accused. A waiver of an illegal warrantless arrest
does not carry with it a waiver of the inadmissibility of evidence seized during the illegal warrantless
arrest.
6

Although the admissibility of the evidence was not raised as in issue by the accused, it has been held
that this Court has the power to correct any error, even if unassigned, if such is necessary in arriving at a
just decision,
7
especially when the transcendental matter of life and liberty is at stake.
8
While it is true
that rules of procedure are intended to promote rather than frustrate the ends of justice, they
nevertheless must not be met at the expense of substantial justice. Time and again, this Court has
reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment
of justice, rather than frustrate it. Technicalities should never be used to defeat substantive
rights.
9
Thus, despite the procedural lapses of the accused, this Court shall rule on the admissibility of
the evidence in the case at bench. The clear infringement of the accuseds right to be protected against
unreasonable searches and seizures cannot be ignored.
The State cannot, in a manner contrary to its constitutional guarantee, intrude into the persons of its
citizens as well as into their houses, papers and effects.
10
Sec. 2, Art. III, of the 1987 Constitution
provides:
Section 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.
This constitutional guarantee, however, is not a blanket prohibition against all searches and seizures
without warrant. Arrests and seizures in the following instances are allowed even in the absence of a
warrant (i) warrantless search incidental to a lawful arrest;
11
(ii) search of evidence in "plain view;"
(iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) stop and frisk;
and (vii) exigent and emergency circumstances.
12

This case would appear to fall under either a warrantless search incidental to a lawful arrest or a plain
view search, both of which require a lawful arrest in order to be considered valid exceptions to the
constitutional guarantee. Rule 113 of the Revised Rules of Criminal Procedure provides for the
circumstances under which a warrantless arrest is lawful. Thus:
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 just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
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(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 is 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) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
A review of the facts reveal that the arrest of the accused was illegal and the subject items were
confiscated as an incident thereof. According to the testimony of PO1 Azardon and his Joint
Affidavit
13
with PO1 Dela Cruz, they proceeded to, and entered, the house of accused Gonzales based
solely on the report of a concerned citizen that a pot session was going on in said house, to wit:
Q: I go back to the information referred to you by the informant, did he not tell you how many
persons were actually conducting the pot session?
A: Yes, sir.
Q: When you went to the place of Rafael Gonzales, of course you were not armed with a search
warrant, correct?
A: None, sir.
Q: Before the information was given to you by your alleged informant, you did not know
personally Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.
Q: When this informant told you that he was told that there was [an] ongoing pot session in the
house of Rafael Gonzales, was this report to you placed in the police blotter before you
proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.
Q: In other words, you did not even bother to get the personal data or identity of the person
who told you that he was allegedly informed that there was an ongoing pot session in the house
of Rafael Gonzales?
A: What I know is that he is a jeepney driver of a downtown jeepney but he does not want to be
identified because he was afraid, sir.
Q: And likewise, he did not inform you who told him that there was an ongoing pot session in
the house of Rafael Gonzales?
A: No more, sir.
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Q: But upon receiving such report from that jeepney driver you immediately formed a group and
went to the place of Rafael Gonzales?
A: Yes, sir.
x x x
Q: When you were at the open gate of the premises of Rafael Gonzales, you could not see what
is happening inside the house of Rafael Gonzales?
A: Yes, sir.
Q: You did not also see the alleged paraphernalia as well as the plastic sachet of shabu on the
table while you were outside the premises of the property of Rafael Gonzales?
x x x
Q: Before they entered the premises they could not see the paraphernalia?
COURT: Answer.
A: Of course because they were inside the room, how could we see them, sir.
Q: But still you entered the premises, only because a certain person who told you that he was
informed by another person that there was an ongoing pot session going on inside the house of
Rafael Gonzales?
A: Yes, sir.
Q: And that is the only reason why you barged in inside the house of Rafael Gonzales and you
arrested the persons you saw?
A: Yes, sir.
14

Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs (a) and (b), on the other hand,
may be applicable and both require probable cause to be present in order for a warrantless arrest to be
valid. Probable cause has been held to signify a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person
accused is guilty of the offense with which he is charged.
15

Although this Court has ruled in several dangerous drugs cases
16
that tipped information is sufficient
probable cause to effect a warrantless search,
17
such rulings cannot be applied in the case at bench
because said cases involve either a buy-bust operation or drugs in transit, basically, circumstances other
than the sole tip of an informer as basis for the arrest. None of these drug cases involve police officers
entering a house without warrant to effect arrest and seizure based solely on an informers tip. The case
of People v. Bolasa
18
is informative on this matter.
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13 | P a g e

In People v. Bolasa, an anonymous caller tipped off the police that a man and a woman were repacking
prohibited drugs at a certain house. The police immediately proceeded to the house of the suspects.
They walked towards the house accompanied by their informer. When they reached the house, they
peeped inside through a small window and saw a man and woman repacking marijuana. They then
entered the house, introduced themselves as police officers, confiscated the drug paraphernalia, and
arrested the suspects. This Court ruled:
The manner by which accused-appellants were apprehended does not fall under any of the above-
enumerated categories. Perforce, their arrest is illegal. First, the arresting officers had no personal
knowledge that at the time of their arrest, accused-appellants had just committed, were committing, or
were about to commit a crime. Second, the arresting officers had no personal knowledge that a crime
was committed nor did they have any reasonable ground to believe that accused-appellants committed
it. Third, accused-appellants were not prisoners who have escaped from a penal establishment.
Neither can it be said that the objects were seized in plain view. First, there was no valid intrusion. As
already discussed, accused-appellants were illegally arrested. Second, the evidence, i.e., the tea bags
later on found to contain marijuana, was not inadvertently discovered. The police officers intentionally
peeped first through the window before they saw and ascertained the activities of accused-appellants
inside the room. In like manner, the search cannot be categorized as a search of a moving vehicle, a
consented warrantless search, a customs search, or a stop and frisk; it cannot even fall under exigent
and emergency circumstances, for the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should have conducted first a surveillance
considering that the identities and address of the suspected culprits were already ascertained. After
conducting the surveillance and determining the existence of probable cause for arresting accused-
appellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The
arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law.
19

It has been held 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. The grounds of
suspicion are reasonable when the suspicion, that the person to be arrested is probably guilty of
committing an offense, is based on actual facts, that is, supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be arrested.
20

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no personal knowledge that at the
time of the arrest, accused had just committed, were committing, or were about to commit a crime, as
they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them. As to
paragraph (b), the arresting officers had no personal knowledge of facts and circumstances that would
lead them to believe that the accused had just committed an offense. As admitted in the testimony of
PO1 Azardon, the tip originated from a concerned citizen who himself had no personal knowledge of the
information that was reported to the police:
Q: Mr. Witness, you claimed that the reason for apprehending all the accused was based on a
tip-off by an informant?
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14 | P a g e

A: Yes, sir.
Q: What exactly [did] that informant tell you?
A: He told us that somebody told him that there was an ongoing pot session in the house of one
of the accused Rafael Gonzales, sir.
Q: You mean to say that it was not the informant himself to whom the information originated
but from somebody else?
A: That was what he told me, sir.
Q: Because of that you proceeded to where the alleged pot session was going on? [No Answer]
Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot session was going
on?
A: No more because he did not go with us, sir.
Q: So you merely relied on what he said that something or a pot session was going on
somewhere in Arellano but you dont know the exact place where the pot session was going on?
A: Yes, sir.
Q: And your informant has no personal knowledge as to the veracity of the alleged pot session
because he claimed that he derived that information from somebody else?
A: This is what he told us that somebody told him that there was an ongoing pot session, sir.
Q: Despite of [sic] that information you proceeded to where?
A: Trinidad Subdivision, sir.
x x x
Q: Mr. Witness, did your informant named [sic] those included in the alleged pot session?
A: No, sir.
Q: That was, because your informant dont *sic+ know physically what was really happening
there?
A: He was told by another person that there was an ongoing pot session there, sir.
21
[Emphasis
supplied]
Neither can it be said that the subject items were seized in plain view. The elements of plainview are: (a)
a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the
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15 | P a g e

pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the
right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view"
justified mere seizure of evidence without further search.
22

The evidence was not inadvertently discovered as the police officers intentionally entered the house
with no prior surveillance or investigation before they discovered the accused with the subject items. If
the prior peeking of the police officers in Bolasa was held to be insufficient to constitute plain view, then
more so should the warrantless search in this case be struck down. Neither can the search be considered
as a search of a moving vehicle, a consented warrantless search, a customs search, a stop and frisk, or
one under exigent and emergency circumstances.
The apprehending officers should have first conducted a surveillance considering that the identity and
address of one of the accused were already ascertained. After conducting the surveillance and
determining the existence of probable cause, then a search warrant should have been secured prior to
effecting arrest and seizure. The arrest being illegal, the ensuing search as a result thereof is likewise
illegal. Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for
being the proverbial fruit of a poisonous tree and should be excluded.
23
The subject items seized during
the illegal arrest are thus inadmissible. The drug, being the verycorpus delicti of the crime of illegal
possession of dangerous drugs, its inadmissibility thus precludes conviction, and calls for the acquittal of
the accused.
As has been noted previously by this Court, some lawmen, prosecutors and judges have glossed over
illegal searches and seizures in cases where law enforcers are able to present the alleged evidence of the
crime, regardless of the methods by which they were obtained. This attitude tramples on
constitutionally-guaranteed rights in the name of law enforcement. It is ironic that such enforcement of
the law fosters the breakdown of our system of justice and the eventual denigration of society. While
this Court appreciates and encourages the efforts of law enforcers to uphold the law and to preserve the
peace and security of society, we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law.
24

Chain of Custody
Even granting that the seized items are admissible as evidence, the acquittal of the accused would still
be in order for failure of the apprehending officers to comply with the chain of custody requirement in
dangerous drugs cases.
The accused contend that the identity of the seized drug was not established with moral certainty as the
chain of custody appears to be questionable, the authorities having failed to comply with Sections 21
and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as
amended by Board Regulation No. 2, Series of 1990. They argue that there was no prior coordination
with the Philippine Drug Enforcement Agency(PDEA), no inventory of the confiscated items conducted at
the crime scene, no photograph of the items taken, no compliance with the rule requiring the accused
to sign the inventory and to give them copies thereof, and no showing of how the items were handled
from the time of confiscation up to the time of submission to the crime laboratory for testing.
Therefore, the corpus delicti was not proven, thereby producing reasonable doubt as to their guilt. Thus,
they assert that the presumption of innocence in their favor was not overcome by the presumption of
regularity in the performance of official duty.
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The essential requisites to establish illegal possession of dangerous drugs are: (i) the accused was in
possession of the dangerous drug, (ii) such possession is not authorized by law, and (iii) the accused
freely and consciously possessed the dangerous drug.
25
Additionally, this being a case for violation of
Section 13 of R.A. No. 9165, an additional element of the crime is (iv) the possession of the dangerous
drug must have occurred during a party, or at a social gathering or meeting, or in the proximate
company of at least two (2) persons.
The existence of the drug is the very corpus delicti of the crime of illegal possession of dangerous drugs
and, thus, a condition sine qua non for conviction. In order to establish the existence of the drug,
its chain of custodymust be sufficiently established. The chain of custody requirement is essential to
ensure that doubts regarding the identity of the evidence are removed through the monitoring and
tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist,
and finally to the court.
26
Malillin v. People was the first in a growing number of cases to explain the
importance of chain of custody in dangerous drugs cases, to wit:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the chain, from the moment
the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness' possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.
27

Section 1(b) of DDB Regulation No. 1, Series of 2002,
28
defines chain of custody as follows:
b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in
court for destruction. Such record of movements and custody of seized item shall include the identity
and signature of the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and used in court as evidence, and the
final disposition;
Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for the protection of the
identity and integrity of dangerous drugs seized, to wit:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused
CRIMINAL PROCEDURE
17 | P a g e

or the person/s from whom such items were confiscated and/or seized, or his/her representative or
counsel, a representative from the media and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the inventory and be given a copy thereof.
People v. Habana thoroughly discusses the proper procedure for the custody of seized or confiscated
items in dangerous drugs cases in order to ensure their identity and integrity, as follows:
Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who
would then send it by courier to the police crime laboratory for testing. Since it is unavoidable that
possession of the substance changes hand a number of times, it is imperative for the officer who seized
the substance from the suspect to place his marking on its plastic container and seal the same,
preferably with adhesive tape that cannot be removed without leaving a tear on the plastic container. At
the trial, the officer can then identify the seized substance and the procedure he observed to preserve
its integrity until it reaches the crime laboratory.
If the substance is not in a plastic container, the officer should put it in one and seal the same. In this
way the substance would assuredly reach the laboratory in the same condition it was seized from the
accused. Further, after the laboratory technician tests and verifies the nature of the substance in the
container, he should put his own mark on the plastic container and seal it again with a new seal since
the police officers seal has been broken. At the trial, the technician can then describe the sealed
condition of the plastic container when it was handed to him and testify on the procedure he took
afterwards to preserve its integrity.
If the sealing of the seized substance has not been made, the prosecution would have to present every
police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no
matter how briefly ones possession has been. Each of them has to testify that the substance, although
unsealed, has not been tampered with or substituted while in his care.
29

