III. SEARCH AND SEIZURE
A. Source – Fourth Amendment, U.S. Federal Constitution
B. Scope of protection – natural and juridical persons; citizens and noncitizens
C. Reasonableness: touchstone of the validity of search and seizure
CASE: Social Justice Society v. Dangerous Drugs Board, G.R. No. 157870,
November 3, 2008
Ruling:
Paragraphs (c) and (d) are constitutional while paragraphs (f) and (g) are
unconstitutional.
Sec. 36 (c) of RA 9165 - constitutional
In the cases of Vernonia and Board of Education from US jurisprudence,
1. schools and their administrators stand in loco parentis with respect to their
students;
2. minor students have contextually fewer rights than an adult, and are subject
to the custody and supervision of their parents, guardians, and schools;
3. schools, acting in loco parentis, have a duty to safeguard the health and well
- being of their students and may adopt such measures as may reasonably be
necessary to discharge such duty; and
4. schools have the right to impose conditions on applicants for admission that
are fair, just, and non-discriminatory.
Schools and their administrators stand in loco parentis with respect to their students
and schools, acting in loco parentis, have a duty to safeguard the health and wellbeing of their students and may adopt such measures as may reasonably be necessary
to discharge such duty; and schools have the right to impose conditions on applicants
for admission that are fair, just, and non-discriminatory.
It is in this view that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure,
the right to enroll is not absolute; it is subject to fair, reasonable, and equitable
requirements.
The Court can take judicial notice of the proliferation of prohibited drugs in the
country that threatens the well - being of the people, particularly the youth and school
children who usually end up as victims. Accordingly, and until a more effective
method is conceptualized and put in motion, a random drug testing of students in
secondary and tertiary schools is not only acceptable but may even be necessary if
the safety and interest of the student population, doubtless a legitimate concern of
the government, are to be promoted and protected.
Sec. 36 (d) of RA 9165 - constitutional
The mandatory but random drug test prescribed by Sec. 36 (d) of RA 9165 for
officers and employees of public and private offices is justifiable albeit not exactly
for the same reason as the students. SJS has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates
the right to privacy and constitutes unlawful and/or unconsented search under Art.
III, Secs. 1 and 2 of the Constitution.
The essence of privacy is the right to be left alone. Authorities are agreed though
that the right to privacy yields to certain paramount rights of the public and defers
to the state’s exercise of police power. As the warrantless clause of Sec. 2, Art III of
the Constitution is couched and as has been held, “reasonableness” is the touchstone
of the validity of a government search or intrusion. While every officer and
employee in a private establishment is under the law deemed forewarned that he or
she may be a possible subject of a drug test, nobody is really singled out in advance
for drug testing. The goal is to discourage drug use by not telling in advance anyone
when and who is to be tested. It is to be noted the very reason RA 9165 was enacted
is to safeguard the well-being of the citizens from the deleterious effects of
dangerous drugs.
Sec. 36 (f) of RA 9165 - unconstitutional
The operative concepts in the mandatory drug testing are “randomness” and
“suspicionless.” In the case of persons charged with a crime before the prosecutor’s
office, a mandatory drug testing can never be random or suspicionless. The ideas of
randomness and being suspicionless are antithetical to their being made defendants
in a criminal complaint. They are not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. To impose mandatory drug testing
on the accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case
would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to incriminate
themselves.
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In Pimentel’s petition, the court held section (g) unconstitutional.
Unconstitutionality of Sec. 36 (g) of RA 9165 COMELEC cannot validly impose
qualifications on candidates for public office in addition to what the Constitution
prescribes; and Sec. 36 (g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification requirements
enumerated in Sec. 3, Art. VI of the Constitution. Said section unmistakably requires
a candidate for senator to be certified illegal-drug clean as a pre-condition to the
validity of his certificate for candidacy and a condition sine qua non to be voted upon
and be proclaimed as an elected official. The right of a citizen in the democratic
process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution—the basic law to which all
laws must conform.
D. Meaning of “search”
CASES:
Katz v. U.S., 389 U.S. 347 (1967)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Syllabus
Petitioner was convicted under an indictment charging him with transmitting
wagering information by telephone across state lines in violation of 18 U.S.C. §
1084. Evidence of petitioner's end of the conversations, overheard by FBI agents
who had attached an electronic listening and recording device to the outside of the
telephone booth from which the calls were made, was introduced at the trial. The
Court of Appeals affirmed the conviction, finding that there was no Fourth
Amendment violation, since there was "no physical entrance into the area occupied
by" petitioner.
Held:
1. The Government's eavesdropping activities violated the privacy upon which
petitioner justifiably relied while using the telephone booth, and thus constituted a
"search and seizure" within the meaning of the Fourth Amendment. Pp. 389 U. S.
350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items, but
extends as well to the recording of oral statements. Silverman v. United States, 365
U. S. 505, 365 U. S. 511. P. 389 U. S. 353.
(b) Because the Fourth Amendment protects people, rather than places, its reach
cannot turn on the presence or absence of a physical intrusion into any given
enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U. S. 438,
and Goldman v. United States, 316 U. S. 129, is no longer controlling. Pp. 389 U.
S. 351, 389 U. S. 353.
2. Although the surveillance in this case may have been so narrowly circumscribed
that it could constitutionally have been authorized in advance, it was not in fact
conducted pursuant to the warrant procedure which is a constitutional precondition
of such electronic surveillance. Pp. 389 U. S. 354-359.
369 F.2d 130, reversed.
Page 389 U. S. 348
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of
California under an eight-count indictment charging him with transmitting
wagering information by telephone from Los Angeles to Miami and Boston, in
violation of a federal statute. [Footnote 1] At trial, the Government was permitted,
over the petitioner's objection, to introduce evidence of the petitioner's end of
telephone conversations, overheard by FBI agents who had attached an electronic
listening and recording device to the outside of the public telephone booth from
which he had placed his calls. In affirming his conviction, the Court of Appeals
rejected the contention that the recordings had been obtained in violation of the
Fourth Amendment, because "[t]here was no physical entrance into the area
occupied by [the petitioner]." [Footnote 2] We granted certiorari in order to
consider the constitutional questions thus presented. [Footnote 3]
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally protected area so that
evidence obtained by attaching an electronic listening recording device to the top
of such a booth is obtained in violation of the right to privacy of the user of the
booth. "
"B. Whether physical penetration of a constitutionally protected area is
necessary before a search and seizure can be said to be violative of the Fourth
Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the correct
solution of Fourth Amendment problems is not necessarily promoted by
incantation of the phrase "constitutionally protected area." Secondly, the Fourth
Amendment cannot be translated into a general constitutional "right to privacy."
That Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do with privacy
at all. [Footnote 4] Other provisions of the Constitution protect personal privacy
from other forms of governmental invasion. [Footnote 5] But the protection of a
person's general right to privacy -- his right to be let alone by other people -is, like the protection of his property and of his very life, left largely to the law
of the individual States. [Footnote 7]
Because of the misleading way the issues have been formulated, the parties have
attached great significance to the characterization of the telephone booth from
which the petitioner placed his calls. The petitioner has strenuously argued that the
booth was a "constitutionally protected area." The Government has maintained
with equal vigor that it was not. [Footnote 8] But this effort to decide whether or
not a given "area," viewed in the abstract, is "constitutionally protected" deflects
attention from the problem presented by this case. [Footnote 9] For the Fourth
Amendment protects people, not places. What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment
protection. But what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.
See Rios v. United States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 96 U. S.
733.
The Government stresses the fact that the telephone booth from which the
petitioner made his calls was constructed partly of glass, so that he was as visible
after he entered it as he would have been if he had remained outside. But what he
sought to exclude when he entered the booth was not the intruding eye -- it was the
uninvited ear. He did not shed his right to do so simply because he made his calls
from a place where he might be seen. No less than an individual in a business
office, [Footnote 10] in a friend's apartment, [Footnote 11] or in a taxicab,
[Footnote 12] a person in a telephone booth may rely upon the protection of the
Fourth Amendment. One who occupies it, shuts the door behind him, and pays the
toll that permits him to place a call is surely entitled to assume that the words he
utters into the mouthpiece will not be broadcast to the world. To read the
Constitution more narrowly is to ignore the vital role that the public telephone has
come to play in private communication.
The Government contends, however, that the activities of its agents in this case
should not be tested by Fourth Amendment requirements, for the surveillance
technique they employed involved no physical penetration of the telephone booth
from which the petitioner placed his calls. It is true that the absence of such
penetration was at one time thought to foreclose further Fourth Amendment
inquiry, Olmstead v. United States, 277 U. S. 438, 277 U. S. 457, 277 U. S.
464, 277 U. S. 466; Goldman v. United States, 316 U. S. 129, 316 U. S. 134-136,
for that Amendment was thought to limit only searches and seizures of tangible
property. [Footnote 13] But "[t]he premise that property interests control the
right of the Government to search and seize has been discredited." Warden v.
Hayden, 387 U. S. 294, 387 U. S. 304. Thus, although a closely divided Court
supposed in Olmstead that surveillance without any trespass and without the
seizure of any material object fell outside the ambit of the Constitution, we have
since departed from the narrow view on which that decision rested. Indeed, we
have expressly held that the Fourth Amendment governs not only the seizure
of tangible items, but extends as well to the recording of oral statements,
overheard without any "technical trespass under . . . local property
law." Silverman v. United States, 365 U. S. 505, 365 U. S. 511. Once this much is
acknowledged, and once it is recognized that the Fourth Amendment protects
people -- and not simply "areas" -- against unreasonable searches and seizures, it
becomes clear that the reach of that Amendment cannot turn upon the presence or
absence of a physical intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so
eroded by our subsequent decisions that the "trespass" doctrine there enunciated
can no longer be regarded as controlling. The Government's activities in
electronically listening to and recording the petitioner's words violated the privacy
upon which he justifiably relied while using the telephone booth, and thus
constituted a "search and seizure" within the meaning of the Fourth Amendment.
The fact that the electronic device employed to achieve that end did not happen to
penetrate the wall of the booth can have no constitutional significance.
The question remaining for decision, then, is whether the search and seizure
conducted in this case complied with constitutional standards. In that regard, the
Government's position is that its agents acted in an entirely defensible manner:
they did not begin their electronic surveillance until investigation of the petitioner's
activities had established a strong probability that he was using the telephone in
question to transmit gambling information to persons in other States, in violation of
federal law. Moreover, the surveillance was limited, both in scope and in duration,
to the specific purpose of establishing the contents of the petitioner's unlawful
telephonic communications. The agents confined their surveillance to the brief
periods during which he used the telephone booth, [Footnote 14] and they took
great care to overhear only the conversations of the petitioner himself. [Footnote
15]
Accepting this account of the Government's actions as accurate, it is clear that this
surveillance was so narrowly circumscribed that a duly authorized magistrate,
properly notified of the need for such investigation, specifically informed of the
basis on which it was to proceed, and clearly apprised of the precise intrusion it
would entail, could constitutionally have authorized, with appropriate safeguards,
the very limited search and seizure that the Government asserts, in fact, took
place. Only last Term we sustained the validity of such an authorization,
holding that, under sufficiently "precise and discriminate circumstances," a
federal court may empower government agents to employ a concealed
electronic device "for the narrow and particularized purpose of ascertaining
the truth of the . . . allegations" of a "detailed factual affidavit alleging the
commission of a specific criminal offense." Osborn v. United States, 385 U. S.
323, 385 U. S. 329-330. Discussing that holding, the Court in Berger v. New
York, 388 U. S. 41, said that "the order authorizing the use of the electronic
device" in Osborn "afforded similar protections to those . . . of conventional
warrants authorizing the seizure of tangible evidence." Through those
protections, "no greater invasion of privacy was permitted than was necessary
under the circumstances." Id. at 388 U. S. 57. [Footnote 16] Here, too, a similar
judicial order could have accommodated "the legitimate needs of law enforcement"
[Footnote 17] by authorizing the carefully limited use of electronic surveillance.
The Government urges that, because its agents relied upon the decisions
in Olmstead and Goldman, and because they did no more here than they might
properly have done with prior judicial sanction, we should retroactively validate
their conduct. That we cannot do. It is apparent that the agents in this case acted
with restraint. Yet the inescapable fact is that this restraint was imposed by the
agents themselves, not by a judicial officer. They were not required, before
commencing the search, to present their estimate of probable cause for detached
scrutiny by a neutral magistrate. They were not compelled, during the conduct of
the search itself, to observe precise limits established in advance by a specific court
order. Nor were they directed, after the search had been completed, to notify the
authorizing magistrate in detail of all that had been seized. In the absence of such
safeguards, this Court has never sustained a search upon the sole ground that
officers reasonably expected to find evidence of a particular crime and
voluntarily confined their activities to the least intrusive means consistent
with that end. Searches conducted without warrants have been held unlawful
"notwithstanding facts unquestionably showing probable cause," Agnello v.
United States, 269 U. S. 20, 269 U. S. 33, for the Constitution requires "that the
deliberate, impartial judgment of a judicial officer . . . be interposed between the
citizen and the police. . . ." Wong Sun v. United States, 371 U. S. 471, 371 U. S.
481-482. "Over and again, this Court has emphasized that the mandate of the
[Fourth] Amendment requires adherence to judicial processes," United States v.
Jeffers, 342 U. S. 48, 342 U. S. 51, and that searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment [Footnote 18] -- subject only to a few specifically
established and well delineated exceptions.
It is difficult to imagine how any of those exceptions could ever apply to the sort of
search and seizure involved in this case. Even electronic surveillance substantially
contemporaneous with an individual's arrest could hardly be deemed an "incident"
of that arrest.
Nor could the use of electronic surveillance without prior authorization be justified
on grounds of "hot pursuit." And, of course, the very nature of electronic
surveillance precludes its use pursuant to the suspect's consent. [Footnote 22]
The Government does not question these basic principles. Rather, it urges the
creation of a new exception to cover this case. [Footnote 23] It argues that
surveillance of a telephone booth should be exempted from the usual requirement
of advance authorization by a magistrate upon a showing of probable cause. We
cannot agree. Omission of such authorization "bypasses the safeguards provided by
an objective predetermination of probable cause, and substitutes instead the far less
reliable procedure of an after-the-event justification for the . . . search, too likely to
be subtly influenced by the familiar shortcomings of hindsight judgment."
Beck v. Ohio, 379 U. S. 89, 379 U. S. 96. And bypassing a neutral
predetermination of the scope of a search leaves individuals secure from
Fourth Amendment violations "only in the discretion of the police." Id. at 379
U. S. 97.
These considerations do not vanish when the search in question is transferred from
the setting of a home, an office, or a hotel room to that of a telephone booth.
Wherever a man may be, he is entitled to know that he will remain free from
unreasonable searches and seizures. The government agents here ignored "the
procedure of antecedent justification . . . that is central to the Fourth Amendment,"
[Footnote 24] a procedure that we hold to be a constitutional precondition of the
kind of electronic surveillance involved in this case. Because the surveillance here
failed to meet that condition, and because it led to the petitioner's conviction, the
judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this
case.
18 U.S.C. § 1084. That statute provides in pertinent part:
"(a) Whoever being engaged in the business of betting or wagering knowingly uses
a wire communication facility for the transmission in interstate or foreign
commerce of bets or wagers or information assisting in the placing of bets or
wagers on any sporting event or contest, or for the transmission of a wire
communication which entitles the recipient to receive money or credit as a result of
bets or wagers, or for information assisting in the placing of bets or wagers, shall
be fined not more than $10,000 or imprisoned not more than two years, or both."
"(b) Nothing in this section shall be construed to prevent the transmission in
interstate or foreign commerce of information for use in news reporting of sporting
events or contests, or for the transmission of information assisting in the placing of
bets or wagers on a sporting event or contest from a State where betting on that
sporting event or contest is legal into a State in which such betting is legal."
386 U. S. 954. The petition for certiorari also challenged the validity of a warrant
authorizing the search of the petitioner's premises. In light of our disposition of this
case, we do not reach that issue.
We find no merit in the petitioner's further suggestion that his indictment must be
dismissed. After his conviction was affirmed by the Court of Appeals, he testified
before a federal grand jury concerning the charges involved here. Because he was
compelled to testify pursuant to a grant of immunity, 48 Stat. 1096, as amended, 47
U.S.C. § 409(l), it is clear that the fruit of his testimony cannot be used against him
in any future trial. But the petitioner asks for more. He contends that. his
conviction must be vacated and the charges against him dismissed lest he be
"subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he
[was] compelled . . . to testify. . . ." 47 U.S.C. § 409(l). Frank v. United States, 347
F.2d 486. We disagree. In relevant part, § 409(l) substantially repeats the language
of the Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, which
was Congress' response to this Court's statement that an immunity statute can
supplant the Fifth Amendment privilege against self-incrimination only if it affords
adequate protection from future prosecution or conviction. Counselman v.
Hitchcock, 142 U. S. 547, 142 U. S. 585-586. The statutory provision here
involved was designed to provide such protection, see Brown v. United States, 359
U. S. 41, 359 U. S. 45-46, not to confer immunity from punishment pursuant to
a prior prosecution and adjudication of guilt. Cf. Regina v. United States, 364 U. S.
507, 364 U. S. 513-514.
"The average man would very likely not have his feelings soothed any more by
having his property seized openly than by having it seized privately and by stealth.
. . . And a person can be just as much, if not more, irritated, annoyed and injured
by an unceremonious public arrest by a policeman as he is by a seizure in the
privacy of his office or home."
Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 509 (dissenting opinion of MR.
JUSTICE BLACK).
The First Amendment, for example, imposes limitations upon governmental
abridgment of "freedom to associate and privacy in one's associations." NAACP v.
Alabama, 357 U. S. 449, 357 U. S. 462. The Third Amendment's prohibition
against the unconsented peacetime quartering of soldiers protects another
aspect of privacy from governmental intrusion. To some extent, the Fifth
Amendment too "reflects the Constitution's concern for . . . . . . the right of each
individual "to a private enclave where he may lead a private life."'" Tehan v.
Shott, 382 U. S. 406, 382 U. S. 416. Virtually every governmental action interferes
with personal privacy to some degree. The question in each case is whether that
interference violates a command of the United States Constitution.
In support of their respective claims, the parties have compiled competing lists of
"protected areas" for our consideration. It appears to be common ground that a
private home is such an area, Weeks v. United States, 232 U. S. 383, but that an
open field is not. Hester v. United States, 265 U. S. 57. Defending the inclusion of
a telephone booth in his list the petitioner cites United States v. Stone, 232 F. Supp.
396, and United States v. Madison, 32 L.W. 2243 (D.C. Ct.Gen.Sess.). Urging that
the telephone booth should be excluded, the Government finds support in United
States v. Borgese, 235 F. Supp. 286.
It is true that this Court has occasionally described its conclusions in terms of
"constitutionally protected areas," see, e.g., Silverman v. United States, 365 U. S.
505, 365 U. S. 510, 365 U. S. 512; Lopez v. United States, 373 U. S. 427, 373 U. S.
438-439; Berger v. New York, 388 U. S. 41, 388 U. S. 57, 388 U. S. 59, but we
have never suggested that this concept can serve as a talismanic solution to every
Fourth Amendment problem.
Based upon their previous visual observations of the petitioner, the agents correctly
predicted that he would use the telephone booth for several minutes at
approximately the same time each morning. The petitioner was subjected to
electronic surveillance only during this predetermined period. Six recordings,
averaging some three minutes each, were obtained and admitted in evidence. They
preserved the petitioners end of conversations concerning the placing of bets and
the receipt of wagering information.
On the single occasion when the statements of another person were inadvertently
intercepted, the agents refrained from listening to them.
Although the protections afforded the petitioner in Osborn were "similar . . . to
those . . . of conventional warrants," they were not identical. A conventional
warrant ordinarily serves to notify the suspect of an intended search. But if Osborn
had been told in advance that federal officers intended to record his conversations,
the point of making such recordings would obviously have been lost; the evidence
in question could not have been obtained. In omitting any requirement of advance
notice, the federal court that authorized electronic surveillance in Osborn simply
recognized, as has this Court, that officers need not announce their purpose before
conducting an otherwise authorized search if such an announcement would
provoke the escape of the suspect or the destruction of critical evidence. See Ker v.
California, 374 U. S. 23, 374 U. S. 37-41.
Although some have thought that this "exception to the notice requirement where
exigent circumstances are present," id. at 374 U. S. 39, should be deemed
inapplicable where police enter a home before its occupants are aware that officers
are present, id. at 374 U. S. 55-58 (opinion of MR. JUSTICE BRENNAN), the
reasons for such a limitation have no bearing here. However true it may be that
"[i]nnocent citizens should not suffer the shock, fright or embarrassment attendant
upon an unannounced police intrusion," id. at 374 U. S. 57, and that "the
requirement of awareness . . . serves to minimize the hazards of the officers'
dangerous calling," id. at 374 U. S. 57-58, these considerations are not relevant to
the problems presented by judicially authorized electronic surveillance.
Nor do the Federal Rules of Criminal Procedure impose an inflexible requirement
of prior notice.Rule 41(d) does require federal officers to serve upon the person
searched a copy of the warrant and a receipt describing the material obtained, but it
does not invariably require that this be done before the search takes place. Nordelli
v. United States, 24 F.2d 665, 666-667.
Thus, the fact that the petitioner in Osborn was unaware that his words were being
electronically transcribed did not prevent this Court from sustaining his conviction,
and did not prevent the Court in Berger from reaching the conclusion that the use
of the recording device sanctioned in Osborn was entirely lawful. 388 U. S.
41, 388 U. S. 57.
In Agnello v. United States, 269 U. S. 20, 269 U. S. 30, the Court stated:
"The right without a search warrant contemporaneously to search persons lawfully
arrested while committing crime and to search the place where the arrest is made in
order to find and seize things connected with the crime as its fruits or as the means
by which it was committed, as well as weapons and other things to effect an escape
from custody, is not to be doubted."
Whatever one's view of "the longstanding practice of searching for other proofs of
guilt within the control of the accused found upon arrest," United States v.
Rabinowitz, 339 U. S. 56, 339 U. S. 61; cf. id. at 339 U. S. 71-79 (dissenting
opinion of Mr. Justice Frankfurter), the concept of an "incidental" search cannot
readily be extended to include surreptitious surveillance of an individual either
immediately before, or immediately after, his arrest.
Although "[t]he Fourth Amendment does not require police officers to delay in the
course of an investigation if to do so would gravely endanger their lives or the lives
of others,"
Warden v. Hayden, 387 U. S. 294, 387 U. S. 298-299, there seems little likelihood
that electronic surveillance would be a realistic possibility in a situation so fraught
with urgency.
A search to which an individual consents meets Fourth Amendment
requirements, Zap v. United States, 328 U. S. 624, but, of course, "the usefulness
of electronic surveillance depends on lack of notice to the suspect." Lopez v.
United States, 373 U. S. 427, 373 U. S. 463 (dissenting opinion of MR. JUSTICE
BRENNAN).
Whether safeguards other than prior authorization by a magistrate would satisfy the
Fourth Amendment in a situation involving the national security is a question not
presented by this case.
See Osborn v. United States, 385 U. S. 323, 385 U. S. 330.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins,
concurring.
While I join the opinion of the Court, I feel compelled to reply to the separate
concurring opinion of my Brother WHITE, which I view as a wholly unwarranted
green light for the Executive Branch to resort to electronic eavesdropping without
a warrant in cases which the Executive Branch itself labels "national security"
matters.
Neither the President nor the Attorney General is a magistrate. In matters where
they believe national security may be involved, they are not detached,
disinterested, and neutral as a court or magistrate must be. Under the separation of
powers created by the Constitution, the Executive Branch is not supposed to be
neutral and disinterested. Rather it should vigorously investigate and prevent
breaches of national security and prosecute those who violate the pertinent federal
laws. The President and Attorney General are properly interested parties, cast in
the role of adversary, in national security cases. They may even be the intended
victims of subversive action. Since spies and saboteurs are as entitled to the
protection of the Fourth Amendment as suspected gamblers like petitioner, I
cannot agree that, where spies and saboteurs are involved adequate protection of
Fourth Amendment rights is assured when the President and Attorney General
assume both the position of "adversary and prosecutor" and disinterested, neutral
magistrate.
There is, so far as I understand constitutional history, no distinction under the
Fourth Amendment between types of crimes. Article III, § 3, gives "treason" a very
narrow definition, and puts restrictions on its proof. But the Fourth Amendment
draws no lines between various substantive offenses. The arrests in cases of "hot
pursuit" and the arrests on visible or other evidence of probable cause cut across
the board, and are not peculiar to any kind of crime.
I would respect the present lines of distinction, and not improvise because a
particular crime seems particularly heinous. When the Framers took that step, as
they did with treason, the worst crime of all, they made their purpose manifest.
MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court, which I read to hold only (a) that an enclosed
telephone booth is an area where, like a home, Weeks v. United States, 232 U. S.
383, and unlike a field, Hester v. United States, 265 U. S. 57, a person has a
constitutionally protected reasonable expectation of privacy; (b) that electronic, as
well as physical, intrusion into a place that is in this sense private may constitute a
violation of the Fourth Amendment, and (c) that the invasion of a constitutionally
protected area by federal authorities is, as the Court has long held, presumptively
unreasonable in the absence of a search warrant.
As the Court's opinion states, "the Fourth Amendment protects people, not places."
The question, however, is what protection it affords to those people. Generally, as
here, the answer to that question requires reference to a "place." My understanding
of the rule that has emerged from prior decisions is that there is a twofold
requirement, first that a person have exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society is prepared to
recognize as "reasonable." Thus, a man's home is, for most purposes, a place where
he expects privacy, but objects, activities, or statements that he exposes to the
"plain view" of outsiders are not "protected," because no intention to keep them to
himself has been exhibited. On the other hand, conversations in the open would not
be protected against being overheard, for the expectation of privacy under the
circumstances would be unreasonable. Cf. Hester v. United States, supra.
The critical fact in this case is that "[o]ne who occupies it, [a telephone booth]
shuts the door behind him, and pays the toll that permits him to place a call is
surely entitled to assume" that his conversation is not being
intercepted. Ante at 389 U. S. 352. The point is not that the booth is "accessible to
the public" at other times, ante at 389 U. S. 351, but that it is a temporarily private
place whose momentary occupants' expectations of freedom from intrusion are
recognized as reasonable. Cf. Rios v. United States, 364 U. S. 253.
In Silverman v. United States, 365 U. S. 505, we held that eavesdropping
accomplished by means of an electronic device that penetrated the premises
occupied by petitioner was a violation of the Fourth Amendment.
That case established that interception of conversations reasonably intended to be
private could constitute a "search and seizure." and that the examination or taking
of physical property was not required. This view of the Fourth Amendment was
followed in Wong Sun v. United States, 371 U. S. 471, at 371 U. S. 485,
and Berger v. New York, 388 U. S. 41, at 51. Also compare Osborn v. United
States, 385 U. S. 323, at 385 U. S. 327. In Silverman, we found it unnecessary to
reexamine Goldman v. United States, 316 U. S. 129, which had held that electronic
surveillance accomplished without the physical penetration of petitioner's premises
by a tangible object did not violate the Fourth Amendment. This case requires us to
reconsider Goldman, and I agree that it should now be overruled. * Its limitation
on Fourth Amendment protection is, in the present day, bad physics as well as bad
law, for reasonable expectations of privacy may be defeated by electronic as well
as physical invasion.
Finally, I do not read the Court's opinion to declare that no interception of a
conversation one-half of which occurs in a public telephone booth can be
reasonable in the absence of a warrant. As elsewhere under the Fourth
Amendment, warrants are the general rule, to which the legitimate needs of law
enforcement may demand specific exceptions. It will be time enough to consider
any such exceptions when an appropriate occasion presents itself, and I agree with
the Court that this is not one.
* I also think that the course of development evinced by Silverman. supra, Wong
Sun., supra, Berger, supra, and today's decision must be recognized as
overruling Olmstead v. United States, 277 U. S. 438, which essentially rested on
the ground that conversations were not subject to the protection of the Fourth
Amendment.
MR. JUSTICE WHITE, concurring.
I agree that the official surveillance of petitioner's telephone conversations in a
public booth must be subjected to the test of reasonableness under the Fourth
Amendment and that, on the record now before us, the particular surveillance
undertaken was unreasonable absent a warrant properly authorizing it. This
application of the Fourth Amendment need not interfere with legitimate needs of
law enforcement.*
In joining the Court's opinion, I note the Court's acknowledgment that there are
circumstances in which it is reasonable to search without a warrant. In this
connection, in footnote 23 the Court points out that today's decision does not reach
national security cases Wiretapping to protect the security of the Nation has been
authorized by successive Presidents. The present Administration would apparently
save national security cases from restrictions against wiretapping. See Berger v.
New York, 388 U. S. 41, 388 U. S. 112-118 (1967) (WHITE, J.,dissenting). We
should not require the warrant procedure and the magistrate's judgment if the
President of the United States or his chief legal officer, the Attorney General, has
considered the requirements of national security and authorized electronic
surveillance as reasonable.
* In previous cases, which are undisturbed by today's decision, the Court has
upheld, as reasonable under the Fourth Amendment, admission at trial of evidence
obtained (1) by an undercover police agent to whom a defendant speaks without
knowledge that he is in the employ of the police, Hoffa v. United States, 385 U. S.
293 (1966); (2) by a recording device hidden on the person of such an
informant, Lopez v. United States, 373 U. S. 427 (1963); Osborn v. United
States, 385 U. S. 323 (1966), and (3) by a policeman listening to the secret
microwave transmissions of an agent conversing with the defendant in another
location, On Lee v. United States, 343 U. S. 747 (1952). When one man speaks to
another, he takes all the risks ordinarily inherent in so doing, including the risk that
the man to whom he speaks will make public what he has heard. The Fourth
Amendment does not protect against unreliable (or law-abiding) associates. Hoffa
v. United States, supra. It is but a logical and reasonable extension of this principle
that a man take the risk that his hearer, free to memorize what he hears for later
verbatim repetitions, is instead recording it or transmitting it to another. The
present case deals with an entirely different situation, for as the Court emphasizes
the petitioner "sought to exclude . . . the uninvited ear," and spoke under
circumstances in which a reasonable person would assume that uninvited ears were
not listening.
MR. JUSTICE BLACK, dissenting.
If I could agree with the Court that eavesdropping carried on by electronic means
(equivalent to wiretapping) constitutes a "search" or "seizure," I would be happy to
join the Court's opinion For on that premise, my Brother STEWART sets out
methods in accord with the Fourth Amendment to guide States in the enactment
and enforcement of laws passed to regulate wiretapping by government. In this
respect, today's opinion differs sharply from Berger v. New York, 388 U. S. 41,
decided last Term, which held void on its face a New York statute authorizing
wiretapping on warrants issued by magistrates on showings of probable cause.
The Berger case also set up what appeared to be insuperable obstacles to the valid
passage of such wiretapping laws by States. The Court's opinion in this case,
however, removes the doubts about state power in this field and abates to a large
extent the confusion and near-paralyzing effect of the Berger holding.
Notwithstanding these good efforts of the Court, I am still unable to agree with its
interpretation of the Fourth Amendment.
My basic objection is two-fold: (1) I do not believe that the words of the
Amendment will bear the meaning given them by today's decision, and (2) I do not
believe that it is the proper role of this Court to rewrite the Amendment in order "to
bring it into harmony with the times," and thus reach a result that many people
believe to be desirable.
While I realize that an argument based on the meaning of words lacks the scope,
and no doubt the appeal, of broad policy discussions and philosophical discourses
on such nebulous subjects as privacy, for me, the language of the Amendment is
the crucial place to look in construing a written document such as our Constitution.
The Fourth Amendment says that
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched and the persons or things to be
seized."
The first clause protects "persons, houses, papers, and effects against unreasonable
searches and seizures. . . ." These words connote the idea of tangible things with
size, form, and weight, things capable of being searched, seized, or both. The
second clause of the Amendment still further establishes its Framers' purpose to
limit its protection to tangible things by providing that no warrants shall issue but
those "particularly describing the place to be searched, and the persons or things to
be seized." A conversation overheard by eavesdropping, whether by plain snooping
or wiretapping, is not tangible and, under the normally accepted meanings of the
words, can neither be searched nor seized. In addition the language of the second
clause indicates that the Amendment refers not only to something tangible so it can
be seized, but to something already in existence, so it can be described. Yet the
Court's interpretation would have the Amendment apply to overhearing future
conversations, which, by their very nature, are nonexistent until they take place.
How can one "describe" a future conversation, and, if one cannot, how can a
magistrate issue a warrant to eavesdrop one in the future? It is argued that
information showing what is expected to be said is sufficient to limit the
boundaries of what later can be admitted into evidence; but does such general
information really meet the specific language of the Amendment, which says
"particularly describing"? Rather than using language in a completely artificial
way, I must conclude that the Fourth Amendment simply does not apply to
eavesdropping.
Tapping telephone wires, of course, was an unknown possibility at the time the
Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing
more than eavesdropping by telephone) was, as even the majority opinion
in Berger, supra, recognized,
"an ancient practice which, at common law, was condemned as a nuisance. 4
Blackstone, Commentaries 168. In those days, the eavesdropper listened by naked
ear under the eaves of houses or their windows, or beyond their walls seeking out
private discourse."
388 U.S. at 388 U. S. 45. There can be no doubt that the Framers were aware of
this practice, and, if they had desired to outlaw or restrict the use of evidence
obtained by eavesdropping, I believe that they would have used the appropriate
language to do so in the Fourth Amendment. They certainly would not have left
such a task to the ingenuity of language-stretching judges. No one, it seems to me,
can read the debates on the Bill of Rights without reaching the conclusion that its
Framers and critics well knew the meaning of the words they used, what they
would be understood to mean by others, their scope and their limitations. Under
these circumstances, it strikes me as a charge against their scholarship, their
common sense and their candor to give to the Fourth Amendment's language the
eavesdropping meaning the Court imputes to it today.
I do not deny that common sense requires, and that this Court often has said, that
the Bill of Rights' safeguards should be given a liberal construction. This principle,
however, does not justify construing the search and seizure amendment as applying
to eavesdropping or the "seizure" of conversations. The Fourth Amendment was
aimed directly at the abhorred practice of breaking in, ransacking and searching
homes and other buildings and seizing people's personal belongings without
warrants issued by magistrates. The Amendment deserves, and this Court has given
it, a liberal construction in order to protect against warrantless searches of
buildings and seizures of tangible personal effects. But, until today, this Court has
refused to say that eavesdropping comes within the ambit of Fourth Amendment
restrictions. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928),
and Goldman v. United States, 316 U. S. 129 (1942).
So far, I have attempted to state why I think the words of the Fourth Amendment
prevent its application to eavesdropping. It is important now to show that this has
been the traditional view of the Amendment's scope since its adoption, and that the
Court's decision in this case, along with its amorphous holding in Berger last Term,
marks the first real departure from that view.
The first case to reach this Court which actually involved a clear-cut test of the
Fourth Amendment's applicability to eavesdropping through a wiretap was, of
course, Olmstead, supra. In holding that the interception of private telephone
conversations by means of wiretapping was not a violation of the Fourth
Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the
language of the Amendment and found, just as I do now, that the words could not
be stretched to encompass overheard conversations:
"The Amendment itself shows that the search is to be of material things -- the
person, the house, his papers or his effects. The description of the warrant
necessary to make the proceeding lawful, is that it must specify the place to be
searched and the person or things to be seized. . . ."
"* * * *"
"Justice Bradley in the Boyd case [Boyd v. United States, 116 U. S. 616], and
Justice Clark[e] in the Gouled case [Gouled v. United States, 255 U. S. 298], said
that the Fifth Amendment and the Fourth Amendment were to be liberally
construed to effect the purpose of the framers of the Constitution in the interest of
liberty. But that cannot justify enlargement of the language employed beyond the
possible practical meaning of houses, persons, papers, and effects, or so to apply
the words search and seizure as to forbid hearing or sight."
277 U.S. at 277 U. S. 464-465.
Goldman v. United States, 316 U. S. 129, is an even clearer example of this Court's
traditional refusal to consider eavesdropping as being covered by the Fourth
Amendment. There, federal agents used a detectaphone, which was placed on the
wall of an adjoining room, to listen to the conversation of a defendant carried on in
his private office and intended to be confined within the four walls of the room.
This Court, referring to Olmstead, found no Fourth Amendment violation.
It should be noted that the Court in Olmstead based its decision squarely on the
fact that wiretapping or eavesdropping does not violate the Fourth Amendment. As
shown supra in the cited quotation from the case, the Court went to great pains to
examine the actual language of the Amendment, and found that the words used
simply could not be stretched to cover eavesdropping. That there was no trespass
was not the determinative factor, and indeed the Court, in citing Hester v. United
States, 265 U. S. 57, indicated that, even where there was a trespass, the Fourth
Amendment does not automatically apply to evidence obtained by "hearing or
sight." The Olmstead majority characterized Hester as holding
"that the testimony of two officers of the law who trespassed on the defendant's
land, concealed themselves one hundred yards away from his house, and saw him
come out and hand a bottle of whiskey to another, was not inadmissible. While
there was a trespass, there was no search of person, house, papers or effects."
277 U.S. at 277 U. S. 465. Thus, the clear holding of
the Olmstead and Goldman cases, undiluted by any question of trespass, is that
eavesdropping, in both its original and modern forms, is not violative of the Fourth
Amendment.
While my reading of the Olmstead and Goldman cases convinces me that they
were decided on the basis of the inapplicability of the wording of the Fourth
Amendment to eavesdropping, and not on any trespass basis, this is not to say that
unauthorized intrusion has not played an important role in search and seizure cases.
This Court has adopted an exclusionary rule to bar evidence obtained by means of
such intrusions. As I made clear in my dissenting opinion in Berger v. New
York, 388 U. S. 41, 388 U. S. 76, I continue to believe that this exclusionary rule
formulated in Weeks v. United States, 232 U. S. 383, rests on the "supervisory
power" of this Court over other federal courts and is not rooted in the Fourth
Amendment. See Wolf v. Colorado, concurring opinion, 338 U. S. 338 U.S.
25, 338 U. S. 39, at 40. See also Mapp v. Ohio, concurring opinion, 367 U. S.
367 U.S. 643, 367 U. S. 661-666. This rule has caused the Court to refuse to accept
evidence where there has been such an intrusion regardless of whether there has
been a search or seizure in violation of the Fourth Amendment. As this Court said
in Lopez v. United States, 373 U. S. 427, 373 U. S. 438-439
"The Court has in the past sustained instances of 'electronic eavesdropping' against
constitutional challenge when devices have been used to enable government agents
to overhear conversations which would have been beyond the reach of the human
ear [citing
Olmstead and Goldman]. It has been insisted only that the electronic device not be
planted by an unlawful physical invasion of a constitutionally protected
area. Silverman v. United States."
To support its new interpretation of the Fourth Amendment, which, in effect,
amounts to a rewriting of the language, the Court's opinion concludes that "the
underpinnings of Olmstead and Goldman have been . . . eroded by our subsequent
decisions. . . ." But the only cases cited as accomplishing this "eroding"
are Silverman v. United States, 365 U. S. 505, and Warden v. Hayden, 387 U. S.
294. Neither of these cases "eroded" Olmstead or Goldman. Silverman is an
interesting choice, since there the Court expressly refused to reexamine the
rationale of Olmstead or Goldman although such a reexamination was strenuously
urged upon the Court by the petitioners' counsel. Also, it is significant that,
in Silverman, as the Court described it, "the eavesdropping was accomplished by
means of an unauthorized physical penetration into the premises occupied by the
petitioners," 365 U.S. at 365 U. S. 509, thus calling into play the supervisory
exclusionary rule of evidence. As I have pointed out above, where there is an
unauthorized intrusion, this Court has rejected admission of evidence obtained
regardless of whether there has been an unconstitutional search and seizure. The
majority's decision here relies heavily on the statement in the opinion that the
Court "need not pause to consider whether or not there was a technical trespass
under the local property law relating to party walls." (At 365 U. S. 511.) Yet this
statement should not becloud the fact that, time and again, the opinion emphasizes
that there has been an unauthorized intrusion:
"For a fair reading of the record in this case shows that the eavesdropping was
accomplished by means of an unauthorized physical penetration into the premises
occupied by the petitioners."
(At 365 U. S. 509, emphasis added.) "Eavesdropping
accomplished by means of such a physical intrusion is beyond the pale of even
those decisions. . . ." (At 365 U. S. 509, emphasis added.) "Here . . . the officers
overheard the petitioners' conversations only by usurping part of the petitioners'
house or office. . . ." (At 365 U. S. 511, emphasis added.) "[D]ecision here . . . is
based upon the reality of an actual intrusion. . . ." (At 365 U. S. 512, emphasis
added.) "We find no occasion to reexamine Goldman here, but we decline to go
beyond it, by even a fraction of an inch." (At 365 U. S. 512, emphasis added.) As if
this were not enough, Justices Clark and Whittaker concurred with the following
statement:
"In view of the determination by the majority that the unauthorized physical
penetration into petitioners' premises constituted sufficient trespass to remove this
case from the coverage of earlier decisions, we feel obliged to join in the Court's
opinion."