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 further elaborates, and
provides for, the possibility of non-compliance with the prescribed procedure:
(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a copy
thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-
compliance with these requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items. [Emphasis supplied]
Accordingly, non-compliance with the prescribed procedural requirements will not necessarily render
the seizure and custody of the items void and invalid, provided that (i) there is a justifiable ground for
such non-compliance, and (ii) the integrity and evidentiary value of the seized items are properly
preserved. In this case, however, no justifiable ground is found availing, and it is apparent that there was
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18 | P a g e

a failure to properly preserve the integrity and evidentiary value of the seized items to ensure the
identity of the corpus delicti from the time of seizure to the time of presentation in court. A review of
the testimonies of the prosecution witnesses and the documentary records of the case reveals
irreparably broken links in the chain of custody.
According to the apprehending police officers in their Joint Affidavit, the following were confiscated
from the accused, to wit:
a) Several pcs of used empty plastic sachets containing suspected shabu residues.
b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs colored yellow, one
(1) pc colored green & one (1) pc colored white ).
c) Several pcs of used rolled aluminum foil containing suspected shabu residues.
d) Several pcs of used cut aluminum foil containing suspected shabu residues.
e) One (1) pc glass tube containing suspected shabu residues.
30

[Emphases supplied]
At the police station, the case, the accused, and the above-mentioned items were indorsed to Duty
Investigator Senior Police Officer 1 Pedro Urbano, Jr. (SPO1 Urbano) for proper disposition.
31
A letter-
request for laboratory examination was prepared by Police Superintendent Edgar Orduna Basbag for the
following items:
a) Pieces of used empty small plastic sachets with suspected shabu residues marked "DC&A-1."
b) Pieces of used rolled and cut aluminum foil with suspected shabu residues marked "DC&A-2."
c) Pieces of used cut aluminum foil with suspected shabu residues marked "DC&A-3."
32

[Emphases supplied]
The letter-request and above-mentioned items were submitted to P/Insp. Maranion by SPO3 Froilan
Esteban (SPO3 Esteban). Final Chemistry Report No. D-042-06L listed the specimens which were
submitted for testing, to wit:
SPECIMENS SUBMITTED:
A A1 to A115 One Hundred fifteen (115) open transparent plastic sachet with tag each
containing suspected shabu residue without markings.
B B1 to B11 Eleven (11) rolled used aluminum foil with tag each containing suspected shabu
residuewithout markings.
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C C1 to C49 Forty-nine (49) used aluminum foil with tag each containing suspected shabu
residuewithout markings.
33

[Emphases supplied]
Three days after the subject items were seized, or on September 5, 2006, a Confiscation Receipt was
issued by PO1 Azardon and PO1 Dela Cruz, which reads:
DCPS AID SOTG 05 September 2006
CONFISCATION RECEIPT
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we together with our precinct
supervisor, SPO4 Pedro Belen Jr., and SWAT members composed of SPO1 Marlon Decano, PO3 Manuel
Garcia, PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of
ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of Lucao Dist., this city; EDGAR
DIZON Y FERRER, 36 yrs old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN
MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND
DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan, Malasiqui, Pangasinan and
RAFAEL GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of Trinidad Subd., Arellano-
Bani this city.
Suspects were duly informed of their constitutional rights and were brought to Dagupan City Police
Station, Perez Market Site Dagupan City and indorsed to Duty Desk Officer to record the incident andthe
sachet of suspected Shabu Paraphernalias were brought to PNP Crime Laboratory, Lingayen,
Pangasinan for Laboratory Examination.
Seizing Officer:
(sgd.)
PO1 Bernard B Azardon
Affiant
(sgd.)
PO1 Alejandro Dela Cruz
Affiant
Remarks:
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
34

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20 | P a g e

[Emphases supplied]
The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil, and 27 (of the 49)
pieces of used aluminum foil, all containing shabu residue, as identified in the Final Chemistry Report,
were presented in court and marked as Exhibits "H" and series, "I" and series, and "J" and series,
respectively. Said items were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.
35

The CA ruled that the integrity and evidentiary value of the subject items were properly preserved as
there was sufficient evidence to prove that the items seized from the accused were the same ones
forwarded to the crime laboratory for examination, as shown in the Confiscation Receipt and the letter-
request for laboratory examination.
A review of the chain of custody indicates, however, that the CA is mistaken.
First, the apprehending team failed to comply with Section 21 of R.A. No. 9165. After seizure and
confiscation of the subject items, no physical inventory was conducted in the presence of the accused,
or their representative or counsel, a representative from the media and the DOJ, and any elected public
official. Thus, no inventory was prepared, signed, and provided to the accused in the manner required
by law. PO1 Azardon, in his testimony,
36
admitted that no photographs were taken. The only discernable
reason proffered by him for the failure to comply with the prescribed procedure was that the situation
happened so suddenly. Thus:
Q: But upon receiving such report from that jeepney driver you immediately formed a group and
went to the place of Rafael Gonzales?
A: Yes, sir.
Q: Such that you did not even inform the PDEA before you barged in that place of Rafael
Gonzales?
A: It was so suddenly, [sic] sir.
Q: And that explains the reason why you were not able to have pictures taken, is that correct?
A: Yes, sir.
37

[Emphasis supplied]
The Court does not find such to be a justifiable ground to excuse non-compliance. The suddenness of
the situation cannot justify non-compliance with the requirements. The police officers were not
prevented from preparing an inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A.
No. 9165 provides specifically that in case of warrantless seizures, the inventory and photographs shall
be done at the nearest police station or at the nearest office of the apprehending officer/team.
Whatever effect the suddenness of the situation may have had should have dissipated by the time they
reached the police station, as the suspects had already been arrested and the items seized. Moreover, it
has been held that in case of warrantless seizures nothing prevents the apprehending officer from
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21 | P a g e

immediately conducting the physical inventory and photography of the items at their place of seizure, as
it is more in keeping with the laws intent to preserve their integrity and evidentiary value.
38

This Court has repeatedly reversed conviction in drug cases for failure to comply with Section 21 of R.A.
No. 9165, resulting in the failure to properly preserve the integrity and evidentiary value of the seized
items. Some cases arePeople v. Garcia,
39
People v. Dela Cruz,
40
People v. Dela Cruz,
41
People v. Santos,
Jr.,
42
People v. Nazareno,
43
People v. Orteza,
44
Zarraga v. People,
45
and People v. Kimura.
46

Second, the subject items were not properly marked. The case of People v. Sanchez is instructive on the
requirement of marking, to wit:
What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of
"marking" of the seized items in warrantless seizures to ensure that the evidence seized upon
apprehension is the same evidence subjected to inventory and photography when these activities are
undertaken at the police station rather than at the place of arrest. Consistency with the "chain of
custody" rule requires that the "marking" of the seized items - to truly ensure that they are the same
items that enter the chain and are eventually the ones offered in evidence - should be done (1) in the
presence of the apprehended violator (2) immediately upon confiscation. This step initiates the
process of protecting innocent persons from dubious and concocted searches, and of protecting as well
the apprehending officers from harassment suits based on planting of evidence under Section 29 and on
allegations of robbery or theft.
For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of
his/her initials and signature on the item/s seized. x x x Thereafter, the seized items shall be placed in an
envelope or an evidence bag unless the type and quantity of the seized items require a different type of
handling and/or container. The evidence bag or container shall accordingly be signed by the handling
officer and turned over to the next officer in the chain of custody.
47
[Emphasis in the original]
Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela Cruz does it appear that
the subject items were at all marked. It was only in the letter-request for laboratory examination that
the subject items were indicated to have been marked with "DC&A-1," "DC&A-2" and "DC&A-3." There
is no showing, however, as to who made those markings and when they were made. Moreover, those
purported markings were never mentioned when the subject items were identified by the prosecution
witnesses when they took the stand.
The markings appear to pertain to a group of items, that is, empty plastic sachets, rolled and cut
aluminium foil, and cut aluminium foil, but do not specifically pertain to any individual item in each
group. Furthermore, it was only in the Chemistry Report
48
that the precise number of each type of item
was indicated and enumerated. The Court notes that in all documents prior to said report, the subject
items were never accurately quantified but only described as "pieces,"
49
"several pcs,"
50
and "shabu
paraphernallas."
51
Strangely, the Chemistry Report indicates that all the subject items had "no
markings," although each item was reported to have been marked by P/Insp. Maranion in the course of
processing the subject items during laboratory examination and testing.
52
Doubt, therefore, arises as to
the identity of the subject items. It cannot be determined with moral certainty that the subject items
seized from the accused were the same ones subjected to the laboratory examination and presented in
court.
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22 | P a g e

This Court has acquitted the accused for the failure and irregularity in the marking of seized items in
dangerous drugs cases, such as Zarraga v. People,
53
People v. Kimura,
54
and People v. Laxa.
55

Third, the Confiscation Receipt relied upon by the prosecution and the courts below gives rise to more
uncertainty. Instead of being prepared on the day of the seizure of the items, it was prepared only three
days after. More important, the receipt did not even indicate exactly what items were confiscated and
their quantity. These are basic information that a confiscation receipt should provide. The only
information contained in the Confiscation Receipt was the fact of arrest of the accused and the general
description of the subject items as "the sachet of suspected Shabu paraphernallas were brought to the
PNP Crime Laboratory." The receipt is made even more dubious by PO1 Azardons admission in his
testimony
56
that he did not personally prepare the Confiscation Receipt and he did not know exactly
who did so.
Fourth, according to the Certification
57
issued by the Dagupan Police Station, the subject items were
indorsed by PO1 Dela Cruz to Duty Investigator SPO1 Urbano for proper disposition. These were later
turned over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing of how and when the
subject items were transferred from SPO1 Urbano to SPO3 Esteban.
Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No witness testified on
how the subject items were kept after they were tested prior to their presentation in court. This Court
has highlighted similar shortcomings in People v. Cervantes,
58
People v. Garcia,
59
People v.
Sanchez,
60
and Malillin v. People.
61

More irregularities further darken the cloud as to the guilt of the accused. Contrary to PO1 Azardons
testimony
62
that they were tipped off by a concerned citizen while at the police station, the Letter
63
to
the Executive Director of the DDB states that the apprehending officers were tipped off "while
conducting monitoring/surveillance." Said letter also indicates, as does the Confiscation Receipt, that
the arrest and seizure occurred on September 4, 2006, and not September 2, 2006, as alleged in the
Information. It was also mentioned in the aforementioned Certification of the Dagupan Police and Joint
Affidavit of the police officers that a glass tube suspected to contain shabu residue was also confiscated
from the accused. Interestingly, no glass tube was submitted for laboratory examination.
In sum, numerous lapses and irregularities in the chain of custody belie the prosecutions position that
the integrity and evidentiary value of the subject items were properly preserved. The two documents
specifically relied on by the CA, the Confiscation Receipt and the letter-request for laboratory
examination, have been shown to be grossly insufficient in proving the identity of the corpus delicti.
The corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond
reasonable doubt of the identity of the prohibited drug is essential before the accused can be found
guilty.
64

Regarding the lack of prior coordination with the PDEA provided in Section 86 of R.A. No. 9165, in People
v. Sta. Maria,
65
this Court held that said section was silent as to the consequences of such failure, and
said silence could not be interpreted as a legislative intent to make an arrest without the participation of
PDEA illegal, nor evidence obtained pursuant to such an arrest inadmissible. Section 86 is explicit only in
saying that the PDEA shall be the "lead agency" in the investigation and prosecution of drug-related
cases. Therefore, other law enforcement bodies still possess authority to perform similar functions as
the PDEA as long as illegal drugs cases will eventually be transferred to the latter.
CRIMINAL PROCEDURE
23 | P a g e

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not affect the admissibility
of the evidence but only its weight.
66
Thus, had the subject items in this case been admissible, their
evidentiary merit and probative value would be insufficient to warrant conviction.
It may be true that where no ill motive can be attributed to the police officers, the presumption of
regularity in the performance of official duty should prevail. However, such presumption obtains only
when there is no deviation from the regular performance of duty.
67
Where the official act in question is
irregular on its face, the presumption of regularity cannot stand.
In this case, the official acts of the law enforcers were clearly shown and proven to be irregular. When
challenged by the evidence of a flawed chain of custody, the presumption of regularity cannot prevail
over the presumption of innocence of the accused.
68

This Court once again takes note of the growing number of acquittals for dangerous drugs cases due to
the failure of law enforcers to observe the proper arrest, search and seizure procedure under the
law.
69
Some bona fidearrests and seizures in dangerous drugs cases result in the acquittal of the accused
because drug enforcement operatives compromise the integrity and evidentiary worth of the seized
items. It behooves this Court to remind law enforcement agencies to exert greater effort to apply the
rules and procedures governing the custody, control, and handling of seized drugs.
It is recognized that strict compliance with the legal prescriptions of R.A. No. 9165 may not always be
possible. Thus, as earlier stated, non-compliance therewith is not necessarily fatal. However, the lapses
in procedure must be recognized, addressed and explained in terms of their justifiable grounds, and the
integrity and evidentiary value of the evidence seized must be shown to have been preserved.
70

On a final note, this Court takes the opportunity to be instructive on Sec. 11
71
(Possession of Dangerous
Drugs) and Sec. 15
72
(Use of Dangerous Drugs) of R.A. No. 9165, with regard to the charges that are filed
by law enforcers. This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases
where the presence of dangerous drugs as basis for possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in
keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time
offenders of drug use, provided that there is a positive confirmatory test result as required under Sec.
15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is
imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of
drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11
on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the form of residue on the drug
paraphernalia, and the accused were found positive for use of dangerous drugs. Granting that the arrest
was legal, the evidence obtained admissible, and the chain of custody intact, the law enforcers should
have filed charges under Sec. 15, R.A. No. 9165 or for use of dangerous drugs and, if there was no
residue at all, they should have been charged under Sec. 14
73
(Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings).
Sec. 14 provides that the maximum penalty under Sec. 12
74
(Possession of Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs) shall be imposed on any person
who shall possess any equipment, instrument, apparatus and other paraphernalia for dangerous drugs.
Under Sec. 12, the maximum penalty is imprisonment of four years and a fine of P50,000.00. In fact,
CRIMINAL PROCEDURE
24 | P a g e

under the same section, the possession of such equipment, apparatus or other paraphernalia is prima
facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated
Sec. 15.1avvphi1
In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law
enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when
the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test
required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a
chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should
only be done when another separate quantity of dangerous drugs, other than mere residue, is found in
the possession of the accused as provided for in Sec. 15.
WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R. HC-NO. 03269 is REVERSED
and SET ASIDE and another judgment entered ACQUITTING the accused and ordering their immediate
release from detention, unless they are confined for any other lawful cause.
Let a copy of this decision be furnished the Director of the Bureau of Corrections, Muntinlupa City, for
immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court
within five days from receipt of this decision the action he has taken. Copies shall also be furnished the
Director-General, Philippine National Police, and the Director-General, Philippine Drugs Enforcement
Agency, for their information and guidance.
The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over the seized items to the
Dangerous Drugs Board for destruction in accordance with law.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @
"BOBOY", accused-appellants.
G.R. No. 133917; February 19, 2001
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the Constitution in the name of protecting the society from
lawbreakers is to make the government itself lawless and to subvert those values upon which our
ultimate freedom and liberty depend.
1

For automatic review is the Decision
2
of the Regional Trial Court of Davao City, Branch 17, in Criminal
Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio
Mula y Malaguraalias "Boboy," guilty beyond reasonable doubt of violation of Section 8,
3
of the
Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,
4
and
sentencing them to suffer the supreme penalty of death.
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25 | P a g e

The information against accused-appellants reads:
That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, in conspiracy with each other, did then and
there willfully, unlawfully and feloniously was found in their possession 946.9 grants of dried
marijuana which are prohibited.
CONTRARY TO LAW.
5

Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation
against them.
6
Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca,
SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police
detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an
alleged marijuana pusher in Davao City.
7
The first time he came to see the said marijuana pusher in
person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a
motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the
pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest.
Moreover, the names and addresses of the accused- appellants came to the knowledge of SPO1
Paguidopon only after they were arrested.
8

At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the
alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.
9
Consequently, at
around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao
City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon
(brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino
Paguidopon where they would wait for the alleged pusher to pass by.
10

At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1
Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon
pointed to the accused-appellants as the pushers. Thereupon, the team boarded their, vehicle and
overtook the "trisikad."
11
SPO1 Paguidopon was left in his house, thirty meters from where the accused-
appellants were accosted.
12

The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was
holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona
introduced himself as a police officer and asked accused-appellant Molina to open the bag.
13
Molina
replied, "Boss, if possible we will settle this."
14
SPO1 Pamplona insisted on opening the bag, which
revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were
handcuffed by the police officers.
15

On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence,
contending that the marijuana allegedly seized from them is inadmissible as evidence for having been
obtained in violation of their constitutional right against unreasonable searches and seizures.
16
The
CRIMINAL PROCEDURE
26 | P a g e

demurrer was denied by the trial court.
17
A motion for reconsideration was filed by accused-appellants,
but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a
joint memorandum.
On April 25, 1997, the trial court rendered the assailed decision,
18
the decretal portion of which reads:
WHEREFORE, finding the evidence of the prosecution alone without any evidence from both
accused who waived presentation of their own evidence through their counsels, more than
sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt,
pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO
MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under
Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to
Sec. 24 of Rep. Act 7659.
The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of
this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their
case by the Supreme Court and its appropriate action as the case may be.
SO ORDERED.
19

Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the case
was elevated to this Court on automatic review. Accused-appellants contend:
I.
THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION
OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE, SEARCHES AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE
PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND
III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE
IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY
AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH.
20

The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the
acquittal of both accused-appellants.
The fundamental law of the land mandates that searches and seizures be carried out in a reasonable
fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a
probable cause. The pertinent provision of the Constitution provides:
CRIMINAL PROCEDURE
27 | P a g e

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.
21

Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3,
paragraph 2, which bolsters and solidifies the protection against unreasonable searches and
seizures.
22
Thus:
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention
in a perpetual charter of inestimable human liberties; so too, without this 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 merit this Court's high regard as a
freedom implicit in the concept of ordered liberty.
23

The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may
be made without a warrant and the evidence obtained therefrom may be admissible in the following
instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in
violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his
right against unreasonable searches and seizures;
24
and (6) stop and frisk situations (Terry search).
25

The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure
pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law
requires that there be first a lawful arrest before a search can be made --- the process cannot be
reversed.
26
As a rule, an arrest is considered legitimate if effected with .a valid warrant of arrest. The
Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private
person may, without 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 (arrest in flagrante delicto); (b)
when an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in
hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal
establishment or a place where he is serving final judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another ( arrest of escaped
prisoners ).
27

In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless
arrest of accused-appellants, and the subsequent search conducted by the peace officers, are valid
because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.
28
This
brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case
fall within the recognized exceptions to the warrant requirement.
CRIMINAL PROCEDURE
28 | P a g e

In People v. Chua Ho San,
29
the Court held that in cases of in flagrante delicto arrests, a peace officer or a
private person may, without a warrant, arrest a person when, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense. The arresting officer,
therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal
knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As
discussed in People v. Doria,
30
probable cause means an actual belief or reasonable grounds of
suspicion. 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. A reasonable suspicion therefore must be founded
on probable cause, coupled with good faith on the part of the peace officers making the arrest.
As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt
act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are
not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus,
in People v. Aminnudin,
31
it was held that "the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just done so. What he
was doing was descending the gangplank of the MNWilcon 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."
Likewise, in People v. Mengote,
32
the Court did not consider "eyes... darting from side to side :.. [while]
holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and
circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court,
"[b]y 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 [the arresting
officers'] presence." So also, in People v. Encinada,
33
the Court ruled that no probable cause is gleanable
from the act of riding a motorela while holding two plastic baby chairs.1wphi1.nt
Then, too, in Malacat v. Court of Appeals,
34
the trial court concluded that petitioner was attempting to
commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his
eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'"
35
In declaring
the warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light
of the lack of personal knowledge on the part of V u, the arresting officer, or an overt physical
act, on the part of petitioner, indicating that a crime had just been committed, was being
committed or was going to be committed.
36

It went on to state that
Second, there was nothing in petitioner's behavior or conduct which could have reasonably
elicited even mere suspicion other than that his eyes were "moving very fast" - an observation
which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it
was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely
standing at the comer and were not creating any commotion or trouble...
CRIMINAL PROCEDURE
29 | P a g e

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed
with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of petitioner, and from all indications as to the distance
between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a
grenade, could not have been visible to Yu.
37

Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed, is actually committing, or is
attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the
arresting officer.
38

In the case at bar, accused-appellants manifested no outward indication that would justify their arrest.
In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting
to commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if
possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which
allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a
crime, is an equivocal statement which standing alone will not constitute probable cause to effect an
inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in
the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not
be the subject of any suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant
Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and address after the
arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is
worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him
by his informer while they were on the side of the road. These circumstances could not have afforded
SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a
motorcycle when, SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina,
SPO1 Paguidopon admitted that he had never seen him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the
arrest, to wit
"Q- When you said that certain Mula handed a black bag to another person and how did you
know that it was Mula who handed the black bag to another person?
A- Because I have already information from Paguidopon, regarding Mula and Molina, when
they pass by through the street near the residence of Paguidopon. He told that the one who is
big one that is Gregorio Mula and the thin one is Nazario Molina"
39

The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could not
have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who
allegedly conducted the surveillance, was not even aware of accused-appellants' name and address
prior to the arrest.
CRIMINAL PROCEDURE
30 | P a g e

Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting
officers themselves, could not have been certain of accused-appellants' identity, and were, from all
indications, merely fishing for evidence at the time of the arrest.
Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even
before the arrest because of the latter's illegal gambling activities, thus, lending at least a semblance of
validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that
the warrantless arrest and the consequent search were illegal, holding that "[t]he prosecution's
evidence did not show any suspicious behavior when the appellant disembarked from the ship or while
he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant
under such bare circumstances."
40

Moreover, it could not be said that accused-appellants waived their right against unreasonable searches
and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus considered no
consent at all within the purview of the constitutional guarantee.
41

Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed
by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the
marijuana seized by the peace officers could not be admitted as evidence against accused-appellants,
and the Court is thus, left with no choice but to find in favor of accused-appellants.
While the Court strongly supports the campaign of the government against drug addiction and
commends the efforts of our law-enforcement officers towards this drive, all efforts for the achievement
of a drug-free society must not encroach on the fundamental rights and liberties of individuals as
guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.
WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,
264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable
doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y
Malagura alias "Boboy", areACQUITTED and ordered RELEASED from confinement unless they are
validly detained for other offenses. No costs.
SO ORDERED.

CRIMINAL PROCEDURE
31 | P a g e

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
G.R. No. 87059; June 22, 1992
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
CRIMINAL PROCEDURE
32 | P a g e

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;
CRIMINAL PROCEDURE
33 | P a g e

(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.
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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
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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.
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SO ORDERED.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN SHERMAN and
ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON IMMIGRATION AND
DEPORTATION, respondent.
G.R. No. 82544; June 28, 1988
MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen also
residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended after
three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after apprehension,
or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted for self-
deportation and have left the country. One was released for lack of evidence; another was charged not
for being a pedophile but for working without a valid working visa. Thus, of the original twenty two (22),
only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected child
prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There were also
posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
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RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The "Charge
Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable aliens, in
that: they, being pedophiles, are inimical to public morals, public health and public
safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code On the
same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their health
was being seriously affected by their continuous detention. Upon recommendation of the Board of
Commissioners for their provisional release, respondent ordered the CID doctor to examine petitioners,
who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied considering
the certification by the CID physician that petitioners were healthy. To avoid congestion, respondent
ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer was deferred
pending trial due to the difficulty of transporting them to and from the CID where trial was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988, the
Board of Special Inquiry III allowed provisional release of five (5) days only under certain conditions.
However, it appears that on the same date that the aforesaid Manifestation/ Motion was filed, Harvey
and his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus. A
Return of the Writ was filed by the Solicitor General and the Court heard the case on oral argument on
20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply was filed by the
Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the Revised
Administrative Code, which legally clothes the Commissioner with any authority to arrest and detain
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38 | P a g e

petitioners pending determination of the existence of a probable cause leading to an administrative
investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable searches
and seizures since the CID agents were not clothed with valid Warrants of arrest, search and seizure as
required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles,
are not valid legal grounds for their arrest and detention unless they are caught in the act. They further
allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.
There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and circumstances antecedent to the
issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and
act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil. 33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by a
peace officer or even a private person (1) when such person has committed, actually committing, or is
attempting to commit an offense in his presence; and (2) when an offense has, in fact, been committed
and he has personal knowledge of facts indicating that the person to be arrested has committed it (Rule
113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close surveillance
for three (3) months during which period their activities were monitored. The existence of probable
cause justified the arrest and the seizure of the photo negatives, photographs and posters without
warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs. Court of First Instance
of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ, Constitutional Law, 1987 ed., p. 143).
Those articles were seized as an incident to a lawful arrest and, are therefore, admissible in evidence
(Section 12, Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4 March
1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section 37, 45 and
46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is presently being
conducted by a Board of Special Inquiry. The restraint against their persons, therefore, has become
legal. The Writ has served its purpose. The process of the law is being followed (Cruz vs. Montoya, L-
39823, February 25, 1975, 62 SCRA 543). "were a person's detention was later made by virtue of a
judicial order in relation to criminal cases subsequently filed against the detainee, his petition for hebeas
corpus becomes moot and academic" (Beltran vs. Garcia, L-49014, April 30, 1979, 89 SCRA 717). "It is a
fumdamental rule that a writ of habeas corpus will not be granted when the confinement is or has
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39 | P a g e