(At 365 U. S. 513, emphasis added.) As I made clear in my dissent in Berger, the
Court in Silverman held the evidence should be excluded by virtue of the
exclusionary rule, and "I would not have agreed with the Court's opinion in
Silverman . . . had I thought that the result depended on finding a violation of the
Fourth Amendment. . . ." 388 U.S. at 388 U. S. 79-80. In light of this and the fact
that the Court expressly refused to reexamine Olmstead and Goldman, I cannot
read Silverman as overturning the interpretation stated very plainly
in Olmstead and followed in Goldman that eavesdropping is not covered by the
Fourth Amendment.
The other "eroding" case cited in the Court's opinion is Warden v. Hayden, 387 U.
S. 294. It appears that this case is cited for the proposition that the Fourth
Amendment applies to "intangibles," such as conversation, and the following
ambiguous statement is quoted from the opinion: "The premise that property
interests control the right of the Government to search and seize has been
discredited." 387 U.S. at 387 U. S. 304. But far from being concerned with
eavesdropping, Warden v. Hayden upholds the seizure of clothes, certainly
tangibles by any definition. The discussion of property interests was involved only
with the common law rule that the right to seize property depended upon proof of a
superior property interest.
Thus, I think that, although the Court attempts to convey the impression that, for
some reason, today Olmstead and Goldman are no longer good law, it must face up
to the fact that these cases have never been overruled, or even "eroded." It is the
Court's opinions in this case and Berger which, for the first time since 1791, when
the Fourth Amendment was adopted, have declared that eavesdropping is subject
to Fourth Amendment restrictions and that conversations can be "seized."* I must
align myself with all those judges who up to this year have never been able to
impute such a meaning to the words of the Amendment.
Since I see no way in which the words of the Fourth Amendment can be construed
to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of
Rights, I willingly go as far as a liberal construction of the language takes me, but I
simply cannot in good conscience give a meaning to words which they have never
before been thought to have and which they certainly do not have in common
ordinary usage. I will not distort the words of the Amendment in order to "keep the
Constitution up to date" or "to bring it into harmony with the times." It was never
meant that this Court have such power, which, in effect, would make us a
continuously functioning constitutional convention.
With this decision the Court has completed, I hope, its rewriting of the Fourth
Amendment, which started only recently when the Court began referring
incessantly to the Fourth Amendment not so much as a law
against unreasonable searches and seizures as one to protect an individual's
privacy. By clever word juggling, the Court finds it plausible to argue that
language aimed specifically at searches and seizures of things that can be searched
and seized may, to protect privacy, be applied to eavesdropped evidence of
conversations that can neither be searched nor seized. Few things happen to an
individual that do not affect his privacy in one way or another. Thus, by arbitrarily
substituting the Court's language, designed to protect privacy, for the Constitution's
language, designed to protect against unreasonable searches and seizures, the Court
has made the Fourth Amendment its vehicle for holding all laws violative of the
Constitution which offend the Court's broadest concept of privacy. As I said
in Griswold v. Connecticut, 381 U. S. 479,
"The Court talks about a constitutional 'right of privacy' as though there is some
constitutional provision or provisions forbidding any law ever to be passed which
might abridge the 'privacy' of individuals. But there is not."
(Dissenting opinion, at 381 U. S. 508.) I made clear in that dissent my fear of the
dangers involved when this Court uses the "broad, abstract and ambiguous
concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's
guarantee against unreasonable searches and seizures.'" (See generally dissenting
opinion at 381 U. S. 507-527.)
The Fourth Amendment protects privacy only to the extent that it prohibits
unreasonable searches and seizures of "persons, houses, papers, and effects." No
general right is created by the Amendment so as to give this Court the unlimited
power to hold unconstitutional everything which affects privacy. Certainly the
Framers, well acquainted as they were with the excesses of governmental power,
did not intend to grant this Court such omnipotent lawmaking authority as that.
The history of governments proves that it is dangerous to freedom to repose such
powers in courts.
For these reasons, I respectfully dissent.
* The first paragraph of my Brother HARLAN's concurring opinion is susceptible
of the interpretation, although probably not intended, that this Court "has long
held" eavesdropping to be a violation of the Fourth Amendment and therefore
"presumptively unreasonable in the absence of a search warrant." There is no
reference to any long line of cases, but simply a citation to Silverman, and several
cases following it, to establish this historical proposition. In the first place, as I
have indicated in this opinion, I do not read Silverman as holding any such thing,
and, in the second place, Silverman was decided in 1961. Thus, whatever it held, it
cannot be said it "has [been] long held." I think my Brother HARLAN recognizes
this later in his opinion when he admits that the Court must now
overrule Olmstead and Goldman. In having to overrule these cases in order to
establish the holding the Court adopts today, it becomes clear that the Court is
promulgating new doctrine instead of merely following what it "has long held."
This is emphasized by my Brother HARLAN's claim that it is "bad physics" to
adhere to Goldman. Such an assertion simply illustrates the propensity of some
members of the Court to rely on their limited understanding of modern scientific
subjects in order to fit the Constitution to the times and give its language a
meaning that it will not tolerate.
Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011
This case involves a search of office computer assigned to a government employee
who was charged administratively and eventually dismissed from the service. The
employee’s personal files stored in the computer were used by the government
employer as evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to
reverse and set aside the Decision1 dated October 11, 2007 and Resolution2 dated
February 29, 2008 of the Court of Appeals (CA). The CA dismissed the petition
for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo
to nullify the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the
best interest of the service, and violation of Republic Act (R.A.) No. 6713 and
penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office
No. IV and also the Officer-in-Charge of the Public Assistance and Liaison
Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na" program of
the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked
"Confidential" and sent through a courier service (LBC) from a certain "Alan San
Pascual" of Bagong Silang, Caloocan City, was received by the Integrated Records
Management Office (IRMO) at the CSC Central Office. Following office practice
in which documents marked "Confidential" are left unopened and instead sent to
the addressee, the aforesaid letter was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you
personally if it is just alright for an employee of your agency to be a lawyer of an
accused gov’t employee having a pending case in the csc. I honestly think this is a
violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the
region 4 office. He is the chief of the Mamamayan muna hindi mamaya na
division. He have been helping many who have pending cases in the Csc. The
justice in our govt system will not be served if this will continue. Please investigate
this anomaly because our perception of your clean and good office is being tainted.
Concerned Govt employee3
Chairperson David immediately formed a team of four personnel with background
in information technology (IT), and issued a memo directing them to conduct an
investigation and specifically "to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions."4 After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon
their arrival thereat around 5:30 p.m., the team informed the officials of the CSCROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III
Engelbert Unite (Director Unite) of Chairperson David’s directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal
Services Division (LSD) was witnessed by several employees, together with
Directors Castillo and Unite who closely monitored said activity. At around 6:00
p.m., Director Unite sent text messages to petitioner and the head of LSD, who
were both out of the office at the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the CSC Chair. The text messages
received by petitioner read:
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of
PALD and LSD per instruction of the Chairman. If you can make it here
now it would be better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed
about this.
"We can’t do anything about … it … it’s a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a
copy of the memo via mms"5
Petitioner replied also thru text message that he was leaving the matter to Director
Unite and that he will just get a lawyer. Another text message received by
petitioner from PALD staff also reported the presence of the team from CSC main
office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the
same day, the investigating team finished their task. The next day, all the
computers in the PALD were sealed and secured for the purpose of preserving all
the files stored therein. Several diskettes containing the back-up files sourced from
the hard disk of PALD and LSD computers were turned over to Chairperson
David. The contents of the diskettes were examined by the CSC’s Office for Legal
Affairs (OLA). It was found that most of the files in the 17 diskettes containing
files copied from the computer assigned to and being used by the petitioner,
numbering about 40 to 42 documents, were draft pleadings or letters7 in connection
with administrative cases in the CSC and other tribunals. On the basis of this
finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007,
requiring the petitioner, who had gone on extended leave, to submit his explanation
or counter-affidavit within five days from notice.
Evaluating the subject documents obtained from petitioner’s personal files,
Chairperson David made the following observations:
Most of the foregoing files are drafts of legal pleadings or documents that are
related to or connected with administrative cases that may broadly be lumped as
pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or
other tribunals. It is also of note that most of these draft pleadings are for and on
behalves of parties, who are facing charges as respondents in administrative cases.
This gives rise to the inference that the one who prepared them was knowingly,
deliberately and willfully aiding and advancing interests adverse and inimical to
the interest of the CSC as the central personnel agency of the government tasked to
discipline misfeasance and malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is not merely engaged
in an isolated practice but pursues it with seeming regularity. It would also be the
height of naivete or credulity, and certainly against common human experience, to
believe that the person concerned had engaged in this customary practice without
any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the
computer assigned to Pollo invariably raises the presumption that he was the one
responsible or had a hand in their drafting or preparation since the computer of
origin was within his direct control and disposition.9
Petitioner filed his Comment, denying that he is the person referred to in the
anonymous letter-complaint which had no attachments to it, because he is not a
lawyer and neither is he "lawyering" for people with cases in the CSC. He accused
CSC officials of conducting a "fishing expedition" when they unlawfully copied
and printed personal files in his computer, and subsequently asking him to submit
his comment which violated his right against self-incrimination. He asserted that
he had protested the unlawful taking of his computer done while he was on leave,
citing the letter dated January 8, 2007 in which he informed Director Castillo that
the files in his computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their sealing, copying,
duplicating and printing as these would violate his constitutional right to privacy
and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of
the computer issued under a Memorandum of Receipt (MR) is ceded to the
employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not
actionable as it failed to comply with the requirements of a formal complaint under
the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view
of the illegal search, the files/documents copied from his computer without his
consent is thus inadmissible as evidence, being "fruits of a poisonous tree."10
On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima
facie case against the petitioner and charging him with Dishonesty, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation
of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and
Employees). Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal investigation. Since the
charges fall under Section 19 of the URACC, petitioner was likewise placed under
90 days preventive suspension effective immediately upon receipt of the
resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to
Defer) assailing the formal charge as without basis having proceeded from an
illegal search which is beyond the authority of the CSC Chairman, such power
pertaining solely to the court. Petitioner reiterated that he never aided any people
with pending cases at the CSC and alleged that those files found in his computer
were prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship.
Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who
entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N. Estrellado,
the latter being Atty. Solosa’s client who attested that petitioner had nothing to do
with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred
in view of the prejudicial question raised in the criminal complaint he filed before
the Ombudsman against Director Buensalida, whom petitioner believes had
instigated this administrative case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007,
the CSC denied the omnibus motion. The CSC resolved to treat the said motion as
petitioner’s answer.
On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the
Rules of Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11,
2007 Show-Cause Order and Resolution No. 070382 dated February 26, 2007 as
having been issued with grave abuse of discretion amounting to excess or total
absence of jurisdiction. Prior to this, however, petitioner lodged an
administrative/criminal complaint against respondents Directors Racquel D.G.
Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo
(CSC-RO IV) before the Office of the Ombudsman, and a separate complaint for
disbarment against Director Buensalida.14
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the
formal investigation of the case on April 30, 2007. On April 25, 2007, he filed in
the CA an Urgent Motion for the issuance of TRO and preliminary
injunction.15 Since he failed to attend the pre-hearing conference scheduled on
April 30, 2007, the CSC reset the same to May 17, 2007 with warning that the
failure of petitioner and/or his counsel to appear in the said pre-hearing conference
shall entitle the prosecution to proceed with the formal investigation exparte.16 Petitioner moved to defer or to reset the pre-hearing conference, claiming
that the investigation proceedings should be held in abeyance pending the
resolution of his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsel’s non-appearance.17 This prompted
petitioner to file another motion in the CA, to cite the respondents, including the
hearing officer, in indirect contempt.18
On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s
motion to set aside the denial of his motion to defer the proceedings and to inhibit
the designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was
directed to proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal
investigation which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of
which reads:
WHEREFORE, foregoing premises considered, the Commission hereby finds
Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Violation of Republic
Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all
its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking
future civil service examinations.21
On the paramount issue of the legality of the search conducted on petitioner’s
computer, the CSC noted the dearth of jurisprudence relevant to the factual milieu
of this case where the government as employer invades the private files of an
employee stored in the computer assigned to him for his official use, in the course
of initial investigation of possible misconduct committed by said employee and
without the latter’s consent or participation. The CSC thus turned to relevant
rulings of the United States Supreme Court, and cited the leading case of
O’Connor v. Ortega22 as authority for the view that government agencies, in their
capacity as employers, rather than law enforcers, could validly conduct search and
seizure in the governmental workplace without meeting the "probable cause" or
warrant requirement for search and seizure. Another ruling cited by the CSC is the
more recent case of United States v. Mark L. Simons23 which declared that the
federal agency’s computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the Court therein
recognized that such policy did not, at the same time, erode the respondent’s
legitimate expectation of privacy in the office in which the computer was installed,
still, the warrantless search of the employee’s office was upheld as valid because a
government employer is entitled to conduct a warrantless search pursuant to an
investigation of work-related misconduct provided the search is reasonable in its
inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that
petitioner has no reasonable expectation of privacy with regard to the computer he
was using in the regional office in view of the CSC computer use policy which
unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative
policy, the CSC was of the view that the search of petitioner’s computer
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the aforecited authorities. The CSC stressed that it
pursued the search in its capacity as government employer and that it was
undertaken in connection with an investigation involving work-related misconduct,
which exempts it from the warrant requirement under the Constitution. With the
matter of admissibility of the evidence having been resolved, the CSC then ruled
that the totality of evidence adequately supports the charges of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service and violation of
R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s
dismissal from the service with all its accessory penalties.
In his Memorandum24 filed in the CA, petitioner moved to incorporate the above
resolution dismissing him from the service in his main petition, in lieu of the filing
of an appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for
the inclusion of Resolution No. 07180025 which denied his motion for
reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari
after finding no grave abuse of discretion committed by respondents CSC officials.
The CA held that: (1) petitioner was not charged on the basis of the anonymous
letter but from the initiative of the CSC after a fact-finding investigation was
conducted and the results thereof yielded a prima facie case against him; (2) it
could not be said that in ordering the back-up of files in petitioner’s computer and
later confiscating the same, Chairperson David had encroached on the authority of
a judge in view of the CSC computer policy declaring the computers as
government property and that employee-users thereof have no reasonable
expectation of privacy in anything they create, store, send, or receive on the
computer system; and (3) there is nothing contemptuous in CSC’s act of
proceeding with the formal investigation as there was no restraining order or
injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought
this appeal arguing that –
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND
COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS
IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN
IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE
UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY
IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8
OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT]
TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND
COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO
UNREASONABLE SEARCH AND SEIZURE, AGAINST SELFINCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10
S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE
COLLEGIAL COMMISSION CONSIDERING THAT POLICY
MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE
COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO
SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE
DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS
PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE
III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER
ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE
HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO
EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT
AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY
24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10,
2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT
MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26
Squarely raised by the petitioner is the legality of the search conducted on his
office computer and the copying of his personal files without his knowledge and
consent, alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of
the right protected by the guarantee against unreasonable search and seizure under
Section 2, Article III of the 1987 Constitution,27 which provides:
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.
The constitutional guarantee is not a prohibition of all searches and seizures but
only of "unreasonable" searches and seizures.28 But to fully understand this
concept and application for the purpose of resolving the issue at hand, it is essential
that we examine the doctrine in the light of pronouncements in another jurisdiction.
As the Court declared in People v. Marti29 :
Our present constitutional provision on the guarantee against unreasonable search
and seizure had its origin in the 1935 Charter which, worded as follows:
"The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no warrants
shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons
or things to be seized." (Sec. 1[3], Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.30
In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a
"search and seizure". Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring
opinion of Mr. Justice Harlan, it was further noted that the existence of privacy
right under prior decisions involved a two-fold requirement: first, that a person has
exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable (objective).32
In Mancusi v. DeForte33 which addressed the reasonable expectations of private
employees in the workplace, the US Supreme Court held that a union employee
had Fourth Amendment rights with regard to an office at union headquarters that
he shared with other union officials, even as the latter or their guests could enter
the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."
That the Fourth Amendment equally applies to a government workplace was
addressed in the 1987 case of O’Connor v. Ortega34 where a physician, Dr. Magno
Ortega, who was employed by a state hospital, claimed a violation of his Fourth
Amendment rights when hospital officials investigating charges of
mismanagement of the psychiatric residency program, sexual harassment of female
hospital employees and other irregularities involving his private patients under the
state medical aid program, searched his office and seized personal items from his
desk and filing cabinets. In that case, the Court categorically declared that
"[i]ndividuals do not lose Fourth Amendment rights merely because they work for
the government instead of a private employer."35 A plurality of four Justices
concurred that the correct analysis has two steps: first, because "some government
offices may be so open to fellow employees or the public that no expectation of
privacy is reasonable", a court must consider "[t]he operational realities of the
workplace" in order to determine whether an employee’s Fourth Amendment rights
are implicated; and next, where an employee has a legitimate privacy expectation,
an employer’s intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be
judged by the standard of reasonableness under all the circumstances."36
On the matter of government employees’ reasonable expectations of privacy in
their workplace, O’Connor teaches:
x x x Public employees’ expectations of privacy in their offices, desks, and file
cabinets, like similar expectations of employees in the private sector, may be
reduced by virtue of actual office practices and procedures, or by legitimate
regulation. x x x The employee’s expectation of privacy must be assessed in the
context of the employment relation. An office is seldom a private enclave free
from entry by supervisors, other employees, and business and personal invitees.
Instead, in many cases offices are continually entered by fellow employees and
other visitors during the workday for conferences, consultations, and other workrelated visits. Simply put, it is the nature of government offices that others – such
as fellow employees, supervisors, consensual visitors, and the general public – may
have frequent access to an individual’s office. We agree with JUSTICE SCALIA
that "[c]onstitutional protection against unreasonable searches by the government
does not disappear merely because the government has the right to make
reasonable intrusions in its capacity as employer," x x x but some government
offices may be so open to fellow employees or the public that no expectation of
privacy is reasonable. x x x Given the great variety of work environments in
the public sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.37 (Citations
omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court
declared that Dr. Ortega’s Fourth Amendment rights are implicated only if the
conduct of the hospital officials infringed "an expectation of privacy that society is
prepared to consider as reasonable." Given the undisputed evidence that respondent
Dr. Ortega did not share his desk or file cabinets with any other employees, kept
personal correspondence and other private items in his own office while those
work-related files (on physicians in residency training) were stored outside his
office, and there being no evidence that the hospital had established any reasonable
regulation or policy discouraging employees from storing personal papers and
effects in their desks or file cabinets (although the absence of such a policy does
not create any expectation of privacy where it would not otherwise exist), the
Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in
his desk and file cabinets.38
Proceeding to the next inquiry as to whether the search conducted by hospital
officials was reasonable, the O’Connor plurality decision discussed the following
principles:
Having determined that Dr. Ortega had a reasonable expectation of privacy in his
office, the Court of Appeals simply concluded without discussion that the
"search…was not a reasonable search under the fourth amendment." x x x "[t]o
hold that the Fourth Amendment applies to searches conducted by [public
employers] is only to begin the inquiry into the standards governing such
searches…[W]hat is reasonable depends on the context within which a search takes
place. x x x Thus, we must determine the appropriate standard of reasonableness
applicable to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires "balanc[ing] the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In
the case of searches conducted by a public employer, we must balance the
invasion of the employees’ legitimate expectations of privacy against the
government’s need for supervision, control, and the efficient operation of the
workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the employer
wished to enter an employee’s office, desk, or file cabinets for a work-related
purpose would seriously disrupt the routine conduct of business and would be
unduly burdensome. Imposing unwieldy warrant procedures in such cases upon
supervisors, who would otherwise have no reason to be familiar with such
procedures, is simply unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the Hospital are hardly in
the business of investigating the violation of criminal laws. Rather, work-related
searches are merely incident to the primary business of the agency. Under these
circumstances, the imposition of a warrant requirement would conflict with the
"common-sense realization that government offices could not function if every
employment decision became a constitutional matter." x x x
xxxx
The governmental interest justifying work-related intrusions by public employers
is the efficient and proper operation of the workplace. Government agencies
provide myriad services to the public, and the work of these agencies would suffer
if employers were required to have probable cause before they entered an
employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the
criminal investigatory context, much meaning when the purpose of a search is to
retrieve a file for work-related reasons. Similarly, the concept of probable cause
has little meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to
enter employee offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an
investigation of work-related employee misconduct. Even when employers conduct
an investigation, they have an interest substantially different from "the normal need
for law enforcement." x x x Public employers have an interest in ensuring that their
agencies operate in an effective and efficient manner, and the work of these
agencies inevitably suffers from the inefficiency, incompetence, mismanagement,
or other work-related misfeasance of its employees. Indeed, in many cases, public
employees are entrusted with tremendous responsibility, and the consequences of
their misconduct or incompetence to both the agency and the public interest can be
severe. In contrast to law enforcement officials, therefore, public employers are not
enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper
and efficient manner. In our view, therefore, a probable cause requirement for
searches of the type at issue here would impose intolerable burdens on public
employers. The delay in correcting the employee misconduct caused by the
need for probable cause rather than reasonable suspicion will be translated
into tangible and often irreparable damage to the agency’s work, and
ultimately to the public interest. x x x
xxxx
In sum, we conclude that the "special needs, beyond the normal need for law
enforcement make the…probable-cause requirement impracticable," x x x for
legitimate, work-related noninvestigatory intrusions as well as investigations
of work-related misconduct. A standard of reasonableness will neither unduly
burden the efforts of government employers to ensure the efficient and proper
operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the
constitutionally protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for investigations of workrelated misconduct, should be judged by the standard of reasonableness under
all the circumstances. Under this reasonableness standard, both the inception
and the scope of the intrusion must be reasonable:
"Determining the reasonableness of any search involves a twofold inquiry: first,
one must consider ‘whether the…action was justified at its inception,’ x x x ;
second, one must determine whether the search as actually conducted ‘was
reasonably related in scope to the circumstances which justified the interference in
the first place,’" x x x
Ordinarily, a search of an employee’s office by a supervisor will be "justified at
its inception" when there are reasonable grounds for suspecting that the
search will turn up evidence that the employee is guilty of work-related
misconduct, or that the search is necessary for a noninvestigatory workrelated purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably related to
the objectives of the search and not excessively intrusive in light of …the
nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)
Since the District Court granted summary judgment without a hearing on the
factual dispute as to the character of the search and neither was there any finding
made as to the scope of the search that was undertaken, the case was remanded to
said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.
In O’Connor the Court recognized that "special needs" authorize warrantless
searches involving public employees for work-related reasons. The Court thus laid
down a balancing test under which government interests are weighed against the
employee’s reasonable expectation of privacy. This reasonableness test implicates
neither probable cause nor the warrant requirement, which are related to law
enforcement.40
O’Connor was applied in subsequent cases raising issues on employees’ privacy
rights in the workplace. One of these cases involved a government employer’s
search of an office computer, United States v. Mark L. Simons41 where the
defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child
pornography. Simons was provided with an office which he did not share with
anyone, and a computer with Internet access. The agency had instituted a policy on
computer use stating that employees were to use the Internet for official
government business only and that accessing unlawful material was specifically
prohibited. The policy also stated that users shall understand that the agency will
periodically audit, inspect, and/or monitor the user’s Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the
agency’s computer network, upon initial discovery of prohibited internet activity
originating from Simons’ computer, to conduct a remote monitoring and
examination of Simons’ computer. After confirming that Simons had indeed
downloaded pictures that were pornographic in nature, all the files on the hard
drive of Simon’s computer were copied from a remote work station. Days later, the
contractor’s representative finally entered Simon’s office, removed the original
hard drive on Simon’s computer, replaced it with a copy, and gave the original to
the agency security officer. Thereafter, the agency secured warrants and searched
Simons’ office in the evening when Simons was not around. The search team
copied the contents of Simons’ computer; computer diskettes found in Simons’
desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his
trial, Simons moved to suppress these evidence, arguing that the searches of his
office and computer violated his Fourth Amendment rights. After a hearing, the
district court denied the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of
Simons’ computer and office did not violate his Fourth Amendment rights and the
first search warrant was valid. It held that the search remains valid under the
O’Connor exception to the warrant requirement because evidence of the crime was
discovered in the course of an otherwise proper administrative inspection. Simons’
violation of the agency’s Internet policy happened also to be a violation of criminal
law; this does not mean that said employer lost the capacity and interests of an
employer. The warrantless entry into Simons’ office was reasonable under the
Fourth Amendment standard announced in O’Connor because at the inception of
the search, the employer had "reasonable grounds for suspecting" that the hard
drive would yield evidence of misconduct, as the employer was already aware that
Simons had misused his Internet access to download over a thousand pornographic
images. The retrieval of the hard drive was reasonably related to the objective of
the search, and the search was not excessively intrusive. Thus, while Simons had a
reasonable expectation of privacy in his office, he did not have such legitimate
expectation of privacy with regard to the files in his computer.
x x x To establish a violation of his rights under the Fourth Amendment, Simons
must first prove that he had a legitimate expectation of privacy in the place
searched or the item seized. x x x And, in order to prove a legitimate expectation of
privacy, Simons must show that his subjective expectation of privacy is one that
society is prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons’ computer did not violate
his Fourth Amendment rights because, in light of the Internet policy, Simons
lacked a legitimate expectation of privacy in the files downloaded from the
Internet. Additionally, we conclude that Simons’ Fourth Amendment rights were
not violated by FBIS’ retrieval of Simons’ hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the
record or fruits of his Internet use in light of the FBIS Internet policy. The
policy clearly stated that FBIS would "audit, inspect, and/or monitor"
employees’ use of the Internet, including all file transfers, all websites visited,
and all e-mail messages, "as deemed appropriate." x x x This policy placed
employees on notice that they could not reasonably expect that their Internet
activity would be private. Therefore, regardless of whether Simons subjectively
believed that the files he transferred from the Internet were private, such a belief
was not objectively reasonable after FBIS notified him that it would be overseeing
his Internet use. x x x Accordingly, FBIS’ actions in remotely searching and
seizing the computer files Simons downloaded from the Internet did not violate the
Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate expectation of
privacy in his office. x x x Here, Simons has shown that he had an office that he
did not share. As noted above, the operational realities of Simons’ workplace may
have diminished his legitimate privacy expectations. However, there is no evidence
in the record of any workplace practices, procedures, or regulations that had such
an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employee’s supervisor entering the
employee’s government office and retrieving a piece of government equipment in
which the employee had absolutely no expectation of privacy – equipment that the
employer knew contained evidence of crimes committed by the employee in the
employee’s office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was
a conjunction of the conduct that violated the employer’s policy and the conduct
that violated the criminal law. We consider that FBIS’ intrusion into Simons’
office to retrieve the hard drive is one in which a reasonable employer might
engage. x x x42 (Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which
involved the constitutionality of a provision in R.A. No. 9165 requiring mandatory
drug testing of candidates for public office, students of secondary and tertiary
schools, officers and employees of public and private offices, and persons charged
before the prosecutor’s office with certain offenses, have also recognized the fact
that there may be such legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the nature of the
privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees’
privacy interest in an office is to a large extent circumscribed by the company’s
work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy expectation in a
regulated office environment is, in fine, reduced; and a degree of impingement
upon such privacy has been upheld. (Emphasis supplied.)
Applying the analysis and principles announced in O’Connor and Simons to the
case at bar, we now address the following questions: (1) Did petitioner have a
reasonable expectation of privacy in his office and computer files?; and (2) Was
the search authorized by the CSC Chair, the copying of the contents of the hard
drive on petitioner’s computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include "(1) the
employee’s relationship to the item seized; (2) whether the item was in the
immediate control of the employee when it was seized; and (3) whether the
employee took actions to maintain his privacy in the item." These factors are
relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a
password on his computer, did not share his office with co-workers and kept the
same locked, he had a legitimate expectation of privacy and any search of that
space and items located therein must comply with the Fourth Amendment.45
We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued
computer which contained his personal files. Petitioner did not allege that he had a
separate enclosed office which he did not share with anyone, or that his office was
always locked and not open to other employees or visitors. Neither did he allege
that he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public
assistance office of the CSC-ROIV, he normally would have visitors in his office
like friends, associates and even unknown people, whom he even allowed to use
his computer which to him seemed a trivial request. He described his office as "full
of people, his friends, unknown people" and that in the past 22 years he had been
discharging his functions at the PALD, he is "personally assisting incoming clients,
receiving documents, drafting cases on appeals, in charge of accomplishment
report, Mamamayan Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he
stays in the office as a paying customer."46 Under this scenario, it can hardly be
deduced that petitioner had such expectation of privacy that society would
recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or proof of the
aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the
presence of policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly
provides:
POLICY
1. The Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate business purposes.
2. Users shall be permitted access to Computer Resources to assist them in
the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be revoked at any
given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the Commission
shall not have an expectation of privacy in anything they create, store, send,
or receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall
select and assign Users to handle the confidential examination data and
processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy
in anything they create, store, send, or receive on the computer through the
Internet or any other computer network. Users understand that the CSC may
use human or automated means to monitor the use of its Computer
Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not a
personal property or for the exclusive use of a User to whom a
memorandum of receipt (MR) has been issued. It can be shared or operated
by other users. However, he is accountable therefor and must insure its care
and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for
safeguarding their passwords for access to the computer system. Individual
passwords shall not be printed, stored online, or given to others. Users shall
be responsible for all transactions made using their passwords. No User may
access the computer system with another User’s password or account.
13. Passwords do not imply privacy. Use of passwords to gain access to the
computer system or to encode particular files or messages does not imply
that Users have an expectation of privacy in the material they create or
receive on the computer system. The Civil Service Commission has global
passwords that permit access to all materials stored on its networked
computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall
authorize the application of the said global passwords.
x x x x47 (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice
that they have no expectation of privacy in anything they create, store, send or
receive on the office computers, and that the CSC may monitor the use of the
computer resources using both automated or human means. This implies that onthe-spot inspections may be done to ensure that the computer resources were used
only for such legitimate business purposes.
One of the factors stated in O’Connor which are relevant in determining whether
an employee’s expectation of privacy in the workplace is reasonable is the
existence of a workplace privacy policy.48 In one case, the US Court of Appeals
Eighth Circuit held that a state university employee has not shown that he had a
reasonable expectation of privacy in his computer files where the university’s
computer policy, the computer user is informed not to expect privacy if the
university has a legitimate reason to conduct a search. The user is specifically told
that computer files, including e-mail, can be searched when the university is
responding to a discovery request in the course of litigation. Petitioner employee
thus cannot claim a violation of Fourth Amendment rights when university
officials conducted a warrantless search of his computer for work-related
materials.49
As to the second point of inquiry on the reasonableness of the search conducted on
petitioner’s computer, we answer in the affirmative.
The search of petitioner’s computer files was conducted in connection with
investigation of work-related misconduct prompted by an anonymous lettercomplaint addressed to Chairperson David regarding anomalies in the CSC-ROIV
where the head of the Mamamayan Muna Hindi Mamaya Na division is
supposedly "lawyering" for individuals with pending cases in the CSC.
Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received several text
messages from unknown sources adverting to certain anomalies in Civil Service
Commission Regional Office IV (CSCRO IV) such as, staff working in another
government agency, "selling" cases and aiding parties with pending cases, all done
during office hours and involved the use of government properties;
9. That said text messages were not investigated for lack of any verifiable leads
and details sufficient to warrant an investigation;
10. That the anonymous letter provided the lead and details as it pinpointed the
persons and divisions involved in the alleged irregularities happening in CSCRO
IV;
11. That in view of the seriousness of the allegations of irregularities happening in
CSCRO IV and its effect on the integrity of the Commission, I decided to form a
team of Central Office staff to back up the files in the computers of the Public
Assistance and Liaison Division (PALD) and Legal Division;
x x x x50
A search by a government employer of an employee’s office is justified at
inception when there are reasonable grounds for suspecting that it will turn up
evidence that the employee is guilty of work-related misconduct.51 Thus, in the
2004 case decided by the US Court of Appeals Eighth Circuit, it was held that
where a government agency’s computer use policy prohibited electronic messages
with pornographic content and in addition expressly provided that employees do
not have any personal privacy rights regarding their use of the agency information
systems and technology, the government employee had no legitimate expectation
of privacy as to the use and contents of his office computer, and therefore evidence
found during warrantless search of the computer was admissible in prosecution for
child pornography. In that case, the defendant employee’s computer hard drive was
first remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed nonwork-related e-mail messages throughout the office. When the supervisor
confirmed that defendant had used his computer to access the prohibited websites,
in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation
ensued and later search warrants were secured by the police department. The initial
remote search of the hard drive of petitioner’s computer, as well as the subsequent
warrantless searches was held as valid under the O’Connor ruling that a public
employer can investigate work-related misconduct so long as any search is justified
at inception and is reasonably related in scope to the circumstances that justified it
in the first place.52
Under the facts obtaining, the search conducted on petitioner’s computer was
justified at its inception and scope. We quote with approval the CSC’s discussion
on the reasonableness of its actions, consistent as it were with the guidelines
established by O’Connor:
Even conceding for a moment that there is no such administrative policy, there is
no doubt in the mind of the Commission that the search of Pollo’s computer has
successfully passed the test of reasonableness for warrantless searches in the
workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a
government employer and that it was undertaken in connection with an
investigation involving a work-related misconduct, one of the circumstances
exempted from the warrant requirement. At the inception of the search, a
complaint was received recounting that a certain division chief in the CSCRO No.
IV was "lawyering" for parties having pending cases with the said regional office
or in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively
engaged in the practice of "lawyering" for parties with pending cases before the
Commission would be a highly repugnant scenario, then such a case would have
shattering repercussions. It would undeniably cast clouds of doubt upon the
institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and
objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be
so, otherwise the general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission had to
act fast, if only to arrest or limit any possible adverse consequence or fall-out.
Thus, on the same date that the complaint was received, a search was forthwith
conducted involving the computer resources in the concerned regional office. That
it was the computers that were subjected to the search was justified since
these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting
out incriminating evidence. Concomitantly, the ephemeral nature of computer
files, that is, they could easily be destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose the need to comply with the
probable cause requirement would invariably defeat the purpose of the wok-related
investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless
search in an open and transparent manner. Officials and some employees of the
regional office, who happened to be in the vicinity, were on hand to observe the
process until its completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant retrieval of files from
his computer.
All in all, the Commission is convinced that the warrantless search done on
computer assigned to Pollo was not, in any way, vitiated with unconstitutionality.
It was a reasonable exercise of the managerial prerogative of the Commission as an
employer aimed at ensuring its operational effectiveness and efficiency by going
after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible.53
Petitioner’s claim of violation of his constitutional right to privacy must
necessarily fail. His other argument invoking the privacy of communication and
correspondence under Section 3(1), Article III of the 1987 Constitution is also
untenable considering the recognition accorded to certain legitimate intrusions into
the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O’Connor and Simons
are not relevant because the present case does not involve a criminal offense like
child pornography. As already mentioned, the search of petitioner’s computer was
justified there being reasonable ground for suspecting that the files stored therein
would yield incriminating evidence relevant to the investigation being conducted
by CSC as government employer of such misconduct subject of the anonymous
complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in O’Connor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against
Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of
Manila54 involving a branch clerk (Atty. Morales) who was investigated on the
basis of an anonymous letter alleging that he was consuming his working hours
filing and attending to personal cases, using office supplies, equipment and
utilities. The OCA conducted a spot investigation aided by NBI agents. The team
was able to access Atty. Morales’ personal computer and print two documents
stored in its hard drive, which turned out to be two pleadings, one filed in the CA
and another in the RTC of Manila, both in the name of another lawyer. Atty.
Morales’ computer was seized and taken in custody of the OCA but was later
ordered released on his motion, but with order to the MISO to first retrieve the files
stored therein. The OCA disagreed with the report of the Investigating Judge that
there was no evidence to support the charge against Atty. Morales as no one from
the OCC personnel who were interviewed would give a categorical and positive
statement affirming the charges against Atty. Morales, along with other court
personnel also charged in the same case. The OCA recommended that Atty.
Morales should be found guilty of gross misconduct. The Court En Banc held that
while Atty. Morales may have fallen short of the exacting standards required of
every court employee, the Court cannot use the evidence obtained from his
personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the
claim of OCA that they were able to obtain the subject pleadings with the consent
of Atty. Morales, as in fact the latter immediately filed an administrative case
against the persons who conducted the spot investigation, questioning the validity
of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the
pleadings, retrieved from the unduly confiscated personal computer of Atty.
Morales, to hold him administratively liable, the Court had no choice but to
dismiss the charges against him for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the
former which involved a personal computer of a court employee, the computer
from which the personal files of herein petitioner were retrieved is a governmentissued computer, hence government property the use of which the CSC has
absolute right to regulate and monitor. Such relationship of the petitioner with the
item seized (office computer) and other relevant factors and circumstances under
American Fourth Amendment jurisprudence, notably the existence of CSC MO 10,
S. 2007 on Computer Use Policy, failed to establish that petitioner had a
reasonable expectation of privacy in the office computer assigned to him.
Having determined that the personal files copied from the office computer of
petitioner are admissible in the administrative case against him, we now proceed to
the issue of whether the CSC was correct in finding the petitioner guilty of the
charges and dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the
CSC, are accorded not only respect but even finality if such findings are supported
by substantial evidence. Substantial evidence is such amount of relevant evidence
which a reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might conceivably opine otherwise.55
The CSC based its findings on evidence consisting of a substantial number of
drafts of legal pleadings and documents stored in his office computer, as well as
the sworn affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be
similar or exactly the same content-wise with those on the case records of some
cases pending either with CSCRO No. IV, CSC-NCR or the Commission Proper.
There were also substantially similar copies of those pleadings filed with the CA
and duly furnished the Commission. Further, the CSC found the explanation given
by petitioner, to the effect that those files retrieved from his computer hard drive
actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the
use of his computer for drafting their pleadings in the cases they handle, as
implausible and doubtful under the circumstances. We hold that the CSC’s factual
finding regarding the authorship of the subject pleadings and misuse of the office
computer is well-supported by the evidence on record, thus:
It is also striking to note that some of these documents were in the nature of
pleadings responding to the orders, decisions or resolutions of these offices or
directly in opposition to them such as a petition for certiorari or a motion for
reconsideration of CSC Resolution. This indicates that the author thereof
knowingly and willingly participated in the promotion or advancement of the
interests of parties contrary or antagonistic to the Commission. Worse, the
appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado,
Epal kulang ang bayad mo," lends plausibility to an inference that the preparation
or drafting of the legal pleadings was pursued with less than a laudable motivation.
Whoever was responsible for these documents was simply doing the same for the
money – a "legal mercenary" selling or purveying his expertise to the highest
bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo
raises the presumption that he was the author thereof. This is because he had a
control of the said computer. More significantly, one of the witnesses, Margarita
Reyes, categorically testified seeing a written copy of one of the pleadings found in
the case records lying on the table of the respondent. This was the Petition for
Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the
interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe
that the documents were the personal files of some of his friends, including one
Attorney Ponciano Solosa, who incidentally served as his counsel of record during
the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn
affidavit to this effect. Unfortunately, this contention of the respondent was
directly rebutted by the prosecution witness, Reyes, who testified that during her
entire stay in the PALD, she never saw Atty. Solosa using the computer assigned
to the respondent. Reyes more particularly stated that she worked in close
proximity with Pollo and would have known if Atty. Solosa, whom she personally
knows, was using the computer in question. Further, Atty. Solosa himself was
never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and
credence. The same is true with the other supporting affidavits, which Pollo
submitted.
At any rate, even admitting for a moment the said contention of the respondent, it
evinces the fact that he was unlawfully authorizing private persons to use the
computer assigned to him for official purpose, not only once but several times
gauging by the number of pleadings, for ends not in conformity with the interests
of the Commission. He was, in effect, acting as a principal by indispensable
cooperation…Or at the very least, he should be responsible for serious misconduct
for repeatedly allowing CSC resources, that is, the computer and the electricity, to
be utilized for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that
the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang
bayad mo," was a private joke between the person alluded to therein, Eric N.
Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more
sinister. The same is too preposterous to be believed. Why would such a statement
appear in a legal pleading stored in the computer assigned to the respondent, unless
he had something to do with it?56
Petitioner assails the CA in not ruling that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:
Rule II – Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall
not be given due course unless it is in writing and subscribed and sworn to by the
complainant. However, in cases initiated by the proper disciplining authority,
the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or
merit to the allegation therein or supported by documentary or direct evidence, in
which case the person complained of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint
is deemed to have been initiated by the CSC itself when Chairperson David, after a
spot inspection and search of the files stored in the hard drive of computers in the
two divisions adverted to in the anonymous letter -- as part of the disciplining
authority’s own fact-finding investigation and information-gathering -- found a
prima facie case against the petitioner who was then directed to file his comment.
As this Court held in Civil Service Commission v. Court of Appeals57 -Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and
Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a
complaint may be initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being subscribed and sworn to.
Considering that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the
same deserves scant consideration. The alleged infirmity due to the said
memorandum order having been issued solely by the CSC Chair and not the
Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her
Reply to the Addendum to Commissioner Buenaflor’s previous memo expressing
his dissent to the actions and disposition of the Commission in this case. According
to Chairperson David, said memorandum order was in fact exhaustively discussed,
provision by provision in the January 23, 2002 Commission Meeting, attended by
her and former Commissioners Erestain, Jr. and Valmores. Hence, the
Commission En Banc at the time saw no need to issue a Resolution for the purpose
and further because the CUP being for internal use of the Commission, the practice
had been to issue a memorandum order.58 Moreover, being an administrative rule
that is merely internal in nature, or which regulates only the personnel of the CSC
and not the public, the CUP need not be published prior to its effectivity.59
In fine, no error or grave abuse of discretion was committed by the CA in
affirming the CSC’s ruling that petitioner is guilty of grave misconduct,
dishonesty, conduct prejudicial to the best interest of the service, and violation of
R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner
of the ultimate penalty of dismissal with all its accessory penalties, pursuant to
existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED. The
Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the
Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
E. Search warrants
1. Requisites
a. existence of probable cause
b. probable cause determined personally by the judge
c. examination under oath of the applicant and his witnesses
CASES:
Burgos v. Chief of Staff, G.R. No. L-64261, December 26, 1984
DOCTRINE AND/OR RELEVANT PROVISION:
Relevant Provision:
Article III, 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.
Existence of Probable Cause:
Probable cause for a search is defined as such facts and circumstances which would
lead a reasonably 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. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive
materials, as in the case at bar, the application and/or its supporting affidavits must
contain a specification, stating with particularity the alleged subversive material he
has published or is intending to publish. Mere generalization will not suffice.
Examination under Oath of the Applicant and His Witnesses:
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; the Constitution requires no less
than personal knowledge by the complainant or his witnesses of the facts upon which
the issuance of a search warrant may be justified.
The Exclusionary Rule:
The exclusionary rule states that any evidence obtained in violation of the
constitutional mandates is inadmissible in any proceeding for any purpose.
Doctrine of the Fruit of the Poisonous Tree:
This doctrine extends the exclusionary rule by excluding any evidence exposed
through other evidence attained by an illegal search, seizure, or arrest.
Assailed in this petition for certiorari prohibition and mandamus with preliminary
mandatory and prohibitory injunction is the validity of two [2] search warrants
issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive
Judge of the then Court of First Instance of Rizal [Quezon City], under which the
premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers, respectively, were searched,
and office and printing machines, equipment, paraphernalia, motor vehicles and
other articles used in the printing, publication and distribution of the said
newspapers, as well as numerous papers, documents, books and other written
literature alleged to be in the possession and control of petitioner Jose Burgos, Jr.
publisher-editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that respondents,
"particularly the Chief Legal Officer, Presidential Security Command, the Judge
Advocate General, AFP, the City Fiscal of Quezon City, their representatives,
assistants, subalterns, subordinates, substitute or successors" be enjoined from
using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the
other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of
Quezon City, entitled People v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the
petition. The plea for preliminary mandatory and prohibitory injunction was set for
hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor
General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners'
prayer for a writ of preliminary mandatory injunction, manifested that respondents
"will not use the aforementioned articles as evidence in the aforementioned case
until final resolution of the legality of the seizure of the aforementioned articles.
..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was
rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the quashal of
the search warrants before respondent judge. Indeed, petitioners, before impugning
the validity of the warrants before this Court, should have filed a motion to quash
said warrants in the court that issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and
urgency of the constitutional issues raised not to mention the public interest
generated by the search of the "We Forum" offices, which was televised in
Channel 7 and widely publicized in all metropolitan dailies. The existence of this
special circumstance justifies this Court to exercise its inherent power to suspend
its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda.
de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme
Court] to suspend its rules or to except a particular case from its operation,
whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches.
Considerable stress is laid on the fact that while said search warrants were issued
on December 7, 1982, the instant petition impugning the same was filed only on
June 16, 1983 or after the lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time
to do that which, by exercising due diligence, could or should have been done
earlier. It is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has abandoned it
or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the
filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16,
1983, more than half a year after the petitioners' premises had been
raided.
The climate of the times has given petitioners no other choice. If they
had waited this long to bring their case to court, it was because they
tried at first to exhaust other remedies. The events of the past eleven
fill years had taught them that everything in this country, from release
of public funds to release of detained persons from custody, has
become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons
close to the President, like Fiscal Flaminiano, sent a letter to President
Marcos, through counsel Antonio Coronet asking the return at least of
the printing equipment and vehicles. And after such a letter had been
sent, through Col. Balbino V. Diego, Chief Intelligence and Legal
Officer of the Presidential Security Command, they were further
encouraged to hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided
to come to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in judgment. On
the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate
the presumption that they had abandoned their right to the possession of the seized
property, thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used
and marked as evidence some of the seized documents in Criminal Case No. Q022872, he is now estopped from challenging the validity of the search warrants.
We do not follow the logic of respondents. These documents lawfully belong to
petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within
legal bounds. The fact that he has used them as evidence does not and cannot in
any way affect the validity or invalidity of the search warrants assailed in this
petition.
Several and diverse reasons have been advanced by petitioners to nullify the search
warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an
examination under oath or affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126
of the Rules of Court .6 This objection, however, may properly be considered moot
and academic, as petitioners themselves conceded during the hearing on August 9,
1983, that an examination had indeed been conducted by respondent judge of Col.
Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two
distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS
Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to
the execution of Search Warrant No. 20-82[b] at the latter address on the ground
that the two search warrants pinpointed only one place where petitioner Jose
Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e.,
No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of
Search Warrant No. 20- 82[b] which states:
Which have been used, and are being used as instruments and means
of committing the crime of subversion penalized under P.D. 885 as
amended and he is keeping and concealing the same at 19 Road 3,
Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search
warrants were applied for and issued because the purpose and intent were to search
two distinct premises. It would be quite absurd and illogical for respondent judge
to have issued two warrants intended for one and the same place. Besides, the
addresses of the places sought to be searched were specifically set forth in the
application, and since it was Col. Abadilla himself who headed the team which
executed the search warrants, the ambiguity that might have arisen by reason of the
typographical error is more apparent than real. The fact is that the place for which
Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS
Building, Quezon Avenue, Quezon City, which address appeared in the opening
paragraph of the said warrant. 7 Obviously this is the same place that respondent
judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be
searched with sufficient particularity, it has been held "that the executing officer's
prior knowledge as to the place intended in the warrant is relevant. This would
seem to be especially true where the executing officer is the affiant on whose
affidavit the warrant had issued, and when he knows that the judge who issued the
warrant intended the building described in the affidavit, And it has also been said
that the executing officer may look to the affidavit in the official court file to
resolve an ambiguity in the warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although
the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to
his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media
Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that
may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. — A search warrant may be
issued for the search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or
fruits of the offense; and
[c] Property used or intended to be used as the means of
committing an offense.
The above rule does not require that the property to be seized should be owned by
the person against whom the search warrant is directed. It may or may not be
owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of
the properties that may be seized is stolen property. Necessarily, stolen property
must be owned by one other than the person in whose possession it may be at the
time of the search and seizure. Ownership, therefore, is of no consequence, and it
is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized
under the disputed warrants. Under Article 415[5] of the Civil Code of the
Philippines, "machinery, receptables, instruments or implements intended by the
owner of the tenement for an industry or works which may be carried on in a
building or on a piece of land and which tend directly to meet the needs of the said
industry or works" are considered immovable property. In Davao Sawmill Co. v.
Castillo9 where this legal provision was invoked, this Court ruled that machinery
which is movable by nature becomes immobilized when placed by the owner of the
tenement, property or plant, but not so when placed by a tenant, usufructuary, or
any other person having only a temporary right, unless such person acted as the
agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or
building on which the machineries were placed. This being the case, the
machineries in question, while in fact bolted to the ground remain movable
property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon
application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.
Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro
M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and
Security Group under Col. Abadilla which conducted a surveillance of the
premises prior to the filing of the application for the search warrants on December
7, 1982.
It is contended by petitioners, however, that the abovementioned documents could
not have provided sufficient basis for the finding of a probable cause upon which a
warrant may validly issue in accordance with Section 3, Article IV of the 1973
Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is
defined as such facts and circumstances which would lead a reasonably 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. And
when the search warrant applied for is directed against a newspaper publisher or
editor in connection with the publication of subversive materials, as in the case at
bar, the application and/or its supporting affidavits must contain a specification,
stating with particularity the alleged subversive material he has published or is
intending to publish. Mere generalization will not suffice. Thus, the broad
statement in Col. Abadilla's application that petitioner "is in possession or has in
his control printing equipment and other paraphernalia, news publications and
other documents which were used and are all continuously being used as a means
of committing the offense of subversion punishable under Presidential Decree 885,
as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a
finding of the existence of probable cause, said allegation cannot serve as basis for
the issuance of a search warrant and it was a grave error for respondent judge to
have done so.
Equally insufficient as basis for the determination of probable cause is the
statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, "that the evidence gathered and collated by our unit clearly shows that the
premises above- mentioned and the articles and things above-described were used
and are continuously being used for subversive activities in conspiracy with, and to
promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires no
less than personal knowledge by the complainant or his witnesses of the facts upon
which the issuance of a search warrant may be justified. In Alvarez v. Court of
First Instance, 15 this Court ruled that "the oath required must refer to the truth of
the facts within the personal knowledge of the petitioner or his witnesses, because
the purpose thereof is to convince the committing magistrate, not the individual
making the affidavit and seeking the issuance of the warrant, of the existence of
probable cause." As couched, the quoted averment in said joint affidavit filed
before respondent judge hardly meets the test of sufficiency established by this
Court in Alvarez case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general warrants. The
search warrants describe the articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo
(equipment, typewriters, cabinets, tables, communications/recording
equipment, tape recorders, dictaphone and the like used and/or
connected in the printing of the "WE FORUM" newspaper and any
and all documents communication, letters and facsimile of prints
related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other
publication to promote the objectives and piurposes of the subversive
organization known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE
FORUM" and other subversive materials and propaganda, more
particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA
892;
2] DATSUN pick-up colored white with Plate No. NKV
969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate
No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV
427 with marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for
"books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings
and other written instruments concerning the Communist Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner,
directions to "seize any evidence in connectionwith the violation of SDC 13-3703
or otherwise" have been held too general, and that portion of a search warrant
which authorized the seizure of any "paraphernalia which could be used to violate
Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime
of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The
description of the articles sought to be seized under the search warrants in question
cannot be characterized differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in
English history: the era of disaccord between the Tudor Government and the
English Press, when "Officers of the Crown were given roving commissions to
search where they pleased in order to suppress and destroy the literature of dissent
both Catholic and Puritan Reference herein to such historical episode would not be
relevant for it is not the policy of our government to suppress any newspaper or
publication that speaks with "the voice of non-conformity" but poses no clear and
imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices
of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of
the search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, 18 and constitutes a
virtual denial of petitioners' freedom to express themselves in print. This state of
being is patently anathematic to a democratic framework where a free, alert and
even militant press is essential for the political enlightenment and growth of the
citizenry.
Respondents would justify the continued sealing of the printing machines on the
ground that they have been sequestered under Section 8 of Presidential Decree No.
885, as amended, which authorizes "the sequestration of the property of any
person, natural or artificial, engaged in subversive activities against the
government and its duly constituted authorities ... in accordance with implementing
rules and regulations as may be issued by the Secretary of National Defense." It is
doubtful however, if sequestration could validly be effected in view of the absence
of any implementing rules and regulations promulgated by the Minister of National
Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that
no less than President Marcos himself denied the request of the military authorities
to sequester the property seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We
Forum offices in Quezon City and took a detailed inventory of the
equipment and all materials in the premises.
Cendaña said that because of the denial the newspaper and its
equipment remain at the disposal of the owners, subject to the
discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is further
confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter
dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President
Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated
February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the
recommendation of our authorities to close the paper's printing
facilities and confiscate the equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b]
issued by respondent judge on December 7, 1982 are hereby declared null and void
and are accordingly set aside. The prayer for a writ of mandatory injunction for the
return of the seized articles is hereby granted and all articles seized thereunder are
hereby ordered released to petitioners. No costs.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana,
Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.
Aquino, J., took no part.
ISSUE/S:
WON there is probable cause for the issuance of the two search warrants (NO)
RULING:
No.
Probable cause for a search is defined as such facts and circumstances which would
lead a reasonably 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.
And when the search warrant applied for is directed against a newspaper publisher
or editor in connection with the publication of subversive materials, as in the case at
bar, the application and/or its supporting affidavits must contain a specification,
stating with particularity the alleged subversive material he has published or is
intending to publish. Mere generalization will not suffice.
Thus, the broad statement in Col. Abadilla's application that petitioner "is in
possession or has in his control printing equipment and other paraphernalia, news
publications and other documents which were used and are all continuously being
used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended ..." is a mere conclusion of law and does not
satisfy the requirements of probable cause.
Bereft of such particulars as would justify a finding of the existence of probable
cause, said allegation cannot serve as basis for the issuance of a search warrant
and it was a grave error for respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the statement
contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that
the evidence gathered and collated by our unit clearly shows that the premises abovementioned and the articles and things above-described were used and are
continuously being used for subversive activities in conspiracy with, and to promote
the objective of, illegal organizations such as the Light-a-Fire Movement, Movement
for Free Philippines, and April 6 Movement."
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; the Constitution requires no less
than personal knowledge by the complainant or his witnesses of the facts upon
which the issuance of a search warrant may be justified.
In Alvarez v. Court of First Instance, this Court ruled that "the oath required must
refer to the truth of the facts within the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince the committing magistrate, not
the individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause." As couched, the quoted averment in said joint
affidavit filed before respondent judge hardly meets the test of sufficiency
established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general warrants.
The search warrants describe the articles sought to be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters,
cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents communication, letters and facsimile of prints related to
the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication to
promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement;
and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong
Silang."
As heretofore stated, the premises searched were the business and printing offices of
the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further result
that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, and constitutes
a virtual denial of petitioners' freedom to express themselves in print.
Respondents would justify the continued sealing of the printing machines on the
ground that they have been sequestered under Section 8 of Presidential Decree No.
885, as amended, which authorizes "the sequestration of the property of any person,
natural or artificial, engaged in subversive activities against the government and its
duly constituted authorities ... in accordance with implementing rules and
regulations as may be issued by the Secretary of National Defense." It is doubtful
however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National
Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was reported that
no less than President Marcos himself denied the request of the military authorities
to sequester the property seized from petitioners on December 7, 1982.
DISPOSITIVE PORTION:
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b]
issued by respondent judge on December 7, 1982 are hereby declared null and void
and are accordingly set aside. The prayer for a writ of mandatory injunction for the
return of the seized articles is hereby granted and all articles seized thereunder are
hereby ordered released to petitioners. No costs.
–
On Exclusionary Rule and Doctrine of the Fruit of the Poisonous Tree (Taken from
People vs. Encinada):
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.
Any evidence obtained in violation of this provision is legally inadmissible in
evidence as a "fruit of the poisonous tree." This principle is covered by this
exclusionary rule:
Sec. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
inadmissible for any purpose in any proceeding.
The plain import of the foregoing provision is that a search and seizure is normally
unlawful unless authorized by a validly issued search warrant or warrant of arrest.
This protection is based on the principle that, between a citizen and the police, the
magistrate stands as a mediator, nay, an authority clothed with power to issue or
refuse to issue search warrants or warrants or arrest.
Microsoft Corp. v. Maxicorp, Inc., G.R. No. 140946, September 13, 2004
This petition for review on certiorari1 seeks to reverse the Court of Appeals’
Decision2 dated 23 December 1998 and its Resolution dated 29 November 1999 in
CA-G.R. SP No. 44777. The Court of Appeals reversed the Order3 of the Regional
Trial Court, Branch 23, Manila ("RTC"), denying respondent Maxicorp, Inc.’s
("Maxicorp") motion to quash the search warrant that the RTC issued against
Maxicorp. Petitioners are the private complainants against Maxicorp for copyright
infringement under Section 29 of Presidential Decree No. 49 ("Section 29 of PD
49")4 and for unfair competition under Article 189 of the Revised Penal Code
("RPC").5
Antecedent Facts
On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador
Samiano, Jr. ("NBI Agent Samiano") filed several applications for search warrants
in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and
Article 189 of the RPC. After conducting a preliminary examination of the
applicant and his witnesses, Judge William M. Bayhon issued Search Warrants
Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against
Maxicorp.
Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of
Maxicorp’s premises and seized property fitting the description stated in the search
warrants.
On 2 September 1996, Maxicorp filed a motion to quash the search warrants
alleging that there was no probable cause for their issuance and that the warrants
are in the form of "general warrants." The RTC denied Maxicorp’s motion on 22
January 1997. The RTC also denied Maxicorp’s motion for reconsideration.
The RTC found probable cause to issue the search warrants after examining NBI
Agent Samiano, John Benedict Sacriz ("Sacriz"), and computer technician
Felixberto Pante ("Pante"). The three testified on what they discovered during their
respective visits to Maxicorp. NBI Agent Samiano also presented certifications
from petitioners that they have not authorized Maxicorp to perform the witnessed
activities using petitioners’ products.
On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals
seeking to set aside the RTC’s order. On 23 December 1998, the Court of Appeals
reversed the RTC’s order denying Maxicorp’s motion to quash the search warrants.
Petitioners moved for reconsideration. The Court of Appeals denied petitioners’
motion on 29 November 1999.
The Court of Appeals held that NBI Agent Samiano failed to present during the
preliminary examination conclusive evidence that Maxicorp produced or sold the
counterfeit products. The Court of Appeals pointed out that the sales receipt NBI
Agent Samiano presented as evidence that he bought the products from Maxicorp
was in the name of a certain "Joel Diaz."
Hence, this petition.
The Issues
Petitioners seek a reversal and raise the following issues for resolution:
1. WHETHER THE PETITION RAISES QUESTIONS OF LAW;
2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO FILE
THE PETITION;
3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE
SEARCH WARRANTS;
4. WHETHER THE SEARCH WARRANTS ARE "GENERAL
WARRANTS."
The Ruling of the Court
The petition has merit.
On Whether the Petition Raises Questions of Law
Maxicorp assails this petition as defective since it failed to raise questions of law.
Maxicorp insists that the arguments petitioners presented are questions of fact,
which this Court should not consider in a Rule 45 petition for review. Petitioners
counter that all the issues they presented in this petition involve questions of law.
Petitioners point out that the facts are not in dispute.
A petition for review under Rule 45 of the Rules of Court should cover questions
of law.6 Questions of fact are not reviewable. As a rule, the findings of fact of the
Court of Appeals are final and conclusive and this Court will not review them on
appeal,7 subject to exceptions as when the findings of the appellate court conflict
with the findings of the trial court.8
The distinction between questions of law and questions of fact is settled. A
question of law exists when the doubt or difference centers on what the law is on a
certain state of facts. A question of fact exists if the doubt centers on the truth or
falsity of the alleged facts. Though this delineation seems simple, determining the
true nature and extent of the distinction is sometimes problematic. For example, it
is incorrect to presume that all cases where the facts are not in dispute
automatically involve purely questions of law.
There is a question of law if the issue raised is capable of being resolved without
need of reviewing the probative value of the evidence.9 The resolution of the issue
must rest solely on what the law provides on the given set of circumstances. Once
it is clear that the issue invites a review of the evidence presented, the question
posed is one of fact.10 If the query requires a re-evaluation of the credibility of
witnesses, or the existence or relevance of surrounding circumstances and their
relation to each other, the issue in that query is factual.11 Our ruling in Paterno v.
Paterno12 is illustrative on this point:
Such questions as whether certain items of evidence should be accorded
probative value or weight, or rejected as feeble or spurious, or whether or
not the proofs on one side or the other are clear and convincing and
adequate to establish a proposition in issue, are without doubt questions of
fact. Whether or not the body of proofs presented by a party, weighed and
analyzed in relation to contrary evidence submitted by adverse party, may
be said to be strong, clear and convincing; whether or not certain documents
presented by one side should be accorded full faith and credit in the face of
protests as to their spurious character by the other side; whether or not
inconsistencies in the body of proofs of a party are of such gravity as to
justify refusing to give said proofs weight – all these are issues of fact.
It is true that Maxicorp did not contest the facts alleged by petitioners. But
this situation does not automatically transform all issues raised in the
petition into questions of law. The issues must meet the tests outlined in
Paterno.
Of the three main issues raised in this petition – the legal personality of the
petitioners, the nature of the warrants issued and the presence of probable
cause – only the first two qualify as questions of law. The pivotal issue of
whether there was probable cause to issue the search warrants is a question
of fact. At first glance, this issue appears to involve a question of law since
it does not concern itself with the truth or falsity of certain facts. Still, the
resolution of this issue would require this Court to inquire into the probative
value of the evidence presented before the RTC. For a question to be one of
law, it must not involve an examination of the probative value of the
evidence presented by the litigants or any of them.13
Yet, this is precisely what the petitioners ask us to do by raising arguments
requiring an examination of the TSNs and the documentary evidence presented
during the search warrant proceedings. In short, petitioners would have us
substitute our own judgment to that of the RTC and the Court of Appeals by
conducting our own evaluation of the evidence. This is exactly the situation which
Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise
only questions of law. This Court is not a trier of facts. It is not the function of this
court to analyze or weigh evidence.14 When we give due course to such situations,
it is solely by way of exception. Such exceptions apply only in the presence of
extremely meritorious circumstances.15
Indeed, this case falls under one of the exceptions because the findings of the Court
of Appeals conflict with the findings of the RTC.16 Since petitioners properly
raised the conflicting findings of the lower courts, it is proper for this Court to
resolve such contradiction.
On Whether Petitioners have the Legal Personality to File this Petition
Maxicorp argues that petitioners have no legal personality to file this petition since
the proper party to do so in a criminal case is the Office of the Solicitor General as
representative of the People of the Philippines. Maxicorp states the general rule but
the exception governs this case.17 We ruled in Columbia Pictures Entertainment,
Inc. v. Court of Appeals18 that the petitioner-complainant in a petition for review
under Rule 45 could argue its case before this Court in lieu of the Solicitor General
if there is grave error committed by the lower court or lack of due process. This
avoids a situation where a complainant who actively participated in the prosecution
of a case would suddenly find itself powerless to pursue a remedy due to
circumstances beyond its control. The circumstances in Columbia Pictures
Entertainment are sufficiently similar to the present case to warrant the application
of this doctrine.
On Whether there was Probable Cause to Issue the Search Warrants
Petitioners argue that the Court of Appeals erred in reversing the RTC based on the
fact that the sales receipt was not in the name of NBI Agent Samiano. Petitioners
point out that the Court of Appeals disregarded the overwhelming evidence that the
RTC considered in determining the existence of probable cause. Maxicorp counters
that the Court of Appeals did not err in reversing the RTC. Maxicorp maintains
that the entire preliminary examination that the RTC conducted was defective.
The Court of Appeals based its reversal on two factual findings of the RTC. First,
the fact that the sales receipt presented by NBI Agent Samiano as proof that he
bought counterfeit goods from Maxicorp was in the name of a certain "Joel Diaz."
Second, the fact that petitioners’ other witness, John Benedict Sacriz, admitted that
he did not buy counterfeit goods from Maxicorp.
We rule that the Court of Appeals erred in reversing the RTC’s findings.
Probable cause means "such reasons, supported by facts and circumstances as will
warrant a cautious man in the belief that his action and the means taken in
prosecuting it are legally just and proper."19 Thus, probable cause for a search
warrant requires such facts and circumstances that would lead a reasonably prudent
man to believe that an offense has been committed and the objects sought in
connection with that offense are in the place to be searched.20
The judge determining probable cause must do so only after personally examining
under oath the complainant and his witnesses. The oath required must refer to "the
truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause."21 The applicant must have personal knowledge of the
circumstances. "Reliable information" is insufficient.22 Mere affidavits are not
enough, and the judge must depose in writing the complainant and his witnesses.23
The Court of Appeals’ reversal of the findings of the RTC centers on the fact that
the two witnesses for petitioners during the preliminary examination failed to
prove conclusively that they bought counterfeit software from Maxicorp. The
Court of Appeals ruled that this amounted to a failure to prove the existence of a
connection between the offense charged and the place searched.
The offense charged against Maxicorp is copyright infringement under Section 29
of PD 49 and unfair competition under Article 189 of the RPC. To support these
charges, petitioners presented the testimonies of NBI Agent Samiano, computer
technician Pante, and Sacriz, a civilian. The offenses that petitioners charged
Maxicorp contemplate several overt acts. The sale of counterfeit products is but
one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how
they personally saw Maxicorp commit acts of infringement and unfair competition.
During the preliminary examination, the RTC subjected the testimonies of the
witnesses to the requisite examination. NBI Agent Samiano testified that he saw
Maxicorp display and offer for sale counterfeit software in its premises. He also
saw how the counterfeit software were produced and packaged within Maxicorp’s
premises. NBI Agent Samiano categorically stated that he was certain the products
were counterfeit because Maxicorp sold them to its customers without giving the
accompanying ownership manuals, license agreements and certificates of
authenticity.
Sacriz testified that during his visits to Maxicorp, he witnessed several instances
when Maxicorp installed petitioners’ software into computers it had assembled.
Sacriz also testified that he saw the sale of petitioners’ software within Maxicorp’s
premises. Petitioners never authorized Maxicorp to install or sell their software.
The testimonies of these two witnesses, coupled with the object and documentary
evidence they presented, are sufficient to establish the existence of probable cause.
From what they have witnessed, there is reason to believe that Maxicorp engaged
in copyright infringement and unfair competition to the prejudice of petitioners.
Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit
software were not only displayed and sold within Maxicorp’s premises, they were
also produced, packaged and in some cases, installed there.
The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits.
As implied by the words themselves, "probable cause" is concerned with
probability, not absolute or even moral certainty. The prosecution need not present
at this stage proof beyond reasonable doubt. The standards of judgment are those
of a reasonably prudent man,24 not the exacting calibrations of a judge after a fullblown trial.
No law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists.25 Probable cause is determined in
the light of conditions obtaining in a given situation.26 Thus, it was improper for
the Court of Appeals to reverse the RTC’s findings simply because the sales
receipt evidencing NBI Agent Samiano’s purchase of counterfeit goods is not in
his name.
For purposes of determining probable cause, the sales receipt is not the only proof
that the sale of petitioners’ software occurred. During the search warrant
application proceedings, NBI Agent Samiano presented to the judge the computer
unit that he purchased from Maxicorp, in which computer unit Maxicorp had preinstalled petitioners’ software.27 Sacriz, who was present when NBI Agent
Samiano purchased the computer unit, affirmed that NBI Agent Samiano
purchased the computer unit.28 Pante, the computer technician, demonstrated to the
judge the presence of petitioners’ software on the same computer unit.29 There was
a comparison between petitioners’ genuine software and Maxicorp’s software preinstalled in the computer unit that NBI Agent Sambiano purchased.30 Even if we
disregard the sales receipt issued in the name of "Joel Diaz," which petitioners
explained was the alias NBI Agent Samiano used in the operation, there still
remains more than sufficient evidence to establish probable cause for the issuance
of the search warrants.
This also applies to the Court of Appeals’ ruling on Sacriz’s testimony. The fact
that Sacriz did not actually purchase counterfeit software from Maxicorp does not
eliminate the existence of probable cause. Copyright infringement and unfair
competition are not limited to the act of selling counterfeit goods. They cover a
whole range of acts, from copying, assembling, packaging to marketing, including
the mere offering for sale of the counterfeit goods. The clear and firm testimonies
of petitioners’ witnesses on such other acts stand untarnished. The Constitution and
the Rules of Court only require that the judge examine personally and thoroughly
the applicant for the warrant and his witnesses to determine probable cause. The
RTC complied adequately with the requirement of the Constitution and the Rules
of Court.
Probable cause is dependent largely on the opinion and findings of the judge who
conducted the examination and who had the opportunity to question the applicant
and his witnesses.31 For this reason, the findings of the judge deserve great weight.
The reviewing court should overturn such findings only upon proof that the judge
disregarded the facts before him or ignored the clear dictates of reason.32 Nothing
in the records of the preliminary examination proceedings reveal any impropriety
on the part of the judge in this case. As one can readily see, here the judge
examined thoroughly the applicant and his witnesses. To demand a higher degree
of proof is unnecessary and untimely. The prosecution would be placed in a
compromising situation if it were required to present all its evidence at such
preliminary stage. Proof beyond reasonable doubt is best left for trial.
On Whether the Search Warrants are in the Nature of General Warrants
A search warrant must state particularly the place to be searched and the objects to
be seized. The evident purpose for this requirement is to limit the articles to be
seized only to those particularly described in the search warrant. This is a
protection against potential abuse. It is necessary to leave the officers of the law
with no discretion regarding what articles they shall seize, to the end that no
unreasonable searches and seizures be committed.33
In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search
warrant shall issue "in connection with one specific offense." The articles
described must bear a direct relation to the offense for which the warrant is
issued.34 Thus, this rule requires that the warrant must state that the articles subject
of the search and seizure are used or intended for use in the commission of a
specific offense.
Maxicorp argues that the warrants issued against it are too broad in scope and lack
the specificity required with respect to the objects to be seized. After examining
the wording of the warrants issued, the Court of Appeals ruled in favor of
Maxicorp and reversed the RTC’s Order thus:
Under the foregoing language, almost any item in the petitioner’s store can
be seized on the ground that it is "used or intended to be used" in the illegal
or unauthorized copying or reproduction of the private respondents’
software and their manuals.35
The Court of Appeals based its reversal on its perceived infirmity of paragraph (e)
of the search warrants the RTC issued. The appellate court found that similarly
worded warrants, all of which noticeably employ the phrase "used or intended to
be used," were previously held void by this Court.36 The disputed text of the search
warrants in this case states:
a) Complete or partially complete reproductions or copies of Microsoft
software bearing the Microsoft copyrights and/or trademarks owned by
MICROSOFT CORPORATION contained in CD-ROMs, diskettes and hard
disks;
b) Complete or partially complete reproductions or copies of Microsoft
instruction manuals and/or literature bearing the Microsoft copyrights and/or
trademarks owned by MICROSOFT CORPORATION;
c) Sundry items such as labels, boxes, prints, packages, wrappers,
receptacles, advertisements and other paraphernalia bearing the copyrights
and/or trademarks owned by MICROSOFT CORPORATION;
d) Sales invoices, delivery receipts, official receipts, ledgers, journals,
purchase orders and all other books of accounts and documents used in the
recording of the reproduction and/or assembly, distribution and sales, and
other transactions in connection with fake or counterfeit products bearing
the Microsoft copyrights and/or trademarks owned by MICROSOFT
CORPORATION;
e) Computer hardware, including central processing units including
hard disks, CD-ROM drives, keyboards, monitor screens and diskettes,
photocopying machines and other equipment or paraphernalia used or
intended to be used in the illegal and unauthorized copying or
reproduction of Microsoft software and their manuals, or which
contain, display or otherwise exhibit, without the authority of
MICROSOFT CORPORATION, any and all Microsoft trademarks
and copyrights; and
f) Documents relating to any passwords or protocols in order to access all
computer hard drives, data bases and other information storage devices
containing unauthorized Microsoft software.37 (Emphasis supplied)
It is only required that a search warrant be specific as far as the circumstances will
ordinarily allow.38 The description of the property to be seized need not be
technically accurate or precise. The nature of the description should vary according
to whether the identity of the property or its character is a matter of
concern.39 Measured against this standard we find that paragraph (e) is not a
general warrant. The articles to be seized were not only sufficiently identified
physically, they were also specifically identified by stating their relation to the
offense charged. Paragraph (e) specifically refers to those articles used or intended
for use in the illegal and unauthorized copying of petitioners’ software. This
language meets the test of specificity.40
The cases cited by the Court of Appeals are inapplicable. In those cases, the Court
found the warrants too broad because of particular circumstances, not because of
the mere use of the phrase "used or intended to be used." In Columbia Pictures,
Inc. v. Flores, the warrants ordering the seizure of "television sets, video cassette
recorders, rewinders and tape cleaners x x x" were found too broad since the
defendant there was a licensed distributor of video tapes.41 The mere presence of
counterfeit video tapes in the defendant’s store does not mean that the machines
were used to produce the counterfeit tapes. The situation in this case is different.
Maxicorp is not a licensed distributor of petitioners. In Bache & Co. (Phil.), Inc.,
et al. v. Judge Ruiz, et al., the Court voided the warrants because they authorized
the seizure of records pertaining to "all business transactions" of the
defendant.42 And in 20th Century Fox Film Corp. v. Court of Appeals, the Court
quashed the warrant because it merely gave a list of articles to be seized,
aggravated by the fact that such appliances are "generally connected with the
legitimate business of renting out betamax tapes."43
However, we find paragraph (c) of the search warrants lacking in particularity.
Paragraph (c) states:
c) Sundry items such as labels, boxes, prints, packages, wrappers,
receptacles, advertisements and other paraphernalia bearing the copyrights
and/or trademarks owned by MICROSOFT CORPORATION;
The scope of this description is all-embracing since it covers property used for
personal or other purposes not related to copyright infringement or unfair
competition. Moreover, the description covers property that Maxicorp may have
bought legitimately from Microsoft or its licensed distributors. Paragraph (c)
simply calls for the seizure of all items bearing the Microsoft logo, whether
legitimately possessed or not. Neither does it limit the seizure to products used in
copyright infringement or unfair competition.
Still, no provision of law exists which requires that a warrant, partially defective in
specifying some items sought to be seized yet particular with respect to the other
items, should be nullified as a whole. A partially defective warrant remains valid as
to the items specifically described in the warrant.44 A search warrant is severable,
the items not sufficiently described may be cut off without destroying the whole
warrant.45 The exclusionary rule found in Section 3(2) of Article III of the
Constitution renders inadmissible in any proceeding all evidence obtained through
unreasonable searches and seizure. Thus, all items seized under paragraph (c) of
the search warrants, not falling under paragraphs a, b, d, e or f, should be returned
to Maxicorp.
WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of
the Court of Appeals dated 23 December 1998 and its Resolution dated 29
November 1999 in CA-G.R. SP No. 44777 are REVERSED and SET
ASIDE except with respect to articles seized under paragraph (c) of Search
Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under
paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, are
ordered returned to Maxicorp, Inc. immediately.
SO ORDERED.
ISSUES:
1. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE THE SEARCH
WARRANTS (YES)
2. WHETHER THE SEARCH WARRANTS ARE "GENERAL WARRANTS"
(NO)
RULING:
WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of
the Court of Appeals dated 23 December 1998 and its Resolution dated 29 November
1999 in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with
respect to articles seized under paragraph (c) of Search Warrants Nos. 96-451, 96452, 96-453 and 96-454. All articles seized under paragraph (c) of the search
warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to
Maxicorp, Inc. immediately.
RATIO:
1. The testimonies of these two witnesses, coupled with the object and
documentary evidence they presented, are sufficient to establish the existence
of probable cause. From what they have witnessed, there is reason to believe
that Maxicorp engaged in copyright infringement and unfair competition to
the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear
and insistent that the counterfeit software were not only displayed and sold
within Maxicorp’s premises, they were also produced, packaged and in some
cases, installed there.
The determination of probable cause does not call for the application of rules
and standards of proof that a judgment of conviction requires after trial on the
merits. As implied by the words themselves, "probable cause" is concerned
with probability, not absolute or even moral certainty. The prosecution need
not present at this stage proof beyond reasonable doubt. The standards of
judgment are those of a reasonably prudent man, not the exacting calibrations
of a judge after a full-blown trial.
No law or rule states that probable cause requires a specific kind of evidence.
No formula or fixed rule for its determination exists. Probable cause is
determined in the light of conditions obtaining in a given situation.Thus, it
was improper for the Court of Appeals to reverse the RTC’s findings simply
because the sales receipt evidencing NBI Agent Samiano’s purchase of
counterfeit goods is not in his name.
2.
e) Computer hardware, including central processing units including hard
disks, CD-ROM drives, keyboards, monitor screens and diskettes, photocopying
machines and other equipment or paraphernalia used or intended to be used in
the illegal and unauthorized copying or reproduction of Microsoft software and
their manuals, or which contain, display or otherwise exhibit, without the
authority of MICROSOFT CORPORATION, any and all Microsoft trademarks
and copyrights
It is only required that a search warrant be specific as far as the circumstances
will ordinarily allow. The description of the property to be seized need not be
technically accurate or precise. The nature of the description should vary
according to whether the identity of the property or its character is a matter of
concern. Measured against this standard we find that paragraph (e) is not a
general warrant. The articles to be seized were not only sufficiently identified
physically, they were also specifically identified by stating their relation to
the offense charged. Paragraph (e) specifically refers to those articles used or
intended for use in the illegal and unauthorized copying of petitioners’
software. This language meets the test of specificity.
Castro v. Pabalan, G.R. No. L-28642, April 30, 1976
MARIA CASTRO and CO LING petitioners,
vs.
HONORABLE JAVIER PABALAN, Judge of the Court of First Instance of
La Union, and SGT. ERNESTO LUMANG, respondents.
Marcelino B. Florentino for petitioners.
Jose L Yumang for respondent Sgt. Ernesto Lumang. Hon. Javier Pabalan for and
in his own behalf.
FERNANDO, J.:
This Court is confronted anew in this certiorari proceeding with the claim that a
search warrant issued without complying with the requisites of the
Constitution 1 and the Rules of Court 2 should have been nullified, but was not in
the challenged order of respondent Judge Javier Pabalan. 3 More specifically, it
was the failure of the application for the search warrant as well as the search
warrant itself to specify the specific offense, to examine the applicant as well as his
witnesses on the part of respondent Judge, and to describe with particularity the
place to be searched and the things to be seized, that were singled out to justify the
assertion of illegality. When required to answer, respondent Judge did not bother to
refute specifically the allegations of the petition for certiorari, but merely contented
himself with inviting attention to the challenged order as well as the resolutions
denying the motion for reconsideration and with the statement that he "has no
particular prayer to ask the Supreme Court," an assertion thereafter repeated in the
second paragraph of his two-paragraph answer that he "has no request to make in
this particular case leaving the issues entirely to the discretion of the Supreme
Court." 4 The tone of diffidence, almost of apology, is easy to understand. It is
difficult to resist the thought that respondent Judge failed to pay heed to
authoritative decisions of this Court. The most cursory perusal of the application
for search warrant 5 by respondent Lumang and the search warrant itself, 6 yields
no other conclusion. Respondent Judge ignored what the Constitution requires on
two points, the existence of a probable cause and the particular description of the
things to be seized. The limitation as to the specific offense as mandated by the
Rules of Court was not observed either. Even on the assumption then that he could
not
relevant According to the former: "A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined by the
municipal or city 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. No search warrant shall
issue for more than one specific offense." Section 4 provides: "The municipal or
city judge must, before issuing the warrant, personally examine on oath or
affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits
presented to him." be held chargeable with knowledge of the leading Stonehill
decision, 7 announced barely twenty days before the search warrant in question was
issued, still from Alverez v. Court of First Instance 8 the first to be decided under
the 1935 Constitution, promulgated in 1937, to Oca v. Marquez, 9 that came out in
1965, this Court had adhered firmly to the view that for a search warrant to escape
the imputation of being unreasonable, there should be strict conformity with the
requirements of the Constitution and the applicable procedural rules. The finding
then should have been against the validity of the search warrant. Nonetheless,
insofar as such order limited itself to requiring the return solely of the liquor, the
pack of playing cards, the bottle of distilled water and five bottles of Streptomycin,
all of which may be considered as personal effects of petitioners, with the rest of
the goods taken falling under the category of things forbidden by law and therefore
need not be restored, 10 it can be sustained. So we rule.
In the opening paragraph of the application for search warrant, respondent Ernesto
I. Lumang admitted that "he has been informed" and therefore was of the belief
that petitioners Maria Castro and Co Ling, whose place of residence was not even
indicated, although subsequently mention was made of their being at Barrio
Padasil, Bangar, La Union, "have in possession narcotics and other
contraband." 11 There is a claim that he had verified the report and that therefore he
had "reasons to believe that a Search Warrant should be issued to enable the
undersigned to take possession" of such narcotics and other contraband. 12 The
application was accompanied by the joint affidavit of a Sergeant Francisco C.
Molina and a Corporal Lorenzo G. Apilado of the Philippine
Constabulary. 13 Again, mention was merely made of their information about
narcotics and other contraband being kept by petitioners. They did allege therein
that they conducted rigid surveillance, but all they could come out with is that
petitioner Co Ling is an overstaying alien for almost ten years conducting such
traffic and that after verification, he was not registered in the Immigration
Office. 14 Then, on the very same day, July 10, 1967, the search warrant was issued
for illegal traffic of narcotics and contraband. 15 Again, there was reference to the
possession by petitioners of such forbidden goods. As to the complete and detailed
description of the properties to be seized, the search warrant merely mentioned
illegal traffic of narcotics and contraband inside the warehouse and premises of
petitioners. 16 In the resolution upholding the validity of the search warrant,
respondent Judge did state the following: "On July 10, 1967, Ernesto Lumang, Sgt.
of the PC, with a long service behind, appeared in chamber before the Presiding
Judge of Branch I of this Court. With him were Sgt. Molina and Cpl. Apilado both
of the PC Command of La Union. The three submitted to the Presiding Judge in
chamber an application for search warrant which is Exhibit I in this case and a joint
affidavit supporting the search warrant asked. As Sgt. Lumang said, testifying
regarding this incident, those appearing were asked, although not in writing and
not recorded, some questions by the Presiding Judge regarding their request of the
search warrant on the knowledge of Molina and Apilado on the facts stated on the
application and on the joint affidavit. The inquiry was brief. The barrio to be
searched was handwritten in ink, Maria Cristina cancelling the typewritten name
Padasil. But this correction was not done in the duplicates. Anyhow Padasil and
Maria Cristina are adjoining barrios. After the routine taking of their oath and
examination questions and answers, the Presiding Judge of this Branch signed the
application for search warrant, the joint affidavits, and forthwith issued the search
warrant which is Exhibit C." 17
As set forth at the outset, failure to abide by both the Constitution and the
procedural law in terms of the existence of a probable cause, a particular
description of the property to be seized and the requirement that there be only one
specific offense, is quite manifest.