become legal, although such confinement was illegal at the beginning" (Matsura vs. Director of Prisons,
77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were found
with young boys in their respective rooms, the ones with John Sherman being naked. Under those
circumstances the CID agents had reasonable grounds to believe that petitioners had committed
"pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing Psychopatia Sexualis
p. 555; Paraphilia (or unusual sexual activity) in which children are the preferred sexual object"
(Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor General's Return of the Writ,
on p. 101. While not a crime under the Revised Penal Code, it is behavior offensive to public morals and
violative of the declared policy of the State to promote and protect the physical, moral, spiritual, and
social well-being of our youth (Article II, Section 13, 1987 Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a waiver
of any irregularity attending their arrest and estops them from questioning its validity (Callanta v.
Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770, January 31,
1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section 37(a) of
the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised Administrative Code.
Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and Deportation
after a determination by the Board of Commissioners of the existence of the ground for
deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible nature
of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).
The specific constraints in both the 1935
1
and 1987
2
Constitutions, which are substantially Identical,
contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the other hand,
are administrative in character. An order of deportation is never construed as a punishment. It is
preventive, not a penal process. It need not be conducted strictly in accordance with ordinary Court
proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal
action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it
being merely the return to his country of an alien who has broken the conditions upon
which he could continue to reside within our borders (U.S. vs. De los Santos, 33 Phil.,
397). The deportation proceedings are administrative in character, (Kessler vs. Stracker
307 U.S., 22) summary in nature, and need not be conducted strictly in accordance with
the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155). It is essential,
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however, that the warrant of arrest shall give the alien sufficient information about the
charges against him, relating the facts relied upon. (U.S. vs. Uhl 211 F., 628.) It is also
essential that he be given a fair hearing with the assistance of counsel, if he so desires,
before unprejudiced investigators (Strench vs. Pedaris, 55 F. [2d], 597; Ex parte Jew You
On, 16 F. [2d], 153). However, all the strict rules of evidence governing judicial
controversies do not need to be observed; only such as are fumdamental and essential
like the right of cross-examination. (U.S. vs. Hughes, 104 F. [2d], 14; Murdock vs. Clark,
53 F. [2d], 155.) Hearsay evidence may even be admitted, provided the alien is given the
opportunity to explain or rebut it (Morrell vs. Baker, 270 F., 577; Sercerchi vs. Ward, 27
F. Supp., 437). (Lao Tang Bun vs. Fabre 81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and before a
final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the Constitution"
(referring to the 1935 Constitution)
3
is not invocable herein. Respondent Commissioner's Warrant of
Arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they should not
be deported. They were issued specifically "for violation of Sections 37, 45 and 46 of the Immigration
Act and Section 69 of the Revised Administrative Code." Before that, deportation proceedings had been
commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step preliminary
to their possible deportation.
Section 37 of the Immigration Law, which empowers the Commissioner of Immigration
to issue warrants for the arrest of overstaying aliens is constitutional. The arrest is a
stop preliminary to the deportation of the aliens who had violated the condition of their
stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment
of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien temporary
visitor preparatory to his deportation for failure to put up new bonds required for the
stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for his
deportation under Section 37[al of Commonwealth Act 613. A contrary interpretation
would render such power nugatory to the detriment of the State. (Ng Hua To vs. Galang,
G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be no
"truncated" recourse to both judicial and administrative warrants in a single deportation proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No. 10280,
September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under the express
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terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether the arrest of an
individual may be ordered by any authority other than a judge if the purpose is merely to determine the
existence of a probable cause, leading to an administrative investigation." For, as heretofore stated,
probable cause had already been shown to exist before the warrants of arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested and
deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if desired, and
that the charge be substantiated by competent evidence. Thus, Section 69 of the Revised Administrative
Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing in
the Philippines shall not be deported, expelled, or excluded from said Islands or
repatriated to his own country by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent, of the ground upon
which such action is contemplated. In such a case the person concerned shall be
informed of the charge or charges against him and he shall be allowed not less than 3
days for the preparation of his defense. He shall also have the right to be heard by
himself or counsel, to produce witnesses in his own behalf, and to cross-examine the
opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them, was in
order because in deportation proceedings, the right to bail is not a matter of right but a matter of
discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding
may be released under bond or under such other conditions as may be imposed by the Commissioner of
Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely
permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly
discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February 28,1962, 4 SCRA 442).
"Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of
aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs. Deportation Board, 104
Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the
constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang vs.
Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds as
it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against undesirable
aliens whose continued presence in the country is found to be injurious to the public good and the
domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]). Particularly so in
this case where the State has expressly committed itself to defend the tight of children to assistance and
special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial
to their development (Article XV, Section 3[2]). Respondent Commissioner of Immigration and
Deportation, in instituting deportation proceedings against petitioners, acted in the interests of the
State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
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42 | P a g e

SO ORDERED.

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.
G.R. No. L-63630 April 6, 1990
The Office of the Solicitor General for plaintiff-appellee.
Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:
This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San
Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the costs.
The information filed against the appellant alleged:
That on or about the 2nd day of March, 1982, in the municipality of San Fernando,
Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that
Marijuana is a prohibited drug, did then and there willfully, unlawfully and feloniously
have his possession, control and custody one (1) bag of dried marijuana leaves with an
approximate weight of one (1) kilo and to transport (sic) the same to Olongapo City,
without authority of law to do so. (At p. 6, Rollo)
The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is
narrated by the trial court as follows:
It appears from the evidence presented by the prosecution that in the late evening of
March 2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando
Police Station, together with Barangay Tanod Macario Sacdalan, were conducting
surveillance mission at the Victory Liner Terminal compound located at Barangay San
Nicolas, San Fernando, Pampanga; that the surveillance was aimed not only against
persons who may commit misdemeanors at the said place but also on persons who may
be engaging in the traffic of dangerous drugs based on informations supplied by
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informers; that it was around 9:30 in the evening that said Patrolmen noticed a person
caring a traveling bag (Exhibit G) who was acting suspiciously and they confronted him;
that the person was requested by Patrolmen Quevedo and Punzalan to open the red
traveling bag but the person refused, only to accede later on when the patrolmen
identified themselves; that found inside the bag were marijuana leaves (Exhibit B)
wrapped in a plastic wrapper and weighing one kilo, more or less; that the person was
asked of his name and the reason why he was at the said place and he gave his name as
Medel Tangliben and explained that he was waiting for a ride to Olongapo City to deliver
the marijuana leaves; that the accused was taken to the police headquarters at San
Fernando, Pampanga, for further investigation; and that Pat. Silverio Quevedo
submitted to his Station Commander his Investigator's Report (Exhibit F).
It appears also from the prosecution's evidence that in the following morning or on
March 3, 1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo,
who happens to be his brother and who has had special training on narcotics, to
conduct a field test on a little portion of the marijuana leaves and to have the remaining
portion examined by the PCCL at Camp Olivas, San Fernando, Pampanga; that Pat.
Roberto Quevedo conducted a field test (Exhibit H) on the marijuana leaves and found
positive result for marijuana (Exhibit E); that the remaining bigger quantity of the
marijuana leaves were taken to the PCCL at Camp Olivas by Pat. Roberto Quevedo that
same day of March 3, 1982 (Exhibit A and A-1) and when examined, the same were also
found to be marijuana (Exhibit C and C-1). (At pp. 9-10, Rollo)
Only the accused testified in his defense. His testimony is narrated by the trial court as follows:
The accused declared that he got married on October 25, 1981 and his wife begot a
child on June 10, 1982; that he was formerly employed in the poultry farm of his uncle
Alejandro Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry
medicine and feeds, including chicks, and used to conduct his business at Taytay, Rizal;
that he goes to Subic at times in connection with his business and whenever he is in
Subic, he used to buy C-rations from one Nena Ballon and dispose the same in Manila;
that he never left his residence at Antipolo, Rizal, on March 2, 1982; that on March 3,
1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to
buy C-rations; that he was able to meet Nena Ballon at 6:00 o'clock in the evening and
he stayed in Nena's house up to 8:00 o'clock because he had a drinking spree with
Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but
he failed and was able to take the bus only by 9:00 o'clock that evening that it was a
Victory Liner Bus that he rode and because he was tipsy, he did not notice that the bus
was only bound for San Fernando, Pampanga; that upon alighting at the Victory Liner
Compound at San Fernando, Pampanga he crossed the street to wait for a bus going to
Manila; that while thus waiting for a bus, a man whom he came to know later as Pat.
Punzalan, approached him and asked him if he has any residence certificate; that when
he took out his wallet, Pat. Punzalan got the wallet and took all the money inside the
wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the
municipal building for verification as he may be an NPA member; that at the municipal
building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping
but was awakened when he arrived that Pat. Quevedo took him upstairs and told him to
take out everything from his pocket saying that the prisoners inside the jail may get the
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same from him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the
same, telling him that it shall be returned to him but that it was never returned to him;
that he was thereafter placed under detention and somebody told him that he is being
charged with possession of marijuana and if he would like to be bailed out, somebody is
willing to help him; and, that when he was visited by his wife, he told his wife that
Patrolman Silverio Quevedo took away all his money but he told his wife not to
complain anymore as it would be useless. (Rollo, pp. 10-11)
Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his
appeal:
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM
GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE. (At p.
48, Rollo)
The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.
However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died.
Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto, the
Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her appellant's
brief. The latter complied and, in her brief, raised the following assignment of errors:
I
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA
ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN
UNLAWFUL SEARCH WITHOUT A WARRANT.
II
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF
MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS
NEVER AUTHENTICATED.
III
THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE
THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)
It is contended that the marijuana allegedly seized from the accused was a product of an unlawful
search without a warrant and is therefore inadmissible in evidence.
This contention is devoid of merit.
One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:
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Section 12. Search incident to a 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.
Meanwhile, Rule 113, Sec. 5(a) 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.
Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case
therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and
is consequently valid.
In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue, held
that:
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel 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. Pao, 147 SCRA
509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.
We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In that
case the PC officers had earlier received a tip from an informer that accused-appellant. was on board a
vessel bound for Iloilo City and was carrying marijuana. Acting on this tip, they waited for him one
evening, approached him as he descended from the gangplank, detained him and inspected the bag he
was carrying. Said bag contained marijuana leaves. The Court held that the marijuana could not be
admitted in evidence since it was seized illegally. The records show, however, that there were certain
facts, not sing in the case before us, which led the Court to declare the seizure as invalid. As stated
therein:
The present case presented no such urgency From the conflicting declarations of the PC
witnesses, it is clear that they had at react two days within which they could have
obtained a warrant of 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 contrast, the case before us presented urgency. Although the trial court's decision did not mention it,
the transcript of stenographic notes reveals that there was an informer who pointed to the accused-
appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information, the police
officers had to act quickly. There was not enough time to secure a search warrant. We cannot therefore
apply the ruling in Aminnudinto the case at bar. To require search warrants during on-the-spot
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apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of
contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the
crimes with which these persons are associated.
Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him
was never authenticated and therefore should not have been admitted as evidence. He capitalizes on
the fact that the marijuana package brought by patrolman Roberto Quevedo to the PC Crime Laboratory
for examination did not contain a tag bearing the name of the accused. We rule, however, that since
Patrolman Quevedo testified that he gave the marijuana package together with a letter-request for
examination, and the forensic chemist Marilene Salangad likewise testified that she received the
marijuana together with the letter-request and said letter-request bore the name of the accused, then
the requirements of proper authentication of evidence were sufficiently complied with. The marijuana
package examined by the forensic checklist was satisfactorily identified as the one seized from accused.
Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto Quevedo
which yielded positive results for marijuana.
Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.
In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an already
settled issue. This Court has ruled in several cases that non-presentation of the informer, where his
testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case. (People v.
Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No. 64262, March 16, 1989; People v.
Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).
As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of
credibility of witnesses and their testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that is peculiarly within the province of
the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada,
G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb the
following findings:
The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo
Punzalan are positive and sufficiently clean to show the commission by the accused of
the offense herein chatted. These prosecution witnesses have no motive to fabricate
the facts and to foist a very serious offense against the accused. The knowledge on what
these witnesses testified to were (sic) acquired by them in the official performance of
their duties and then, (sic) being no showing that they are prejudiced against the
accused, their testimonies deserve full credit.
The testimonies of the afore-mentioned petitioner that what they found in the
possession of the accused were marijuana leaves were corroborated by the examination
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findings conducted by Pat. October to Salangad of the PCCL, with station at camp Olivas,
San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)
Moreover, if there is truth in the testimony of the accused to the effect that Pat.
Punzalan got all the money from his wallet when he was accosted at the Victory Liner
Terminal and was told just to keep quiet otherwise he will be "salvaged" why will Pat.
Punzalan still bring the accused to the municipal Building for interrogation and/or
verification? Would not Pat. Punzalan be exposing his identity to the accused? This is
unnatural. And this is also true on the testimony to the accused that Pat. Silverio
Quevedo got his fifty-peso bill arid never returned the same to him. If the policemen
really got any money from the accused and that the marijuana leaves do not belong to
the accused, why will the two policemen still produce in Court as evidence that
expensive-looking traveling red bag (Exhibit G) taken from the accused and which
contained the marijuana in question if the instant case is a mere fabrication?
As already stated, all the evidence, oral and documentary, presented by the prosecution
in this case were all based on personal knowledge acquired by the prosecution
witnesses in the regular performance of their official duties and there is nothing in their
testimonies to show that they are bias (sic) or that they have any prejudice against the
herein accused. Between the testimonies of these prosecution witnesses and that of the
uncorroborated and self-serving testimony of the accused, the former should prevail.
(Rollo, p. 13)
Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself
through compulsory court processes of several witnesses to buttress his defense. Since not one other
witness was presented nor was any justification for the non-appearance given, the inadequacy of his
lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive testimonies given by
the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower
court, is an added circumstance tending to establish his guilt.
We take exception, however, to the trial court's finding that:
The dried marijuana leaves found in the possession of the accused weighs one (1) kilo,
more or less. The intent to transport the same is clear from the testimony of Pat.
Silverio Quevedo who declared, among other things, that when he confronted the
accused that night, the latter told him that he (accused) is bringing the marijuana leaves
to Olongapo City. Moreover, considering the quantity of the marijuana leaves found in
the possession of the accused and the place he was arrested which is at San Fernando,
Pampanga, a place where the accused is not residing, it can be said that the intent to
transport the marijuana leaves has been clearly established. (Rollo, pp. 13-14)
The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in
court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon. Even
assuming it to be true, the extrajudicial confession cannot be admitted because it does not appear in the
records that the accused, during custodial investigation, was apprised of his rights to remain silent and
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to counsel and to be informed of such rights. In People v. Duero 104 SCRA 379 [1981], the Court
pronounced that "inasmuch as the prosecution failed to prove that before Duero made his alleged oral
confession he was informed of his rights to remain silent and to have counsel and because there is no
proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence.
This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that:
In effect, the Court not only abrogated the rule on presumption of regularity of official
acts relative to admissibility of statements taken during in-custody interrogation but
likewise dispelled any doubt as to the full adoption of the Miranda doctrine in this
jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior
to questioning, the confessant was warned of his constitutionally protected rights.
The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding
extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the forensic chemist who
examined the marijuana leaves testified that the marijuana weighed only 600 grams Such amount is not
a considerable quantity as to conclusively confer upon the accused an intent to transport the marijuana
leaves.
Nor can it be said that the intent to transport is clearly established from the fact that the accused was
arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an
extremely severe penalty must be based on evidence which is clearer and more convincing than the
inferences in this case.
What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves
but his actual session.
The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No.
6425 (Dangerous Drugs Act of 1972 as amended).
WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The
appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.
SO ORDERED.