1. This excerpt from the epochal opinion of former Chief Justice Concepcion in
Stonehill v. Diokno 18 is highly relevant: "Two points must be stressed in
connection with — this constitutional mandate, namely: (1) that no warrant shall
issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the
things to be seized. None of these requirements has been complied with in the
contested warrants. Indeed, the same were issued upon applications stating that the
natural and juridical persons therein named had committed a 'violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code.' In other words, no specific offense had been alleged in said applications.
The averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have
found the existence of probable cause, for the same presupposes the introduction of
competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in this
case do not allege any specific acts performed by herein petitioners. It would be a
legal heresy, of the highest order, to convict anybody of a 'violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code,' — as alleged in the aforementioned applications — without reference to any
determinate provision of said laws or codes."19 That same approach is reflected in
the two subsequent cases of Bache & Co. (Phil.), Inc. v. Ruiz 20 and Asian Surety &
Insurance Co., Inc. v. Herrera. 21 It bears repeating, as was emphasized in
Stonehill v. Diokno, that the averments as to the alleged commission of the
offenses imputed to petitioner were abstract. As admitted in the challenged order,
the inquiry was brief. Subsequently, reference was made to "the routine taking of
[their oath] and examination questions and answers ..." 22 Nor can such perfunctory
manner in which respondent Judge conducted the required "examination under
oath" be justified merely because respondent Lumang was "a Sergeant of the PC,
with a long service behind [him]." 23 Moreover, contrary to the Rules of Court, he
did not even bother to take the depositions of the witnesses in writing, attaching
them to the record. 24 There was thus a manifest and palpable violation of the
constitutional standard as to the quantum of proof to show the existence of
probable cause, as so clearly enunciated in Stonehill.
2. Then again, the Constitution requires, for the validity of a search warrant, that
there be a particular description of "the place to be searched and the persons or
things to be seized." 25 As was admitted by the judge in the challenged resolution,
there was a mistake concerning the residence of petitioners, which was set forth in
the search warrant as being in Barrio Padasil when in fact it is in Barrio Maria
Cristina. He would gloss over such inaccuracy by saying that they were, anyway,
adjoining barrios. As to the premises to be searched, it may be admitted that the
deficiency in the writ is not of sufficient gravity to call for its invalidation.
Nonetheless, and again in line with Stonehill v. Diokno, the Constitution is quite
explicit that there be a particular description of the things to be seized. That
requisite was not complied with in this case. That would explain why the searching
party felt it had a free hand and did take possession of various kinds of goods,
including personal effects, which respondent Judge himself would have them
return. What was aptly characterized as a "major objective" of this constitutional
provision, the elimination of general warrants, was thus frustrated. It need not be
stressed anew that this Court is resolutely committed to the doctrine that this
constitutional provision is of a mandatory character and therefore must be strictly
complied with. 26 To quote from the landmark American decision of Boyd v.
United States: 27 "It is the duty of courts to be watchful for the constitutional rights
of the citizen, and against any stealthy encroachments thereon. Their motto should
be obsta principis." 28
3. Another infirmity was the failure to comply with the basic procedural requisite
that a search warrant "shall not issue but upon probable cause in connection with
one specific offense." 29 Here reference was made to "an illegal traffic of narcotics
and contraband." The latter is a generic term covering all goods exported from or
imported into the country contrary to applicable statutes. Necessarily then, more
than one offense could arise from the activity designated as illegal traffic of
narcotics and contraband. As a matter of fact, in the challenged order, reference
was made to at least three charges having been filed, the violation of Section 203
of the Internal Revenue Code, its Section 1039 on tax evasion, as well as illegal
possession of opium. It would seem that once again what was correctly pointed out
by Chief Justice Concepcion in Stonehill v. Diokno as unjustified and unwarranted
finds application. Nor can there be any plausibility to the possible excuse, to repeat
what was said before, that the Stonehill opinion having been rendered only twenty
days previous to the issuance of the search warrant, respondent Judge could not be
held chargeable with a knowledge thereof, considering that as far back as July 30,
1965, two years earlier, in Oca v. Marquez, 30 this Court, through the then Justice J.
P. Bengzon, enunciated: "The decision herein has applied the provisions of th Old
Rules of Court since this case arose under said Rules. Attention of the Bench and
Bar is however called to the fact that effective January 1, 1964 the issuance of
search warrants is governed by Section 3, Rule 126 of the Revised Rules of Court
which among other things requires that a search warrant must be in connection
with one specific offense." 31
4. As was made clear at the outset, though, the illegality of the search warrant does
not call for the return of the things seized, the possession of which is prohibited by
law. This is the established doctrine in this jurisdiction. As far back as Uy Kheytin
v. Villareal, 32 a 1920 decision, it was held: "That although in the issuance of the
search warrant in question the judge did not comply with the requirements of
section 98 of General Orders No. 58, the petitioners are not entitled to the return of
the opium. and its paraphernalia which were found and seized under said warrant,
and much less are they entitled to be exonerated because of such omission of the
judge." 33 Among the authorities cited is Cooley: "'Search-warrants have heretofore
been allowed to search for stolen goods, for goods supposed to have been
smuggled into the country in violation of the revenue laws, for implements of
gaming or counterfeiting, for lottery tickets or Prohibited liquors kept for sale
contrary to law, for obscene books and papers kept for sale or circulation, and for
powder or other explosive and dangerous material so kept as to endanger the public
safety.'" 34 So, also, in Yee Sue Koy v. Almeda, 35 handed down in 1940, Justice
Laurel, speaking for this Court, stated: "If it be true, furthermore, without,
however, deciding the point, that as alleged by the respondents the articles in
question constitute the corpus delicti of the Usury Law, their return to the
petitioners cannot be ordered." 36 Magoncia v. Palacios, 37 promulgated in 1948,
reiterated such a doctrine. Thus: "En el asunto de Uy Kheytin contra Villareal (42
Jur. Fil. 935), los recurrentes pidieron la devolucion del opio de que se incautaron
los constabularies al registrar su casa armados con un mandamiento de registro
expedido sin cumplir las disposiciones de los articulos 96 y 98 de la Orden General
No. 58; sostenian que los requisites exigidos por dichos articulos no se habian
cumplido, y por tanto, el mandamiento de registro era ilegal, como si no existiera;
que al registro se ha hecho sin mandamiento de registro debidamente expedido.
Este Tribunal denego la peticion, declarando que la irregularidad de la expedicion
del mandamiento de registro ne era suficiente causa para ordenar la devolucion del
opio. El Hon. Juez recurrido no abuso de su discrecion al denegar la devolucion al
acusado del paltik, 42 municiones y una granada de mano, tampoco abuso de su
sana discrecion al denegar la peticion del acusado de que se prohiba al Fiscal
Provincial y al Jefe de Policia de Asingan, Pangasinan a presentar tales efectos
como prueba en la vista." 38
5. This decision leaves open the question of the legality of any possible use that
may be made by the prosecuting authorities of the articles seized under an invalid
search warrant. Here, again, the Yee Sue Koy opinion of Justice Laurel is
illuminating, especially in view of the inadmissibility of evidence illegally seized
under the present Constitution 39 At this stage, the question does not have to be
faced. The words of Justice Laurel follow: "While we reiterate the rule that the
seizure of books and documents by means of a search warrant ' for the purpose of
using them as evidence in a criminal case against the person in whose possession
they were found is unconstitutional because it makes the warrant unreasonable, and
it is equivalent to a violation of the constitutional provision prohibiting the
compulsion of an accused to testify against himself ..., the said rule has no
applicable force in the present case. ... In the application for the issuance of the
search warrant in question, it was alleged that the articles seized were 'being used
by it (Sam Sing & Co.) in connection with its activities of lending money at
usurious rate of interest in violation of the Usury Law,' and it is now suggested
(memoranda of respondents) that the only object of the agents of the Anti-Usury
Board in keeping the articles is to prevent the petitioners from employing them as a
means of further violations of the Usury Law. In this state of the record, without
deciding the question whether the petitioners will in fact use the articles in
question, if returned, for illegal purposes, we are not prepared to order the return
prayed for by the petitioners. (Cf. People v. Rubio, 57 Phil. 384, 394-395.)" 40
WHEREFORE, the writ of certiorari is granted and the order of September 12,
1967 denying the motion of petitioners to annul the search warrant as well as the
resolutions of October 26, 1967 and January 29, 1968 denying the motions for
reconsiderations are reversed, the decision of this Court being that the search
warrant in question is tainted by illegality for being violative both of the
Constitution and the Rules of Court. It is likewise the decision of this Court that
notwithstanding the illegality of such search warrant, the challenged order of
respondent Judge can be sustained only insofar as it would limit the return of the
articles seized to the liquor, the pack of playing cards, the bottle of distilled water
and five bottles of Streptomycin taken under such search warrant. No costs.
Barred, Antonio, Aquino and Concepcion, Jr., JJ., concur.
Asian Surety v. Herrera, G.R. No. L-25232, December 20, 1973
ESGUERRA, J.:
Petition to quash and annul a search warrant issued by respondent Judge Jose
Herrera of the City Court of Manila, and to command respondents to return
immediately the documents, papers, receipts and records alleged to have been
illegally seized thereunder by agents of the National Bureau of Investigation (NBI)
led by respondent Celso Zoleta, Jr.
On October 27, 1965, respondent Judge Herrera, upon the sworn application of
NBI agent Celso Zoleta, Jr. supported by the deposition of his witness, Manuel
Cuaresma, issued a search warrant in connection with an undocketed criminal case
for estafa, falsification, insurance fraud, and tax evasion, against the Asian Surety
and Insurance Co., a corporation duly organized and existing under the laws of the
Philippines, with principal office at Room 200 Republic Supermarket Bldg., Rizal
Avenue, Manila. The search warrant is couched in the following
language:jgc:chanrobles.com.ph
"It appearing to the satisfaction of the undersigned, after examining under oath
NBI Agent Celso J. Zoleta, Jr. and his witness Manuel Cuaresma that there are
good and sufficient reasons to believe that Mr. William Li Yao or his employees
has/have in his/their control in premises No. 2nd Floor Republic Supermarket
Building, in Rizal Avenue district of Sta. Cruz, Manila, property (Subject of the
offense; stolen or embezzled and proceeds or fruits of the offense used or intended
to be used as the means of committing the offense) should be seized and brought to
the undersigned.
"You are hereby commanded to make an immediate search at any time in the
_____ of the premises above-described and forthwith seize and take possession of
the following personal property to wit: Fire Registers, Loss Bordereau, Adjusters
Report including subrogation receipt and proof of loss, Loss Registers, Books of
Accounts, including cash receipts and disbursements and general ledger, check
vouchers, income tax returns, and other papers connected therewith . . . for the
years 1961 to 1964 to be dealt with as the law directs."cralaw virtua1aw library
Armed with the search warrant Zoleta and other agents assigned to the Anti-Graft
Division of the NBI entered the premises of the Republic Supermarket Building
and served the search warrant upon Atty. Alidio of the insurance company, in the
presence of Mr. William Li Yao, president and chairman of the board of directors
of the insurance firm. After the search they seized and carried away two (2)
carloads of documents, papers and receipts.
Petitioner assails the validity of the search warrant, claiming that it was issued in
contravention of the explicit provisions of the Constitution and the Rules of Court,
particularly Section 1, of Art. III of the 1935 Constitution, now Section 3, of Art.
IV of the new Constitution, and Sections 3, 5, 8 and 10 of Rule 126 of the Rules of
Court, hereunder quoted for convenience of reference, viz:jgc:chanrobles.com.ph
"Sec. 3. The rights of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures shall not be violated, and no
warrant shall issue but upon probable cause to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched, and the persons,
or things to be seized." (Art. IV, Section 3, New Constitution)
"Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue
but upon probable cause in connection with one specific offense to be determined
by the judge or justice of the peace 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.
No search warrant shall issue for more than one specific offense." (Sec. 3, Rule
126, Rules of Court)
"Sec. 5. Issuance and form of search warrant . — If the judge or justice of the
peace is thereupon satisfied of the existence of facts upon which the application is
based, or that there is probable cause to believe that they exist, he must issue the
warrant in the form prescribed by these rules." (Sec. 5, Rule 126)
"Sec. 8. Time of making search .— The warrant must direct that it be served in the
day time, unless the affidavit asserts that the property is on the person or in the
place ordered to be searched, in which case a direction may be inserted that it he
served at any time of the night or day." (Sec. 8, Rule 126)
"Sec. 10 Receipt for property seized. — The officer seizing property under the
warrant must give a detailed receipt for the same to the person on whom or in
whose possession it was found, or in the absence of any person, must, in the
presence of at least one witness, leave a receipt in the place in which he found the
seized property." (Sec. 10, Rule 126)
"Of all the rights of a citizen, few are of greater importance or more essential to his
peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from the inspection and
scrutiny of others. 1 While the power to search and seize is necessary to the public
welfare, still it must be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of government
(People v. Elias, 147 N.E. 472)."cralaw virtua1aw library
I
In the case at bar, the search warrant was issued for four separate and distinct
offenses of: (1) estafa, (2) falsification, (3) tax evasion and (4) insurance fraud, in
contravention of the explicit command of Section 3, Rule 126, of the Rules
providing that: "no search warrant shall issue for more than one specific offense."
The aforequoted provision, which is found in the last paragraph of the same
section, is something new. "There is no precedent on this amendment —
prohibition against the issuance of a search warrant for more than one specific
offense — either in the American books on Criminal Procedure or in American
decisions." 2 It was applied in the celebrated case of Harry S. Stonehill v. Secretary
of Justice 3 where this Court said:jgc:chanrobles.com.ph
"To uphold the validity of the warrants in question would be to wipe out
completely one of the most fundamental rights guaranteed in our Constitution, for
it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims, caprice or passion of peace officers.
This is precisely the evil sought to be remedied by the constitutional provision
abovequoted — to outlaw the so-called general warrants. It is not difficult to
imagine what would happen in times of keen political strife, when the party in
power feels that the minority is likely to wrest it, even though by legal means.
"Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend section 3 of Rule
122 of the former Rules of Court by providing in its counterpart, under the Revised
Rules of Court, that a search warrant shall not issue but upon probable cause in
connection with one specific offense. Not satisfied with this qualification, the court
added thereto a paragraph, directing that ‘no search warrant shall issue for more
than one specific offense."cralaw virtua1aw library
II
Petitioner likewise contests the validity of the search warrant on the ground that it
authorized the search and seizure of personal properties so vaguely described and
not particularized, thereby infringing the constitutional mandate requiring
particular description of the place to be searched and the persons or things to be
seized. It also assails the noncompliance with the above-requirement as likewise
openly violative of Section 2 of Rule 126 which provides:jgc:chanrobles.com.ph
"SEC. 2. A search warrant may be issued for the search and seizure of the
following personal property:chanrob1es virtual 1aw library
(a) Property subject of the offense;
(b) Property stolen or embezzled and other proceeds or fruits of the offense; and
(c) Property used or intended to be used as the means of committing an
offense."cralaw virtua1aw library
The search warrant herein involved reads in part: ". . . property (Subject of the
offense, stolen or embezzled and proceeds or fruits of the offense used or intended
to be used as the means of committing the offense) should be seized and brought to
the undersigned." The claim of respondents that by not cancelling the description
of one or two of the classes of property contained in the form when not applicable
to the properties sought to be seized, the respondent judge intended the search to
apply to all the three classes of property. This is a patent impossibility because the
description of the property to be searched and seized, viz: Fire Registers, Loss
Bordereau, Adjusters Report, including subrogation receipts and proof of loss,
Loss Registers, Books of Accounts including cash receipts and disbursements and
general ledger, etc. and the offenses alleged to have been committed by the
corporation to wit: estafa, falsification, tax evasion and insurance fraud, render it
impossible for Us to see how the above-described property can simultaneously be
contraband goods, stolen or embezzled and other proceeds or fruits of one and the
same offense. What is plain and clear is the fact that the respondent Judge made no
attempt to determine whether the property he authorized to be searched and seized
pertains specifically to any one of the three classes of personal property that may
be searched and seized under a search warrant under Rule 126, Sec. 2 of the Rules.
The respondent Judge simply authorized search and seizure under an omnibus
description of the personal properties to be seized. Because of this all embracing
description which includes all conceivable records of petitioner corporation, which
if seized (as it was really seized in the case at bar), could possibly paralyze its
business, 4 petitioner in several motions filed for early resolution of this case,
manifested that the seizure of TWO carloads of their papers has paralyzed their
business to the grave prejudice of not only the company, its workers, agents,
employees but also of its numerous insured and beneficiaries of bonds issued by it,
including the government itself, and of the general public. 5 And correlating the
same to the charges for which the warrant was issued, We have before Us the
infamous general warrants of old. In the case of Uy Kheytin, Et Al., v. Villareal, 42
Phil. 896, cited with approval in the Bache case, supra, We had occasion to explain
the purpose of the requirement that the warrant should particularly describe the
place to be searched and the things to be seized, to wit:jgc:chanrobles.com.ph
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched
and the things to be seized. The evident purpose and intent of this requirement is to
limit the things to be seized to those, and only those, particularly described in the
search warrant — to leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that `unreasonable searches and seizures’ may
not be made. That this is the correct interpretation of this constitutional provision is
borne out by American authorities."cralaw virtua1aw library
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
III.
Moreover, as contended by petitioner, respondents in like manner transgressed
Section 10 of Rule 126 of the Rules for failure to give a detailed receipt of the
things seized. Going over the receipts (Annexes "B", "B-1", "B-2", "B-3" and "B4" of the Petition) issued, We found the following: one bordereau of reinsurance, 8
fire registers, 1 marine register, four annual statements, folders described only as
Bundle gm-1 red folders; bundle 17-22 big carton folders; folders of various sizes,
etc., without stating therein the nature and kind of documents contained in the
folders of which there were about a thousand of them that were seized. In the
seizure of two carloads of documents and other papers, the possibility that the
respondents took away private papers of the petitioner, in violation of his
constitutional rights, is not remote, for the NBI agents virtually had a field day
with the broad and unlimited search warrant issued by respondent Judge as their
passport.
IV.
The search warrant violated the specific injunctions of Section 8 of Rule 126. 6
Annex "A" of the Petition which is the search warrant in question left blank the
"time" for making search, while actual search was conducted in the evening of
October 27, 1965, at 7:30 p.m., until the wee hours of the morning of October 28,
1965, thus causing untold inconveniences to petitioners herein. Authorities 7 are of
the view that where a search is to be made during the night time, the authority for
executing the same at that time should appear in the directive on the face of the
warrant.
In their Memorandum 8 respondents, relying on the case of Moncado v. Peoples
Court (80 Phil. 1), argued:jgc:chanrobles.com.ph
"Even assuming that the search warrant in question is null and void, the illegality
thereof would not render the incriminating documents inadmissible in
evidence."cralaw virtua1aw library
This Court has reverted to the old rule and abandoned the Moncado ruling
(Stonehill case, supra). Most common law jurisdictions have already given up this
approach and eventually adopted the exclusionary rule, realizing that this is the
only practical means of enforcing the constitutional injunction against
unreasonable searches and seizures. Thus the Supreme Court of the United States
declared: 9
"If letters and private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the 4th Amendment,
declaring his right to be secured against such searches and seizures is of no value,
and so far as those thus placed are concerned, might as well be stricken from the
Constitution. The efforts of the courts and their officials to bring the guilty to
punishment, praise-worthy as they are, are not to be aided by the sacrifice of those
great principles established by years of endeavor and suffering which have resulted
in their embodiment in the fundamental law of the land."cralaw virtua1aw library
Moreover, the criminal charges filed by the NBI have all been dismissed and/or
dropped by the Court or by the office of the City Fiscal of Manila in 1968, as
manifested in the petition filed by petitioner dated October 24, 1972, for early
resolution of this case.
V.
It has likewise been observed that the offenses alleged took place from 1961 to
1964, and the application for search warrant was made on October 27, 1965. The
time of the application is so far remote in time as to make the probable cause of
doubtful veracity and the warrant vitally defective. Thus Mr. Joseph Varon, an
eminent authority on Searches, Seizures and Immunities, has this to say on this
point:jgc:chanrobles.com.ph
"From the examination of the several cases touching upon this subject, the
following general rules are said to apply to affidavits for search
warrants:chanrob1es virtual 1aw library
(1) . . .
(2) Such statement as to the time of the alleged offense must be clear and definite
and must not be too remote from the time of the making of the affidavit and
issuance of the search warrant.
(3) There is no rigid rule for determining whether the stated time of observation of
the offense is too remote from the time when the affidavit is made or the search
warrant issued but, generally speaking, a lapse of time of less than three weeks will
be held not to invalidate the search warrant, while a lapse of four weeks will be
held to be so.
A good and practical rule of thumb to measure the nearness of time given in the
affidavit as to the date of the alleged offense, and the time of making the affidavit
is thus expressed: The nearer the time at which the observation of the offense is
alleged to have been made, the more reasonable the conclusion of establishment of
probable cause." [Emphasis ours]
PREMISES CONSIDERED, petition is hereby granted; the search warrant of
October 27, 1965, is nullified and set aside and the respondents are hereby ordered
to return immediately all documents, papers and other objects seized or taken
thereunder. Without costs.
Makalintal, C.J., Castro, Fernandez ** , and Muñoz Palma, JJ., concur.
Makasiar, J., concurs in the result.
Alvarez v. CFI, G.R. No. L-45358, January 29, 1937
Issue: WON the search warrant is unreasonable.
Ruling: Yes.
Section 1(par. 3), Article III of the Constitution provides that no warrants shall
issue but upon probable cause, to be determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. Section
98 of General Orders, No. 58 provides that the judge or justice must, before issuing
the warrant, examine under oath the complainant and any witnesses he may produce
and take their depositions in writing.
The purpose of both in requiring the presentation of depositions is nothing more than
to satisfy the committing magistrate of the existence of probable cause. Therefore,
if the affidavit of the applicant or complainant is sufficient, the judge may dispense
with that of other witnesses.
Inasmuch as the affidavit of the agent in this case was insufficient because his
knowledge of the facts was not personal but merely hearsay, it is the duty of the
judge to require the affidavit of one or more witnesses for the purpose of
determining the existence of probable cause to warrant the issuance of the
search warrant.
When the affidavit of the applicant or complainant contains sufficient facts within
his personal and direct knowledge, it is sufficient if the judge is satisfied that there
exists probable cause; when the applicant's knowledge of the facts is mere
hearsay, the affidavit of one or more witnesses having a personal knowledge of
the facts is necessary.
In the case at bar, the judge who issued the search warrant in this case, relied
exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not
require nor take the deposition of any other witness.
Therefore, the Court concluded that the warrant issued is illegal because it was
based only on the affidavit of the agent who had no personal knowledge of the facts
necessary to determine the existence or non-existence of probable cause.
The search warrant and the seizure are declared illegal and are set aside, and it is
ordered that the judge presiding over the CFI of Tayabas direct the immediate return
to the petitioner of the nineteen (19) documents.
CASE: Salazar v. Achacoso, G.R. No. 81510, March 14, 1990
This concerns the validity of the power of the Secretary of Labor to issue warrants
of arrest and seizure under Article 38 of the Labor Code, prohibiting illegal
recruitment.
The facts are as follows:
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1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street,
Leveriza, Pasay City, in a sworn statement filed with the Philippine
Overseas Employment Administration (POEA for brevity) charged
petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon
ay narito at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and
ginawang panloloko sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang
pangyayari?
S. Pagkagaling ko sa Japan ipinatawag
niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan
ako ng
booking sa Japan. Mag 9 month's na ako sa
Phils. ay
hindi pa niya ako napa-alis. So lumipat ako
ng ibang
company pero ayaw niyang ibigay and
PECC Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez
to whom said complaint was assigned, sent to the petitioner the
following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR
BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL
RECRUITMENT UNIT 6TH FLR. POEA BLDG.
EDSA COR. ORTIGAS AVE. MANDALUYONG MM
ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED
AGAINST YOU. FAIL NOT UNDER PENALTY OF
LAW.
4. On the same day, having ascertained that the petitioner had no
license to operate a recruitment agency, public respondent
Administrator Tomas D. Achacoso issued his challenged CLOSURE
AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No.
1920 and Executive Order No. 1022, I hereby order the CLOSURE of
your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —
(1) No valid license or authority from the Department of
Labor and Employment to recruit and deploy workers
for overseas employment;
(2) Committed/are committing acts prohibited under
Article 34 of the New Labor Code in relation to Article
38 of the same code.
This ORDER is without prejudice to your criminal
prosecution under existing laws.
Done in the City of Manila, this 3th day of November,
1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation
Atty. Estelita B. Espiritu issued an office order designating
respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto
Vistro as members of a team tasked to implement Closure and
Seizure Order No. 1205. Doing so, the group assisted by
Mandaluyong policemen and mediamen Lito Castillo of the People's
Journal and Ernie Baluyot of News Today proceeded to the residence
of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila.
There it was found that petitioner was operating Hannalie Dance
Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed
them entry into the premises. Mrs. Flora Salazar informed the team
that Hannalie Dance Studio was accredited with Moreman
Development (Phil.). However, when required to show credentials,
she was unable to produce any. Inside the studio, the team chanced
upon twelve talent performers — practicing a dance number and saw
about twenty more waiting outside, The team confiscated assorted
costumes which were duly receipted for by Mrs. Asuncion Maguelan
and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following
letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong,
Metro Manila, we respectfully request that the personal properties
seized at her residence last January 26, 1988 be immediately returned
on the ground that said seizure was contrary to law and against the
will of the owner thereof. Among our reasons are the following:
1. Our client has not been given any prior notice or
hearing, hence the Closure and Seizure Order No. 1205
dated November 3, 1987 violates "due process of law"
guaranteed under Sec. 1, Art. III, of the Philippine
Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine
Constitution which guarantees 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."
3. The premises invaded by your Mr. Ferdi Marquez and
five (5) others (including 2 policemen) are the private
residence of the Salazar family, and the entry, search as
well as the seizure of the personal properties belonging
to our client were without her consent and were done
with unreasonable force and intimidation, together with
grave abuse of the color of authority, and constitute
robbery and violation of domicile under Arts. 293 and
128 of the Revised Penal Code.
Unless said personal properties worth around TEN
THOUSAND PESOS (P10,000.00) in all (and which
were already due for shipment to Japan) are returned
within twenty-four (24) hours from your receipt hereof,
we shall feel free to take all legal action, civil and
criminal, to protect our client's interests.
We trust that you will give due attention to these
important matters.
7. On February 2, 1988, before POEA could answer the letter,
petitioner filed the instant petition; on even date, POEA filed a
criminal complaint against her with the Pasig Provincial Fiscal,
docketed as IS-88-836.1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts
sought to be barred are already fait accompli, thereby making prohibition too late,
we consider the petition as one for certiorari in view of the grave public interest
involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas
Employment Administration (or the Secretary of Labor) validly issue warrants of
search and seizure (or arrest) under Article 38 of the Labor Code? It is also an
issue squarely raised by the petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . 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. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was
declared that mayors may not exercise this power:
xxx
xxx
xxx
But it must be emphasized here and now that what has just been
described is the state of the law as it was in September, 1985. The law
has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders
of arrest. Section 143 of the Local Government Code, conferring this
power on the mayor has been abrogated, rendered functus officio by
the 1987 Constitution which took effect on February 2, 1987, the date
of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "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 person or
things to be seized." The constitutional proscription has thereby been
manifested that thenceforth, the function of determining probable
cause and issuing, on the basis thereof, warrants of arrest or search
warrants, may be validly exercised only by judges, this being
evidenced by the elimination in the present Constitution of the phrase,
"such other responsible officer as may be authorized by law" found in
the counterpart provision of said 1973 Constitution, who, aside from
judges, might conduct preliminary investigations and issue warrants
of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force
exercises, or was meant to exercise, prosecutorial powers, and on that
ground, it cannot be said to be a neutral and detached "judge" to
determine the existence of probable cause for purposes of arrest or
search. Unlike a magistrate, a prosecutor is naturally interested in the
success of his case. Although his office "is to see that justice is done
and not necessarily to secure the conviction of the person accused,"
he stands, invariably, as the accused's adversary and his accuser. To
permit him to issue search warrants and indeed, warrants of arrest, is
to make him both judge and jury in his own right, when he is neither.
That makes, to our mind and to that extent, Presidential Decree No.
1936 as amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an
amendment by Presidential Decrees Nos. 1920 and 2018 of the late President
Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his
legislative powers under Amendment No. 6 of the 1973 Constitution. Under the
latter, the then Minister of Labor merely exercised recommendatory powers:
(c) The Minister of Labor or his duly authorized representative shall
have the power to recommend the arrest and detention of any person
engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the
avowed purpose of giving more teeth to the campaign against illegal recruitment.
The Decree gave the Minister of Labor arrest and closure powers:
(b) The Minister of Labor and Employment shall have the power to
cause the arrest and detention of such non-licensee or non-holder of
authority if after proper investigation it is determined that his
activities constitute a danger to national security and public order or
will lead to further exploitation of job-seekers. The Minister shall
order the closure of companies, establishment and entities found to be
engaged in the recruitment of workers for overseas employment,
without having been licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018,
giving the Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and detention
of such non-licensee or non-holder of authority if after investigation it
is determined that his activities constitute a danger to national
security and public order or will lead to further exploitation of jobseekers. The Minister shall order the search of the office or premises
and seizure of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and the closure of
companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having
been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of
authoritarian rule in its twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue
search or arrest warrants. Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not welltaken. Vivo involved a deportation case, governed by Section 69 of the defunct
Revised Administrative Code and by Section 37 of the Immigration Law. We have
ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the
President or his duly authorized representatives, in order to carry out a final
decision of deportation is valid. 10 It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held: 11
xxx
xxx
xxx
The State has the inherent power to deport undesirable aliens
(Chuoco Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil.
1122, 1125). That power may be exercised by the Chief Executive
"when he deems such action necessary for the peace and domestic
tranquility of the nation." Justice Johnson's opinion is that when the
Chief Executive finds that there are aliens whose continued presence
in the country is injurious to the public interest, "he may, even in the
absence of express law, deport them". (Forbes vs. Chuoco Tiaco and
Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil.
41).
The right of a country to expel or deport aliens because their
continued presence is detrimental to public welfare is absolute and
unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is,
obviously, exceptional. It (the power to order arrests) can not be made to extend to
other cases, like the one at bar. Under the Constitution, it is the sole domain of the
courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti,
that it was validly issued, is clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No.
1920 and Executive Order No. 1022, I hereby order the CLOSURE of
your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —
(1) No valid license or authority from the Department of
Labor and Employment to recruit and deploy workers
for overseas employment;
(2) Committed/are committing acts prohibited under
Article 34 of the New Labor Code in relation to Article
38 of the same code.
This ORDER is without prejudice to your criminal prosecution under
existing laws. 13
We have held that a warrant must identify clearly the things to be seized,
otherwise, it is null and void, thus:
xxx
xxx
xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized
in this wise:
1) All printing equipment, paraphernalia, paper, ink,
photo equipment, typewriters, cabinets, tables,
communications/ recording equipment, tape recorders,
dictaphone and the like used and/or connected in the
printing of the "WE FORUM" newspaper and any and
all documents/communications, letters and facsimile of
prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books,
and other publications to promote the objectives and
purposes of the subversive organizations known as
Movement for Free Philippines, Light-a-Fire Movement
and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of
the "WE FORUM" and other subversive materials and
propaganda, more particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA
892;
2) DATSUN, pick-up colored white with Plate No.
NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate
No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV
472 with marking "Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the
search for "books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the operations of the
Community Party in Texas," was declared void by the U.S. Supreme
Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search
warrant which authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the Connecticut General
Statutes (the statute dealing with the crime of conspiracy)" was held
to be a general warrant, and therefore invalid. The description of the
articles sought to be seized under the search warrants in question
cannot be characterized differently.
In the Stanford case, the U.S. Supreme court calls to mind a notable
chapter in English history; the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown
were given roving commissions to search where they pleased in order
to suppress and destroy the literature of dissent both Catholic and
Puritan." Reference herein to such historical episode would not be
relevant for it is not the policy of our government to suppress any
newspaper or publication that speaks with "the voice of nonconformity" but poses no clear and imminent danger to state
security. 14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only
judges, and no other, who may issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable
aliens, whom the President or the Commissioner of Immigration may
order arrested, following a final order of deportation, for the purpose
of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor
Code is declared UNCONSTITUTIONAL and null and void. The respondents are
ORDERED to return all materials seized as a result of the implementation of
Search and Seizure Order No. 1205.
d. particularity of description
e. issued in connection with one specific offense only
2. Partially defective SWs: legal effect
3. Illegality of search and seizure does not ipso jure result in return of seized
items
CASES:
People v. Marcos, G.R. No. L-31757, October 29, 1982
Petitioner, through the Solicitor General, filed this petition to review on certiorari
the order dated October 13, 1969 of respondent Judge of the Court of First Instance
of Baguio and Benguet Province, declaring the issuance by the City Court of
Search Warrant No. 459, as contrary to law and ordering the National Bureau of
Investigation (NBI) agents and any person in possession of the articles seized by
virtue of the search warrant to deliver and return the same to Yu Cua Sio, owner
and/or manager of the Suntory Grocery.
On June 15, 1969, NBI Supervising Agent Jose Vicente filed an application for the
issuance of a search warrant with the City Court of Baguio City which provides,
among others, the following:
That he has been reliably informed and verily believes that the owner
and/or manager of the Suntory Grocery, of 36 Rajah Soliman St.,
Baguio City has in his possession and control stocks of San Miguel
Gin, product of the La Tondeña, Inc., Manila, which is adulterated,
bearing fake auxiliary stamps, and using crown caps not produced by
the company, which is in violation of the provisions of Articles 188
and 189 of the Revised Penal Code.
... and therefore has reason enough to believe that a search warrant
should be issued to enable the undersigned to take possession and
control and bring it to this Court said stock, as evidence in the above
case under investigation.
City Judge Patricio Perez of Baguio City, acting on the aforesaid application issued
on June 15, 1967, Search Warrant No. 459, under the following terms:
Whereas, after examination under oath of Supervising Agent, NBI
Jose Vicente and Cesar de Leon, both of the NBI Regional Office, at
Dagupan City, this Court finds that there is probable cause to believe
that the owner and/or manager of the Suntory Grocery, located at No.
36 Rajah Soliman St., Baguio City, is in possession such stock of La
Tondena product, San Miguel Gin, which is adulterated, bearing
auxiliary stamps which is tampered and possession of falsified or fake
crown caps, which is now under investigation by the National Bureau
of Investigation, in this City.
Therefore, you are hereby commanded during the day only to make
an immediate search on the premises of the store and/or grocery
owned by the Manager and/or proprietor of the Suntory Grocery
which is located in No. 36 Rajah Soliman, of this City and if you
should find the same to bring it forthwith before me in the City Court
of Baguio to be dealt with as the law directs.
Armed with said search warrant, the NBI agents, on June 19, 1967, searched the
premises of the Suntory Grocery located at 36 Rajah Soliman St., Baguio City,
owned and managed by private respondent Yu Cua Sio. During the search
conducted in the presence of private respondent and his wife, the NBI agents
seized the following articles which were properly inventoried and receipted:
(1) One (1) bundle consisting of rubber siphon, trainer and funnel;
(2) One (1) galvanized tank, 15" in diameter, 2 feet in height;
(3) One (1) mounted crown cap sealer with accessories;
(4) Six (6) cases of San Miguel Gin, round bottles, fined with
suspected adulterated Gin and bearing BIR stamps dated 6 April
1967;
(5) Two(2)cases of San Miguel Gin empty bottles;
(6) One (1) case containing ten (10) San Miguel Gin (adulterated) and
14 empty bottles, without stamps;
(7) One (1) bundle consisting of two (2) bottles believed to be
containing genuine San Miguel Gin which was marked as standard;
and
(8) One (1) paper bag containing 122 auxiliary stamps dated 6 April
1967, without perforation and bearing successive serial numbers
starting from 43,000,000.
Private respondent Yu Cua Sio filed a motion to quash Search Warrant No. 459
with the City Court of Baguio. In an Order dated February 3, 1969, the inferior
court ordered the NBI agents who seized and confiscated the various articles from
the store of Yu Cua Sio to return the same immediately to him.
On appeal, the Court of First Instance of Baguio City, reversed the decision of the
City Court and sustained the validity of the questioned search warrant. However,
upon motion for reconsideration filed by private respondent Yu Cua Sio,
respondent Judge, on October 13, 1969, reconsidered his decision and declared the
issuance of Search Warrant No. 459 as contrary to law and, forthwith, ordered the
NBI agents to deliver and return the articles seized by virtue of the search warrant
to private respondent Yu Cua Sio.
The only legal issue posed for resolution in this case is the validity of Search
Warrant No. 459 issued by City Judge Patricio Perez of Baguio City which
respondent Judge declared as null and void in his order dated October 13, 1969 on
the grounds that (1) the same was issued "for more than one specific offense in
violation of Section 3, Rule 126 of the New Rules of Court which states 'no search
warrant shall issue for more than one specific offense' "; and, (2) that the search
warrant was issued to fish for evidence.
Petitioner claims that the lower court erred (1) when it held that the questioned
search warrant violates the provisions of Section 3, Rule 126 of the New Rules of
Court; (2) in holding that the search warrant in question was issued to fish for
evidence; and (3) in declaring Search Warrant No. 459 as contrary to law and in
ordering the return of the articles seized by virtue of said search warrant to
respondent Yu Cua Sio.
We find merit in the petition. The search warrant issued by the City Court did not
mention any specific offense deemed to have been violated by respondent Yu Cua
Sio. It is in the application filed by the NBI agents which states that the owner
and/or manager of the Suntory Grocery has in his possession and control stocks of
San Miguel Gin which are adulterated and therefore, violative of the provisions of
Articles 188 and 189 of the Revised Penal Code. These articles of the Revised
Penal Code are entitled: "Substituting and Altering Trademarks, Tradenames, or
Service marks" and "Unfair Competition and Fraudulent Registration of
Trademark and Tradename," respectively. As aptly stated by the Solicitor General,
"the specific acts defining said offenses and mentioned in said articles are closely
allied to each other that in a sense, the punishable acts defined in one of them can
be considered as including, or necessarily included in the other."
There is no merit also in the pronouncement by respondent Judge that the search
warrant was issued to fish for evidence just because the application for search
warrant states that its purpose is "to take possession and control of the articles to be
used as evidence in the above case under investigation."
The search warrant as issued mentions that respondent has in his possession and
control stocks of La Tondeña product which are adulterated, with fake auxiliary
stamps, and are using crown caps which are not produced by the company. The
articles seized in the premises of respondent Yu Cua Sio show that he was in
possession of these articles mentioned in the application for search warrant and in
the search warrant itself. Possession of said fake stamps is illegal and the same
should not be returned to respondent Yu Cua Sio.
ACCORDINGLY, the order of respondent Judge, dated October 13, 1969, is SET
ASIDE, and private respondent Yu Cua Sio is hereby ordered to return the articles
seized if they had been delivered to him by the NBI agents.
SO ORDERED.
Mata v. Bayona, G.R. No. L- 50720 March 26, 1984
ISSUE:
WON the judge must before issuing the warrant personally examine on oath or
affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits
presented to him?
HELD:
YES. Under the Constitution “no search warrant shall issue but upon probable cause
to be determined by the Judge or such other responsible officer as may be authorized
by law after examination under oath or affirmation of the complainant and the
witnesses he may produce.” More emphatic and detailed is the implementing rule of
the constitutional injunction, The Rules provide that the judge must before issuing
the warrant personally examine on oath or affirmation the complainant and any
witnesses he may produce and take their depositions in writing, and attach them to
the record, in addition to any affidavits presented to him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written deposition
is necessary in order that the Judge may be able to properly determine the existence
or nonexistence of the probable cause, to hold liable for perjury the person giving it
if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure of
the Judge to conform to the essential requisites of taking the depositions in writing
and attaching them to the record, rendering the search warrant invalid.
Nolasco v. Paño, G.R. No. L-69803, October 8, 1985 (Read also the dissents of
JJ. Cuevas & Teehankee)
[G.R. No. 50720. March 26, 1984.]
SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her
capacity as Presiding Judge of the City Court of Ormoc, BERNARDO
GOLES and REYNALDO MAYOTE, Respondents.
Valeriano R. Ocubillo for Petitioner.
The Solicitor General for Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNLAWFUL SEARCH AND SEIZURE; REQUISITES FOR ISSUANCE OF
SEARCH WARRANT. — Under the Constitution "no search warrant shall issue
but upon probable cause to be determined by the Judge or such other responsible
officer as may be authorized by law after examination under oath or affirmation of
the complainant and the witnesses he may produce." More emphatic and detailed is
the implementing rule of the constitutional injunction, Section 4 of Rule 126 which
provides that the judge must before issuing the warrant personally examine on oath
or affirmation the complainant and any witnesses he may produce and take their
depositions in writing, and attach them to the record, in addition to any affidavits
presented to him.