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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MIKAEL MALMSTEDT, *defendant-appellant.
G.R. No. 91107 June 19, 1991
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:p
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

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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
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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
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another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
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
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53 | P a g e

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, Grio-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 Constitution
2
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
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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
another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
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

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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 Obia, an INP member "on Detached Service with the Anti-Narcotics
Unit." This avowedly aroused Obia'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,
Obia 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.
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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" toAminnudin 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 buribag he
had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court
inJohn 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
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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 fromAminnudin
24
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
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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
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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
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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 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
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.

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vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.
G.R. No. 128222; June 17, 1999
DAVIDE, JR., C.J.:
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment
of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him
guilty of transporting, without appropriate legal authority, the regulated substance methamphetamine
hydrochloride, in violation of Section 15,
1
Article III of Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659,
2
and sentencing him to "die by
lethal injection." In view thereof, the judgement was brought to this Court for automatic review
pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659.
In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29 March
1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite (hereafter
ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar speedboat the
latter had spotted. According to ALMOITE, the vessel looked different from the boats ordinarily used by
fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six of his men led by his
Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to Tammocalao beach
and there conferred with ALMOITE. CID then observed that the speedboat ferried a lone male
passenger. As it was routine for CID to deploy his men in strategic places when dealing with similar
situations, he ordered his men to take up positions thirty meters from the coastline. When the
speedboat landed, the male passenger alighted, and using both hands, carried what appeared a
multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the
latter two conspicuous in their uniform and issued side-arms, became suspicious of the man as he
suddenly changed direction and broke into a run upon seeing the approaching officers. BADUA,
however, prevented the man from fleeing by holding on to his right arm. Although CID introduced
themselves as police officers, the man appeared impassive. Speaking in English, CID then requested the
man to open his bag, but he seem not to understand. CID thus tried speaking Tagalog, then Ilocano, but
still to no avail. CID then resorted to what he termed "sign language;" he motioned with his hands for
the man to open the bag. This time, the man apparently understood and acceded to the request. A
search of the bag yielded several transparent plastic packets containing yellowish crystalline substances.
CID then gestured to the man to close the bag, which he did. As CID wished to proceed to the police
station, he signaled the man to follow, but the latter did not to comprehend. Hence, CID placed his arm
around the shoulders of the man and escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain
silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his men
to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime, BADUA
opened the bag and counted twenty-nine (29) plastic packets containing yellowish crystalline substance
which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan, finally arrived, through
whom the man was "apprised of his constitutional rights." The police authorities were satisfied that the
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man and the interpreter perfectly understood each other despite their uncertainty as to what language
was spoken. But when the policemen asked the man several questions, he retreated to his obstinate
reticence and merely showed his I.D. with the name Chua Ho San printed thereon. CHUA's bag and its
contents were sent to the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San Fernando, La Union
for laboratory examination. In the meantime, CHUA was detained at the Bacnotan Police
Station.1wphi1.nt
Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter request
3
from CID incidentally her husband to
conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a multicolored
strawbag. In her Chemistry Report No. D-025-95,
4
she stated that her qualitative examination
established the contents of the plastic packets, weighing 28.7 kilos, to be positive of methamphetamine
hydrochloride or shabu, a regulated drug.
CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC
which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of the
Office of the Provincial Prosecutor, La Union, that the facts of the case could support an indictment for
illegal transport of a regulated drug, the information was subsequently amended to allege that CHUA
"willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride
(shabu) without the necessary permit or authority to transport the same" in violation of Section 15,
Article III of R.A. 6425 as amended by R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that CHUA
understood the amended information read to him in Fukien by the Fukien-speaking interpreter, Thelma
Sales Go.
Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the
auspices of the Department of Foreign Affairs. However, it was only after directing the request to the
Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA.
Trial finally ensued. The State presented evidence tending to establish the above narration of facts
which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn, was
substantially corroborated by witnesses BADUA and ALMOITE.
Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of
the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure, unadulterated
methamphetamine hydrochloride or shabu. She also explained that they were unwashed, hence they
appeared yellowish.
For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that he
hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March 1995, he
was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-tonner ship
which would embark for Nan Au Port, Mainland China where they would buy fish. Upon arrival at their
destination, RONG left the ship, came back without the fish, but with two bags, the contents of which he
never divulged to CHUA. RONG then showed to CHUA a document purportedly granting them authority
to fish on Philippine waters. So they sailed towards the Philippines and reached Dagupan, Pangasinan on
29 March 1995. At around 10:30 a.m., they disembarked on a small speedboat with the two bags RONG
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brought with him from China. While, sailing, RONG made several phone calls using his mobile phone.
CHUA heard RONG asked the person on the other side of the line if he could see the speedboat they
were riding. Apparently, the person on shore could not see them so they cruised over the waters for
about five hours more when finally, low on fuel and telephone battery, they decided to dock. CHUA
anchored the boat while RONG carried the bags to shore. The tasks completed, RONG left to look for a
telephone while CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter
pointed out to him that one bag was missing much to RONG's dismay when he learned of it. When a
crowd started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to
be found. The police immediately approached CHUA, and with nary any spoken word, only gestures and
hand movements, they escorted him to the precinct where he was handcuffed and tied to a chair. Later,
the police, led by an officer who CHUA guessed as the Chief of Police arrived with the motor engine of
the speedboat and a bag. They presented the bag to him, opened it, inspected and weighed the
contents, then proclaimed them as methaphetamine hydrochloride.
CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored
with an interpreter or informed of his "constitutional rights," particularly of his right to counsel.
Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in
the bag should have been regarded inadmissible as evidence. He also maintained that CID never graced
the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly never
prevented him from running away, as such thought failed to make an impression in his mind. Most
significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that RONG
alone exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question,
he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He also
remembered hearing from the people congregating at the beach that CHUA arrived with a companion
and a certain policeman Anneb had chased the latter's car. He additionally claimed that when the crowd
became unruly, the police decided to bring CHUA to police headquarters. There, the mayor took charge
of the situation he opened CHUA's bag with the assistance of the police, he called for a forensic
chemist surnamed CID to take a sample of the contents of the bag, and he ordered his officials to find an
interpreter. Throughout the proceedings, photographers were busy taking pictures to document the
event.
Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was
standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag
situated near CHUA when they detected the arrival of the local police. They quickly disappeared. CRAIG
then noticed ALMOITE and PARONG at the beach but not CID.
In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully
discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine hydrochloride
without legal authority to do so. Invoking People v. Tagliben
5
as authority, the RTC characterized the
search as incidental to a valid in flagrante delicto arrest, hence it allowed the admission of the
methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility of informing CHUA of
his constitutional rights to remain silent, and to have competent and independent counsel preferably of
his own choice, considering the language barrier and the observation that such irregularity was
"rectified when accused was duly arraigned and . . . (afterwards) participated in the trial of this case."
The RTC then disregarded the inconsistencies and contradictions in the testimonies of the prosecution
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witnesses as these referred to minor details which did not impair the credibility of the witnesses or
tarnish the credence conferred on the testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of
the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with several other
members of an organized syndicate bent on perpetrating said illicit traffic. Such predilection was plainly
evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as proven and established by convincing
and satisfactory evidence that the accused had conspired and acted in concert with one
Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35-tonner ship they used
in coming to the Country from China and Taiwan, this Court finds the accused Chua Ho
San @ Tsay Ho San guilty beyond reasonable doubt of the offense of Violation of Sec.
15, Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in the Information,
and considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum penalty
shall be imposed if the quantity sold/possessed/transported is "200 grams or more" in
the case of Shabu, and considering, further that the quantity involved in this case is 28.7
kilograms which is far beyond the weight ceiling specified in said Act, coupled with the
findings of conspiracy or that accused is a member of an organized syndicated crime
group, this Court, having no other recourse but to impose the maximum penalty to
accused, this Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to
die by lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay
the costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National
Police to immediately form an investigating Committee to be composed by [sic] men of
unimpeachable integrity, who will conduct an exhaustive investigation regarding this
case to determine whether there was negligence or conspiracy in the escape of Cho Chu
Rong and the two (2) or three (3) persons who approached the accused in the seashore
of Tammocalao, Bacnotan, La Union, and attempted to take the remaining bag from
accused, as well as the whereabouts of the other bag; and to furnish this Court a copy of
the report/result of the said investigation in order to show compliance herewith sixty
(60) days from receipt hereof.
The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered
turned over immediately to the Dangerous Drugs Board for destruction in accordance
with the law.
The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the
government and to be turned over to the Philippine National Police, La Union
Command, for use in their Bantay-Dagat operations against all illegal seaborne activities.
SO ORDERED.
6

Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29 plastic
packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting
weight and credence to the testimonies of prosecution witnesses despite glaring inconsistencies on
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material points; and in (3) appreciating conspiracy between him and an organized syndicate in the illicit
commerce of prohibited drugs since this was not alleged in the information.
The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted
despite the absence of search and seizure warrants as circumstances immediately preceding to and
comtemporaneous with the search necessitated and validated the police action; and (2) that there was
an effective and valid waiver of CHUA's right against unreasonable searches and seizures since he
consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that
people have the right to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose.
7
Inseparable, and not merely corollary
or incidental to said right and equally hallowed in and by the Constitution, is the exclusionary principle
which decrees that any evidence obtained in violation of said right is inadmissible for any purpose in any
proceedings.
8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall
reasonable searches and seizure. What constitutes a reasonable or even an unreasonable search in any
particular case is purely a judicial question, determinable from a consideration of the circumstances
involved.
9
Verily, the rule is, the Constitution bars State intrusions to a person's body, personal effects or
residence except if conducted by virtue of a valid of a valid search warrant issued in compliance with the
procedure outlined on the Constitution and reiterated in the Rules of Court; "otherwise such search and
seizure become "unreasonable" within the meaning of the aforementioned constitutional
provision."
10
This interdiction against warrantless searches and seizures, however, is not absolute and
such warrantless searches and seizures have long been deemed permissible by jurisprudence
11
in
instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or
consent searches, (5) stop and frisk situations (Terry search),
12
and (6) search incidental to a lawful
arrest. The last includes a valid warrantless search and seizure pursuan to an equally valid warrantless
arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid wararnt of arrest,
the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2)
arrests effected in hot pursuit, and (3) arrests of escaped prisoners.
13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure
conducted under the facts of the case at bar constitute a valid exemption from the warrant
requirement. Expectedly and quite understandably, the prosecution and the defense painted extremely
divergent versions of the incident. But this Court is certain that CHUA was arrested and his bag searched
without the benefit of a warrant.
In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant, arrest
a person, when, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of
such facts
14
or as recent case law
15
adverts to, personal knowledge of facts or circumstances
convincingly indicative or constitutive of probable cause. The term probable cause had been understood
to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves
to warrant a cautious man's belief that the person accused is guilty of the offense with which he is
charged.
16
Specifically with respect to arrests, it is such facts and circumstances which would lead a
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reasonably discreet and prudent man to believe that an offense has been committed by the person
sought to be
arrested.
17
In People v. Montilla,
18
the Court acknowledged that "the evidentiary measure for the
propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been reduced
and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard was "prima
facie evidence" and that it had been dubiously equated with probable cause, the Court explained:
[F]elicitously, those problems and confusing concepts (referring to prima facie evidence
and probable cause) were clarified and set aright, at least on the issue under discussion,
by the 1985 amendment of the Rules of Court which provides in Rule 112 thereof that
the quantum of evidence required in preliminary investigation is such evidence as
suffices to "engender as well founded belief" as to the fact of the commission of the
crime and the respondent's probable guilt thereof. It has the same meaning as the
related phraseology used in other parts of the same Rule, that is, that the investigating
fiscal "finds cause to hold the respondent for trial," or where "a probable cause exists."
It should, therefore, be in that sense, wherein the right to effect a warrantless arrest
should be considered as legally authorized." (emphasis supplied)
19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or
demonstrative of CHUA's participation in on going criminal enterprise that could have spurred police
officers from conducting the obtrusive search. The RTC never took the pains of pointing to such facts,
but predicated mainly its decision on the finding that was "accused was caught red-handed carrying the
bagful of [s]habu when apprehended." In short, there is no probable cause. At least in People v.
Tangliben, the Court agreed with the lower court's finding that compelling reasons (e.g., accused was
acting suspiciously, on the spot identification by an informant that accused was transporting prohibitive
drug, and the urgency of the situation) constitutive of probable cause impelled police officers from
effecting an in flagrante delicto arrest. In the case at bar, the Solicitor General proposes that the
following details are suggestive of probable cause persistent reports of rampant smuggling of firearm
and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats
that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines (he lacked the
necessary travel documents or visa), CHUA's suspicious behavior, i.e. he attempted to flee when he saw
the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat
with immediate dispatch towards the high seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g.,
bag or package emanating the pungent odor of marijuana or other prohibited drug,
20
confidential report
and/or positive identification by informers of courier(s) of prohibited drug and/or the time and place
where they will transport/deliver the same,
21
suspicious demeanor or behavior
22
and suspicious bulge in
the waist
23
accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There
was no classified information that a foreigner would disembark at Tammocalao beach bearing
prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer
or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of
the area did not automatically mark him as in the process of perpetrating an offense. And despite claims
by CID and BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking
and oblivious to any attempt at conversation when the officers approached him. This cast serious doubt
on the truthfulness of the claim, thus:
Q: How far were you when the accused put the bag on his sholder?
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A: We were then very near him about three meters away from the male
person carrying the bag.
Q: To what direction was he facing when he put the bag on his
shoulder?
A: To the east direction.
Q: In relation to you, where were you.
A: With the company of Sgt. Reynoso and Maj. Cid we approached the
accused and when Maj. Cid went near him, he spoke in Tagalong,
English and Ilocano which accused did not understand because he did
not respond.
Q: When Maj. Cid was talking, what was the accused doing at that time?
A: He was walking.
Q: To what direction he was walking?
A: He was walking to the east direction. (sic)
Q: He was walking away from you or going near you?
A: He was going away from us. That is why Sgt. Reynoso held the right
arm of the accused.
Q: Was Sgt. Badua able to hold the right arm of the accused?
A: Yes sir and he stopped.
24

True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But gossamer
to the officers' sense perception and view were CHUA disembarking from a speedboat, CHUA walking
casually towards the road, and CHUA carrying a multicolored strawbag. These acts did not convey any
impression that he illegally entered Philippine shores. Neither were these overt manifestations of an
ongoing felonious activity nor of CHUA's criminal behevior as clearly established in CID's testimony, thus:
Q Was the accused committing a crime when you introduced
yourselves:
A No, sir.
Q No, so there was no reason for you to approach the accused because
he was not doing anything wrong?
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A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.
25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous
search of a person arrested may be effected to deliver dangerous weapons or proofs or implements
used in the commission of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can destroy,
26
a valid arrest must
precede the search. The process cannot be reversed.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is questioned in a large majority of
these cases, e.g., whether an arrest was merely used as a pretext for conducting a
search. In this instance, the law requires that there be first a lawful arrest before a
search can be made the process cannot be reversed.
27

To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and the
warrantless arrest did not fall under the exemptions allowed by the Rules of Court
28
as already
shown. Fom all indications, the search was nothing but a fishing expedition. It is worth
mentioning here that after introducing themselves, the police officcers immediately inquired
about the contents of the bag. What else could have impelled the officers from displaying such
inordinate interest in the bag but to ferret out evidence and discover if a felony had indeed
been committed by CHUA in effect to "retroactively establish probable cause and validate an
illegal search and seizure."
The State then attempted to persuade this Court that there was a consented search, a legitimate waiver
of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to
constitute a waiver, it must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an
actual intention to relinquish the right.
29
CHUA never exhibited that he knew, actually or constructively
of his right against unreasonable searches or that he intentionally conceded the same. This can be
inferred from the manner by which the search performed, thus:
Q Together with your Chief Investigator, what was the first thing that
you did when you approached him (CHUA)?
A We introduced ourselves as police officers, sir.
Q Okey, in the first place why did you introduce yourselves?
A That is normal practice in our part, sir.
xxx xxx xxx
Q If it is possible. Okey (sic) now, after introducing yourselves what did
you do?
A He did not answer me and he did not utter any word,
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Q When he did not utter any word. What else did he do?
A I asked again a question that if he can open his bag sir.
Q And did he understand your question when you requested him to
open his bag?
A No, sir, there is no answer.
Q No answer?
A Yes, sir, no answer.
Q And when there was no answer what did you do next?
A I used sign language sir.
Q Will you demonstrate to this Honorable Court how you demonstrated
that sign language of opening the bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an action like this sir.
xxx xxx xxx
SHERIFF:
The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his right
hand from left to right or from the opening to the end of the zipper.
COURT: From the start of the zipper where you open it up to the end of
the zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on record.)
COURT: Did you open that personally?
WITNESS:
A No, your honor.
Q Now, mr. (sic) witness, why did you request the accused to open the
bag?
A Because it is our duty also to inspect his belongings sir.
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Q Why, why was it no, I reform my question your honor. Is it normal
procedure for you to examine anybody or to request anybody to open
his bag?
A The fact that he was a foreigner, sir, it is also our duty to inspect the
baggage, it is our routine duty of a police (sic), sir.
Q Is that the normal duty of a police officer to request a person to open
his bag?
A yes, sir.
Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his
bag?
A No, sir.
Q But you simply requested him to open the nag?
A Yes, sir.
30

CHUA obviously failed to understand the events that overran and overwhelmed him. The police officers
already introduced themselves to CHUA in three languages, but he remained completely deadpan. The
police hence concluded that CHUA failed to comprehend the three languages. When CHUA failed to
respond again to the police's request to open the bag, they resorted to what they called "sign language."
They claimed that CHUA finally understood their hand motions and gestures. This Court disagrees. If
CHUA could not understand what was orally articulated to him, how could he understand the police's
"sign language." More importantly, it cannot logically be inferred from his alleged cognizance of the
"sign language" that he deliberately, intelligently, and consciously waived his right against such an
intrusive search. This Court is not unmindful of cases upholding the validity of consented warrantless
searches and seizure. But in these cases, the police officers' request to search personnel effects was
orally articulated to the accused and in such language that left no room for doubt that the latter fully
understood what was requested. In some instances, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of such request.
31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling matter.
If evidence obtained during an illegal search even if tending to confirm or actually confirming initial
information or suspicion of felonious activity is absolutely considered inadmissible for any purpose in
any proceeding, the same being the fruit of a poisonous trees
32
how much more of "forbidden fruits"
which did not confirm any initial suspicion of criminal enterprise as in this case because the police
admitted that they never harbored any initial suspicion. Casting aside the regulated substance as
evidence, the remaining evidence on record are insufficient, feeble and ineffectual to sustain CHUA's
conviction.
Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be
quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures cannot
be so carelessly disregarded, as overzealous police officers are sometimes wont to do. Fealty to the
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Constitution and the rights it guarantees should be paramount in their minds, otherwise their good
intentions will remain as such simply because they have blundered. "There are those who say that . . .
'the criminal is to go free because the constable has blundered.'. . . In some cases this will undoubtedly
be the result. But . . . 'there is another consideration the imperative of judicial integrity . . . The
criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government
more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own
existence."
33

As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court
considers them trivial as they refer to insignificant details which will not affect the outcome of the case.
On a passing note, this Court calls the attention of the trial court regarding its erroneous appreciation of
conspiracy. This aggravating circumstance is without question unsupported by the records. Conspiracy
was not included in the indictment nor raised in the pleadings or proceedings of the trial court. It is also
fundamental that conspiracy must be proven just like any other criminal accusation, that is,
independently and beyond reasonable doubt.
34

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San Fernando, La
Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO
SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged, the evidence not being sufficient to
establish his guilt beyond reasonable doubt.
Costs de oficio.
SO ORDERED.

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vs.
NOLI SALCEDO @ "KA TONY," GEMO IBAEZ @ "KA TITING," BOLODOY CALDERON, JUANITO SUAL,
JR., EDISON BANCULO, NONOY ESQUILONA, GIL RAPSING, JOSE FERNANDEZ, REYNALDO CORTEZ, NOE
ALBAO, ELY RAPSING, PACO MANLAPAZ, DANILO LAURIO and NORIE HUELVA, accused, NOLI
SALCEDO, EDISON BANCULO, JUAN SUAL, JR., and DANILO LAURIO, accused-appellants.
G.R. No. 100920 June 17, 1997
PANGANIBAN, J.:
The rights of a person under custodial investigation, particularly the right to remain silent and to
counsel, have been explained, echoed and stressed no end by this Court. They are no less
constitutionally enshrined.
1
Innumerable court decisions
2
have been rendered, evincing the great
importance with which the state regards them. A law
3
was recently enacted defining the rights of
persons arrested, detained or under custodial investigation as well as the duties of the arresting,
detaining and investigating officers; and penalizing violations thereof. In spite of these clear
constitutional, jurisprudential and statutory guidelines, one still finds persistent infractions by public
investigators and police authorities that have resulted in acquittals which oftentimes are not understood
or appreciated by the public at large.
In the present case, the issue confronts us once more. As we have held in similar cases, a voluntary
extrajudicial confession of an accused, even where it reflects the truth, if given without the assistance of
counsel and without a valid waiver thereof, is inadmissible in evidence against him.
4

Of course, where the statements in the uncounselled confession are reiterated in open court, or where
other conclusive evidence proves the guilt of the accused beyond reasonable doubt, the court should
not hesitate to convict and mete the proper penalty.
5

In an Information
6
dated October 28, 1988, First Assistant Provincial Fiscal Andres B. Barsaga, Jr.,
charged Accused-appellants Noli Salcedo, Edison Banculo, Juanito Sual, Jr. and Danilo Laurio, together
with Nonoy (Teodulo, Jr.) Esquilona, Reynaldo Cortes, Paco (Romarico) Manlapaz, Gemo Ibaez, Bolodoy
Calderon, Gil Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing and Norie Huelva, with the crime of
murder committed as follows:
That on or about June 20, 1988, in the evening thereof, at Barangay Gabi, Municipality
of Baleno, Province of Masbate, Philippines, within the jurisdiction of this Court, the said
accused, conspiring together and mutually helping one another, with intent to kill,
evident premeditation(,) treachery and superiority of strenght (sic) and taking
advantage of nighttime, did, then and there willfully, unlawfully and feloniously attack,
assault and short with a gun(,) hack with a bolo one Honorio Aparejado y Fideles, hitting
the latter on the different parts of the body, thereby inflicting wounds which directly
caused his instantaneous death.
On September 12, 1989, Accused Noli Salcedo, Juanito Sual, Jr., Edison Banculo, Danilo Laurio, Reynaldo
Cortes and Nonoy Esquilona, assisted by Attys. Ricardo Merdegia and Jose Medina, pleaded not guilty to
the above charge, while Accused Romarico Manlapaz, assisted by Atty. Ruben Songco, entered the same
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plea on January 23, 1990.
7
The rest of the accused remained at large. Trial ensued insofar as those
apprehended and arraigned were concerned. On May 6, 1991, the trial judge rendered judgment
convicting Salcedo as principal; and Banculo, Sual, Jr. and Laurio as accomplices in the crime of murder.
Esquilona, Jr., Cortes and Manlapaz were acquitted.
8