2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT
AND HIS WITNESSES IN THE CASE AT BAR. — Before issuing a search
warrant, the examining Judge has to take depositions in writing of the complainant
and the witnesses he may produce and to attach them to the record. Such written
deposition is necessary in order that the Judge may be able to properly determine
the existence or non-existence of the probable cause, and to hold liable for perjury
the person giving it if it will be found later that his declarations are false. Mere
affidavits of the complainant and his witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO
RECORDS OF CASE IN CASE AT BAR. — The judge’s insistence that she
examined the complainants under oath has become dubious by petitioner’s claim
that at the particular time when he examined all the relevant papers connected with
the issuance of the questioned search warrant, after he demanded the same from
the lower court since they were not attached to the records, he did not find any
certification at the back of the joint affidavit of the complainants. Before he filed
his motion to quash the search warrant and for the return of the articles seized, he
was furnished, upon his request, certified true copies of the said affidavits by the
Clerk of Court but which certified true copies do not bear any certification at the
back. Petitioner likewise claims that his xerox copy of the said joint affidavit
obtained at the outset of this case does not show also the certification of respondent
judge. This doubt becomes more confirmed by respondent Judge’s own admission,
while insisting that she did examine thoroughly the applicants, that "she did not
take the deposition of Mayote and Goles because to have done so would be to hold
a judicial proceeding which will be open and public", such that, according to her,
the persons subject of the intended raid will just disappear and move his illegal
operations somewhere else. Could it be that the certification was made belatedly to
cure the defect of the warrant? Be that as it may, there was no "deposition in
writing" attached to the records of the case in palpable disregard of the statutory
prohibition heretofore quoted.
4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching questions
propounded to the applicants of the search warrant and his witnesses must depend
to a large extent upon the discretion of the Judge just as long as the answers
establish a reasonable ground to believe the commission of a specific offense and
that the applicant is one authorized by law, and said answers particularly describe
with certainty the place to be searched and the persons or things to be seized. The
examination or investigation which must be under oath may not be in public. It
may even be held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough and
elicit the required information. To repeat, it must be under oath and must be in
writing.
5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR.
— Nothing can justify the issuance of the search warrant but the fulfillment of the
legal requisites. Thus, in issuing a search warrant the Judge must strictly comply
with the requirements of the Constitution and the statutory provisions. In the case
at bar, the search warrant is tainted with illegality by the failure of the Judge to
conform with essential requisites of taking the depositions in writing and attaching
them to record, rendering the search warrant invalid.
6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE
RETURNED; CASE AT BAR. — While the search warrant is illegal, the return of
the things seized cannot be ordered. In Castro v. Pabalan (70 SCRA 478), it was
held that the illegality of the search warrant does not call for the return of the
things seized, the possession of which is prohibited.
DECISION
DE CASTRO, J.:
The validity of the search warrant issued by respondent Judge (not reappointed) is
challenged by petitioner for its alleged failure to comply with the requisites of the
Constitution and the Rules of Court.
Specifically, the contention is that the search warrant issued by respondent Judge
was based merely on the application for search warrant and a joint affidavit of
private respondents which were wrongfully it is alleged subscribed, and sworn to
before the Clerk of Court of respondent Judge. Furthermore, there was allegedly a
failure on the part of respondent Judge to attach the necessary papers pertinent to
the issuance of the search warrant to the records of Criminal Case No. 4298-CC
wherein petitioner is accused under PD 810, as amended by PD 1306, the
information against him alleging that Soriano Mata offered, took and arranged bets
on the Jai Alai game by "selling illegal tickets known as ‘Masiao tickets’ without
any authority from the Philippine Jai Alai & Amusement Corporation or from the
government authorities concerned." 1
Petitioner claims that during the hearing of the case, he discovered that nowhere
from the records of the said case could be found the search warrant and other
pertinent papers connected to the issuance of the same, so that he had to inquire
from the City Fiscal its whereabouts, and to which inquiry respondent Judge
replied, "it is with the court." The Judge then handed the records to the Fiscal who
attached them to the records.chanrobles.com : virtual law library
This led petitioner to file a motion to quash and annul the search warrant and for
the return of the articles seized, citing and invoking, among others, Section 4 of
Rule 126 of the Revised Rules of Court. The motion was denied by respondent
Judge on March 1, 1979, stating that the court has made a thorough investigation
and examination under oath of Bernardo U. Goles and Reynaldo T. Mayote,
members of the Intelligence Section of 352nd PC Co./Police District II INP; that in
fact the court made a certification to that effect; and that the fact that documents
relating to the search warrant were not attached immediately to the record of the
criminal case is of no moment, considering that the rule does not specify when
these documents are to be attached to the records. 2 Petitioner’s motion for
reconsideration of the aforesaid order having been denied, he came to this Court,
with the instant petition, praying, among others, that this Court declare the search
warrant to be invalid and all the articles confiscated under such warrant as
inadmissible as evidence in the case, or in any proceedings on the matter.
We hold that the search warrant is tainted with illegality for being violative of the
Constitution and the Rules of Court.
Under the Constitution "no search warrant shall issue but upon probable cause to
be determined by the Judge or such other responsible officer as may be authorized
by law after examination under oath or affirmation of the complainant and the
witnesses he may produce." More emphatic and detailed is the implementing rule
of the constitutional injunction, Section 4 of Rule 126 which provides that the
judge must before issuing the warrant personally examine on oath or affirmation
the complainant and any witnesses he may produce and take their depositions in
writing, and attach them to the record, in addition to any affidavits presented to
him.
Mere affidavits of the complainant and his witnesses are thus not sufficient. The
examining Judge has to take depositions in writing of the complainant and the
witnesses he may produce and to attach them to the record. Such written deposition
is necessary in order that the Judge may be able to properly determine the
existence or non-existence of the probable cause, to hold liable for perjury the
person giving it if it will be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by the failure
of the Judge to conform with the essential requisites of taking the depositions in
writing and attaching them to the record, rendering the search warrant
invalid.chanroblesvirtualawlibrary
The judge’s insistence that she examined the complainants under oath has become
dubious by petitioner’s claim that at the particular time when he examined all the
relevant papers connected with the issuance of the questioned search warrant, after
he demanded the same from the lower court since they were not attached to the
records, he did not find any certification at the back of the joint affidavit of the
complainants. As stated earlier, before he filed his motion to quash the search
warrant and for the return of the articles seized, he was furnished, upon his request,
certified true copies of the said affidavits by the Clerk of Court but which certified
true copies do not bear any certification at the back. Petitioner likewise claims that
his xerox copy of the said joint affidavit obtained at the outset of this case does not
show also the certification of respondent judge. This doubt becomes more
confirmed by respondent Judge’s own admission, while insisting that she did
examine thoroughly the applicants, that "she did not take the deposition of Mayote
and Goles because to have done so would be to hold a judicial proceeding which
will be open and public", 3 such that, according to her, the persons subject of the
intended raid will just disappear and move his illegal operations somewhere else.
Could it be that the certification was made belatedly to cure the defect of the
warrant? Be that as it may, there was no "deposition in writing" attached to the
records of the case in palpable disregard of the statutory prohibition heretofore
quoted.
Respondent Judge impresses this Court that the urgency to stop the illegal
gambling that lures every man, woman and child, and even the lowliest laborer
who could hardly make both ends meet justifies her action. She claims that in order
to abate the proliferation of this illegal "masiao" lottery, she thought it more
prudent not to conduct the taking of deposition which is done usually and publicly
in the court room.
Two points must be made clear. The term "depositions" is sometimes used in a
broad sense to describe any written statement verified by oath; but in its more
technical and appropriate sense the meaning of the word is limited to written
testimony of a witness given in the course of a judicial proceeding in advance of
the trial or hearing upon oral examination. 4 A deposition is the testimony of a
witness, put or taken in writing, under oath or affirmation before a commissioner,
examiner or other judicial officer, in answer to interlocutory and cross
interlocutory, and usually subscribed by the witnesses. 5 The searching questions
propounded to the applicants of the search warrant and his witnesses must depend
to a large extent upon the discretion of the Judge just as long as the answers
establish a reasonable ground to believe the commission of a specific offense and
that the applicant is one authorized by law, and said answers particularly describe
with certainty the place to be searched and the persons or things to be seized. The
examination or investigation which must be under oath may not be in public. It
may even be held in the secrecy of his chambers. Far more important is that the
examination or investigation is not merely routinary but one that is thorough and
elicit the required information. To repeat, it must be under oath and must be in
writing.cralawnad
The other point is that nothing can justify the issuance of the search warrant but the
fulfillment of the legal requisites. It might be well to point out what has been said
in Asian Surety & Insurance Co., Inc. v. Herrera:jgc:chanrobles.com.ph
"It has been said that of all the rights of a citizen, few are of greater importance or
more essential to his peace and happiness than the right of personal security, and
that involves the exemption of his private affairs, books, and papers from
inspection and scrutiny of others. While the power to search and seize is necessary
to the public welfare, still it must be exercised and the law enforced without
transgressing the constitutional rights of the citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic principles of
government." 6
Thus, in issuing a search warrant the Judge must strictly comply with the
requirements of the Constitution and the statutory provisions. A liberal
construction should be given in favor of the individual to prevent stealthy
encroachment upon, or gradual depreciation of the rights secured by the
Constitution. 7 No presumption of regularity are to be invoked in aid of the process
when an officer undertakes to justify it. 8
While We hold that the search warrant is illegal, the return of the things seized
cannot be ordered. In Castro v. Pabalan, 9 it was held that the illegality of the
search warrant does not call for the return of the things seized, the possession of
which is prohibited.
WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979
denying the motion to annul the search warrant as well as the order of March 21,
1979 denying the motion for reconsideration are hereby reversed, the search
warrant, being declared herein as illegal. Notwithstanding such illegality, the
things seized under such warrant, such as stock of "masiao" tickets; "masiao" issue
tickets; bet money; control pad or "masiao" numbers; stamping pad with rubber
stamp marked Ormoc City Jai-Alai," cannot be returned as sought by petitioner.
No costs.
SO ORDERED.
Roan v. Gonzales, G.R. No. 71410, November 25, 1986
G.R. No. 71410 November 25, 1986
JOSEFINO S. ROAN, petitioner,
vs.
THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE,
REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII;
THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL
COMMANDER, PC-INP MARINDUQUE, respondents.
CRUZ, J:
Once again we are asked to annul a search warrant on the ground that it violates
the Constitution. As we can do no less if we are to be true to the mandate of the
fundamental law, we do annul.
One of the most precious rights of the citizen in a free society is the right to be left
alone in the privacy of his own house. That right has ancient roots, dating back
through the mists of history to the mighty English kings in their fortresses of
power. Even then, the lowly subject had his own castle where he was monarch of
all he surveyed. This was his humble cottage from which he could bar his
sovereign lord and all the forces of the Crown.
That right has endured through the ages albeit only in a few libertarian regimes.
Their number, regrettably, continues to dwindle against the onslaughts of
authoritarianism. We are among the fortunate few, able again to enjoy this right
after the ordeal of the past despotism. We must cherish and protect it all the more
now because it is like a prodigal son returning.
That right is guaranteed in the following provisions of Article IV of the 1973
Constitution:
SEC. 3. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall not be violated, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer
as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or
things to be seized.
SEC. 4. (1) The privacy of communication and cor- respondence shag
be inviolable except upon lawful order of the court, or when public
safety and order require otherwise.
(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
Invoking these provisions, the petitioner claims he was the victim of an illegal
search and seizure conducted by the military authorities. The articles seized from
him are sought to be used as evidence in his prosecution for illegal possession of
firearms. He asks that their admission be temporarily restrained (which we
have) 1 and thereafter permanently enjoined.
The challenged search warrant was issued by the respondent judge on May 10,
1984.2 The petitioner's house was searched two days later but none of the articles
listed in the warrant was discovered. 3 However, the officers conducting the search
found in the premises one Colt Magnum revolver and eighteen live bullets which
they confiscated. They are now the bases of the charge against the petitioner. 4
To be valid, a search warrant must be supported by probable cause to be
determined by the judge or some other authorized officer after examining the
complainant and the witnesses he may produce. No less important, there must be a
specific description of the place to be searched and the things to be seized, to
prevent arbitrary and indiscriminate use of the warrant.5
Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as
referring to "such facts and circumstances which would lead a reasonably 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." As
held in a long line of decisions, the probable cause must refer to only one specific
offense.7
The inclusion of the requirement for the "examination under oath or affirmation of
the complainant and the witnesses he may produce" was a refinement proposed by
Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose
was the strengthening of the guaranty against unreasonable searches and seizures.
Although the condition did not appear in the corresponding provision of the federa
Constitution of the United States which served as our model it was then already
embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P.
Laurel, Chairman of the Committee on the Bill of Rights of that body, readily
accepted the proposal and it was thereafter, following a brief debate, approved by
the Convention.8
Implementing this requirement, the Rules of Court provided in what was then Rule
126:
SEC. 4. Examination of the applicant. — The municipal or city judge
must, before issuing the warrant, personally examine on oath or
affirmation the complainant and any witnesses he may produce and
take their depositions in writing, and attach them to the record, in
addition to any affidavits presented to him.
The petitioner claims that no depositions were taken by the respondent judge in
accordance with the above rule, but this is not entirely true. As a matter of fact,
depositions were taken of the complainant's two witnesses in addition to the
affidavit executed by them. 9 It is correct to say, however, that the complainant
himself was not subjected to a similar interrogation.
Commenting on this matter, the respondent judge declared:
The truth is that when PC Capt. Mauro P. Quinosa personally filed
his application for a search warrant on May 10, 1984, he appeared
before me in the company of his two (2) witnesses, Esmael Morada
and Jesus Tohilida, both of whom likewise presented to me their
respective affidavits taken by Pat. Josue V. Lining, a police
investigator assigned to the PC-INP command at Camp Col. Maximo
Abad. As the application was not yet subscribed and sworn to, I
proceeded to examine Captain Quillosa on the contents thereof to
ascertain, among others, if he knew and understood the same.
Afterwards, he subscribed and swore to the same before me. 10
By his own account, an he did was question Captain Quillosa on the contents of his
affidavit only "to ascertain, among others, if he knew and understood the same,"
and only because "the application was not yet subscribed and swom to." The
suggestion is that he would not have asked any questions at all if the affidavit had
already been completed when it was submitted to him. In any case, he did not ask
his own searching questions. He limited himself to the contents of the affidavit. He
did not take the applicant's deposition in writing and attach them to the record,
together with the affidavit presented to him.
As this Court held in Mata v. Bayona: 11
Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of
the complainant and the witnesses he niay produce and attach them to
the record. Such written deposition is necessary in order that the
Judge may be able to properly determine the existence or nonexistence of the probable cause, to hold liable for perjury the person
giving it if it wifl be found later that his declarations are false.
We, therefore, hold that the search warrant is tainted with illegality by
the failure of the Judge to conform with the essential requisites of
taking the depositions in writing and attaching them to the record,
rendering the search warrant invalid.
The respondent judge also declared that he "saw no need to have applicant
Quillosa's deposition taken considering that he was applying for a search warrant
on the basis of the information provided by the aforenamed witnesses whose
depositions as aforementioned had already been taken by the undersigned." 12
In other words, the applicant was asking for the issuance of the search warrant on
the basis of mere hearsay and not of information personally known to him, as
required by settled jurisprudence." 13 The rationale of the requirement, of course, is
to provide a ground for a prosecution for perjury in case the applicant's
declarations are found to be false. His application, standing alone, was insufficient
to justify the issuance of the warrant sought. It was therefore necessary for the
witnesses themselves, by their own personal information, to establish the
apphcant's claims. 14
Even assuming then that it would have sufficed to take the depositions only of the
witnesses and not of the applicant himself, there is still the question of the
sufficiency of their depositions.
It is axiomatic that the examination must be probing and exhaustive, not merely
routinary or pro-forma, if the claimed probable cause is to be established. The
examining magistrate must not simply rehash the contents of the affidavit but must
make his own inquiry on the intent and justification of the application. 15
A study of the depositions taken from witnesses Esmael Morada and Jesus
Tohilida, who both claimed to be "intelligence informers," shows that they were in
the main a mere restatement of their allegations in their affidavits, except that they
were made in the form of answers to the questions put to them by the respondent
judge. Significantly, the meaningful remark made by Tohilida that they were
suspicious of the petitioner because he was a follower of the opposition candidate
in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's
own suspicions. This should have put him on guard as to the motivations of the
witnesses and alerted him to possible misrepresentations from them.
The respondent judge almost unquestioningly received the witnesses' statement
that they saw eight men deliver arms to the petitioner in his house on May 2,
1984. 17 This was supposedly done overtly, and Tohilida said he saw everything
through an open window of the house while he was near the gate. 18 He could even
positively say that six of the weapons were.45 caliber pistols and two were.38
caliber revolvers. 19
One may well wonder why it did not occur to the respondent judge to ask how the
witness could be so certain even as to the caliber of the guns, or how far he was
from the window, or whether it was on the first floor or a second floor, or why his
presence was not noticed at all, or if the acts related were really done openly, in the
full view of the witnesses, considering that these acts were against the law. These
would have been judicious questions but they were injudiciously omitted. Instead,
the declarations of the witnesses were readily accepted and the search warrant
sought was issued forthwith.
The above-discussed defects have rendered the search warrant invalid.
Nonetheless, the Solicitor General argues that whatever defect there was, was
waived when the petitioner voluntarily submitted to the search and manifested his
conformity in writing. 20
We do not agree. What we see here is pressure exerted by the military authorities,
who practically coerced the petitioner to sign the supposed waiver as a guaranty
against a possible challenge later to the validity of the search they were
conducting. Confronted with the armed presence of the military and the
presumptive authority of a judicial writ, the petitioner had no choice but to submit.
This was not, as we held in a previous case,21 the manifestation merely of our
traditional Filipino hospitality and respect for authority. Given the repressive
atmosphere of the Marcos regime, there was here, as we see it, an intimidation that
the petitioner could not resist.
The respondents also argue that the Colt Magnum pistol and the eighteen have
bullets seized from the petitioner were illegal per se and therefore could have been
taken by the military authorities even without a warrant. Possession of the said
articles, it is urged, was violative of P.D. 1866 and considered malum
prohibitum. Hence, the Wegal articles could be taken even without a warrant.
Prohibited articles may be seized but only as long as the search is valid. In this
case, it was not because: 1) there was no valid search warrant; and 2) absent such a
warrant, the right thereto was not validly waived by the petitioner. In short, the
military officers who entered the petitioner's premises had no right to be there and
therefore had no right either to seize the pistol and bullets.
It does not follow that because an offense is malum prohibitum, the subject thereof
is necessarily illegal per se. Motive is immaterial in mala prohibita, but the
subjects of this kind of offense may not be summarily seized simply because they
are prohibited. A search warrant is still necessary. If the rule were otherwise, then
the military authorities could have just entered the premises and looked for the
guns reportedly kept by the petitioner without bothering to first secure a search
warrant. The fact that they did bother to do so indicates that they themselves
recognized the necessity of such a warrant for the seizure of the weapons the
petitioner was suspected of possessing.
It is true that there are certain instances when a search may be validly made
without warrant and articles may be taken validly as a result of that search. For
example, a warrantless search may be made incidental to a lawful arrest,22 as when
the person being arrested is frished for weapons he may otherwise be able to use
against the arresting officer. Motor cars may be inspected at borders to prevent
smuggling of aliens and contraband 23 and even in the interior upon a showing of
probable cause. 24 Vessels and aircraft are also traditionally removed from the
operation of the rule because of their mobility and their relative ease in fleeing the
state's jurisdiction. 25 The individual may knowingly agree to be searched or waive
objections to an illegal search. 26 And it has also been held that prohibited articles
may be taken without warrant if they are open to eye and hand and the peace
officer comes upon them inadvertently. 27
Clearly, though, the instant case does not come under any of the accepted
exceptions. The respondents cannot even claim that they stumbled upon the pistol
and bullets for the fact is that these things were deliberately sought and were not in
plain view when they were taken. Hence, the rule having been violated and no
exception being applicable, the conclusion is that the petitioner's pistol and bullets
were confiscated illegally and therefore are protected by the exclusionary principle.
Stonehill v. Diokno established this rule which was later expressly affirmed in the
1973 Constitution. While conceding that there may be occasions when the criminal
might be allowed to go free because "the constable has blundered," Chief Justice
Concepcion observed that the exclusionary rule was nonetheless "the only practical
means of enforcing the constitutional injunction" against abuse. The decision cited
Judge Learned Hand's justification that "only in case the prosecution which itself
controls the seizing officials, know that it cannot profit by their wrong, will the
wrong be repressed. "
The pistol and bullets cannot, of course, be used as evidence against the petitioner
in the criminal action against him for illegal possession of firearms. Pending
resolution of that case, however, the said articles must remain in custodia legis.
Finally, it is true that the petitioner should have, before coming to this Court, filed
a motion for the quashal of the search warrant by the respondent judge in
accordance with the normal procedure. But as we said and did in Burgos, "this
procedural flaw notwithstanding, we take cognizance of this petition in view of the
seriousness and urgency of the constitutional issues raised. 28
WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May
10, 1984, is hereby declared null and void and accordingly set aside. Our
restraining order of August 6,1985, is made permanent. No costs.
SO ORDERED.
Burgos v. Chief of Staff, supra
20th Century Fox Film v. CA, G.R. Nos. 76649-51, August 19, 1988
ISSUE:
WON the search warrant was invalid
RULING:
Yes.
In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined probable
cause for a valid search "as such facts and circumstances which would lead a
reasonably 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." This constitutional provision also demands "no less than personal
knowledge by the complainant or his witnesses of the facts upon which the issuance
of a search warrant may be justified" in order to convince the judge, not the
individual making the affidavit and seeking the issuance of the warrant, of the
existence of a probable cause. (Alvarez v. Court of First Instance, 64 Phil. 33;
Burgos, Sr. v. Chief of Staff, AFP, supra).
In this instant case, the lower court lifted the three questioned search warrants against
the private respondents on the ground that the same was granted on the
misrepresentations of applicant NBI and its witnesses that they had personal
knowledge that infringement of copyright or a piracy of a particular film have been
committed; hence no real probable cause.
Moreover, the description of the things to be searched and seized was general in
character and made it a general warrant, which is invalid.The testimonies of the NBI
witnesses believe the fact that they had personal knowledge. In fact only the
petitioner’s witness had real personal knowledge but this was not given credence, as
the master tapes allegedly pirated tapes were not shown to the court during the
application. The presentation of the master tapes of the copyrighted films from
which the pirated films were allegedly copied, was necessary for the validity of
search warrants against those who have in in their possession the pirated films. The
court cannot presume that duplicate or copied tapes were necessarily reproduced
from master tapes that it owns.
Columbia Pictures, Inc. v. CA, G.R. No. 110318, August 28, 1996 (reexamination of 20th Century Fox ruling)
Before us is a petition for review on certiorari of the decision of the Court of
Appeals 1 promulgated on July 22, 1992 and its resolution 2 of May 10, 1993
denying petitioners’ motion for reconsideration, both of which sustained the order
3 of the Regional Trial Court, Branch 133, Makati, Metro Manila, dated November
22, 1988 for the quashal of Search Warrant No. 87-053 earlier issued per its own
order 4 on September 5, 1988 for violation of section 56 of Presidential Decree No.
49, as amended, otherwise known as the "Decree on the Protection of Intellectual
Property."cralaw virtua1aw library
The material facts found by respondent appellate court are as follows:chanrob1es
virtual 1aw library
Complainants thru counsel lodged a formal complaint with the National Bureau of
Investigation for violation of PD No. 49, as amended, and sought its assistance in
their anti-film piracy drive. Agents of the NBI and private researchers made
discreet surveillance on various video establishments in Metro Manila including
Sunshine Home Video Inc. (Sunshine for brevity), owned and operated by Danilo
A. Pelindario with address at No. 6 Mayfair Center, Magallanes, Makati, Metro
Manila.
On November 14, 1987, NBI Senior Agent Lauro C. Reyes applied for a search
warrant with the court a quo against Sunshine seeking the seizure, among others, of
pirated video tapes of copyrighted films all of which were enumerated in a list
attached to the application; and, television sets, video cassettes and/or laser disc
recordings equipment and other machines and paraphernalia used or intended to be
used in the unlawful exhibition, showing, reproduction, sale, lease or disposition of
videograms tapes in the premises above described. In the hearing of the
application, NBI Senior Agent Lauro C. Reyes, upon questions by the court a quo,
reiterated in substance his averments in his affidavit. His testimony was
corroborated by another witness, Mr. Rene C. Baltazar. Atty. Rico V. Domingo’s
deposition was also taken. On the basis of the affidavits depositions of NBI Senior
Agent Lauro C. Reyes, Rene C. Baltazar and Atty. Rico V. Domingo, Search
Warrant No 87-053 for violation of Section 56 of PD No. 9, as amended, was
issued by the court a quo.
The search warrant was served at about 1:45 p.m. on December 14, 1987 to
Sunshine and/or their representatives. In the course of the search of the premises
indicated in the search warrant, the NBI Agents found and seized various video
tapes of duly copyrighted motion pictures/films owned or exclusively distributed
by private complainants, and machines, equipment, television sets, paraphernalia,
materials, accessories all of which were included in the receipt for properties
accomplished by the raiding team. Copy of the receipt was furnished and/or
tendered to Mr. Danilo A. Pelindario, registered owner-proprietor of Sunshine
Home Video.
On December 16, 1987, a "Return of Search Warrant" was filed with the Court.
A "Motion To Lift the Order of Search Warrant" was filed but was later denied for
lack of merit (p. 280, Records).
A Motion for reconsideration of the Order of denial was filed. The court a quo
granted the said motion for reconsideration and justified it in this
manner:jgc:chanrobles.com.ph
"It is undisputed that the master tapes of the copyrighted films from which the
pirated films were allegedly copies (sic), were never presented in the proceedings
for the issuance of the search warrants in question. The orders of the Court
granting the search warrants and denying the urgent motion to lift order of search
warrants were, therefore, issued in error. Consequently, they must be set aside." (p.
13, Appellant’s Brief) 5
Petitioners thereafter appealed the order of the trial, court granting private
respondents’ motion for reconsideration, thus lifting the search warrant which it
had therefore issued, to the Court of Appeals. As stated at the outset, said appeal
was dismissed and the motion for reconsideration thereof was denied. Hence, this
petition was brought to this Court particularly challenging the validity of
respondent court’s retroactive application of the ruling in 20th Century Fox Film
Corporation v. Court of Appeals, Et Al., 6 in dismissing petitioners’ appeal and
upholding the quashal of the search warrant by the trial court.
I
Inceptively, we shall settle the procedural considerations on the matter of and the
challenge to petitioners’ legal standing in our courts, they being foreign
corporations not licensed to do business in the Philippines.
Private respondents aver that being foreign corporations, petitioners should have
such license to be able to maintain an action in Philippines courts. In so
challenging petitioners’ personality to sue, private respondents point to the fact that
petitioners are the copyright owners or owners of exclusive rights of distribution in
the Philippines of copyrighted motion pictures or films, and also to the
appointment of Atty. Rico V. Domingo as their attorney-at-fact, as being
constitutive of "doing business in the Philippines" under Section 1(f)(1) and (2),
Rule 1 of the Rules of the Board of Investments. As foreign corporations doing
business in the Philippines, Section 133 of Batas Pambansa Bldg. 68, or the
Corporation Code of the Philippines, denies them the right to maintain a suit in
Philippine courts in the absence of a license to do business. Consequently, they
have no right to ask for the issuance of a search warrant. 7
In refutation, petitioners flatly deny that they are doing business in the Philippines,
8 and contend that private respondents have not adduced evidence to prove that
petitioners are doing such business here, as would require them to be licensed by
the Securities and Exchange Commission, other than averments in the quoted
portions of petitioners’ "Opposition to Urgent Motion to Lift Order of Search
Warrant" dated April 28, 1988 and Atty. Rico V. Domingo’s affidavit of December
14, 1987. Moreover, an exclusive right to distribute a product or the ownership of
such exclusive right does not conclusively prove the act of doing business nor
establish the presumption of doing business. 9
The Corporation Code provides:chanrob1es virtual 1aw library
Sec. 133. Doing business without a license. — No foreign corporation transacting
business in the Philippines without a license, or its successors or assigns, shall be
permitted to maintain or intervene in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such corporation may be sued or
proceeded against before Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws.
The obtainment of a license prescribed by Section 125 of the Corporation Code is
not a condition precedent to the maintenance of any kind of action in Philippine
courts by a foreign corporation. However, under the aforequoted provision, no
foreign corporation shall be permitted to transact business in the Philippines, as
this phrase is understood under the Corporation Code, unless it shall have the
license required by law, and until it complies with the law in transacting business
here, it shall not be permitted to maintain any suit in local courts. 10 As thus
interpreted, any foreign corporation doing business in the Philippines may maintain
an action in our courts upon any cause of action, provided that the subject matter
and the defendant are within the jurisdiction of the court. It is not the absence of
the prescribed license bud "doing business" in the Philippines without such license
which debars the foreign corporation from access to our courts. In other words,
although a foreign corporation is without license to transact business in the
Philippines, it does not follow that it has no capacity to bring an action. Such
license is not necessary if it is not engaged in business in the Philippines. 11
Statutory provisions in many jurisdictions are determinative of what constitutes
"doing business" or "transacting business" within that forum, in which case said
provisions are controlling there. In others where no such definition or qualification
is laid down regarding acts or transactions falling within its purview, the question
rests primarily on facts and intent. It is thus held that all the combined acts of a
foreign corporation in the State must be considered, and every circumstance is
material which indicates a purpose on the part of the corporation to engage in some
part of its regular business in the State. 12
No general rule or governing principles can be laid down as to what constitutes
"doing" or "engaging in" or "transacting" business. Each case must be judged in
the light of its own peculiar environmental circumstances. 13 The true tests,
however, seem to be whether the foreign corporation is continuing the body or
substance of the business or enterprise for which it was organized or whether it has
substantially retired from it and turned it over to another. 14
As a general proposition upon which many authorities agree in principle, subject to
such modifications as may be necessary in view of the particular issue or of the
terms of the statute involved, it is recognized that a foreign corporation is "doing,"
"transacting," "engaging in," or "carrying on" business in the State when, and
ordinarily only when, it has entered the State by its agents and is there engaged in
carrying on and transacting through them some substantial part of its ordinary or
customary business, usually continuous in the sense that it may be distinguished
from merely casual, sporadic, or occasional transactions and isolated acts. 15
The Corporation Code does not itself define or categorize what acts constitute
doing or transacting business in the Philippines. Jurisprudence has, however, held
that the term implies a continuity of commercial dealings and arrangements, and
contemplates, to that extent, the performance of acts or works or the exercise of
some of the functions normally incident to or in progressive prosecution of the
purpose and subject of its organization. 16
This traditional case law definition has evolved into a statutory definition, having
been adopted with some qualifications in various pieces of legislation in our
jurisprudence.
For instance, Republic Act No. 5455 17 provides:chanrob1es virtual 1aw library
SECTION 1. Definitions and scope of this Act. — (1) . . .; and the phrase "doing
business" shall include soliciting orders, purchases, service contracts, opening
offices, whether called "liaison" offices or branches; appointing representatives or
distributors who are domiciled in the Philippines or who in any calendar year stay
in the Philippines for a period or periods totalling one hundred eighty days or
more; participating in the management, supervision or control of any domestic
business firm, entity or corporation in the Philippines; and any other act or acts that
imply a continuity of commercial dealings or arrangements, and contemplate to
that extent the performance of acts or works, or the exercise of some of the
functions normally incident to, and in-progressive prosecution of, commercial gain
or of the purpose and object of the business organization.
Presidential Decree No. 1789, 18 in Article 65 thereof, defines "doing business" to
include soliciting orders, purchases, service contracts, opening offices, whether
called "liaison" offices or branches; appointing representatives or distributors who
are domiciled in the Philippines or who in any calendar year stay in the Philippines
for a period or periods totalling one hundred eighty days or more; participating in
the management, supervision or control of any domestic business firm, entity or
corporation in the Philippines, and any other act or acts that imply a continuity of
commercial dealings or arrangements and contemplate to that extent the
performance of acts or works, or the exercise of some of the functions normally
incident to, and in progressive prosecution of, commercial gain or of the purpose
and object of the business organization.
The implementing rules and regulations of said presidential decree conclude the
enumeration of acts constituting "doing business" with a catch-all definition,
thus:chanrob1es virtual 1aw library
Sec. 1(g).’Doing Business’ shall be any act or combination of acts enumerated in
Article 65 of the Code. In particular ‘doing business’ includes:chanrob1es virtual
1aw library
x
x
x
(10) Any other act or acts which imply a continuity of commercial dealings or
arrangements, and contemplate to the extent the performance of acts or, works, or
the exercise of some of the functions normally incident to, or in the progressive
prosecution of, commercial gain or of the purpose and object of the business
organization.
Finally, Republic Act No. 7042 19 embodies such concept in this wise:chanrob1es
virtual 1aw library
SEC. 3. Definitions. — As used in this Act:chanrob1es virtual 1aw library
x
x
x
(d) the phrase "doing business shall include soliciting orders, service contracts,
opening offices, whether called ‘liaison’ offices or branches; appointing
representatives or distributors domiciled in the Philippines or who in any calendar
year stay in the country for a period or periods totalling one hundred eight(y) (180)
days or more; participating in the management, supervision or control of any
domestic business, firm, entity or corporation in the Philippines; and any other act
or acts that imply a continuity of commercial dealings or arrangements, and
contemplate to that extent the performance of acts or works, or the exercise of
some of the functions normally incident to, and in progressive prosecution of,
commercial gain or of the purpose and object of the business organization:
Provided, however, That the phrase "doing business" shall not be deemed to
include mere investment as a shareholder by a foreign entity in domestic
corporations duly registered to do business, and/or the exercise of rights as such
investors; nor having a nominee director or officer to represent its interests in such
corporation; nor appointing a representative or distributor domiciled in the
Philippines which transacts business in its own name and for its own account.
Based on Article 133 of the Corporation Code and gauged by such statutory
standards, petitioners are not barred from maintaining the present action. There is
no showing that, under our statutory or case law, petitioners are doing, transacting,
engaging in or carrying on business in the Philippines as would require obtention
of a license before they can seek redress from our courts. No evidence has been
offered to show that petitioners have performed any of the enumerated acts or any
other specific act indicative of an intention to conduct or transact business in the
Philippines.
Accordingly, the certification issued by the Securities and Exchange Commission
20 stating that its records do not show the registration of petitioner film companies
either as corporations or partnerships or that they have been licensed to transact
business in the Philippines, while undeniably true, is of no consequence to
petitioners’ right to bring action in the Philippines. Verily, no record of such
registration by petitioners can be expected to be found for, as aforestated, said
foreign film corporations do not transact or do business in the Philippines and,
therefore, do not need to be licensed in order to take recourse to our courts.
Although Section 1(g) of the Implementing Rules and Regulations of the Omnibus
Investments Code lists, among others —
(1) Soliciting orders, purchases (sales) or service contracts. Concrete and specific
solicitations by a foreign firm, or by an agent of such foreign firm, not acting
independently of the foreign firm amounting to negotiations or fixing of the terms
and conditions of sales or service contracts, regardless of where the contracts are
actually reduced to writing, shall constitute doing business even if the enterprise
has no office or fixed place of business in the Philippines. The arrangements
agreed upon as to manner, time and terms of delivery of the goods or the transfer
of title thereto is immaterial. A foreign firm which does business through the
middlemen acting in their own names, such as indentors, commercial brokers or
commission merchants, shall not be deemed doing business in the Philippines. But
such indentors, commercial brokers or commission merchants shall be the ones
deemed to be doing business in the Philippines.
(2) Appointing a representative or distributor who is domiciled in the Philippines,
unless said representative or distributor has an independent status, i.e., it transacts
business in its name and for its own account, and not in the name or for the account
of a principal. Thus, where a foreign firm is represented in the Philippines by a
person or local company which does not act in its name but in the name of the
foreign firm, the latter is doing business in the Philippines.
as acts constitutive of "doing business," the fact that petitioners are admittedly
copyright owners or owners of exclusive distribution rights in the Philippines of
motion pictures or films does not convert such ownership into an indicium of doing
business which would require them to obtain a license before they can use upon a
cause of action in local courts.
Neither is the appointment of Atty. Rico V. Domingo as attorney-in-fact of
petitioners, with express authority pursuant to a special power of attorney, inter
alia —
To lay criminal complaints with the appropriate authorities and to provide evidence
in support of both civil and criminal proceedings against any person or persons
involved in the criminal infringement of copyright, or concerning the unauthorized
importation, duplication, exhibition or distribution of any cinematographic work(s)
— films or video cassettes — of which . . . is the owner of copyright or the owner
of exclusive rights of owner or copyright or the owner of exclusive rights of
distribution in the Philippines pursuant to any agreement(s) between . . . and the
respective owners of copyright in such cinematographic work(s), to initiate and
prosecute on behalf of . . . criminal or civil actions in the Philippines against any
person or persons unlawfully distributing, exhibiting, selling or offering for sale
any films or video cassettes of which . . . is the owner of copyright or the owner of
exclusive rights of distribution in the Philippines pursuant to any agreement(s)
between . . . and the respective owners of copyright in such works. 21
tantamount to doing business in the Philippines. We fail to see how exercising
one’s legal and property rights and taking steps for the vigilant protection of said
rights, particularly the appointment of an attorney-in-fact, can be deemed by and of
themselves to be doing business here.
As a general rule, a foreign corporation will not be regarded as doing business in
the State simply because it enters into contracts with residents of the State, where
such contracts are consummated outside the State. 22 In fact, a view is taken that a
foreign corporation is not doing business in the state merely because sales of its
product are made there or other business furthering its interests is transacted there
by an alleged agent, whether a corporation or a natural person, where such
activities are not under the direction and control of the foreign corporation but are
engaged in by the alleged agent as an independent business. 23
It is generally held that sales made to customers in the State by an independent
dealer who has purchased and obtained title from the corporation to the products
sold are not a doing of business by the corporation. 24 Likewise, a foreign
corporation which sells its products to persons styled "distributing agents" in the
State, for distribution by then, is not doing business in the State so as to render it
subject to service of process therein, where the contract with these purchasers is
that they shall buy exclusively from the foreign corporation such goods as it
manufactures and shall sell them at trade prices established by it.25cralaw:red
It has moreover been held that the act of a foreign corporation in engaging an
attorney to represent it in a Federal court sitting in a particular State is not doing
business within the scope of the minimum contact test. 26 With much more reason
should this doctrine apply to the mere retainer of Atty. Domingo for legal
protection against contingent acts of intellectual piracy.
In accordance with the rule that "doing business" imports only acts in furtherance
of the purposes for which a foreign corporation was organized, it is held that the
mere institution and prosecution or defense of a suit, particularly if the transaction
which is the basis of the suit took place out of the State, do not amount to the doing
of business in the State. The institution of a suit or the removal thereof is neither
the making of a contract nor the doing of business within a constitutional provision
placing foreign corporations licensed to do business in the State under the same
regulations, limitations and liabilities with respect to such acts as domestic
corporations. Merely engaging in litigation has been considered as not a sufficient
minimum contact to warrant the exercise of jurisdiction over a foreign corporation.
27
As a consideration aside, we have perforce to comment on private respondents’
basis for arguing that petitioners are barred from maintaining suit in the
Philippines. For allegedly being foreign corporations doing business in the
Philippines without a license, private respondents repeatedly maintain in all their
pleadings that petitioners have thereby no legal personality to bring an action
before Philippine courts. 28
Among the grounds for a motion to dismiss under the Rules of Court are lack of
legal capacity to sue 29 and that the complaint states no cause of action. 30 Lack of
legal capacity to sue means that the plaintiff is not in the exercise of his civil rights,
or does not have the necessary qualification to appear in the case, or does not have
the character or representation he claims. 31 On the other hand, a case is
dismissible for lack of personality to sue upon proof that the plaintiff is not the real
party in interest, hence grounded on failure to state a cause of action. 32 The term
"lack of capacity to sue" should not be confused with the term "lack of personality
to sue." While the former refers to a plaintiff’s general disability to sue, such as on
account of minority, insanity, incompetence, lack of juridical personality or any
other general disqualifications of a party, the latter refers to the fact that the
plaintiff is not the real party in interest. Correspondingly, the first can be a ground
for a motion to dismiss based on the ground of lack of legal capacity to sue, 33
whereas the second can be used as a ground for a motion to dismiss based on the
fact that the complaint, on the face thereof, evidently states no cause of action. 34
Applying the above discussion to the instant petition, the ground available for
barring recourse to our courts by an unlicensed foreign corporation doing or
transacting business in the Philippines should properly be "lack of capacity to sue,"
not "lack of personality to sue." Certainly, a corporation whose legal rights have
been violated is undeniable such, if not the only, real party in interest to bring suit
thereon although, for failure to comply with the licensing requirement, it is not
capacitated to maintain any suit before our courts.
Lastly, on this point, we reiterate this Court’s rejection of the common procedural
tactics of erring local companies which, when sued by unlicensed foreign
corporations not engaged in business in the Philippines, invoke the latter’s
supposed lack of capacity to sue. The doctrine of lack of capacity to sue based on
failure to first acquired a local license is based on considerations of public policy.
It was never intended to favor nor insulate from suit unscrupulous establishments
or nationals in case of breach of valid obligations or violations of legal rights of
unsuspecting foreign firms or entities simply because they are not licensed to do
business in the country. 35
II
We now proceed to the main issue of the retroactive application to the present
controversy of the ruling in 20th Century Fox Film Corporation v. Court of
Appeals, Et Al., promulgated on August 19, 1988, 36 that for the determination of
probable cause to support the issuance of a search warrant in copyright
infringement cases involving videograms, the production of the master tape for
comparison with the allegedly pirated copies is necessary.
Petitioners assert that the issuance of a search warrant is addressed to the discretion
of the court subject to the determination of probable cause in accordance with the
procedure prescribed therefor under Section 3 and 4 of Rule 126. as of the time of
the application for the search warrant in question, the controlling creation for the
finding of probable cause was that enunciated in Burgos v. Chief of Staff 37 stating
that:chanrob1es virtual 1aw library
Probable cause for a search warrant is defined as such facts and circumstances
which would lead a reasonably discrete 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.
According to petitioners, after complying with what the law then required, the
lower court determined that there was probable cause for the issuance of a search
warrant, and which determination in fact led to the issuance and service on
December 14, 1987 of Search Warrant No. 87-053. It is further argued that any
search warrant so issued in accordance with all applicable legal requirements is
valid, for the lower court could not possibly have been expected to apply, as the
basis for a finding of probable cause for the issuance of a search warrant in
copyright infringement cases involving videograms, a pronouncement which was
not existent at the time of such determination, on December 14, 1987, and is, the
doctrine in the 20th Century Fox case that was promulgated only on August 19,
1988, or over eight months later.
Private respondents predictably argue in support of the ruling of the Court of
Appeals sustaining the quashal of the search warrant by the lower court on the
strength of that 20th Century Fox ruling which, they claim, goes into the very
essence of probable cause. At the time of the issuance of the search warrant
involved here, although the 20th Century Fox case had not yet been decided,
Section 2, Article III of the Constitution and Section 3, Rule 126 of the 1985 Rules
on Criminal Procedure embodied the prevailing and governing law on the matter.
The ruling in 20th Century Fox was merely an application of the law on probable
cause. Hence, they posit that there was no law that was retrospectively applied,
since the law had been there all along. To refrain from applying the 20th Century
Fox ruling, which had supervened as a doctrine promulgated at the time of the
solution of private respondents’ motion for reconsideration seeking the quashal of
the search warrant for failure of the trial court to require presentation of the master
tapes prior to the issuance of the search warrant, would have constituted grave
abuse of discretion. 38
Respondent court upheld the retroactive application of the 20th Century Fox ruling
by the trial court in resolving petitioners’ motion for reconsideration in favor of the
quashal of the search warrant, on this renovated thesis:chanrob1es virtual 1aw
library
And whether this doctrine should apply retroactively, it must be noted that in the
20th Century Fox case, the lower court quashed the earlier search warrant it issued.
On certiorari, the Supreme Court affirmed the quashal on the ground among others
that the master tapes or copyrighted films were not presented for comparison with
the purchased evidence of the video tapes to determine whether the latter is an
unauthorized reproduction of the former.
If the lower court in the Century Fox case did not quash the warrant, it is Our view
that the Supreme Court would have invalidated the warrant just the same
considering the very strict requirement set by the Supreme Court for the
determination of ‘probable cause’ in copyright infringement cases as enunciated in
this 20th Century Fox case. This is so because, as was stated by the Supreme Court
in the said case, the master tapes and the pirate tapes must be presented for
comparison to satisfy the requirement of ‘probable cause.’ So it goes back to the
very existence of probable cause. . . . 39
Mindful as we are of the ramifications of the doctrine of stare decisis and the
rudiments of fair play, it is our considered view that the 20th Century Fox ruling
cannot be retroactively applied to the instant case to justify the quashal of Search
Warrant No. 87-053. Herein petitioners’ consistent position that the order of the
lower court of September 5, 1988 denying therein defendants’ motion to lift the
order of search warrant was properly issued, there having been satisfactory
compliance with the then prevailing standards under the law for determination of
probable cause, is indeed well taken. The lower court could not possibly have
expected more evidence from petitioners in their application for a search warrant
other than what the law and jurisprudence, then existing and judicially accepted,
required with respect to the finding of probable cause.
Article 4 of the Civil Code provides that" (l)aws shall have no retroactive effect,
unless the contrary is provided. Correlatively, Article 8 of the same Code declares
that" (j)udicial decisions applying the laws or the Constitution shall form part of
the legal system of the Philippines."cralaw virtua1aw library
Jurisprudence, in our system of government, cannot be considered as an
independent source of law; it cannot create law. 40 While it is true that judicial
decisions which apply or interpret the Constitution or the laws are part of the legal
system of the Philippines, still they are not laws. Judicial decisions, though not
laws, are nonetheless evidence of what the laws mean, and it is for this reason that
they are part of the legal system of the Philippines. 41 Judicial decisions of the
Supreme Court assume the same authority as the statute itself. 42
Interpreting the aforequoted correlated provisions of the Civil Code and in light of
the above disquisition, this Court emphatically declared in Co v. Court of Appeals,
Et. Al. 43 That the principle of prospectivity applies not only to originator
amendatory statutes and administrative rulings and circulars, but also, and properly
so, to judicial decisions. Our holding in the earlier case of People v. Jubinal 44
echoes the rationale for this judicial declaration, vis.:chanrob1es virtual 1aw
library
Decisions of this Court, although in themselves not laws, are nevertheless evidence
of what the laws mean, and this is the reason why under Article 8 of the New Civil
Code, "Judicial decisions applying or interpreting the laws or the Constitution shall
form part of the legal system." The interpretation upon a law by this Court
constitutes, in a way, a part of the law as of the date that the law was originally
passed, since this Court’s construction merely establishes the contemporaneous
legislative intent that the law thus construed intends to effectuate. The settled rule
supported by numerous authorities is a restatement of the legal maxim "legis
interpretation legis vim obtinet" — the interpretation placed upon the written law
by a competent court has the force of law. . . ., but when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied
prospectively, and should not apply to parties who had relied on the old doctrine
and acted on the faith thereof . . . . (Emphasis supplied).
This was forcefully reiterated in Spouses Benzonan v. Court of Appeals, Et Al., 45
where the Court expounded:chanrob1es virtual 1aw library
. . . But while our decisions form part of the law of the land, they are also subject to
Article 4 of the Civil Code which provides that "laws shall have no retroactive
effect unless the contrary is provided." This is expressed in the familiar legal
maximum lex prospicit, non respicit, the law looks forward not backward. The
rationale against retroactivity is easy to perceive. The retroactive application of a
law usually divests rights that have already become vested or impairs the
obligations of contract and hence, is unconstitutional (Francisco v. Certeza, 3
SCRA (565 [1961]). The same consideration underlies our rulings giving only
prospective effect to decisions enunciating new doctrines. . . .
The reasoning behind Senarillos v. Hermosisima 46 that judicial interpretation of a
statute constitutes part of the law as of the date it was originally passed, since the
Court’s construction merely establishes the contemporaneous legislative intent that
the interpreted law carried into effect, is all too familiar. Such judicial doctrine
does not amount to the passage of a new law but consists merely of a construction
or interpretation of a pre-existing one, and that is precisely the situation obtaining
in this case.
It is consequently clear that a judicial interpretation becomes a part of the law as of
the date that law was originally passed, subject only to the qualification that when
a doctrine of this Court is overruled and a different view is adopted, and more so
when there is a reversal thereof, the new doctrine should be applied prospectively
and should not apply to parties who relied on the old doctrine and acted in good
faith. 47 To hold otherwise would be to deprive the law of its quality of fairness
and justice then, if there is no recognition of what had transpired prior to such
adjudication. 48
There is merit in petitioners’ impassioned and well-founded
argumentation:chanrob1es virtual 1aw library
The case of 20th Century Fox Film Corporation v. Court of Appeals, Et Al., 164
SCRA 655 (August 19, 1988) (hereinafter 20th Century Fox) was inexistent in
December of 1987 when Search Warrant 87-053 was issued by the lower court.
Hence, it boggles the imagination how the lower court could be expected to apply
the formulation of 20th Century Fox in finding probable cause when the
formulation was yet non-existent.
x
x
x
In short, the lower court was convinced at that time after conducting searching
examination questions of the applicant and his witnesses that "an offense had been
committed and that the objects sought in connection with the offense (were) in the
place sought to be searched" (Burgos v. Chief of Staff, Et Al., 133 SCRA 800). It
is indisputable, therefore, that at the time of the application, or on December 14,
1987, the lower court did not commit any error nor did it fail to comply with any
legal requirement for the valid issuance of search warrant.
. . . (W)e believe that the lower court should be considered as having followed the
requirements of the law in issuing Search Warrant No. 87-053. The search warrant
is therefore valid and binding. It must be noted that nowhere is it found in the
allegations of the Respondents that the lower court failed to apply the law as then
interpreted in 1987. Hence, we find it absurd that it is (sic) should be seen
otherwise, because it is simply impossible to have required the lower court to apply
a formulation which will only be defined six months later.
Furthermore, it is unjust and unfair to require compliance with legal and/or
doctrinal requirements which are inexistent at the time they were supposed to have
been complied with.
x
x
x
. . . If the lower court’s reversal will be sustained, what encouragement can be
given to courts and litigants to respect the law and rules if they can expect with
reasonable certainty that upon the passage of a new rule, their conduct can still be
open to question? This certainly breeds instability in our system of dispensing
justice. For Petitioners who took special effort to redress their grievances and to
protect their property rights by resorting to the remedies provided by the law, it is
most unfair that fealty to the rules and procedures then obtaining would bear but
fruits of injustice. 49
Withal, even the proposition that the prospectivity of judicial decisions imports
application thereof not only to future cases but also to cases still ongoing or not yet
final when the decision was promulgated, should not be countenanced in the jural
sphere on account of its inevitably unsettling repercussions. More to the point, it is
felt that the reasonableness of the added requirement in 20th Century Fox calling
for the production of the master tapes of the copyrighted films for determination of
probable cause in copyright infringement cases needs revisiting and clarification.
It will be recalled that the 20th Century Fox case arose from search warrant
proceedings in anticipation of the filing of a case for the unauthorized sale or
renting out of copyrighted films in videotape format in violation of Presidential
Decree No. 49. It revolved around the meaning of probable cause within the
context of the constitutional provision against illegal searches and seizures, as
applied to copyright infringement cases involving videotapes.
Therein it was ruled that —
The presentation of master tapes of the copyrighted films from which the pirated
films were allegedly copied, was necessary for the validity of search warrants
against those who have in their possession the pirated films. The petitioner’s
argument to the effect that the presentation of the master tapes at the time of
application may not be necessary as these would be merely evidentiary in nature
and not determinative of whether or not a probable cause exists to justify the
issuance of the search warrants is not meritorious. The court cannot presume that
duplicate or copied tapes were necessarily reproduced from master tapes that it
owns.
The application for search warrants was directed against video tape outlets which
allegedly were engaged in the unauthorized sale and renting out of copyrighted
films belonging to the petitioner pursuant to P.D. 49.
The essence of a copyright infringement is the similarity or at least substantial
similarity of the purported pirated works to the copyrighted work. Hence, the
applicant must present to the court the copyrighted films to compare them with the
purchased evidence of the video tapes allegedly pirated to determine whether the
latter is an unauthorized reproduction of the former. This linkage of the
copyrighted films to the pirated films must be established to satisfy the
requirements of probable cause. Mere allegations as to the existence of the
copyrighted films cannot serve as basis for the issuance of a search warrant.
For a closer and more perspicuous appreciation of the factual antecedents of 20th
Century Fox, the pertinent portions of the decision therein are quoted hereunder, to
wit:jgc:chanrobles.com.ph
"In the instant case, the lower court lifted the three questioned search warrants
against the private respondents on the ground that it acted on the application for the
issuance of the said search warrants and granted it on the misrepresentations of
applicant NBI and its witnesses that infringement of copyright or a piracy of a
particular film have been committed. Thus the lower court stated in its questioned
order dated January 2, 1986:jgc:chanrobles.com.ph
"According to the movant, all three witnesses during the proceedings in the
application for the three search warrants testified of their own personal knowledge.
Yet, Atty. Albino Reyes of the NBI stated that the counsel or representative of the
Twentieth Century Fox Corporation will testify on the video cassettes that were
pirated, so that he did not have personal knowledge of the alleged piracy. The
witness Bacani also said that the video cassettes were pirated without stating the
manner it was pirated and that it was Atty. Domingo that has knowledge of that
fact.
"On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated
tapes was from master tapes allegedly belonging to the Twentieth Century Fox,
because, according to him it is of his personal knowledge.
"At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino
Reyes testified that when the complaint for infringement was brought to the NBI,
the master tapes of the allegedly pirated tapes were shown to him and he made
comparisons of the tapes with those purchased by their man Bacani. Why the
master tapes or at least the film reels of the allegedly pirated tapes were not shown
to the Court during the application gives some misgivings as to the truth of that
bare statement of the NBI agent on the witness stand.
"Again as the application and search proceedings is a prelude to the filing of
criminal cases under PD 49, the copyright infringement law, and although what is
required for the issuance thereof is merely the presence of probable cause, that
probable cause must be satisfactory to the Court, for it is a time-honored precept
that proceedings to put a man to task as an offender under our laws should be
interpreted in strictissimi juris against the government and liberally in favor of the
alleged offender.
x
x
x
"This doctrine has never been overturned, and as a matter of fact it had been
enshrined in the Bill of Rights in our 1973 Constitution.
"So that lacking in persuasive effect, the allegation that master tapes were viewed
by the NBI and were compared to the purchased and seized video tapes from the
respondents’ establishments, it should be dismissed as not supported by competent
evidence and for that matter the probable cause hovers in that grey debatable
twilight zone between black and white resolvable in favor of respondents herein.
"But the glaring fact is that ‘Cocoon,’ the first video tape mentioned in the search
warrant, was not even duly registered or copyrighted in the Philippines. (Annex C
of Opposition p. 152 record.) So, that lacking in the requisite presentation to the
Court of an alleged master tape for purposes of comparison with the purchased
evidence of the video tapes allegedly pirated and those seized from respondents,
there was no way to determine whether there really was piracy, or copying of the
film of the complainant Twentieth Century Fox."cralaw virtua1aw library
x
x
x
The lower court, therefore, lifted the three (3) questioned search warrants in the
absence of probable cause that the private respondents violated P.D. 49. As found
by the court, the NBI agents who acted as witnesses did not have personal
knowledge of the subject matter of their testimony which was the alleged
commission of the offense by the private respondents. Only the petitioner’s
counsel who was also a witness during the application for the issuance of the
search warrants stated that he had personal knowledge that the confiscated tapes
owned by the private, respondents were pirated tapes taken from master tapes
belonging to the petitioner. However, the lower court did not give much credence
to his testimony in view of the fact that the master tapes of the allegedly pirated
tapes were not shown to the court during the application." (Emphasis ours).
The italicized passages readily expose the reason why the trial court therein
required the presentation of the master tapes of the allegedly pirated films in order
to convince itself of the existence of probable cause under the factual milieu
peculiar to that case. In the case at bar, respondent appellate court itself
observed:chanrob1es virtual 1aw library
We feel that the rationale behind the aforequoted doctrine is that the pirated copies
as well as the master tapes, unlike the other types of personal properties which may
be seized, were available for presentation to the court at the time of the application
for a search warrant to determine the existence of the linkage of the copyrighted
films with the pirated ones. Thus, there is no reason not the present them (Italics
supplied for emphasis). 50
In fine, the supposed pronunciamento in said case regarding the necessity for the
presentation of the master tapes of the copyrighted films for the validity of search
warrants should at most be understood to merely serve as a guidepost in
determining the existence of probable cause in copyright infringement cases where
there is doubt as to the true nexus between the master tape and the pirated copies.
An objective and careful reading of the decision in said case could lead to no other
conclusion than that said directive was hardly intended to be a sweeping and
inflexible requirement in all or similar copyright infringement cases. Judicial dicta
should always be construed within the factual matrix of their parturition, otherwise
a careless interpretation thereof could unfairly fault the writer with the vice of
overstatement and the reader with the fallacy of undue generalization.
In the case at bar, NBI Senior Agent Lauro C. Reyes who filed the application for
search warrant with the lower court following a formal complaint lodged by
petitioners, judging from his affidavit 51 and his deposition, 52 did testify on
matters within his personal knowledge based on said complaint of petitioners as
well as his own investigation and surveillance of the private respondents’ video
rental shop. Likewise, Atty. Rico V. Domingo, in his capacity as attorney-at-fact,
stated in his affidavit 53 and further expounded in his deposition 54 that he
personally knew of the fact that private respondents had never been authorized by
his clients to reproduce, lease and possess for the purpose of selling any of the
copyrighted films.
Both testimonies of Agent Reyes and Atty. Domingo were corroborated by Rene
C. Baltazar, a private researcher retained by Motion Pictures Association of
America, Inc. (MPAA, Inc.), who was likewise presented as a witness during the
search warrant proceedings. 55 The records clearly reflect that the testimonies of
the above named witnesses were straightforward and stemmed from matters within
their personal knowledge. They displayed none of the ambivalence and uncertainty
that the witnesses in the 20th Century Fox case exhibited. This categorical
forthrightness in their statements, among others, was what initially and correctly
convinced the trial court to make a finding of the existence of probable cause.
There is no originality in the argument of private respondents against the validity
of the search warrant, obviously borrowed from 20th Century Fox, that petitioners’
witnesses — NBI Agent Lauro C. Reyes, Atty. Rico V. Domingo and Rene C.
Baltazar — did not have personal knowledge of the subject matter of their
respective testimonies and that said witnesses’ claim that the video tapes were
pirated, without stating the manner by which these were pirated, is a conclusion of
fact without basis. 56 The difference, it must be pointed out, is that the records in
the present case reveal that (1) there is no allegation of misrepresentation, much
less a finding thereof by the lower court, on the part of petitioners’ witnesses; (2)
there is no denial on the part of private respondents that the tapes seized were
illegitimate copies of the copyrighted ones nor have they shown that they were
given any authority by petitioners to copy, sell, lease, distribute or circulate, or at
least, to offer for sale, lease, distribution or circulation the said video tapes; and (3)
a discreet but extensive surveillance of the suspected area was undertaken by
petitioner’s witnesses sufficient to enable them to execute trustworthy affidavits
and depositions regarding matters discovered in the course thereof and of which
they have personal knowledge.
It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to
do, that in copyrighted films is always necessary to meet the requirement of
probable cause and that, in the absence thereof, there can be no finding of probable
cause for the issuance of a search warrant. It is true that such master tapes are
object evidence, with the merit that in this class of evidence the ascertainment of
the controverted fact is made through demonstrations involving the direct use of
the senses of the presiding magistrate. 57 Such auxiliary procedure, however, does
not rule out the use of testimonial or documentary evidence, depositions,
admissions or other classes of evidence tending to prove the factum probandum, 58
especially where the production in court of object evidence would result in delay,
inconvenience or expenses out of proportion to its evidentiary value. 59
Of course, as a general rule, constitutional and statutory provisions relating to
search warrants prohibits their issuance except on a showing of probable cause,
supported by oath or affirmation. These provisions prevent the issuance of
warrants on loose, vague, or doubtful bases of fact, and emphasize the purpose to
protect against all general searches. 60 Indeed, Article III of our Constitution
mandates in Sec. 2 thereof that no search warrant 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 things to be seized; and Sec. 3 thereof
provides that any evidence obtained in violation of the preceding section shall be
inadmissible for any purpose in any proceeding.
These constitutional strictures are implemented by the following provisions of
Rule 126 of the Rules of Court:chanrob1es virtual 1aw library
Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue
but upon probable cause in connection with one specific offense 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 things to be seized.
Sec. 4. Examination of complainant; record. — The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. — If the judge is thereupon satisfied
of the existence of facts upon which the application is based, or that there is
probable cause to believe that they exist, he must issue the warrant, which must be
substantially in the form prescribed by these Rules.
The constitutional and statutory provisions of various jurisdictions requiring a
showing of probable cause before a search warrant can be issued are mandatory
and must be complied with, and such a showing has been held to be an unqualified
condition precedent to the issuance of a warrant. A search warrant not based on
probable cause is a nullity, or is void, and the issuance thereof is, in legal
contemplation, arbitrary. 61 It behooves us, then, to review the concept of probable
cause, firstly, from representative holdings in the American jurisdiction from
which we patterned our doctrines on the matter.
Although the term "probable cause" has been said to have a well-defined meaning
in the law, the term is exceedingly difficult to define, in this case, with any degree
of precision; indeed, no definition of it which would justify the issuance of a search
warrant can be formulated which would cover every state of facts which might
arise, and no formula or standard, or hard and fast rule, may be laid down which
may be applied to the facts of every situation. 62 As to what acts constitute
probable cause seem incapable of definition. 63 There is, of necessity, no exact
test. 64
At best, the term "probable cause" has been understood to mean a reasonable
ground of suspicion, supported by circumstances sufficiently strong in themselves
to warrant a cautious man in the belief that the person accused is guilty of the
offense with which he is charged; 65 or the existence of such facts and
circumstances as would excite an honest belief in a reasonable mind acting on all
the facts and circumstances within the knowledge of the magistrate that the charge
made by the applicant for the warrant is true. 66
Probable cause does not mean actual and positive cause, nor does it important
absolute certainty. The determination of the existence of probable cause is not
concerned with the question of whether the offense charged has been or is being
committed in fact, or whether the accused is guilty or innocent, but only whether
the affiant has reasonable grounds for his belief. 67 The requirement is less than
certainty or proof, but more than suspicion or possibility. 68
In Philippine jurisprudence, probable cause has been uniformly defined as such
facts and circumstances which would 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. 69 It being the
duty of the issuing officer to issue, or refuse to issue, the warrant as soon as
practicable after the application therefor is filed, 70 the facts warranting the
conclusion of probable cause must be assessed at the time of such judicial
determination by necessarily using legal standards then set forth in law and
jurisprudence, and not those that have yet to be crafted thereafter.
As already stated, the definition of probable cause enunciated in Burgos, Sr. v.
Chief of Staff, Et Al., supra, vis-a-vis the provisions of Sections 3 and 4 of Rule
126, were the prevailing and controlling legal standards, as they continue to be, by
which a finding or probable cause is tested. Since the proprietary of the issuance of
a search warrant is to be determined at the time of the application therefor, which
in turn must not be too remote in time from the occurrence of the offense alleged to
have been committed, the issuing judge, in determining the existence of probable
cause, can and should logically look to the touchstones in the laws therefore
enacted and the decisions already promulgated at the time, and not to those which
had not yet even been conceived or formulated.
It is worth noting that neither the Constitution nor the Rules of Court attempt to
define probable cause, obviously for the purpose of leaving such matter to the
court’s discretion within the particular facts of each case. Although the
Constitution prohibits the issuance of a search warrant in the absence of probable
cause, such constitutional inhibition does not command the legislature to establish
a definition or formula for determining what shall constitute probable cause. 71
Thus, Congress, despite its broad authority to fashion standards of reasonableness
for searches and seizures, 72 does not venture to make such a definition or standard
formulation of probable cause, nor categorize what facts and circumstances make
up the same, much less limit the determination thereof to and within the
circumscription of a particular class of evidence, all in deference to judicial
discretion and probity. 73
Accordingly, to restrict the exercise of discretion by a judge by adding a particular
requirement (the presentation of master tapes, as intimated by 20th Century Fox)
not provided nor implied in the law for a finding of probable cause is beyond the
realm of judicial competence or statesmanship. It serves no purpose but to stultify
and constrict the judicious exercise of a court’s prerogatives and to denigrate the
judicial duty of determining the existence of probable cause to a mere ministerial
or mechanical function. There is, to repeat, no law or rule which requires that the
existence of probable cause is or should be determined solely by a specific kind of
evidence. Surely, this could not have been contemplated by the framers of the
Constitution, and we do not believe that the Court intended the statement in 20th
Century Fox regarding master tapes as the dictum for all seasons and reasons in
infringement cases.
Turning now to the case at bar, it can be gleaned from the records that the lower
court followed the prescribed procedure for the issuance of a search warrant: (1)
the examination under oath or affirmation of the complainant and his witnesses,
with them particularly describing the place to be searched and the things to be
seized; (2) an examination personally conducted by the judge in the form of
searching questions and answers, in writing and under oath of the complainant and
witnesses on facts personally known to them; and, (3) the taking of sworn
statements, together with the affidavits submitted, which were duly attached to the
records.
Thereafter, the court a quo made the following factual findings leading to the
issuance of the search warrant now subject to this controversy:chanrob1es virtual
1aw library
In the instant case, the following facts have been established: (1) copyrighted video
tapes bearing titles enumerated in Search Warrant No. 87-053 were being sold,
leased, distributed or circulated, or offered for sale, lease, distribution, or
transferred or caused to be transferred by defendants at their video outlets, without
the written consent of the private complainants or their assignee; (2) recovered or
confiscated from defendants’ possession were video tapes containing copyrighted
motion picture films without the authority of the complainant; (3) the video tapes
originated from spurious or unauthorized persons; and (4) said video tapes were
exact reproductions of the film listed in the search warrant whose copyrights or
distribution rights were owned by complainants.
The basis of these facts are the affidavits and depositions of NBI Senior Agent
Lauro C. Reyes, Atty. Rico V. Domingo, and Rene C. Baltazar. Motion Pictures
Association of America, Inc. (MPAA) thru their counsel, Atty. Rico V. Domingo,
filed a complaint with the National Bureau of Investigation against certain video
establishments one of which is defendant, for violation of PD No. 49 as amended
by PD No. 1988. Atty. Lauro C. Reyes led a team to conduct discreet surveillance
operations on said video establishments. Per information earlier gathered by Atty.
Domingo, defendants were engaged in the illegal sale, rental, distribution,
circulation or public exhibition of copyrighted films of MPAA without its written
authority or its members. Knowing that defendant Sunshine Home Video and its
proprietor, Mr. Danilo Pelindario, were not authorized by MPAA to reproduce,
lease, and possess for the purpose of selling any of its copyrighted motion pictures,
he instructed his researcher, Mr. Rene Baltazar to rent two video cassettes from
said defendants on October 21, 1987. Rene C. Baltazar proceeded to Sunshine
Home Video and rented tapes containing Little Shop of Horror. He was issued
rental slip No. 26362 dated October 21 1987 for P10.00 with a deposit of P100.00.
Again, on December 11, 1987, he returned to Sunshine Home Video and rented
Robocop with rental slip No. 25271 also for P10.00. On the basis of the complaint
of MPAA thru counsel, Atty. Lauro C. Reyes personally went to Sunshine Home
Video at No. 6 Mayfair Center, Magallanes Commercial Center, Makati. His last
visit was on December 7, 1987. There, he found the video outlet renting, leasing,
distributing video cassette tapes whose titles were copyrighted and without the
authority of MPAA.
Given these facts, a probable cause exists. . . . 74
The lower court subsequently executed a volte-face, despite its prior detailed and
substantiated findings, by stating in its order of November 22, 1988 denying
petitioners’ motion for reconsideration and quashing the search warrant that —
. . . The two (2) cases have a common factual milieu; both involve alleged pirated
copyrighted films of private complainants which were found in the possession or
control of the defendants. Hence, the necessity of the presentation of the master
tapes from which the pirated films were allegedly copied is necessary in the instant
case, to establish the existence of probable cause. 75
Being based solely on an unjustifiable and improper retroactive application of the
master tape requirement generated by 20th Century Fox upon a factual situation
completely different from that in the case at bar, and without anything more, this
later order clearly defies elemental fair play and is a gross reversible error. in fact,
this observation of the Court in La Chemise Lacoste, S.A. v. Fernandez, Et Al.,
supra, may just as easily apply to the present case:chanrob1es virtual 1aw library
A review of the grounds invoked . . . in his motion to quash the search warrants
reveals the fact that they are not appropriate for quashing a warrant. They are
matters of defense which should be ventilated during the trial on the merits of case.
...
As correctly pointed out by petitioners, a blind espousal of the requisite of
presentation of the master tapes in copyright infringement cases, as the prime
determinant of probable cause, is too exacting and impracticable a requirement to
be complied with in a search warrant application which, it must not be overlooked,
is only an ancillary proceeding. Further, on realistic considerations, a strict
application of said requirement militates against the elements of secrecy and speed
which underlie covert investigative and surveillance operations in police
enforcement campaigns against all forms of criminality, considering that the
master tapes of a motion picture required to be presented before the court consists
of several reels contained in circular steel casings which, because of their bulk, will
definitely draw attention, unlike diminutive objects like video tapes which can be
easily concealed. 76 With hundreds of titles being pirated, this onerous and tedious
imposition would be multiplied a hundredfold by judicial fiat, discouraging and
preventing legal recourses in foreign jurisdictions.
Given the present international awareness and furor over violations in large scale
of intellectual property rights, calling for transnational sanctions, it bears calling to
mind the Court’s admonition also in La Chemise Lacoste, supra, that —
. . . Judges all over the country are well advised to remember that court processes
should not be used as instruments to, unwittingly or otherwise, aid counterfeiters
and intellectual pirates, tie the hands of the law as it seeks to protect the Filipino
consuming public and frustrate executive and administrative implementation of
solemn commitments pursuant to international conventions and treaties.
III
The amendment of Section 56 of Presidential Decree No. 49 by Presidential
Decree No. 1987, 77 which would here be publicized judicially, brought about the
revision of its penalty structure and enumerated additional acts considered
violative of said decree on intellectual property, namely, (1) directly or indirectly
transferring or causing to be transferred any sound recording or motion picture or
other audio-visual works so recorded with intent to sell, lease, publicly exhibit or
cause to be sold, leased or publicly exhibited, or to use or cause to be used for
profit such articles on which sounds, motion pictures, or other audio-visual works
are so transferred without the written consent of the owner or his assignee; (2)
selling, leasing, distributing, circulating, publicly exhibiting, or offering for sale,
lease, distribution, or possessing for the purpose of sale, lease, distribution,
circulation or public exhibition any of the abovementioned articles, without the
written consent of the owner or his assignee; and, (3) directly or indirectly offering
or making available for a fee, rental, or any other form of compensation any
equipment, machinery, paraphernalia or any material with the knowledge that such
equipment, machinery, paraphernalia or material will be used by another to
reproduce, without the consent of the owner, any phonograph record, disc, wire,
tape, film or other article on which sounds, motion pictures or other audio-visual
recordings may be transferred, and which provide distinct bases for criminal
prosecution, being crimes independently punishable under Presidential Decree No.
49, as amended, aside from the act of infringing or aiding or abetting such
infringement under Section 29.
The trial court’s finding that private respondents committed acts in blatant
transgression of Presidential Decree No. 49 all the more bolsters its findings of
probable cause, which determination can be reached even in the absence of master
tapes by the judge in the exercise of sound discretion. The executive concern and
resolve expressed in the foregoing amendments to the decree for the protection of
intellectual property rights should be matched by corresponding judicial vigilance
and activism, instead of the apathy of submitting to technicalities in the face of
ample evidence of guilt.
The essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a
copyright is a trespass on a private domain owned and occupied by the owner of
the copyright, and, therefore, protected by law, and infringement of copyright, or
piracy, which is a synonymous term in this connection, consists in the doing by
any person, without the consent of the owner of the copyright, of anything the sole
right to do which is conferred by statute on the owner of the copyright. 78
A copy of a piracy is an infringement of the original, and it is no defense that the
pirate, in such cases, did not know what works he was indirectly copying, or did
not know whether or not he was infringing any copyright; he at least knew that
what he was copying was not his, and he copied at his peril. In determining the
question of infringement, the amount of matter copied from the copyrighted work
is an important consideration. To constitute infringement, it is not necessary that
the whole or even a large portion of the work shall have been copied. If so much is
taken that the value of the original is sensibly diminished, or the labors of the
original author are substantially and to an injurious extent appropriated by another,
that is sufficient in point of law to constitute a piracy. 79 The question of whether
there has been an actionable infringement of a literary, musical, or artistic work in
motion pictures, radio or television being one of fact, 80 it should properly be
determined during the trial. That is the stage calling for conclusive or
preponderating evidence, and not the summary proceeding for the issuance of a
search warrant wherein both lower courts erroneously require the master tapes.
In disregarding private respondent’s argument that Search Warrant No. 87-053 is a
general warrant, the lower court observed that "it was worded in a manner that the
enumerated seizable items bear direct relation to the offense of violation of Sec. 56
of PD 49 as amended. It authorized only the seizur(e) of articles used or intended
to be used in the unlawful sale, lease and other unconcerted acts in violation of PD
49 as amended. . . ." 81
On this point, Bache and Co., (Phil.), Inc., Et. Al. v. Ruiz, Et Al., 82 instructs and
enlightens:chanrob1es virtual 1aw library
As search warrant may be said to particularly describe the things to be seized when
the description therein is as specific as the circumstances will ordinarily allow
(People v. Rubio, 57 Phil. 384); or when the description expresses a conclusion of
fact — not of law — by which the warrant officer may be guided in making the
search and seizure (idem., dissent of Abad Santos, J.,); or when the things
described are limited to those which bear direct relation to the offense for which
the warrant is being issued (Sec 2, Rule 126, Revised Rules of Court). . . . If the
articles desired to be seized have any direct relation to an offense committed, the
applicant must necessarily have some evidence, other than those articles, to prove
the said offense; and the articles subject of search and seizure should come in
handy merely to strengthen such evidence. . . .
On private respondents’ averment that the search warrant was made applicable to
more than one specific offense on the ground that there are as many offenses of
infringement as there are rights protected and, therefore, to issue one search
warrant for all the movie titles allegedly pirated violates the rule that a search
warrant must be issued only in connection with one specific offense, the lower
court said:chanrob1es virtual 1aw library
. . . As the face of the search warrant itself indicates, it was issued for violation of
Section 56, PD 49 as amended only. The specifications therein (in Annex A)
merely refer to the titles of the copyrighted motion pictures/films belonging to
private complainants which defendants were in control/possession for sale, lease,
distribution or public exhibition in contravention of Sec. 56, PD 49 as amended. 83
That there were several counts of the offense of copyright infringement and the
search warrant uncovered several contraband items in the form of pirate video
tapes is not to be confused with the number of offenses charged. The search
warrant herein issued does not violate the one-specific-offense rule.
It is pointless for private respondents to insist on compliance with the registration
and deposit requirements under presidential Decree No. 49 as prerequisites for
invoking the court’s protective mantle in copyright infringement cases. As
explained by the court below:chanrob1es virtual 1aw library
Defendants-movants contend that PD 49 as amended covers only producers who
have complied with the requirements of deposit and notice (in other words
registration) under Sections 49 and 50 thereof. Absent such registration, as in this
case, there was no right created, hence, no infringement under PD 49 as amended.
This is not well-taken.
As correctly pointed out by private complainants-oppositors, the Department of
Justice has resolved this legal question as far back as December 12, 1978 in its
Opinion No. 191 of the then Secretary of Justice Vicente Abad Santos which stated
that Sections 26 and 50 do not apply to cinematographic works and PD No. 49
"had done away with the registration and deposit of cinematographic works" and
that "even without prior registration and deposit of a work which may be entitled to
protection under the Decree, the creator can file action for infringement of its
rights." He cannot demand, however, payment of damages arising from
infringement. The same opinion stressed that "the requirements of registration and
deposit are thus retained under the Decree, not as conditions for the acquisition of
copyright and other rights, but as prerequisites to a suit for damages." The statutory
interpretation of the Executive Branch being correct, is entitled (to) weight and
respect.
x
x
x
Defendants-movants maintain that complainant and his witnesses led the Court to
believe that a crime existed when in fact there was none. This is wrong. As earlier
discussed, PD 49 as amended, does not require registration and deposit for a
creator to be able to file an action for infringement of his rights. These conditions
are merely pre-requisites to an action for damages. So, as long as the proscribed
acts are shown to exist, an action for infringement may be initiated. 84
Accordingly, the certifications 85 from the Copyright Section of the National
Library, presented as evidence by private respondents to show non-registration of
some of the films of petitioners, assume no evidentiary weight or significance,
whatsoever.
Furthermore, a closer review of Presidential Decree No. 49 reveals that even with
respect to works which are required under Section 26 thereof to be registered and
with copies to deposited with the National Library, such as books, including
composite and cyclopedic works, manuscripts, directories and gazetteers; and
periodicals, including pamphlets and newspapers; lectures, sermons, addresses,
dissertations prepared for oral delivery; and letters, the failure to comply with said
requirements does not deprive the copyright owner of the right to sue for
infringement. Such non-compliance merely limits the remedies available to him
and subjects him to the corresponding sanction.
The reason for this is expressed in Section 2 of the decree which prefaces its
enumeration of copyrightable works with the explicit statement that "the rights
granted under this Decree shall, from the moment of creation, subsist with respect
to any of the following classes of works." This means that under the present state
of the law, the copyright for a work is acquired by an intellectual creator from the
moment of creation even in the absence of registration and deposit. As has been
authoritatively clarified:chanrob1es virtual 1aw library
The registration and deposit of two complete copies or reproductions of the work
with the National library within three weeks after the first public dissemination or
performance of the work, as provided for in Section 26 (P.D. No. 49, as amended),
is not for the purpose of securing a copyright of the work, but rather to avoid the
penalty for non-compliance of the deposit of said two copies and in order to
recover damages in an infringement suit. 86
One distressing observation. This case has been fought on the basis of, and its
resolution long delayed by resort to, technicalities to a virtually abusive extent by
private respondents, without so much as an attempt to adduce any credible
evidence showing that they conduct their business legitimately and fairly. The fact
that private respondents could not show proof of their authority or that there was
consent from the copyright owners for them to sell, lease, distribute or circulate
petitioners’ copyrighted films immeasurably bolsters the lower court’s initial
finding of probable cause. That private respondents are licensed by the Videogram
Regulatory Board does not insulate them from criminal and civil liability for their
unlawful business practices. What is more deplorable is that the reprehensible acts
of some unscrupulous characters have stigmatized the Philippines with an
unsavory reputation as a hub for intellectual piracy in this part of the globe,
formerly in the records of the General Agreement on Tariffs and Trade and, now,
of the World Trade Organization. Such acts must not be glossed over but should be
denounced and repressed lest the Philippines become an international pariah in the
global intellectual community.
WHEREFORE, the assailed judgment and resolution of respondent Court of
Appeals, and necessarily inclusive of the order of the lower court dated November
22, 1988, are hereby REVERSED and SET ASIDE. The order of the court a quo of
September 5, 1988 upholding the validity of Search Warrant No. 87-053 is hereby
REINSTATED, and said court is DIRECTED to take and expeditiously proceed
with such appropriate proceedings as may be called for in this case. Trebles costs
are further assessed against private respondents.
SO ORDERED
People v. Tee, G. R. Nos. 140546-47, January 20, 2003
For automatic review is the consolidated judgment1 of the Regional Trial Court
(RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases
Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the
Dangerous Drugs Law.2 Since appellant was acquitted in the second case, we focus
on the first case, where appellant has been found guilty and sentenced to death and
fined one million pesos.
The decretal portion of the trial court’s decision reads:
WHEREFORE, judgment is hereby rendered, as follows:
1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee
guilty beyond reasonable doubt of the offense of illegal possession of
marijuana of about 591.81 kilos in violation of Section 8, Article II of RA
6425 as amended by Section 13 of RA 7659 as charged in the Information,
seized by virtue of a search warrant and sentences him to the supreme
penalty of death and to pay a fine of 1 million pesos without subsidiary
imprisonment in case of insolvency.
The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack
(Exhibits U-1 to U-27) are ordered forfeited in favor of the State to be
destroyed immediately in accordance with law.
2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to
prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby
acquits him of the charge of illegal possession of marijuana in violation of
Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as
charged in the Information since the marijuana confiscated have to be
excluded in evidence as a product of unreasonable search and seizure.
The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B
to S and their component parts) although excluded in evidence as the
product(s) of unreasonable search and seizure, are nevertheless ordered
forfeited in favor of the State to be destroyed immediately in accordance
with law considering that they are prohibited articles.
The City Jail Warden is, therefore, directed to release the accused Modesto
Tee in connection with Crim. Case No. 15822-R unless held on other
charges.
COST(S) DE OFFICIO.
SO ORDERED.3
Appellant is a Chinese national in his forties, a businessman, and a resident of
Baguio City. A raid conducted by operatives of the National Bureau of
Investigation (NBI) and Philippine National Police Narcotics Command (PNP
NARCOM) at premises allegedly leased by appellant and at his residence yielded
huge quantities of marijuana.
On July 20, 1998, appellant moved to quash the search warrant on the ground that
it was too general and that the NBI had not complied with the requirements for the
issuance of a valid search warrant. The pendency of said motion, however, did not
stop the filing of the appropriate charges against appellant. In an information dated
July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of
Baguio City charged Modesto Tee, alias "Estoy Tee," with illegal possession of
marijuana, allegedly committed as follows:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully, feloniously and knowingly
have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained in
four (4) boxes; and
2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twentythree (23) bags of dried flowering tops separately contained in thirteen (13)
sacks, with a total weight of 336.93 kilograms; and
3 Six hundred two (602) bricks of dried flowering tops separately contained
in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms,
all having a grand total weight of 928.74 kilograms, a prohibited drug,
without the authority of law to possess, in violation of the above-cited
provision of law.