The Facts
Evidence for the Prosecution
The principal witness for the prosecution, Edwin Cortes, a 30-year old farmer, resident of Gabi, Baleno,
Masbate, and brother-in-law of the victim, Honorio Aparejado, identified and affirmed his
statement
9
given on June 30, 1988 relative to the incident which he had subscribed to before Municipal
Circuit Trial Judge Vicente Lim Yu on July 11, 1988. The gist of Cortes' testimony
10
is as follows:
About 8:00 o'clock in the evening of June 20, 1988, he was in his house together with his wife, their four
children and the victim when several armed men led by Accused Noli Salcedo arrived. Salcedo shouted
for him and the victim to come out of the house. Once outside, Cortes and Aparejado were ordered to
lie on the ground; then they were hogtied. Thereafter, they were told to get up and were led to the
other side of a creek, about twenty (20) meters from the house, where they were ordered to lie down
again. While the witness and the victim were in such position about two or three meters apart, Salcedo
shot Aparejado twice, then hacked him. Salcedo's companions likewise hacked the victim. Afterwards,
they turned Aparejado's body around, opened his stomach and took out his liver. His kneecap was also
removed. Then all the accused left, bringing with them the victim's liver and kneecap. Cortes claimed to
have witnessed all these since the accused had a flashlight and the moon was just rising.
After the accused had left, Cortes ran towards a grassy area where he was able to untie his hands. The
following morning, he informed the relatives of the victim about the incident and likewise reported the
same to police authorities at Baleno, Masbate. Cortes further stated that he had known Salcedo for
about a year prior to the incident and that he had no knowledge of any reason why the accused had
killed Aparejado. Although he admitted not knowing the identities of Salcedo's companions at the time
of the murder, he identified each of the accused before the trial court and said that they were the ones
who killed Aparejado.
Municipal Health Officer Conchita Ulanday conducted the postmortem examination on the body of the
victim. Her findings included:
Signs of violence:
(1) Incised wound with a zigzag appearance 11" penetrating exposing
the stomach and a portion of the intestines, located at the epigastric
area (Rt.) up to the level of the navel.
(2) Incised wound slightly curving in appearance(,) 7" penetrating
exposing a portion of the intestines crossing the wound #1 at the level
of the navel.
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(3) Gunshot wound point of entry #2, 1 cm. circular each 1" apart pre-
axillary line at the level of the 4th and 5th (illegible) with the presence
of tattoing (sic) (powder burns) around the wound(,) back, left, with a
downward-inward in (sic) direction.
(4) Gunshot wound point of entry 1 cm. circular, scapular line, (with)
tattoing (sic) around the wound, lower back, left.
(5) Hack wound at the level of the nape of the neck, almost completely
detaching the head from the body.
(6) A emulsion (sic) knee cartilage, Rt.
Due to the above-mentioned post mortem findings (sic) was made that death was
caused by hack, gunshot and incised wounds.
11

Dr. Ulanday described the first, second and last wounds as serious but not fatal, although they might
have been "secondary to infection." However, the three other wounds were fatal since they injured vital
organs such as the lungs, heart and liver.
12

Witness Lydia Aparejado, widow of the victim, testified on how she learned of the killing of her husband.
At that time, she was in Baleno attending to the needs of their children who were studying there. She
further testified to the actual expenses incurred as a consequence of the death of her husband,
amounting to P5,000.00. She also demanded indemnification for the physical and mental anguish she
felt due to the killing of her husband, in an amount she left to the discretion of the court.
13

P/Sgt. Jose Bajar of the Aroroy Police Station testified that he had conducted the investigation of
Accused Danilo Laurio, Juan
14
Sual, Jr. and Edison Banculo on August 22, 1988. The investigation was in
the form of questions and answers in the vernacular which were reduced into writing.
15
During cross-
examination, he admitted that the three were not assisted by counsel when they signed their respective
waivers-neither during the investigation nor at the time they affixed their signatures to their respective
statements.
16

Pfc. Wencell
17
Esquilona, member of the INP (now PNP) Baleno Police Station, was presented as a
rebuttal witness for the prosecution. He stated that he had effected the arrest of six of the accused,
namely: Manlapaz, Cortes, Esquillona, Jr., Laurio, Banculo and Sual. As to the latter three, Esquilona
admitted that he was not armed with a warrant for their arrest but that he had only received a wire
from the headquarters that the three were suspects in the murder of Aparejado. At the time of the
arrest, he likewise recovered one lantaka, an "armalite" revolver and fatigue uniforms at the house
where the three were arrested. He stated further that he did not maltreat any of them and was not
present during their investigation conducted by Sgt. Jose Bajar.
18

Evidence for the Defense
Accused Edison Banculo testified that he had been in Balite, Aroroy, Masbate, sleeping in the house of
his adoptive parents, Celia
19
Laydo and Angel Entines,
20
on the night the incident occurred. His adoptive
parents and co-accused Danilo Laurio were also in the same house at that time. He declared that he had
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signed Exhibit "G", purportedly his confession of his participation in the killing of Aparejado, only
because he could not bear the physical maltreatment by the police who had further threatened to kill
him. He confirmed that he was not assisted by counsel or apprised of his rights to remain silent and to
be assisted by counsel of his own choice during his investigation.
21

Another accused, Teodulo Esquilona, Jr., testified that he had been in Masbate, Masbate, learning the
art of wood lamination from a certain Eduardo Marabe, on the day the incident took place. Among his
co-accused, he knew only Reynaldo Cortes while he met the others for the first time in court. He
testified further that, contrary to the assertion of Prosecution Witness Edwin Cortes, he personally knew
the latter who had been his neighbor in thepoblacion of Baleno, Masbate from 1978 to 1986. Besides,
his wife was the cousin of Edwin.
22

Accused Reynaldo Cortes corroborated the alibi of Teodulo, Jr., stating that he slept in the latter's house
on the night of June 20, 1988 at Lagta, Baleno, Masbate. The latter had left early morning of that day
and came back only the following day. He denied having known the other accused previous to the filing
of the case except for Romarico Manlapaz who was a neighbor of Teodulo, Jr. He claimed to be a cousin
of the victim's father but knew no enmity or ill feeling between them. He likewise claimed to have been
physically maltreated by the police during his investigation.
23

The principal suspect, Noli Salcedo, likewise denied complicity in the murder of Aparejado. He claimed
to have been in Manila working as a construction laborer from 1987 until August 1988. When asked the
name of his employer and of the firm where he worked, he could not, however, name either. At the
latter date, he went back to Bantigue (in Masbate) to attend the fiesta. He was later arrested in his
hometown of Kinamaligan. At the time of his arrest, he had tried to escape, as a result of which he was
shot by one of the police officers. He denied knowing the Aparejados and his other co-accused.
24

Another accused, Romarico Manlapaz, also claimed that he had been in Manila from May 10, 1988 until
February 1989 when he returned to Lagta, Baleno. He admitted knowing, among his co-accused,
Teodulo Esquilona, Jr. and Reynaldo Cortes who were his neighbors in Lagta. As to the rest, he only met
them in jail. He also denied knowing the victim or his widow.
25

Juanito Sual, Jr. stated that he was in his house in Gabi, Baleno, Masbate during the night of the
incident. He admitted affixing his signature to the statement marked Exhibit "F" for the prosecution, but
only because he could no longer bear the maltreatment of Policeman Wencell Esquilona. He confirmed
that he had not been assisted by counsel during his investigation, and denied that he had been informed
of his rights to remain silent and to be assisted by counsel of his own choice. He also claimed that at the
time he was apprehended, there was no warrant for his arrest. He denied having been in the company
of Noli Salcedo, whom he allegedly met in jail only in the evening of June 20, 1988. He said that, among
the other accused, he knew only Edison Banculo, Danilo Laurio and Reynaldo Cortes prior to this case.
26

Danilo Laurio stated that he was sleeping at the house of his adoptive parents in Balite, Aroroy,
Masbate, on the night that Honorio Aparejado was killed. At that time, his co-accused Edison Banculo
was in the same house. He controverted the statement of Prosecution Witness Edwin Cortes that he
was one of those who had killed Aparejado. He further denied having known the victim or the latter's
wife prior to his murder. He also stated that at the time of his arrest, the arresting officer was not armed
with a warrant. Although he admitted having signed his alleged sworn statement presented by the
prosecution, he claimed that he was forced to do so after having been physically abused by Policeman
Wencell Esquilona.
27

CRIMINAL PROCEDURE
76 | P a g e

The adoptive mother of Accused Banculo and Laurio, Celia Laydo Entines, testified that she and the two
went gold-panning in her land at Baliti (or Balite), Aroroy, Masbate on June 20, 1988 at daytime. About
7:00 o'clock in the evening, they all went to sleep and woke up about 5:00 o'clock the following
morning. To her knowledge, her two adopted sons did not leave the house that night.
28

Two other witnesses were presented, corroborating the alibi of Cortes and Esquilona, Jr., and also
attesting to their good character.
Ruling of the Trial Court
In discrediting Accused-appellant Noli Salcedo's sole defense of alibi, the court a quo reasonable thus:
Accused Noli Salcedo has been clearly and positively identified by lone witness Edwin
Cortes. His alibi therefore, that he was in Manila at the time the heinous crime was
perpetrated, cannot be sustained. Moreover, after examining the evidence in support of
his defense, the Court finds that his alibi has the aspect of fabrication.
xxx xxx xxx
When asked by the prosecution the firm or the name of his employer where he was
working in Manila, he could not remember the construction firm neither the name of his
employer. This is highly impossible, considering the fact that he reports to work daily.
While he may in the remote probability forget one, he could not forget both.
29

With respect to the other accused, the trial court explained their complicity this wise:
It is to be remembered that Edwin Cortes, witness for the prosecution knew only Noli
Salcedo and Bolodoy Calderon of the eight (8) who came to his house. . . .
The other accused were merely referred to by the witness as companions of Noli
Salcedo and Bolodoy Calderon. That he was able to pinpoint the other accused in Court
is understandable considering that when the above-named accused were under
custodial interrogation, he was present. Under such circumstances, he could well
remember the faces of the six (6) accused for purposes of implicating them.
Their participation in the criminal act appears to be limited to being present in the
premises where the acts of co-defendants who, other than being present, giving moral
support to the principal accused, cannot be said to constitute direct participation in the
acts of execution and their presence and company were not necessary and essential to
the perpetration of the murder in question. Such co-defendants may only be considered
guilty as accomplices. . . .
30

However, the trial court noted that the inclusion of Accused Romarico (Paco) Manlapaz, Reynaldo Cortes
and Teodulo Esquilona, Jr. in the charge was based solely on the extrajudicial confessions of Edison
Banculo, Juan Sual, Jr. and Danilo Laurio which, absent independent proof of conspiracy, were not
admissible evidence against alleged co-conspirators
31
under Section 27, Rule 130 of the Rules of Court.
Thus, a judgment of acquittal was rendered in favor of Manlapaz, Cortes and Esquilona, Jr.
CRIMINAL PROCEDURE
77 | P a g e

The full dispositive portion of the questioned Decision reads as follows:
WHEREFORE, the Court finds accused NOLI SALCEDO GUILTY beyond reasonable doubt
of the crime of Murder and is sentenced to suffer the penalty of RECLUSION
PERPETUA and to pay the heirs of the victim in the amount of FIFTY THOUSAND
(P50,000.00) PESOS.
Accused Edison Banculo, Juan Sual Jr. and Danilo Laurio as Accomplice (sic) in the crime
of Murder, they are hereby sentenced to suffer Indeterminate Penalty of EIGHT (8)
YEARS and ONE (1) DAY ofPrision Mayor, as minimum, to FOURTEEN (14) YEARS and
EIGHT (8) MONTHS of Reclusion Temporal, as maximum, in the absence of any
mitigating circumstance.
All instruments seized from the accused are hereby confiscated in favor of the
government, to wit:
Exh. "I" lantaka (homemade gun) long barrel;
Exh. "L" armalite revolver, Smith and Wesson, US made;
Exh. "L-1, L-2, L-3, L-4" live ammos; and
Exh. "L-5 and L-6" empty shells.
In the service of their sentence, accused Edison Banculo, Juan Sual Jr. and Danilo Laurio
shall be given the full credit of their detention.
Accused Teodulo Esquilona, Jr., Reynaldo Cortes and Paco Manlapaz are hereby
ACQUITTED.
Let an alias warrant of arrest be issued for the apprehension of the other accused who
remain at large up to the present, namely: Gemo Ibaez, Bolodoy Calderon, Gil Rapsing,
Jose Fernandez, Noe Albao, Ely Rapsing and Norie Huelva.
32

Issues
In their appeal before us, accused-appellants aver that the trial court erred in not acquitting them on the
ground of reasonable doubt and in not giving due credit to their defense of denial and alibi.
33
They
claim that the prosecution failed to present clear and conclusive proof of conspiracy and of the presence
of all elements of the crime (without, however, specifying which elements was not proved). Thus,
although alibi is an inherently weak defense, faced with the "improbabilities and uncertainties of the
prosecution's evidence, it suffices to raise reasonable doubt as to the accused's responsibility."
The Solicitor General views Appellant Salcedo's alibi as futile because he failed to prove that it was
physically impossible for him to have been at the scene of the crime at the time of its commission.
Further, the prosecution eyewitness' positive identification of him as one of the culprits pulverizes his
already weak defense. The state counsel recommends, however, the acquittal of Appellants Banculo,
CRIMINAL PROCEDURE
78 | P a g e

Sual, Jr. and Laurio on the ground that their extrajudicial confessions were executed without the
assistance of counsel and are, hence, inadmissible in evidence. He further states that since the only
evidence implicating them in the crime are these uncounselled confessions, the constitutional
presumption of innocence must be resolved in their favor.
34