CONTRARY TO LAW.4
On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet
"considering that subject marijuana were seized in two (2) different places."5
As a result, the information in Criminal Case No. 15800-R was amended to read as
follows:
That on or about the 1st day of July, 1998, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully, feloniously and
knowingly have in his possession the following, to wit:
- Six hundred two (602) bricks of dried flowering tops separately contained
in twenty-six (26) boxes and a yellow sack, weighing 591.81 kilograms
a prohibited drug, without the authority of law to possess, in violation of the
above-cited provision of law.
CONTRARY TO LAW.6
A separate amended information docketed as Criminal Case No. 15822-R was
likewise filed, the accusatory portion of which reads:
That on or about the 1st day of July, 1998 in the City of Baguio, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully, feloniously and knowingly
have in his possession the following, to wit:
1. Ninety-two (92) bricks of dried flowering tops separately contained
in four (4) boxes; and
2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and
twenty-three (23) bags of dried flowering tops separately contained in
thirteen (13) sacks, with a total weight of 336.93 kilograms;
a prohibited drug, without the authority of law to possess, in violation of the
above-cited provision of law.
CONTRARY TO LAW.7
On September 4, 1998, the trial court denied the motion to quash the search
warrant and ordered appellant’s arraignment.
When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused
to enter a plea. The trial court entered a plea of not guilty for him.8 Trial on the
merits then ensued.
The facts of this case, as gleaned from the records, are as follows:
Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the
appellant Modesto Tee are well acquainted with each other, since Abratique’s wife
is the sister of Tee’s sister-in-law.9
Sometime in late June 1998, appellant asked Abratique to find him a place for the
storage of smuggled cigarettes.10 Abratique brought appellant to his friend, Albert
Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating
the terms and conditions, Ballesteros agreed to rent out his place to appellant.
Appellant then brought several boxes of purported "blue seal" cigarettes to the
leased premises.
Shortly thereafter, however, Ballesteros learned that the boxes stored in his place
were not "blue seal" cigarettes but marijuana. Fearful of being involved,
Ballesteros informed Abratique. Both later prevailed upon appellant to remove
them from the premises.11
Appellant then hired Abratique’s taxi and transported the boxes of cannabis from
the Ballesteros place to appellant’s residence at Km. 6, Dontogan, Green Valley,
Sto. Tomas, Baguio City.12
On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet
on the pretext of buying and transporting strawberries. Upon reaching La Trinidad,
however, appellant directed Abratique to proceed to Sablan, Benguet, where
appellant proceeded to load several sacks of marijuana in Abratique’s taxi. He then
asked Abratique to find him a place where he could store the contraband.13
Abratique brought appellant to his grandmother’s house at No. 27 Dr. Cariño St.,
QM Subdivision, Baguio City, which was being managed by Abratique’s aunt,
Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and
appellant unloaded and stored there the sacks of marijuana brought from
Sablan.14 Abratique was aware that they were transporting marijuana as some of
the articles in the sacks became exposed in the process of loading.15
Eventually, Abratique and Nazarea were bothered by the nature of the goods stored
in the rented room. She confided to her daughter, Alice Abreau Fianza, about their
predicament. As Alice Fianza’s brother-in-law, Edwin Fianza, was an NBI agent,
Alice and Abratique phoned him and disclosed what had transpired.16
On the morning of July 1, 1998, alerted by information that appellant would
retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI
operatives conducted a stake out at No. 27, Dr. Cariño St. While the NBI agents
were conducting their surveillance, they noticed that several PNP NARCOM
personnel were also watching the place.17 The NBI then learned that the PNP
NARCOM had received a tip from one of their informers regarding the presence of
a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have
a joint operation.
As the day wore on and appellant did not show up, the NBI agents became
apprehensive that the whole operation could be jeopardized. They sought the
permission of Nazarea Abreau to enter the room rented by appellant. She acceded
and allowed them entry. The NBI team then searched the rented premises and
found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93
kilograms.18
Later that evening, NBI Special Agent Darwin Lising, with Abratique as his
witness, applied for a search warrant from RTC Judge Antonio Reyes at his
residence.19 Judge Reyes ordered the NBI agents to fetch the Branch Clerk of
Court, Atty. Delilah Muñoz, so the proceedings could be properly recorded. After
Atty. Muñoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter,
the judge issued a warrant directing the NBI to search appellant’s residence at Km.
6, Dontogan, Green Valley, Baguio City for marijuana.20
The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to
appellant’s residence where they served the warrant upon appellant himself.21 The
search was witnessed by appellant, members of his family, barangay officials, and
members of the media.22 Photographs were taken during the actual search.23 The
law enforcers found 26 boxes and a sack of dried marijuana24 in the water tank,
garage, and storeroom of appellant’s residence.25 The total weight of the haul was
591.81 kilograms.26 Appellant was arrested for illegal possession of marijuana.
The seized items were then submitted to the NBI laboratory for testing. NBI
Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic
and chromatographic examinations of the items taken from appellant’s rented room
at No. 27, Dr. Cariño St., as well as those from his residence at Green Valley,
showed these to be marijuana.27
In his defense, appellant contended that the physical evidence of the prosecution
was illegally obtained, being the products of an unlawful search, hence
inadmissible. Appellant insisted that the search warrant was too general and the
process by which said warrant was acquired did not satisfy the constitutional
requirements for the issuance of a valid search warrant. Moreover, Abratique’s
testimony, which was heavily relied upon by the judge who issued the warrant, was
hearsay.
In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking
of the 336.93 kilograms of marijuana was the result of an illegal search and hence,
inadmissible in evidence against appellant. Appellant was accordingly acquitted of
the charge. However, the trial court found that the prosecution’s evidence was
more than ample to prove appellant’s guilt in Criminal Case No. 15800-R and as
earlier stated, duly convicted him of illegal possession of marijuana and sentenced
him to death.
Hence, this automatic review.
Before us, appellant submits that the trial court erred in:
1…UPHOLDING THE LEGALITY OF THE SEARCH WARRANT
DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL
REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT
BEING A GENERAL WARRANT;
2….GRAVELY ABUSED ITS DISCRETION IN REOPENING THE
CASE AND ALLOWING ABRITIQUE TO TESTIFY AGAINST
APPELLANT;
3…GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;
4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND
SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY
OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.28
We find that the pertinent issues for resolution concern the following: (1) the
validity of the search conducted at the appellant’s residence; (2) the alleged
prejudice caused by the reopening of the case and absences of the prosecution
witness, on appellant’s right to speedy trial; (3) the sufficiency of the prosecution’s
evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of
the penalty imposed.
1. On the Validity of the Search Warrant; Its Obtention and Execution
Appellant initially contends that the warrant, which directed the peace officers to
search for and seize "an undetermined amount of marijuana," was too general and
hence, void for vagueness. He insists that Abratique could already estimate the
amount of marijuana supposed to be found at appellant’s residence since Abratique
helped to transport the same.
For the appellee, the Office of the Solicitor General (OSG) counters that a search
warrant is issued if a judge finds probable cause that the place to be searched
contains prohibited drugs, and not that he believes the place contains a specific
amount of it. The OSG points out that, as the trial court observed, it is impossible
beforehand to determine the exact amount of prohibited drugs that a person has on
himself.
Appellant avers that the phrase "an undetermined amount of marijuana" as used in
the search warrant fails to satisfy the requirement of Article III, Section 2 29 of the
Constitution that the things to be seized must be particularly described. Appellant’s
contention, in our view, has no leg to stand on. The constitutional requirement of
reasonable particularity of description of the things to be seized is primarily meant
to enable the law enforcers serving the warrant to: (1) readily identify the
properties to be seized and thus prevent them from seizing the wrong items;30 and
(2) leave said peace officers with no discretion regarding the articles to be seized
and thus prevent unreasonable searches and seizures.31 What the Constitution seeks
to avoid are search warrants of broad or general characterization or sweeping
descriptions, which will authorize police officers to undertake a fishing expedition
to seize and confiscate any and all kinds of evidence or articles relating to an
offense.32 However, it is not required that technical precision of description be
required,33 particularly, where by the nature of the goods to be seized, their
description must be rather general, since the requirement of a technical description
would mean that no warrant could issue.34
Thus, it has been held that term "narcotics paraphernalia" is not so wanting in
particularity as to create a general warrant.35 Nor is the description "any and all
narcotics" and "all implements, paraphernalia, articles, papers and records
pertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad
as to be unconstitutional.36 A search warrant commanding peace officers to seize "a
quantity of loose heroin" has been held sufficiently particular.37
Tested against the foregoing precedents, the description "an undetermined amount
of marijuana" must be held to satisfy the requirement for particularity in a search
warrant. Noteworthy, what is to be seized in the instant case is property of a
specified character, i.e., marijuana, an illicit drug. By reason of its character and
the circumstances under which it would be found, said article is illegal. A further
description would be unnecessary and ordinarily impossible, except as to such
character, the place, and the circumstances.38 Thus, this Court has held that the
description "illegally in possession of undetermined quantity/amount of dried
marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of
paraphernalia" particularizes the things to be seized.39
The search warrant in the present case, given its nearly similar wording,
"undetermined amount of marijuana or Indian hemp," in our view, has satisfied the
Constitution’s requirements on particularity of description. The description therein
is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a
conclusion of fact – not of law – by which the peace officers may be guided in
making the search and seizure; and (3) limits the things to be seized to those which
bear direct relation to the offense for which the warrant is being issued. 40 Said
warrant imposes a meaningful restriction upon the objects to be seized by the
officers serving the warrant. Thus, it prevents exploratory searches, which might
be violative of the Bill of Rights.
Appellant next assails the warrant for merely stating that he should be searched, as
he could be guilty of violation of Republic Act No. 6425. Appellant claims that
this is a sweeping statement as said statute lists a number of offenses with respect
to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus
unconstitutional.
For the appellee, the OSG points out that the warrant clearly states that appellant
has in his possession and control marijuana or Indian hemp, in violation of Section
8 of Republic Act No. 6425.
We have carefully scrutinized Search Warrant No. 415 (7-98),41 and we find that it
is captioned "For Violation of R.A. 6425, as amended."42 It is clearly stated in the
body of the warrant that "there is probable cause to believe that a case for violation
of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972,
as further amended by R.A. 7659 has been and is being committed by one
MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto.
Tomas, Baguio City by having in his possession and control an
UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation
of the aforementioned law."43 In an earlier case, we held that though the specific
section of the Dangerous Drugs Law is not pinpointed, "there is no question at all
of the specific offense alleged to have been committed as a basis for the finding of
probable cause."44 Appellant’s averment is, therefore, baseless. Search Warrant
No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of
marijuana.
Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his
failure to exhaustively examine the applicant and his witness. Appellant points out
that said magistrate should not have swallowed all of Abratique’s statements – –
hook, line, and sinker. He points out that since Abratique consented to assist in the
transport of the marijuana, the examining judge should have elicited from
Abratique his participation in the crime and his motive for squealing on appellant.
Appellant further points out that the evidence of the NBI operative who applied for
the warrant is merely hearsay and should not have been given credit at all by Judge
Reyes.
Again, the lack of factual basis for appellant’s contention is apparent. The OSG
points out that Abratique personally assisted appellant in loading and transporting
the marijuana to the latter’s house and to appellant’s rented room at No. 27 Dr.
Cariño St., Baguio City. Definitely, this indicates personal knowledge on
Abratique’s part. Law enforcers cannot themselves be eyewitnesses to every crime;
they are allowed to present witnesses before an examining judge. In this case,
witness Abratique personally saw and handled the marijuana. Hence, the NBI did
not rely on hearsay information in applying for a search warrant but on personal
knowledge of the witness, Abratique.
Before a valid search warrant is issued, both the Constitution45 and the 2000
Revised Rules of Criminal Procedure46 require that the judge must personally
examine the complainant and his witnesses under oath or affirmation. The personal
examination must not be merely routinary or pro forma, but must be probing and
exhaustive.47 In the instant case, it is not disputed that Judge Antonio Reyes
personally examined NBI Special Investigator III Darwin A. Lising, the applicant
for the search warrant as well as his witness, Danilo G. Abratique. Notes of the
proceedings were taken by Atty. Delilah Muñoz, Clerk of Court, RTC of Baguio
City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of
transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6
of said court, mention is made of "notes" at "pages 7-11."48 We have thoroughly
perused the records of Search Warrant No. 415 (7-98) and nowhere find said
"notes." The depositions of Lising and Abratique were not attached to Search
Warrant No. 415 (7-98) as required by the Rules of Court. We must stress,
however, that the purpose of the Rules in requiring depositions to be taken is to
satisfy the examining magistrate as to the existence of probable cause.49 The Bill of
Rights does not make it an imperative necessity that depositions be attached to the
records of an application for a search warrant. Hence, said omission is not
necessarily fatal, for as long as there is evidence on the record showing what
testimony was presented.50 In the testimony of witness Abratique, Judge Reyes
required Abratique to confirm the contents of his affidavit;51 there were instances
when Judge Reyes questioned him extensively.52 It is presumed that a judicial
function has been regularly performed,53 absent a showing to the contrary. A
magistrate’s determination of probable cause for the issuance of a search warrant is
paid great deference by a reviewing court,54 as long as there was substantial basis
for that determination.55 Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as would lead a
reasonably discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense sought to be seized are
in the place sought to be searched.
On record, appellant never raised the want of adequate depositions to support
Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his
motion contained vague generalities that Judge Reyes failed to ask searching
questions of the applicant and his witness. Belatedly, however, he now claims that
Judge Reyes perfunctorily examined said witness.56 But it is settled that when a
motion to quash a warrant is filed, all grounds and objections then available,
existent or known, should be raised in the original or subsequent proceedings for
the quashal of the warrant, otherwise they are deemed waived.57
In this case, NBI Special Investigator Lising’s knowledge of the illicit drugs stored
in appellant’s house was indeed hearsay. But he had a witness, Danilo Abratique,
who had personal knowledge about said drugs and their particular location.
Abratique’s statements to the NBI and to Judge Reyes contained credible and
reliable details. As the NBI’s witness, Abratique was a person on whose statements
Judge Reyes could rely. His detailed description of appellant’s activities with
respect to the seized drugs was substantial. In relying on witness Abratique, Judge
Reyes was not depending on casual rumor circulating in the underworld, but on
personal knowledge Abratique possessed.
In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held
that:
The true test of sufficiency of a deposition or affidavit to warrant issuance of
a search warrant is whether it has been drawn in such a manner that perjury
could be charged thereon and affiant be held liable for damages caused.58
Appellant argues that the address indicated in the search warrant did not clearly
indicate the place to be searched. The OSG points out that the address stated in the
warrant is as specific as can be. The NBI even submitted a detailed sketch of the
premises prepared by Abratique, thus ensuring that there would be no mistake.
A description of the place to be searched is sufficient if the officer serving the
warrant can, with reasonable effort, ascertain and identify the place intended59 and
distinguish it from other places in the community.60 A designation or description
that points out the place to be searched to the exclusion of all others, and on
inquiry unerringly leads the peace officers to it, satisfies the constitutional
requirement of definiteness.
Appellant finally harps on the use of unnecessary force during the execution of the
search warrant. Appellant fails, however, to point to any evidentiary matter in the
record to support his contention. Defense witness Cipriana Tee, appellant’s mother,
testified on the search conducted but she said nothing that indicated the use of
force on the part of the NBI operatives who conducted the search and
seizure.61 What the record discloses is that the warrant was served on
appellant,62 who was given time to read it,63 and the search was witnessed by the
barangay officials, police operatives, members of the media, and appellant’s kith
and kin.64 No breakage or other damage to the place searched is shown. No injuries
sustained by appellant, or any witness, appears on record. The execution of the
warrant, in our view, has been orderly and peaceably performed.
2. On The Alleged Violation of Appellant’s Substantive Rights
Appellant insists that the prosecution’s unjustified and willful delay in presenting
witness Abratique unduly delayed the resolution of his case. He points out that a
total of eight (8) scheduled hearings had to be reset due to the failure or willful
refusal of Abratique to testify against him. Appellant insists that said lapse on the
prosecution’s part violated Supreme Court Circular No. 38-98.65 Appellant now
alleges that the prosecution deliberately resorted to delaying the case to cause him
untold miseries.
For the appellee, the OSG points out that the two-month delay in the trial is not
such a great length of time as to amount to a violation of appellant’s right to a
speedy trial. A trial is always subject to reasonable delays or postponements, but
absent any showing that these delays are capricious and oppressive, the State
should not be deprived of a reasonable opportunity to prosecute the criminal
action.
On record, the trial court found that prosecution witness Danilo G. Abratique failed
to appear in no less than eighteen (18) hearings, namely those set for February 1, 2,
3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in
1999.66 No less than four (4) warrants of arrest were issued against him to compel
him to testify.67 The NBI agent who supposedly had him in custody was found
guilty of contempt of court for failing to produce Abratique at said hearings and
sanctioned.68 The prosecution had to write the NBI Regional Director in Baguio
City and NBI Director in Manila regarding the failure of the Bureau’s agents to
bring Abratique to court.69 Nothing on record discloses the reason for Abratique’s
aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent
thus causing the trial court to again order his arrest for the fifth time.70 He also
failed to show up at the hearing of June 8, 1999.71
Appellant now stresses that the failure of Abratique to appear and testify on twenty
(20) hearing dates violated appellant’s constitutional72 and statutory right to a
speedy trial.
A speedy trial means a trial conducted according to the law of criminal procedure
and the rules and regulations, free from vexatious, capricious, and oppressive
delays.73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held
that "where a prosecuting officer, without good cause, secures postponements of
the trial of a defendant against his protest beyond a reasonable period of time, as in
this instance, for more than a year, the accused is entitled to relief by a proceeding
in mandamus to compel a dismissal of the information, or if he be restrained of his
liberty, by habeas corpus to obtain his freedom."
The concept of speedy trial is necessarily relative. A determination as to whether
the right has been violated involves the weighing of several factors such as the
length of the delay, the reason for the delay, the conduct of the prosecution and the
accused, and the efforts exerted by the defendant to assert his right, as well as the
prejudice and damage caused to the accused.74
The Speedy Trial Act of 1998, provides that the trial period for criminal cases in
general shall be one hundred eighty (180) days.75 However, in determining the
right of an accused to speedy trial, courts should do more than a mathematical
computation of the number of postponements of the scheduled hearings of the
case.76 The right to a speedy trial is deemed violated only when: (1) the
proceedings are attended by vexatious, capricious, and oppressive delays;77 or (2)
when unjustified postponements are asked for and secured;78 or (3) when without
cause or justifiable motive a long period of time is allowed to elapse without the
party having his case tried.79
In the present case, although the absences of prosecution witness Abratique totaled
twenty (20) hearing days, there is no showing whatsoever that prosecution
capriciously caused Abratique’s absences so as to vex or oppress appellant and
deny him his rights. On record, after Abratique repeatedly failed to show up for the
taking of his testimony, the prosecution went to the extent of praying that the trial
court order the arrest of Abratique to compel his attendance at trial. The
prosecution likewise tried to get the NBI to produce Abratique as the latter was in
the Bureau’s custody, but to no avail. Eventually, the trial court ordered the
prosecution to waive its right to present Abratique and rest its case on the evidence
already offered.80
Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of
time. Delay of less than two months has been found, in fact, to be not an
unreasonably lengthy period of time.81
Moreover, nothing on record shows that appellant Modesto Tee objected to the
inability of the prosecution to produce its witness. Under the Rules, appellant could
have moved the trial court to require that witness Abratique post bail to ensure that
the latter would testify when required.82 Appellant could have moved to have
Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit
too late in the day for appellant to invoke now his right to speedy trial.
No persuasive reason supports appellant’s claim that his constitutional right to
speedy trial was violated. One must take into account that a trial is always subject
to postponements and other causes of delay. But in the absence of a showing that
delays were unreasonable and capricious, the State should not be deprived of a
reasonable opportunity of prosecuting an accused.83
Appellant next contends that the trial court gravely abused its discretion, and
exhibited partiality, when it allowed the reopening of the case after the prosecution
had failed to present Abratique on several occasions and had been directed to rest
its case. Appellant stresses that the lower court’s order to reopen the case to receive
Abratique’s further testimony is an indication that the trial court favored the
prosecution and unduly prejudiced appellant.
On appellee’s behalf, the Solicitor General points out that the trial court’s order
was in the interest of substantial justice and hence, cannot be termed as an abuse of
discretion. The OSG points out that the prosecution had not formally rested its case
and had yet to present its formal offer of evidence, hence, the submission of
additional testimony by the same witness cannot be prejudicial to the accused, it
being but the mere continuation of an uncompleted testimony. Furthermore,
appellant did not properly oppose the prosecution’s motion to reopen the case.
At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985
Rules of Criminal Procedure were in effect. There was no specific provision at that
time governing motions to reopen.84 Nonetheless, long and established usage has
led to the recognition and acceptance of a motion to reopen. In view of the absence
of a specific procedural rule, the only controlling guideline governing a motion to
reopen was the paramount interests of justice. As a rule, the matter of reopening of
a case for reception of further evidence after either prosecution or defense has
rested its case is within the discretion of the trial court.85 However, a concession to
a reopening must not prejudice the accused or deny him the opportunity to
introduce counter evidence.86
Strictly speaking, however, there was no reopening of the cases in the proceedings
below. A motion to reopen may properly be presented only after either or both
parties have formally offered and closed their evidence, but before judgment.87 In
the instant case, the records show that on April 19, 1999, the prosecution was
directed to close its evidence and given 15 days to make its formal offer of
evidence.88 This order apparently arose from the manifestation of the prosecution
on April 16, 1999 that should they fail to produce witness Abratique on the next
scheduled hearing the prosecution would rest its case.89 On April 19, 1999, which
was the next scheduled hearing after April 16, 1999, Abratique was absent
notwithstanding notices, orders, and warrants of arrest. However, on April 27,
1999, or before the prosecution had formally offered its evidence, Abratique was
brought to the trial court by the NBI. In its order of said date, the trial court pointed
out that the prosecution could move to "reopen" the case for the taking of
Abratique’s testimony.90 On May 7, 1999, the prosecution so moved, stressing that
it had not yet formally offered its evidence and that the substantial rights of the
accused would not be prejudiced inasmuch as the latter had yet to present his
evidence. Appellant filed no opposition to the motion. The trial court granted the
motion six days later. Plainly, there was nothing to reopen, as the prosecution had
not formally rested its case. Moreover, the taking of Abratique’s testimony was not
for the purpose of presenting additional evidence, but more properly for
the completion of his unfinished testimony. In U.S. vs. Base,91 we held that a trial
court is not in error, if it opts to reopen the proceedings of a case, even after both
sides had rested and the case submitted for decision, by the calling of additional
witnesses or recalling of witnesses so as to satisfy the judge’s mind with reference
to particular facts involved in the case. A judge cannot be faulted should he require
a material witness to complete his testimony, which is what happened in this case.
It is but proper that the judge’s mind be satisfied on any and all questions presented
during the trial, in order to serve the cause of justice.
Appellant’s claim that the trial court’s concession to "reopen" the case unduly
prejudiced him is not well taken. We note that appellant had every opportunity to
present his evidence to support his case or to refute the prosecution’s evidence
point-by-point, after the prosecution had rested its case. In short, appellant was
never deprived of his day in court. A day in court is the touchstone of the right to
due process in criminal justice.92 Thus, we are unable to hold that a grave abuse of
discretion was committed by the trial court when it ordered the so-called
"reopening" in order to complete the testimony of a prosecution witness.
3. On the Sufficiency of the Prosecution’s Evidence
In bidding for acquittal, appellant assails the credibility of Abratique as a witness.
Appellant insists that Abratique’s testimony is profuse with lies, contrary to human
nature, hence incredible. According to appellant, Abratique was evasive from the
outset with respect to certain questions of the trial court. He adds that it appeared
the court entertained in particular the suspicion that witness Abratique had
conspired with appellant in committing the crime charged. Appellant questions
Abratique’s motive in informing the NBI about his activities related to the
marijuana taking, transfer, and warehousing.
The OSG contends that Abratique’s testimony, taken as a whole, is credible. It
points out that Abratique testified in a straightforward manner as to his knowledge
of the huge cache of prohibited drugs stashed by appellant in two different places.
His testimony, said the OSG, when fused with the physical evidence consisting of
591.81 kilograms of marijuana found by law enforcers at appellant’s residence,
inexorably leads to the inculpation of appellant.
It is the bounden duty of the courts to test the prosecution evidence rigorously, so
that no innocent person is made to suffer the unusually severe penalties meted out
for drug offenses.93 Though we scrutinized minutely the testimony of Abratique,
we find no cogent reason to disbelieve him. From his account, Abratique might
appear aware treading the thin line between innocence and feeling guilty, with
certain portions of his story tending to be self-exculpatory. However, his whole
testimony could not be discredited. The established rule is that testimony of a
witness may be believed in part and disbelieved in other parts, depending on the
corroborative evidence and the probabilities and improbabilities of the case. But it
is accepted, as a matter of common sense, that if certain parts of a witness’
testimony are found true, his testimony cannot be disregarded entirely.94
Abratique testified in open court that appellant rented the taxicab he was driving,
and he helped appellant transport huge amounts of marijuana to appellant’s rented
room at No. 27 Dr. Cariño St., Baguio City and to appellant’s residence at Km. 6,
Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness
stand that out of fear of being involved, he decided to divulge his knowledge of
appellant’s possession of large caches of marijuana to the NBI. When the places
referred to by Abratique were searched by the authorities, marijuana in staggering
quantities was found and seized by the law enforcers. Stated plainly, the physical
evidence in this case corroborated Abratique’s testimony on material points.
Appellant imputes questionable motives to Abratique in an effort to discredit him.
He demands that Abratique should likewise be prosecuted. However, by no means
is the possible guilt of Abratique a tenable defense for appellant. Nor would
Abratique’s prosecution mean appellant’s absolution.
In a prosecution for illegal possession of dangerous drugs, the following facts must
be proven with moral certainty: (1) that the accused is in possession of the object
identified as prohibited or regulated drug; (2) that such possession is not authorized
by law; and (3) that the accused freely and consciously possessed the said drug.95
We find the foregoing elements proven in Criminal Case No. 15800-R beyond
reasonable doubt.
In said case, the testimony of Abratique and the recovery of 591.81 kilograms of
marijuana from appellant’s residence served to prove appellant’s possession of a
prohibited drug. Tests conducted by the NBI forensic chemist proved the seized
articles to be marijuana. These articles were seized pursuant to a valid search
warrant and hence, fully admissible in evidence.
In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous
Drugs Act applies generally to all persons and proscribes the sale of dangerous
drugs by any person, and no person is authorized to sell such drugs. Said doctrine
is equally applicable with respect to possession of prohibited drugs. Republic Act
No. 6425, which penalizes the possession of prohibited drugs, applies equally to all
persons in this jurisdiction and no person is authorized to possess said articles,
without authority of law.
Anent the third element, we have held that to warrant conviction, possession of
illegal drugs must be with knowledge of the accused or that animus
possidendi existed together with the possession or control of said
articles.96 Nonetheless, this dictum must be read in consonance with our ruling that
possession of a prohibited drug per se constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused absent a
satisfactory explanation of such possession.97 In effect, the onus probandi is shifted
to accused to explain the absence of knowledge or animus possidendi98 in this
situation.
Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his
mother as his lone witness, who testified on matters totally irrelevant to his case.
We can only conclude that, failing to discharge the burden of the evidence on the
possession of prohibited drug, appellant’s guilt in Criminal Case No. 15800-R was
established beyond reasonable doubt.
4. On The Proper Penalty
Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty
of reclusion perpetua to death and a fine ranging from five hundred thousand pesos
(P500,000.00) to ten million pesos (P10,000,000.00)99 shall be imposed if the
quantity of marijuana involved in a conviction for possession of marijuana or
Indian hemp shall be 750 grams or more.100
In the present case, the quantity of marijuana involved has been shown by the
prosecution to be far in excess of 750 grams, as stressed by the trial court:
The volume is rather staggering. It is almost one whole house or one whole
room. In fact, when they were first brought to the court, it took hours to load
them on the truck and hours also to unload them prompting the court to
direct that the boxes and sack of marijuana be instead kept at the NBI office
in Baguio. And the identification of said marijuana during the trial was
made in the NBI premises itself by the witnesses since it was physically
cumbersome and inconvenient to keep bringing them to the court during
every trial.101
In sentencing appellant to death, the trial court noted not only the huge quantity of
marijuana bales involved, but also "the acts of accused of hiding them in different
places…and transferring them from place to place and making them appear as
boxes of cigarettes to avoid and evade apprehension and detection." They showed
his being a big supplier, said the trial court, [whose] criminal perversity and craft
that "deserve the supreme penalty of death."102
We are unable to agree, however, with the penalty imposed by the trial court. The
legislature never intended that where the quantity involved exceeds those stated in
Section 20 of Republic Act No. 6425 the maximum penalty of death shall
automatically be imposed.103 The statute prescribes two indivisible
penalties: reclusion perpetua and death. Hence, the penalty to be imposed must
conform with Article 63104 of the Revised Penal Code. As already held, the death
penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal
Code.105 The rules in Article 63 apply although the prohibited drugs involved are
in excess of the quantities provided for in Section 20 of Republic Act No.
6425.106 Thus, finding neither mitigating nor aggravating circumstances in the
present case, appellant’s possession of 591.81 kilograms of marijuana in Criminal
Case No. 15800-R, does not merit capital punishment but only the lesser penalty
of reclusion perpetua.
The trial court imposed a fine on appellant in the sum of One Million Pesos
(P1,000,000.00), without subsidiary imprisonment in case of insolvency. The
imposition of a fine is mandatory in cases of conviction of possession of illegal
drugs. This being within the limits allowed by the law, the amount of the fine must
be sustained. All these sanctions might not remedy all the havoc wrought by
prohibited drugs on the moral fiber of our society, especially the youth. 107 But
these penalties should warn peddlers of prohibited drugs that they cannot ply their
trade in our streets with impunity.
WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6,
in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias
"ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as amended, is
AFFIRMED with the MODIFICATION that appellant is hereby sentenced to
suffer the penalty of reclusion perpetua. The fine of ONE MILLION
(P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise
directed to pay the costs of suit.
SO ORDERED.
CASES:
People v. Tuan, G.R. No. 176066, August 11, 2010
For review is the Decision1 dated September 21, 2006 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 00381, which affirmed with modification the
Decision2 dated April 9, 2002 of the Regional Trial Court (RTC), Branch 6,
Baguio City, finding accused-appellant Estela Tuan y Baludda guilty in Criminal
Case No. 17619-R, of illegal possession of marijuana under Article II, Section 8 of
Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972,"
as amended; and in Criminal Case No. 17620-R, of violating Presidential Decree
No. 1866, otherwise known as the "Illegal Possession of Firearms," as amended.
On April 5, 2000, two separate Informations were filed before the RTC against
accused-appellant for illegal possession of marijuana and illegal possession of
firearm. The Informations read:
Criminal Case No. 17619-R
The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the
crime of VIOLATION OF SEC. 8, ART. II OF REPUBLIC ACT 6425, AS
AMENDED (Illegal Possession of Marijuana), committed as follows:
That on or about 24th day of January 2000, at Barangay Gabriela Silang, in the
City of Baguio, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there willfully and unlawfully have in her
possession, custody, and control the following, to wit:
a) Nine (9) bricks of dried Marijuana leaves with an approximate total
weight of 18.750 kgs., and
b) One (1) plastic bag containing dried Marijuana leaves weighing
approximately .3 kg.
without any authority of law to do so in violation of the above-cited provision of
law.3
Criminal Case No. 17620-R
The undersigned Public Prosecutor accuses ESTELA TUAN Y BALUDDA of the
crime of VIOLATION OF PRESIDENTIAL DECREE 1866, AS AMENDED
(Illegal Possession of Firearm), committed as follows:
That on or about the 24th day of January 2000, at Barangay Gabriela Silang, in the
City of Baguio, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there willfully and unlawfully have in her
possession, custody, and control one (1) Cal. .357 S & W revolver, a high-powered
firearm, without any license, permit or authority duly issued by the government to
possess or keep the same in violation of the above-cited law.4
Upon her arraignment on April 18, 2000, accused-appellant, assisted by her
counsel de parte, pleaded "NOT GUILTY" to both charges.5 Pre-trial and trial
proper then ensued.
During trial, the prosecution presented four witnesses: Senior Police Officer (SPO)
1 Modesto F. Carrera (Carrera), Police Officer (PO) 2 Jaime Chavez (Chavez),
SPO2 Fernando Fernandez (Fernandez), and Forensic Chemist II Marina Carina
Madrigal (Madrigal).
The events, as recounted by the prosecution, are as follows:
At around nine o’clock in the morning on January 24, 2000, two male informants
namely, Jerry Tudlong (Tudlong) and Frank Lad-ing (Lad-ing) arrived at the office
of the 14th Regional CIDG (Criminal Investigation and Detention Group) at DPS
Compound, Marcoville, Baguio City, and reported to SPO2 Fernandez, Chief of
the Station Drug Enforcement Unit (SDEU), that a certain "Estela Tuan" had been
selling marijuana at Barangay Gabriela Silang, Baguio City. Present at that time
were Police Superintendent Isagani Neres, Regional Officer of the 14th Regional
CIDG; Chief Inspector Reynaldo Piay, Deputy Regional Officer; and other police
officers.6
SPO2 Fernandez set out to verify the report of Tudlong and Lad-ing. At around
one o’clock in the afternoon of the same day, he gave Tudlong and Lad-ing
₱300.00 to buy marijuana, and then accompanied the two informants to the
accused-appellant’s house. Tudlong and Lad-ing entered accused-appellant’s
house, while SPO2 Fernandez waited at the adjacent house. After thirty minutes,
Tudlong and Lad-ing came out of accused-appellant’s house and showed SPO2
Fernandez the marijuana leaves they bought. After returning to the CIDG regional
office, SPO2 Fernandez requested the laboratory examination of the leaves bought
from accused-appellant. When said laboratory examination yielded positive results
for marijuana, SPO2 Fernandez prepared an Application for Search Warrant for
accused-appellant’s house.
SPO2 Fernandez, together with Tudlong and Lad-ing, filed the Application for a
Search Warrant before Judge Iluminada Cabato-Cortes (Judge Cortes) of the
Municipal Trial Court in Cities (MTCC), Baguio City, Branch IV, at about one
o’clock in the afternoon on January 25, 2000. Two hours later, at around three
o’clock, Judge Cortes personally examined SPO2 Fernandez, Tudlong, and Lading, after which, she issued a Search Warrant, being satisfied of the existence of
probable cause. The Search Warrant read:
TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the undersigned of the existence of facts upon
which the application for Search Warrant is based, after personally examining by
searching questions under oath SPO2 Fernando V. Fernandez of the CAR Criminal
Investigation and Detection Group with office address at DPS Compound, Utility
Road, Baguio City and his witnesses namely: Frank Lad-ing of Happy Hallow,
Baguio City and Jerry Tudlong, of Barangay Kitma, Baguio City, after having been
duly sworn to, who executed sworn statements and deposition as witneses, that
there is a probable cause to believe that a Violation of R.A. 6425 as amended by
R.A. 7659 has been committed and that there are good and sufficient reasons to
believe that Estela Tuan, has in her possession and control at her resident at Brgy.
Gabriela Silang, Baguio City, the following:
- Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish
xxxx
which are subject of the offense which should be seized and brought to the
undersigned.
You are hereby commanded to make an immediate search at anytime in the day the
house of the accused Estela Tuan at Brgy. Gabriela Silang, Baguio City, and
forthwith seize and take possession of the following:
- Undetermined Quantity of Marijuana Dried Leaves and/or Marijuana Hashish
x x x nothing follows x x x
and bring said items to the undersigned to be dealt with as the law directs.
This Search Warrant shall be valid for ten (10) days from date of issue, thereafter,
it shall be void.
The officers must conduct the search and seize the above-mentioned personal items
in the presence of the lawful occupant thereof or any member of her family or in
the absence of the latter, in the presence of two witnesses of sufficient age and
discretion residing in the same locality.
The officers seizing the items must give a detailed receipt for the same to the
lawful occupant of the house in whose presence the search and seizure were made,
or in the absence of such occupant, must, in the presence of the 2 witnesses
mentioned, leave a receipt in the place in which the seized items were found;
thereafter, deliver the items seized to the undersigned judge together with a true
inventory thereof duly verified under oath.
Baguio City, Philippines, this 25th day of January, 2000.
(SGD)ILUMINADA CABATO-CORTES
Executive Judge
MTCC, Branch IV7
Upon receipt of the Search Warrant, SPO2 Fernandez, his team supervisor Police
Senior Inspector Rodolfo Castel, SPO1 Carrera, Police Senior Inspector Ricarte
Marquez and PO2 Chavez implemented the warrant. Before going to the accusedappellant’s house, SPO2 Fernandez invited barangay officials to be present when
the Search Warrant was to be served, but since no one was available, he requested
one Eliza Pascual (Pascual), accused-appellant’s neighbor, to come along.
The CIDG team thereafter proceeded to accused-appellant’s house. Even though
accused-appellant was not around, the CIDG team was allowed entry into the
house by Magno Baludda (Magno), accused-appellant’s father, after he was shown
a copy of the Search Warrant. SPO2 Fernandez and Police Senior Inspector Ricarte
Marquez guarded the surroundings of the house,8 while SPO1 Carrera and PO2
Chavez searched inside.
SPO1 Carrera and PO2 Chavez began searching the rooms on the first floor in the
presence of Magno and Pascual. They continued their search on the second floor.
They saw a movable cabinet in accused-appellant’s room, below which they found
a brick of marijuana and a firearm. At around six o’clock that evening, accusedappellant arrived with her son. The police officers asked accused-appellant to open
a built-in cabinet, in which they saw eight more bricks of marijuana.9 PO2 Chavez
issued a receipt for the items confiscated from accused-appellant10 and a
certification stating that the items were confiscated and recovered from the house
and in accused-appellant’s presence.
The nine bricks of marijuana were brought to the National Bureau of Investigation
(NBI) for examination.
The defense, on the other hand, had an entirely different version of what transpired
that day. It presented four witnesses, namely, accused-appellant herself; Beniasan
Tuan (Beniasan), accused-appellant’s husband; Magno, accused-appellant’s father;
and Mabini Maskay (Maskay), the Barangay Captain of Barangay Gabriela
Silang.1avvphi1
In her testimony, accused-appellant declared that she worked as a vendor at Hangar
Market. Sometime in January 2000, while she was selling vegetables at Hangar
Market, her son arrived with two police officers who asked her to go home because
of a letter from the court.11 At about six o’clock in the afternoon, she and her
husband Beniasan reached their residence and found a green paper bag with
marijuana in their sala. According to the police officers, they got the bag from a
room on the first floor of accused-appellant’s house. Accused-appellant explained
that the room where the bag of marijuana was found was previously rented by
boarders. The boarders padlocked the room because they still had things inside and
they had paid their rent up to the end of January 2000.12 The police officers also
informed accused-appellant that they got a gun from under a cabinet in the latter’s
room, which accused-appellant disputed since her room was always left open and it
was where her children play.13 Accused-appellant alleged that a Search Warrant
was issued for her house because of a quarrel with her neighbor named Lourdes
Estillore (Estillore). Accused-appellant filed a complaint for the demolition of
Estillore’s house which was constructed on the road.14
Beniasan supported the testimony of his wife, accused-appellant. He narrated that
he and accused-appellant were at their Hangar Market stall when two police
officers came and asked them to go home. Beniasan and accused-appellant arrived
at their residence at around six o’clock in the evening and were shown the
marijuana the police officers supposedly got from the first floor of the house. The
police officers then made Beniasan sign a certification of the list of items
purportedly confiscated from the house.15
Magno testified that he resided at the first floor of accused-appellant’s residence.
He was present when the search was conducted but denied that the Search Warrant
was shown to him.16 He attested that the confiscated items were found from the
vacant room at the first floor of accused-appellant’s house which was previously
occupied by boarders. Said room was padlocked but was forced open by the police
officers. In the course of the police officers’ search, they pulled something from
under the bed that was wrapped in green cellophane, but Magno did not know the
contents thereof.17 The police officers also searched the rooms of accusedappellant and her children at the second floor of the house, during which they
allegedly found a gun under the cabinet in accused-appellant’s room. Magno
claimed that he did not personally witness the finding of the gun and was merely
informed about it by the police officers.18
Maskay, the Barangay Captain of Barangay Gabriela Silang, Baguio City, was the
last to testify for the defense. He corroborated accused-appellant’s allegation that
the latter had a quarrel with Estillore, and this could be the reason behind the filing
of the present criminal cases. He further remembered that the members of the
CIDG went to his office on January 24, 2000 to ask about the location of accusedappellant’s house.19
The RTC, in its Decision dated April 9, 2002, found accused-appellant guilty as
charged and adjudged thus:
WHEREFORE, judgment is hereby rendered as follows:
1. In Criminal Case No. 17619-R, the Court finds the accused Estela Tuan guilty
beyond reasonable doubt of the offense of illegal possession of marijuana (nine [9]
bricks of dried marijuana leaves with an approximate weight of 18.750 kilograms
and the one [1] plastic bag containing the dried marijuana weighing about .3
kilograms) in violation of Section 8, Article II of Republic Act No. 6425 as
amended by Section 13 of Republic Act 7659 as charged in the information and
sentences her to the penalty of reclusion perpetua and to pay a fine of ₱500,000.00
without subsidiary imprisonment in case of insolvency.