The Court's Ruling
After a careful scrutiny of the records, we find the recommendation of the Solicitor General justified.
Thus, we partially grant this appeal insofar as the conviction of Appellants Juanito Sual, Jr., Edison
Banculo and Danilo Laurio is concerned. However, with regard to Appellant Noli Salcedo, in the face of
the clear and categorical testimony of Prosecution Witness Edwin Cortes who related in minutiae the
extent of Salcedo's participation in the vicious slaughtering of the hapless victim, his conviction must
stand.
First Issue: Sufficiency of Prosecution Evidence
Against Appellant Banculo,
Sual, Jr. and Laurio
Appellants Banculo, Sual, Jr. and Laurio deny complicity in the murder of Aparejado and refute the
voluntariness of the execution of their purported confessions. The three claim to have been physically
maltreated by the apprehending officer and forced to sign the statements prepared by the police
investigator. The trial judge, however, gave no credit to their allegations of maltreatment, and further
ruled against the objections of the defense counsel to the admissibility of appellants' statements on the
ground that they had been taken without the assistance of counsel.
Significantly, the absence of counsel at the time of the investigation of the three above-named
appellants was confirmed by the police investigator himself, thus:
Q (When) Danilo Laurio signed the waiver, was he assisted by counsel?
A No, sir.
Q How about Juanito Sual, when he signed Exhibit F, his waiver, when
he signed the waiver on Exhibit F, was he assisted by his counsel?
A No, sir.
Q When he signed the entire body of your investigation was he also
assisted by counsel?
A No, sir.
Q How about Edison Banculo when he signed the waiver, was he
assisted by counsel?
A He was not assisted.
CRIMINAL PROCEDURE
79 | P a g e

Q When he signed the entire investigation that you made?
A Yes, sir.
35

Under these circumstances, this Court is left with no choice but to exclude the sworn statements of
Laurio, Sual, Jr., and Banculo from the evidence against them. We recently had occasion to discourse on
the inviolability of the constitutional rights of a person under custodial investigation and we find our
pronouncement in People vs. Parelonce more worth repeating:
Under Sec. 12 par. 1, Art. III, of the 1987 Constitution, any person under custodial
investigation for the commission of an offense shall have the right to be informed of his
right to remain silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the presence of
counsel. The right to be informed carries with it the correlative obligation on the part of
the investigator to explain, and contemplates effective communication which results in
the subject understanding what is being conveyed. Since what is sought to be attained is
comprehension, the degree of explanation required will vary and depend on education,
intelligence and other relevant personal circumstances of the person being
investigated. In further ensuring the right to counsel of the person being investigated, it
is not enough that the subject be informed of the right; he should also be asked whether
he wants to avail himself of the same and should be told that he can hire a counsel of his
own choice if he so desires or that one will be provided him at his request. If he decides
not to retrain a counsel of his choice or avail himself of one to be provided him and,
therefore, chooses to waive his right to counsel, such waiver, to be valid and effective,
must be made with the assistance of counsel. That counsel must be a lawyer.
Even assuming that in the instant case the extrajudicial confession made by appellant
spoke the truth and was not extracted through violence or intimidation, still the failure
of the police investigators to inform appellant of his right to remain silent, coupled with
the denial of his right to a competent and independent counsel or the absence of
effective legal assistance when he waived his constitutional rights, rendered the
confession inadmissible under Sec. 12, par. 3, Art. III, of the 1987
Constitution.
36
(Emphasis supplied.)
In People vs. Januario,
37
we reemphasized our unwavering commitment to safeguard our people's
rights, particularly the right to counsel of persons under custodial investigation, as follows:
The 1987 Constitution was crafted and ordained at a historic time when our nation was
reeling from ghastly memories of atrocities, excesses and outright violations of our
people's rights to life, liberty and property. Hence, our bill of rights was worded to
emphasize the sanctity of human liberty and specifically to protect persons undergoing
custodial investigations from ignorant, overzealous and/or incompetent peace officers.
The Constitution so dearly values freedom and voluntariness that, inter alia, it
unequivocally guarantees a person undergoing investigation for the commission of an
offense not only the services of counsel, but a lawyer who is not merely (a) "competent"
but also (b) "independent" and (c) "preferably of his own choice" as well.
CRIMINAL PROCEDURE
80 | P a g e

xxx xxx xxx
The Court understands the difficulties faced by law enforcement agencies in
apprehending violators of the law . . . . It sympathizes with the public clamor for the
bringing of criminals before the altar of justice. However, quick solution of crimes and
the consequent apprehension of malefactors are not the end-all and be-all of law
enforcement. Enforcers of the law must follow the procedure mandated by the
Constitution and the law. Otherwise, their efforts would be meaningless. And their
expenses in trying to solve crimes would constitute needless expenditures of taxpayers'
money.
This Court values liberty and will always insist on the observance of basic constitutional
rights as a condition sine qua non against the awesome investigative and prosecutory
powers of government.
The constitutionally infirm confessions of appellants, therefore, cannot be given any iota of
consideration. And without such statements, the remaining prosecution evidence is sorely inadequate
to prove the participation of Banculo, Sual, Jr. and Laurio in the crime. The lone prosecution eyewitness,
Edwin Cortes, tried to implicate all the accused by describing the kind of weapon each had been armed
with during the night of the incident.
38
His statements relative thereto are, however, suspect. In the rest
of his testimony, he referred to the accused, other than Salcedo, merely as Salcedo's "companions." On
a specific question proffered by the public prosecutor, Cortes admitted not knowing the identities of the
other accused, thus:
Q Do you want to impress to this Honorable Court that you do not know
the rest of the accused at the time when this victim was killed?
A Yes, sir.
39

Even during his earlier investigation by the police, he had already claimed not to have
recognized the other assailants. The relevant part of his sworn statement is as follows:
Q How many persons all in all did you see?
A Eight.
Q Of these eight persons were you able to recognize any one of them?
A Yes, sir.
Q Who are they?
A Noli Salcedo and Bolodoy Calderon.
Q How about the six, do you know them?
A I do not know them.
40

CRIMINAL PROCEDURE
81 | P a g e

Without knowing the other accused at the time of the incident, it is quite unbelievable that the witness
could recall exactly what kind of weapon each carried that night. No sufficient and credible evidence is
in the records to overturn another constitutional right of the accused: the right to be presumed
innocent of any offense until the contrary is proved beyond reasonable doubt. Every circumstance
favoring their innocence must be taken into account and proof against them must survive the test of
reason.
41
Under the above circumstances, the prosecution failed to adduce that quantum of evidence
required to warrant a conviction. Hence, the three appellants deserve an acquittal.
42

Against Appellant Salcedo
We cannot hold the same for Appellant Salcedo. He was positively and consistently identified by Witness
Edwin Cortes as the principal culprit. Upon the group's arrival at the witness' house, it was Salcedo who
shouted for Cortes and Aparejado to get down from the house. He was the one who gave orders for
them to lie down on the ground, to be hogtied and to proceed to the other side of the creek.
43
The
witness was categorical in declaring that it was Salcedo who shot Aparejado twice and hacked him after
that. He testified:
Q When you were already lying flat on the ground near that creek what
happened?
A Noli Salcedo shot Honorio Aparejado.
Q Was Honorio Aparejado hit?
A Yes, sir.
Q How far were you when you saw Honorio Aparejado . . . Noli Salcedo
when he shot Honorio Aparejado?
A Just near, about two meters.
Q How were you able to see that it was Noli Salcedo who shot Honorio
Aparejado when it was nighttime?
A I could recognize his voice and his physical built.
Q Was there a light at that time?
A Yes, sir.
xxx xxx xxx
Q How many times did Noli Salcedo shoot Honorio Aparejado?
A Two times.
Q Then after shooting Honorio Aparejado, what else transpired?
CRIMINAL PROCEDURE
82 | P a g e

A He was hacked.
Q Do you want to tell us that Honorio Aparejado was again hacked?
A Yes, sir.
Q By whom?
A The companions of Noli Salcedo.
Q How about Noli Salcedo, did he hack Honorio Aparejado?
A Yes, sir.
Q How many times?
A Only once.
44

His testimony essentially affirmed his statements during the police investigation, thus:
QUESTION Last June 20, 1988 at about 8:00 o'clock in the evening
where were you?
ANSWER I was in my house at Gabi, Baleno, Masbate.
xxx xxx xxx
Q While you were in your house on that date and time, do you
remember of (sic) any unusual incident that happened?
A Yes sir.
Q Tell us what happened.
A During that date and time several persons arrived and told us to go
down.
Q How many persons all in all did you see?
A Eight.
Q Of these eight persons were you able to recognize any one of them?
A Yes sir.
Q Who are they?
CRIMINAL PROCEDURE
83 | P a g e

A Noli Salcedo and Bolodoy Calderon.
xxx xxx xxx
Q What happened after you were told to lay flat faced down?
A While we were lying down, Noli Salcedo shot Norie Aparejado.
Q Was Norie Aparejado hit?
A Yes, sir.
45

Appellant Salcedo, instead of introducing evidence to show that the witness had evil motive in imputing
the crime to him, even admitted that he knew of no reason why Edwin Cortes would testify falsely
against him.
46
Consequently, Cortes' positive and clear identification of Salcedo is sufficient to convict
him. It has been repeatedly held that the testimony of a single witness, if credible and positive and
satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient to convict.
47

Second Issue: Alibi
In the light of the prior discussion exculpating Appellants Banculo, Sual, Jr. and Laurio from the murder
of Aparejado, we shall no longer discuss the sufficiency and worthiness of their alibi.
With respect to Appellant Salcedo, his defense of alibi, juxtaposed with the positive identification made
by Witness Cortes, pales in probative value and is totally inadequate to justify an exoneration. Salcedo
tried to establish that it was physically impossible for him to have been at the scene of the crime since
he was supposedly working in Manila at that time. But when asked by the public prosecutor the name of
his employer in Manila, he simply replied that he could not remember anymore.
48
As aptly observed by
the trial court, it is highly impossible for one not to remember either the name of his employer or the
firm where he had worked.
49
Salcedo did not even attempt to try to recall either name. This lends grave
doubt as to the truthfulness of his defense. The inherent weakness of alibi as a defense was not
overcome. Indubitably, it cannot prevail over the positive identification made by the prosecution
witness.
50

Treachery
Although the trial court stated that the killing was qualified by treachery, it did not explain what
circumstances of treachery were present. Nonetheless, the facts established during trial unmistakably
point to the presence of means, method or form employed by the accused which tended directly and
specially to ensure the execution of the offense without risk to himself arising from the defense that the
offended party might make. The Court is satisfied that these essential requirements of treachery were
proven by clear and convincing evidence as conclusively as the killing itself.
51

In the case before us, there were eight assailants, at least one of whom was armed with a gun and a
bolo. It was sufficiently established by the prosecution that the victim had first been hogtied and then
made to lie down facing the ground. And it was in such position that Salcedo fatally shot and hacked
him. Obviously, the killing was attended by alevosia. Aparejado
CRIMINAL PROCEDURE
84 | P a g e

was rendered defenseless and absolutely with no means to repel or evade the attack.
52
This qualifies
the killing to murder.
Damages
This Court observes that the trial court did not rule on the damages sought to be recovered by the
widow of the victim. Lydia Aparejado testified that she incurred expenses for the embalmment, the
coffin and funeral lot in the estimated amount of P5,000.00. Of such expenses, the Court can only give
credence to those supported by receipts and which appear to have been genuinely incurred in
connection with the death, wake and burial of the victim.
53
We scoured the records for any receipt in
support of her claim but found none. Actual damages cannot, therefore, be granted to the victim's heirs.
However, we affirm the civil indemnity in the amount of P50,000.00 given by the trial court. This is
automatically awarded without need of further evidence other than the fact of the victims's death.
Anent moral damages, the victim's widow did state that she suffered headaches due to the death of her
husband; with him gone, she worried about how to support her children. Moral damages, which include
physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical
injuries
54
or the victim's death, as in this case. The amount of moral damages is left to the discretion of
the court. Since the court a quo did not exercise such discretion, this Court may do so because an appeal
in a criminal case opens the whole case for review. This Court now deems justified the award of moral
damages in the amount of P50,000.00 to Lydia, the wife of Honorio Aparejado.
WHEREFORE, premises considered, the appeal is partially GRANTED. Appellants Edison Banculo, Juanito
Sual, Jr. and Danilo Laurio are hereby ACQUITTED on reasonable doubt and are ordered RELEASED
immediately unless they are being detained for some other legal cause. The assailed Decision finding
Noli Salcedo GUILTY beyond reasonable doubt of murder and imposing on him the penalty of reclusion
perpetua as well as the payment of the sum of P50,000.00 as indemnity to the heirs of the victim,
Honorio Aparejado y Fideles, is AFFIRMED. Furthermore, accused-appellant is also ordered to pay moral
damages in the amount of P50,000.00 to the victim's wife, Lydia Aparejado. The other parts of the said
Decision, insofar as they are not inconsistent with the foregoing, are hereby also AFFIRMED.
SO ORDERED.

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WARRANTLESS ARREST CASES

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