The nine (9) bricks of dried marijuana leaves with an approximate weight of
18.750 kilograms and one (1) plastic bag containing dried marijuana leaves
weighing approximately .3 kilograms (Exhibit F, F-1, F-1-A to F-1-J) are ordered
confiscated and forfeited in favor of the State to be destroyed immediately in
accordance with law.
The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of
her preventive imprisonment in the service of her sentence in accordance with
Article 29 of the Revised Penal Code; and
2. In Criminal Case No. 17620-R, the Court finds the accused Estela Tuan guilty
beyond reasonable doubt of the offense of illegal possession of firearms (one [1]
caliber .357 S & W revolver), a high powered firearm, without any license, permit
or authority issued by the Government to keep the same in violation of Section 1,
Republic Act No. 8294 which amended Section 1 of PD 1866 as charged in the
information and hereby sentences her, applying the Indeterminate Sentence Law,
to imprisonment ranging from 4 years 9 months and 10 days of prision
correccional in its maximum period as Minimum to 6 years and 8 months
of prision mayor in its minimum period as Maximum and a fine of ₱30,000.00
without subsidiary imprisonment in case of insolvency.
The firearm caliber .357 S & W revolver without serial number is ordered forfeited
in favor of the State to be disposed of immediately in accordance with law.
The accused Estela Tuan being a detention prisoner is entitled to be credited 4/5 of
her preventive imprisonment in the service of her sentence in accordance with
Article 29 of the Revised Penal Code.20
The records of the two criminal cases were forwarded to this Court by the RTC,
but the Court issued a Resolution21 dated October 13, 2004 transferring said
records to the Court of Appeals pursuant to People v. Mateo.22
On September 21, 2006, the Court of Appeals promulgated its Decision.
The Court of Appeals held that the contested search and consequent seizure of the
marijuana bricks were done pursuant to the Search Warrant validly issued by the
MTCC. There was no showing of procedural defects or lapses in the issuance of
said Search Warrant as the records support that the issuing judge determined
probable cause only after conducting the searching inquiry and personal
examination of the applicant and the latter’s witnesses, in compliance with the
requirements of the Constitution. Hence, the appellate court affirmed the
conviction of accused-appellant for illegal possession of marijuana.
The Court of Appeals, however, modified the appealed RTC judgment by
acquitting accused-appellant of the charge for illegal possession of firearm.
According to the appellate court, the records were bereft of evidence that the gun
supposedly confiscated from accused-appellant was unlicensed. The absence of a
firearm license was simply presumed by the police officers because the gun was a
defective paltik with no serial number. That the said condition of the gun did not
dispense with the need for the prosecution to establish that it was unlicensed
through the testimony or certification of the appropriate officer from the Board of
the Firearms and Explosives Bureau of the Philippine National Police.
In the end, the Court of Appeals decreed:
WHEREFORE, premises considered, the instant appeal is PARTLY GRANTED.
The assailed Decision of the RTC of Baguio City, Branch 6, dated April 9, 2002, is
hereby MODIFIED such that the conviction of accused-appellant for Violation of
Section 8, Art. II, RA 6425, as amended, is AFFIRMED while her conviction for
Violation of PD 1866, as amended, is REVERSED and SET ASIDE. Accusedappellant is accordingly ACQUITTED of the latter offense.23
In its Resolution dated October 20, 2006, the Court of Appeals gave due course to
accused-appellant’s Partial Notice of Appeal and accordingly forwarded the
records of the case to this Court.
This Court then issued a Resolution24 dated February 28, 2007 directing the parties
to file their respective supplemental briefs, if they so desired, within 30 days from
notice. Accused-appellant25 opted not to file a supplemental brief and manifested
that she was adopting her arguments in the Appellant’s Brief since the same had
already assiduously discussed her innocence of the crime charged. The
People26 likewise manifested that it would no longer file a supplemental brief as
the issues have all been addressed in its Appellee’s Brief.
Accused-appellant raised the following assignment of errors in her Brief: 27
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND
CREDENCE TO THE INCREDIBLE AND CONTRADICTORY TESTIMONIES
OF THE POLICE OFFICERS.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIMES CHARGED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HER GUILT BEYOND REASONABLE DOUBT.
THE TRIAL COURT ERRED IN NOT CONSIDERING AS VOID THE
SEARCH WARRANT ISSUED AGAINST THE ACCUSED-APPELLANT.
Given that accused-appellant was already acquitted of the charge of violation of
Presidential Decree No. 1866 on the ground of reasonable doubt in Criminal Case
No. 17620-R, her instant appeal relates only to her conviction for illegal possession
of prohibited or regulated drugs in Criminal Case No. 17619-R. The Court can no
longer pass upon the propriety of accused-appellant’s acquittal in Criminal Case
No. 17620-R because of the rule that a judgment acquitting the accused is final and
immediately executory upon its promulgation, and that accordingly, the State may
not seek its review without placing the accused in double jeopardy. Such acquittal
is final and unappealable on the ground of double jeopardy whether it happens at
the trial court or on appeal at the Court of Appeals.28
In a prosecution for violation of the Dangerous Drugs Law, such as Criminal Case
No. 17619-R, a case becomes a contest of credibility of witnesses and their
testimonies. In such a situation, this Court generally relies upon the assessment by
the trial court, which had the distinct advantage of observing the conduct or
demeanor of the witnesses while they were testifying. Hence, its factual findings
are accorded respect – even finality – absent any showing that certain facts of
weight and substance bearing on the elements of the crime have been overlooked,
misapprehended or misapplied.29
The Court finds no reason to deviate from the general rule in the case at bar.
Illegal possession of prohibited or regulated drugs is committed when the
following elements concur: (1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such possession is not authorized by
law; and (3) the accused freely and consciously possesses the said drug.30
All the foregoing elements were duly proven to exist in Criminal Case No. 17619R. The search conducted by SPO1 Carrera and PO2 Chavez in accused-appellant’s
house yielded nine bricks of marijuana. Marijuana is a prohibited drug, thus,
accused-appellant’s possession thereof could not have been authorized by law in
any way. Accused-appellant evidently possessed the marijuana freely and
consciously, even offering the same for sale. The bricks of marijuana were found
in accused-appellant’s residence over which she had complete control. In fact,
some of the marijuana were found in accused-appellant’s own room.
Accused-appellant challenges the judgment of the RTC, affirmed by the Court of
Appeals, finding her guilty of illegal possession of marijuana, by pointing out
certain inconsistencies in the testimonies of prosecution witnesses that supposedly
manifested their lack of credibility, i.e., the date of the test buy and the manner by
which the doors of the rooms of the house were opened.
These alleged inconsistencies and contradictions pertain to minor details and are so
inconsequential that they do not in any way affect the credibility of the witnesses
nor detract from the established fact of illegal possession of marijuana by accusedappellant at her house. The Court has previously held that discrepancies and
inconsistencies in the testimonies of witnesses referring to minor details, and not in
actuality touching upon the central fact of the crime, do not impair their credibility.
Testimonies of witnesses need only corroborate each other on important and
relevant details concerning the principal occurrence.31
Inconsistencies as to minor details and collateral matters do not affect the
credibility of the witnesses nor the veracity or weight of their testimonies. Such
minor inconsistencies may even serve to strengthen their credibility as they negate
any suspicion that the testimonies have been rehearsed.32
Accused-appellant further questions the non-presentation as witnesses of Lad-ing
and Tudlong, the informants, and Pascual, the neighbor who supposedly witnessed
the implementation of the Search Warrant, during the joint trial of Criminal Case
Nos. 17619-R and 17620-R before the RTC. This Court though is unconvinced that
such non-presentation of witnesses is fatal to Criminal Case No. 17619-R.
The prosecution has the exclusive prerogative to determine whom to present as
witnesses. The prosecution need not present each and every witness but only such
as may be needed to meet the quantum of proof necessary to establish the guilt of
the accused beyond reasonable doubt. The testimonies of the other witnesses may,
therefore, be dispensed with if they are merely corroborative in nature. The Court
has ruled that the non-presentation of corroborative witnesses does not constitute
suppression of evidence and is not fatal to the prosecution’s case.33
Although Criminal Case No. 17619-R involves illegal possession of marijuana, the
following pronouncement of this Court in People v. Salazar,34 relating to the illegal
sale of the same drug, still rings true:
Neither is her right to confront witnesses against her affected by the prosecution's
failure to present the informer who pointed to her as a drug pusher. The
presentation of an informant in an illegal drugs case is not essential for conviction
nor is it indispensable for a successful prosecution because his testimony would be
merely corroborative and cumulative. In a case involving the sale of illegal drugs,
what should be proven beyond reasonable doubt is the fact of the sale itself. Hence,
like the non-presentation of the marked money used in buying the contraband, the
non-presentation of the informer on the witness stand would not necessarily create
a hiatus in the prosecutions' evidence. (Emphasis ours.)
Lastly, accused-appellant insists that the items allegedly seized from her house are
inadmissible as evidence because the Search Warrant issued for her house was
invalid for failing to comply with the constitutional and statutory requirements.
Accused-appellant specifically pointed out the following defects which made said
Search Warrant void: (1) the informants, Lad-ing and Tudlong, made
misrepresentation of facts in the Application for Search Warrant filed with the
MTCC; (2) Judge Cortes of the MTCC failed to consider the informants’
admission that they themselves were selling marijuana; and (3) the Search Warrant
failed to particularly describe the place to be searched because the house was a
two-storey building composed of several rooms.
The right of a person against unreasonable searches and seizure is recognized and
protected by no less than the Constitution, particularly, Sections 2 and 3(2) of
Article III which provide:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.
SEC. 3. x x x
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding. (Emphases ours.)
Accordingly, Sections 4 and 5, Rule 126 of the Revised Rules on Criminal
Procedure laid down the following requisites for the issuance of a valid search
warrant:
SEC. 4. Requisites for issuing search warrant. – A search warrant shall not issue
except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the
Philippines.
SEC. 5. Examination of complainant; record. – The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath, the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements, together
with the affidavits submitted.
Therefore, the validity of the issuance of a search warrant rests upon the following
factors: (1) it must be issued upon probable cause; (2) the probable cause must be
determined by the judge himself and not by the applicant or any other person; (3)
in the determination of probable cause, the judge must examine, under oath or
affirmation, the complainant and such witnesses as the latter may produce; and (4)
the warrant issued must particularly describe the place to be searched and persons
or things to be seized.35
There is no dispute herein that the second and third factors for a validly issued
search warrant were complied with, i.e., personal determination of probable cause
by Judge Cortes; and examination, under oath or affirmation, of SPO2 Fernandez
and the two informants, Lad-ing and Tudlong, by Judge Cortes. What is left for the
Court to determine is compliance with the first and fourth factors, i.e., existence of
probable cause; and particular description of the place to be searched and things to
be seized.
In People v. Aruta,36 the Court defined probable cause as follows:
Although probable cause eludes exact and concrete definition, it generally signifies
a reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person accused is guilty of
the offense with which he is charged. It likewise refers to the existence of such
facts and circumstances which could lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched.
It ought to be emphasized that in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of our rules of
evidence of which his knowledge is technically nil. Rather, he relies on the
calculus of common sense which all reasonable men have in abundance. The same
quantum of evidence is required in determining probable cause relative to search.
Before a search warrant can be issued, it must be shown by substantial evidence
that the items sought are in fact seizable by virtue of being connected with criminal
activity, and that the items will be found in the place to be searched.
A magistrate’s determination of probable cause for the issuance of a search warrant
is paid great deference by a reviewing court, as long as there was substantial basis
for that determination. Substantial basis means that the questions of the examining
judge brought out such facts and circumstances as would lead a reasonably discreet
and prudent man to believe that an offense has been committed, and the objects in
connection with the offense sought to be seized are in the place sought to be
searched.37 Such substantial basis exists in this case.
Judge Cortes found probable cause for the issuance of the Search Warrant for
accused-appellant’s residence after said judge’s personal examination of SPO2
Fernandez, the applicant; and Lad-ing and Tudlong, the informants.
SPO2 Fernandez based his Application for Search Warrant not only on the
information relayed to him by Lad-ing and Tudlong. He also arranged for a test
buy and conducted surveillance of accused-appellant. He testified before Judge
Cortes:
COURT:
Q. You are applying for a Search Warrant and you alleged in your
application that Estela Tuan of Brgy. Gabriela Silang, Baguio City, is in
possession of dried marijuana leaves and marijuana hashish, how did you
come to know about this matter?
A. Through the two male persons by the name of Frank Lad-ing and Jerry
Tudlong, Your Honor.
Q. When did these two male persons report to your office?
A. January 22, Your Honor.
Q. This year?
A. Yes, your honor.
Q. To whom did they report?
A. To me personally, Your Honor.
Q. How did they report the matter?
A. They reported that a certain Estela Tuan is selling dried Marijuana leaves
and marijuana hashish, Your Honor.
Q. What else?
A. She is not only selling marijuana but also selling vegetables at the
Trading Post in La Trinidad, Your Honor.
Q. They just told you, she is selling marijuana and selling vegetables, that is
already sufficient proof or sufficient probable cause she is in possession of
marijuana, what else did they report?
A. That they are also selling marijuana in large volume at their house.
Q. What did you do when you asked them regarding that matter?
A. They had a test buy and they were able to buy some commodities
yesterday, Your honor.
Q. Who bought?
A. Tudlong and Lad-ing, Your Honor.
Q. How did you go about it?
A. I accompanied the said persons and kept watch over them and gave them
money after which, they were able to purchase and when they purchased the
said items or drugs, they were even informed that if you wanted to sell then
you could come and get. Your Honor.
COURT:
Q. Where is that ₱300.00?
A. It is with them, Your Honor.
Q. You did not entrap her?
A. No, Your Honor, because it is only a test buy.
Q: And that was January 22. Why did you not apply immediately for search
warrant?
A: Because we still have to look at the area and see to it that there are really
some buyers or people who would go and leave the place, Your Honor.
Q: What did you observe?
A: Well, there are persons who would go inside and after going inside, they
would come out bringing along with them something else.
Q: Did you not interview these people?
A: No, Your Honor. We did not bother.38
Lad-ing and Tudlong affirmed before Judge Cortes that they were the ones
who informed SPO2 Fernandez that accused-appellant was keeping and
selling marijuana at her house, and that they took part in the test buy.
Lad-ing narrated:
COURT:
Q: Mr. Lad-ing, you said that you are working at the Trading Post. What
kind of work do you have there?
A: I am a middleman of the vegetable dealers, Your Honor.
COURT:
Q: Did you come to know of this person Estela Tuan?
A: Yes, Your Honor, because there was an incident wherein we were
conducting our line of business when they came and joined us and we
became partners, Your Honor.
Q: You said, they, how many of you?
A: A certain Jerry Tudlong, Estela Tuan and myself, Your Honor.
Q: In other words, Estela Tuan went with you and later on she became your
partner in that business?
A: Yes, Your Honor.
Q: And so what happened when she became a partner of your business?
A: When we were about to divide our profit, we then went at their residence
at Gabriela Silang, Baguio City, Your Honor.
Q: What happened?
A: While we then sitted ourselves at the sala, she told us that if we wanted to
earn some more, she told us that she has in her possession marijuana which
could be sold, Your Honor.
Q: And so, what happened?
A: After which, she showed the marijuana, Your Honor.
Q: Where was the marijuana?
A: It was placed in a cellophane, in a newspaper, Your Honor.
Q: How big?
A: A dimension of 10 x 4 inches, Your Honor.
Q: With that size, where did she show you the box of this cellophane?
A: At the place where we were sitted at the receiving room, Your Honor.
Q: In other words, she went to get it and then presented or showed it to you?
A: Yes, Your Honor.
Q: Where did she go, if you know?
A: Because at the sala, there is a certain room located at the side that is the
place where she got the same, Your Honor.
Q: Where is this house of Estela Tuan located, is it along the road or inside
the road or what?
A: It is near the road but you have to walk in a little distance, Your Honor.
Q: Will you describe the place where Estela Tuan is residing?
A: Well, it is a two storey house, the walls are made of galvanized iron
Sheets, Your Honor.
COURT:
Q: Do you know who are staying there?
A: I do not know who is living with her, however, that is her residence,
Your Honor.
Q: How many times did you go there?
A: It was my second time to go at that time we were sent by PO Fernandez
to purchase marijuana, Your Honor.
Q: Where is the marijuana now?
A: It is in the possession of PO Fernandez, Your Honor.
Q: Where is the marijuana placed?
A: In a newspaper, Your Honor.
Q: What happened next?
A: We handed to her the amount of P300.00, your Honor.
Q: And she gave you that marijuana?
A: Yes, Your Honor.
xxxx
Q: How many rooms are there in the first floor of the house of Estela Tuan?
A: Three rooms, Your Honor, it has a dining room and beside the place is
the receiving room where we sitted ourselves, Your Honor.
Q: When you already bought marijuana from her, what did she tell you, if
any?
A; Well, if we would be interested to buy more, I still have stocks here,
Your Honor.39
Tudlong recounted in more detail what happened during the test buy:
COURT:
Q: My question is, when she told you that she has some substance for sale
for profit and you mentioned marijuana, did you talk immediately with
Frank or what did you do?
A: We reported the matter to the Criminal Investigation and Detection
Group, your Honor.
xxxx
Q: What time?
A: We went to the office at 9:00 – 9:30 o’clock in the morning, Your Honor.
Q: When you went there, what did you do?
A: The amount of ₱300.00 was given to Frank and we were instructed to
purchase, Your Honor.
Q: Did you go?
A: Yes, Your Honor.
xxxx
Q: Will you tell what happened when you went to the house of the woman?
A: Well, we were allowed to go inside the house after which, we were made
to sit down at the receiving area or sala, Your Honor.
Q: When you went there, you were allowed to enter immediately?
A: Yes, Your Honor.
Q: Who allowed you to enter?
A: The female person, Your Honor.
Q: What happened when you were asked to be sitted?
A: During that time, Frank and the female person were the ones conferring,
Your Honor.
Q: Did you hear what they were talking about?
A: That Frank was purchasing marijuana, Your Honor.
Q: What did the woman tell you?
A: After we handed the money, a plastic which was transparent, was then
handed to Frank, it was a plastic and there was a newspaper inside, Your
Honor.
xxxx
Q: So, you did not actually see what is in the newspaper?
A: No, Your Honor, however, I know that that is marijuana.
Q: Why?
A: Because that was our purpose, to buy marijuana, Your Honor.
Q: And you have not gotten marijuana without Estela Tuan informing you?
A: Yes, Your Honor.
Q: Will you tell us what kind of materials were used in the house of Estela
Tuan?
A: Two storey, the walls are made of GI sheets, Your Honor.\
Q: Is the house beside the road or do you have to walk?
A: It is near the road. Upon reaching the road, you still have to walk a short
distance, Your Honor.
Q: Where did Estela Tuan get the newspaper placed in a transparent plastic?
A: She got it from a room because were then made to wait at the sala, Your
Honor.
Q: Did she tell you how much she can sell marijuana?
A: She told us, Your Honor.
Q: What?
A: Well, the marijuana that we purchased was worth ₱300.00[.] However,
we could divide it into two small packs and we could sell it at ₱20.00 per
piece so that you can also have some gain.
COURT:
Q: After that, to whom did you sell?
A: We did not sell the marijuana, Your Honor.
Q: I thought you are going to sell marijuana and so you went there?
A: We were just instructed by PO Fernandez to verify what we are telling
him was true, Your Honor.40
Accused-appellant’s contention that MTCC Judge Cortes failed to consider the
informants’ admission that they themselves were selling marijuana is utterly
without merit. First, even after carefully reviewing the testimonies of Lad-ing and
Tudlong before Judge Cortes, this Court did not find a categorical admission by
either of the two informants that they themselves were selling marijuana. In fact,
Tudlong expressly denied that he and Lad-ing sold the marijuana, having only
bought the same from the accused-appellant for the test buy. Moreover, even if the
informants were also selling marijuana, it would not have affected the validity of
the Search Warrant for accused-appellant’s house. The criminal liabilities of
accused-appellant and the informants would be separate and distinct. The
investigation and prosecution of one could proceed independently of the other.
Equally without merit is accused-appellant’s assertion that the Search Warrant did
not describe with particularity the place to be searched.
A description of the place to be searched is sufficient if the officer serving the
warrant can, with reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. A designation or description that
points out the place to be searched to the exclusion of all others, and on inquiry
unerringly leads the peace officers to it, satisfies the constitutional requirement of
definiteness.41 In the case at bar, the address and description of the place to be
searched in the Search Warrant was specific enough. There was only one house
located at the stated address, which was accused-appellant’s residence, consisting
of a structure with two floors and composed of several rooms.
In view of the foregoing, the Court upholds the validity of the Search Warrant for
accused-appellant’s house issued by MTCC Judge Cortes, and any items seized as
a result of the search conducted by virtue thereof, may be presented as evidence
against the accused-appellant.
Since it is beyond any cavil of doubt that the accused-appellant is, indeed, guilty of
violation of Article II, Section 8 of Republic Act No. 6425, as amended, the Court
shall now consider the appropriate penalty to be imposed upon her.
Article II, Section 8, in relation to Section 20(3), of Republic Act No. 6425, as
amended, provides:
SEC. 8. Possession or Use of Prohibited Drugs.- The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who, unless authorized by law,
shall possess or use any prohibited drug subject to the provisions of Section 20
hereof. (As amended by R.A. 7659)
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. - The penalties for offenses under Sections 3, 4, 7, 8 and
9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be
applied if the dangerous drugs involved is in any of the following quantities:
1. 40 grams or more of opium;
2. 40 grams or more of morphine;
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of Indian hemp or marijuana;
6. 50 grams or more of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrocholoride; or
8. In the case of other dangerous drugs, the quantity of which is far beyond
therapeutic requirements, as determined and promulgated by the Dangerous
Drugs Board, after public consultations/hearings conducted for the purpose.
(Emphasis supplied.)
Pursuant to Article II, Section 8 of Republic Act No. 6425, as amended, illegal
possession of 750 grams or more of the prohibited drug marijuana is punishable by
reclusion perpetua to death. Accused-appellant had in her possession a total of
19,050 grams of marijuana, for which she was properly sentenced to reclusion
perpetua by the RTC, affirmed by the Court of Appeals.
In the same vein, the fine of ₱500,000.00 imposed upon accused-appellant by the
RTC, affirmed by the Court of Appeals, is also correct, as the same is still within
the range of fines imposable on any person who possessed prohibited drugs
without any authority, under Article II, Section 8 of Republic Act No. 6425, as
amended.
WHEREFORE, premises considered, the Decision dated September 21, 2006 of
the Court of Appeals in CA-G.R. CR.-H.C. No. 00381, is hereby AFFIRMED in
toto. No costs.
SO ORDERED.
Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967
Upon application of the officers of the government named on the margin1 —
hereinafter referred to as Respondents-Prosecutors — several judges2 —
hereinafter referred to as Respondents-Judges — issued, on different dates,3 a total
of 42 search warrants against petitioners herein4 and/or the corporations of which
they were officers,5 directed to the any peace officer, to search the persons abovenamed and/or the premises of their offices, warehouses and/or residences, and to
seize and take possession of the following personal property to wit:
Books of accounts, financial records, vouchers, correspondence, receipts,
ledgers, journals, portfolios, credit journals, typewriters, and other
documents and/or papers showing all business transactions including
disbursements receipts, balance sheets and profit and loss statements and
Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the offense,"
which is described in the applications adverted to above as "violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised
Penal Code."
Alleging that the aforementioned search warrants are null and void, as
contravening the Constitution and the Rules of Court — because, inter alia: (1)
they do not describe with particularity the documents, books and things to be
seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the
warrants were issued to fish evidence against the aforementioned petitioners in
deportation cases filed against them; (4) the searches and seizures were made in an
illegal manner; and (5) the documents, papers and cash money seized were not
delivered to the courts that issued the warrants, to be disposed of in accordance
with law — on March 20, 1962, said petitioners filed with the Supreme Court this
original action for certiorari, prohibition, mandamus and injunction, and prayed
that, pending final disposition of the present case, a writ of preliminary injunction
be issued restraining Respondents-Prosecutors, their agents and /or representatives
from using the effects seized as aforementioned or any copies thereof, in the
deportation cases already adverted to, and that, in due course, thereafter, decision
be rendered quashing the contested search warrants and declaring the same null
and void, and commanding the respondents, their agents or representatives to
return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of
Court, the documents, papers, things and cash moneys seized or confiscated under
the search warrants in question.
In their answer, respondents-prosecutors alleged, 6 (1) that the contested search
warrants are valid and have been issued in accordance with law; (2) that the defects
of said warrants, if any, were cured by petitioners' consent; and (3) that, in any
event, the effects seized are admissible in evidence against herein petitioners,
regardless of the alleged illegality of the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of preliminary injunction prayed for
in the petition. However, by resolution dated June 29, 1962, the writ was partially
lifted or dissolved, insofar as the papers, documents and things seized from the
offices of the corporations above mentioned are concerned; but, the injunction was
maintained as regards the papers, documents and things found and seized in the
residences of petitioners herein.7
Thus, the documents, papers, and things seized under the alleged authority of the
warrants in question may be split into two (2) major groups, namely: (a) those
found and seized in the offices of the aforementioned corporations, and (b) those
found and seized in the residences of petitioners herein.
As regards the first group, we hold that petitioners herein have no cause of action
to assail the legality of the contested warrants and of the seizures made in
pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or of the interest of each of
them in said corporations, and whatever the offices they hold therein may
be.8 Indeed, it is well settled that the legality of a seizure can be contested only by
the party whose rights have been impaired thereby,9 and that the objection to an
unlawful search and seizure is purely personal and cannot be availed of by third
parties. 10 Consequently, petitioners herein may not validly object to the use in
evidence against them of the documents, papers and things seized from the offices
and premises of the corporations adverted to above, since the right to object to the
admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers
in proceedings against them in their individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging
to the corporation did not relate to nor did it affect the personal defendants.
If these papers were unlawfully seized and thereby the constitutional rights
of or any one were invaded, they were the rights of the corporation and not
the rights of the other defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one whose rights have been
invaded. Certainly, such a seizure, if unlawful, could not affect the
constitutional rights of defendants whose property had not been seized or
the privacy of whose homes had not been disturbed; nor could they claim for
themselves the benefits of the Fourth Amendment, when its violation, if any,
was with reference to the rights of another. Remus vs. United
States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the
admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but
embraces only the corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789,
Emphasis supplied.)
With respect to the documents, papers and things seized in the residences of
petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of
preliminary injunction previously issued by this Court, 12 thereby, in effect,
restraining herein Respondents-Prosecutors from using them in evidence against
petitioners herein.
In connection with said documents, papers and things, two (2) important questions
need be settled, namely: (1) whether the search warrants in question, and the
searches and seizures made under the authority thereof, are valid or not, and (2) if
the answer to the preceding question is in the negative, whether said documents,
papers and things may be used in evidence against petitioners herein.1äwphï1.ñët
Petitioners maintain that the aforementioned search warrants are in the nature of
general warrants and that accordingly, the seizures effected upon the authority
there of are null and void. In this connection, the Constitution 13 provides:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated, and
no warrants shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.
Two points must be stressed in connection with this constitutional mandate,
namely: (1) that no warrant shall issue but upon probable cause, to be determined
by the judge in the manner set forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants.
Indeed, the same were issued upon applications stating that the natural and
juridical person therein named had committed a "violation of Central Ban Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In
other words, no specific offense had been alleged in said applications. The
averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have
found the existence of probable cause, for the same presupposes the introduction of
competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions, violating a given
provision of our criminal laws. As a matter of fact, the applications involved in this
case do not allege any specific acts performed by herein petitioners. It would be the
legal heresy, of the highest order, to convict anybody of a "violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal
Code," — as alleged in the aforementioned applications — without reference to
any determinate provision of said laws or
To uphold the validity of the warrants in question would be to wipe out completely
one of the most fundamental rights guaranteed in our Constitution, for it would
place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers.
This is precisely the evil sought to be remedied by the constitutional provision
above quoted — to outlaw the so-called general warrants. It is not difficult to
imagine what would happen, in times of keen political strife, when the party in
power feels that the minority is likely to wrest it, even though by legal means.
Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule
122 of the former Rules of Court 14 by providing in its counterpart, under the
Revised Rules of Court 15 that "a search warrant shall not issue but upon probable
cause in connection with one specific offense." Not satisfied with this qualification,
the Court added thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to
be searched for and seized, to wit:
Books of accounts, financial records, vouchers, journals, correspondence,
receipts, ledgers, portfolios, credit journals, typewriters, and other
documents and/or papers showing all business transactions including
disbursement receipts, balance sheets and related profit and loss statements.
Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights — that the things to be
seized be particularly described — as well as tending to defeat its major objective:
the elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors
maintain that, even if the searches and seizures under consideration were
unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are
unanimously of the opinion that the position taken in the Moncado case must be
abandoned. Said position was in line with the American common law rule, that the
criminal should not be allowed to go free merely "because the constable has
blundered," 16 upon the theory that the constitutional prohibition against
unreasonable searches and seizures is protected by means other than the exclusion
of evidence unlawfully obtained, 17 such as the common-law action for damages
against the searching officer, against the party who procured the issuance of the
search warrant and against those assisting in the execution of an illegal search,
their criminal punishment, resistance, without liability to an unlawful seizure, and
such other legal remedies as may be provided by other laws.
However, most common law jurisdictions have already given up this approach and
eventually adopted the exclusionary rule, realizing that this is the only practical
means of enforcing the constitutional injunction against unreasonable searches and
seizures. In the language of Judge Learned Hand:
As we understand it, the reason for the exclusion of evidence competent as
such, which has been unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional privilege. In earlier times the
action of trespass against the offending official may have been protection
enough; but that is true no longer. Only in case the prosecution which itself
controls the seizing officials, knows that it cannot profit by their wrong will
that wrong be repressed.18
In fact, over thirty (30) years before, the Federal Supreme Court had already
declared:
If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are concerned, might
as well be stricken from the Constitution. The efforts of the courts and their
officials to bring the guilty to punishment, praiseworthy as they are, are not
to be aided by the sacrifice of those great principles established by years of
endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on
the same Federal Court. 20 After reviewing previous decisions thereon, said Court
held, in Mapp vs. Ohio (supra.):
. . . Today we once again examine the Wolf's constitutional documentation
of the right of privacy free from unreasonable state intrusion, and after its
dozen years on our books, are led by it to close the only courtroom door
remaining open to evidence secured by official lawlessness in flagrant abuse
of that basic right, reserved to all persons as a specific guarantee against that
very same unlawful conduct. We hold that all evidence obtained by searches
and seizures in violation of the Constitution is, by that same authority,
inadmissible in a State.
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States through the Due Process Clause of the
Fourteenth, it is enforceable against them by the same sanction of exclusion
as it used against the Federal Government. Were it otherwise, then just as
without the Weeks rule the assurance against unreasonable federal searches
and seizures would be "a form of words," valueless and underserving of
mention in a perpetual charter of inestimable human liberties, so
too, without that rule the freedom from state invasions of privacy would be
so ephemeral and so neatly severed from its conceptual nexus with the
freedom from all brutish means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the concept of ordered
liberty." At the time that the Court held in Wolf that the amendment was
applicable to the States through the Due Process Clause, the cases of this
Court as we have seen, had steadfastly held that as to federal officers the
Fourth Amendment included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly adhered" to that proposition.
The right to when conceded operatively enforceable against the States, was
not susceptible of destruction by avulsion of the sanction upon which its
protection and enjoyment had always been deemed dependent under the
Boyd, Weeks and Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all constitutionally unreasonable
searches — state or federal — it was logically and constitutionally
necessarily that the exclusion doctrine — an essential part of the right to
privacy — be also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new
constitutional Right by Wolf could not tolerate denial of its most important
constitutional privilege, namely, the exclusion of the evidence which an
accused had been forced to give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the
exclusionary rule to "is to deter — to compel respect for the constitutional
guaranty in the only effectively available way — by removing the incentive
to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the
entire system of constitutional restraints on which the liberties of the people
rest. Having once recognized that the right to privacy embodied in the
Fourth Amendment is enforceable against the States, and that the right to be
secure against rude invasions of privacy by state officers is, therefore
constitutional in origin, we can no longer permit that right to remain an
empty promise. Because it is enforceable in the same manner and to like
effect as other basic rights secured by its Due Process Clause, we can no
longer permit it to be revocable at the whim of any police officer who, in the
name of law enforcement itself, chooses to suspend its enjoyment. Our
decision, founded on reason and truth, gives to the individual no more than
that which the Constitution guarantees him to the police officer no less than
that to which honest law enforcement is entitled, and, to the courts, that
judicial integrity so necessary in the true administration of justice.
(emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the
spirit of the constitutional injunction against unreasonable searches and seizures.
To be sure, if the applicant for a search warrant has competent evidence to
establish probable cause of the commission of a given crime by the party against
whom the warrant is intended, then there is no reason why the applicant should not
comply with the requirements of the fundamental law. Upon the other hand, if he
has no such competent evidence, then it is not possible for the Judge to find that
there is probable cause, and, hence, no justification for the issuance of the warrant.
The only possible explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this fishing expedition
is indicative of the absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution of those who secure an illegal
search warrant and/or make unreasonable searches or seizures would suffice to
protect the constitutional guarantee under consideration, overlooks the fact that
violations thereof are, in general, committed By agents of the party in power, for,
certainly, those belonging to the minority could not possibly abuse a power they do
not have. Regardless of the handicap under which the minority usually — but,
understandably — finds itself in prosecuting agents of the majority, one must not
lose sight of the fact that the psychological and moral effect of the possibility 21 of
securing their conviction, is watered down by the pardoning power of the party for
whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment of the Resolution of this
Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of
Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,
Colorado Street, and Room No. 304 of the Army-Navy Club, should be included
among the premises considered in said Resolution as residences of herein
petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck,
respectively, and that, furthermore, the records, papers and other effects seized in
the offices of the corporations above referred to include personal belongings of
said petitioners and other effects under their exclusive possession and control, for
the exclusion of which they have a standing under the latest rulings of the federal
courts of federal courts of the United States. 22
We note, however, that petitioners' theory, regarding their alleged possession of
and control over the aforementioned records, papers and effects, and the alleged
"personal" nature thereof, has Been Advanced, not in their petition or amended
petition herein, but in the Motion for Reconsideration and Amendment of the
Resolution of June 29, 1962. In other words, said theory would appear to be
readjustment of that followed in said petitions, to suit the approach intimated in the
Resolution sought to be reconsidered and amended. Then, too, some of the
affidavits or copies of alleged affidavits attached to said motion for
reconsideration, or submitted in support thereof, contain either inconsistent
allegations, or allegations inconsistent with the theory now advanced by petitioners
herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said
motion for reconsideration, and the contents of the aforementioned affidavits and
other papers submitted in support of said motion, have sufficiently established the
facts or conditions contemplated in the cases relied upon by the petitioners; to
warrant application of the views therein expressed, should we agree thereto. At any
rate, we do not deem it necessary to express our opinion thereon, it being best to
leave the matter open for determination in appropriate cases in the future.
We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is
hereby, abandoned; that the warrants for the search of three (3) residences of herein
petitioners, as specified in the Resolution of June 29, 1962, are null and void; that
the searches and seizures therein made are illegal; that the writ of preliminary
injunction heretofore issued, in connection with the documents, papers and other
effects thus seized in said residences of herein petitioners is hereby made
permanent; that the writs prayed for are granted, insofar as the documents, papers
and other effects so seized in the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment should be, as it is
hereby, denied; and that the petition herein is dismissed and the writs prayed for
denied, as regards the documents, papers and other effects seized in the twentynine (29) places, offices and other premises enumerated in the same Resolution,
without special pronouncement as to costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
From my analysis of the opinion written by Chief Justice Roberto Concepcion and
from the import of the deliberations of the Court on this case, I gather the
following distinct conclusions:
1. All the search warrants served by the National Bureau of Investigation in
this case are general warrants and are therefore proscribed by, and in
violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the
Constitution;
2. All the searches and seizures conducted under the authority of the said
search warrants were consequently illegal;
3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1,
should be, and is declared, abandoned;
4. The search warrants served at the three residences of the petitioners
are expressly declared null and void the searches and seizures therein made
are expressly declared illegal; and the writ of preliminary injunction
heretofore issued against the use of the documents, papers and effect seized
in the said residences is made permanent; and
5. Reasoning that the petitioners have not in their pleadings satisfactorily
demonstrated that they have legal standing to move for the suppression of
the documents, papers and effects seized in the places other than the three
residences adverted to above, the opinion written by the Chief
Justice refrains from expressly declaring as null and void the such warrants
served at such other places and as illegal the searches and seizures made
therein, and leaves "the matter open for determination in appropriate cases
in the future."
It is precisely the position taken by the Chief Justice summarized in the
immediately preceding paragraph (numbered 5) with which I am not in accord.
I do not share his reluctance or unwillingness to expressly declare, at this time, the
nullity of the search warrants served at places other than the three residences, and
the illegibility of the searches and seizures conducted under the authority thereof.
In my view even the exacerbating passions and prejudices inordinately generated
by the environmental political and moral developments of this case should not
deter this Court from forthrightly laying down the law not only for this case but as
well for future cases and future generations. All the search warrants, without
exception, in this case are admittedly general, blanket and roving warrants and are
therefore admittedly and indisputably outlawed by the Constitution; and the
searches and seizures made were therefore unlawful. That the petitioners, let us
assume in gratia argumente, have no legal standing to ask for the suppression of
the papers, things and effects seized from places other than their residences, to my
mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of
the search warrants and the intrinsic illegality of the searches and seizures made
thereunder. Whether or not the petitioners possess legal standing the said warrants
are void and remain void, and the searches and seizures were illegal and remain
illegal. No inference can be drawn from the words of the Constitution that "legal
standing" or the lack of it is a determinant of the nullity or validity of a search
warrant or of the lawfulness or illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings
submitted to this Court the petitioners have the requisite legal standing to move for
the suppression and return of the documents, papers and effects that were seized
from places other than their family residences.
Our constitutional provision on searches and seizures was derived
almost verbatim from the Fourth Amendment to the United States Constitution. In
the many years of judicial construction and interpretation of the said constitutional
provision, our courts have invariably regarded as doctrinal the pronouncement
made on the Fourth Amendment by federal courts, especially the Federal Supreme
Court and the Federal Circuit Courts of Appeals.
The U.S. doctrines and pertinent cases on standing to move for the suppression or
return of documents, papers and effects which are the fruits of an unlawful search
and seizure, may be summarized as follows; (a) ownership of documents, papers
and effects gives "standing;" (b) ownership and/or control or possession — actual
or constructive — of premises searched gives "standing"; and (c) the "aggrieved
person" doctrine where the search warrant and the sworn application for search
warrant are "primarily" directed solely and exclusively against the "aggrieved
person," gives "standing."
An examination of the search warrants in this case will readily show that,
excepting three, all were directed against the petitioners personally. In some of
them, the petitioners were named personally, followed by the designation, "the
President and/or General Manager" of the particular corporation. The three
warrants excepted named three corporate defendants. But the
"office/house/warehouse/premises" mentioned in the said three warrants were also
the same "office/house/warehouse/premises" declared to be owned by or under the
control of the petitioners in all the other search warrants directed against the
petitioners and/or "the President and/or General Manager" of the particular
corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches
and seizures were to be made, and were actually made, in the
"office/house/warehouse/premises" owned by or under the control of the
petitioners.
Ownership of matters seized gives "standing."
Ownership of the properties seized alone entitles the petitioners to bring a motion
to return and suppress, and gives them standing as persons aggrieved by an
unlawful search and seizure regardless of their location at the time of
seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the
apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d. 650,
652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the
defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics
seized in an apartment not belonging to the defendant); Pielow vs. United States, 8
F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but
belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th
Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of
the defendant).
In a very recent case (decided by the U.S. Supreme Court on December 12, 1966),
it was held that under the constitutional provision against unlawful searches and
seizures, a person places himself or his property within a constitutionally protected
area, be it his home or his office, his hotel room or his automobile:
Where the argument falls is in its misapprehension of the fundamental
nature and scope of Fourth Amendment protection. What the Fourth
Amendment protects is the security a man relies upon when he places
himself or his property within a constitutionally protected area, be it his
home or his office, his hotel room or his automobile. There he is protected
from unwarranted governmental intrusion. And when he puts some thing in
his filing cabinet, in his desk drawer, or in his pocket, he has the right to
know it will be secure from an unreasonable search or an unreasonable
seizure. So it was that the Fourth Amendment could not tolerate the
warrantless search of the hotel room in Jeffers, the purloining of the
petitioner's private papers in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases which have come to this
Court over the years have involved a myriad of differing factual contexts in
which the protections of the Fourth Amendment have been appropriately
invoked. No doubt, the future will bring countless others. By nothing we say
here do we either foresee or foreclose factual situations to which the Fourth
Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December
12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13,
1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal interest in the records and documents
seized, the petitioners have standing to move for return and suppression by virtue
of their proprietary or leasehold interest in many of the premises searched. These
proprietary and leasehold interests have been sufficiently set forth in their motion
for reconsideration and need not be recounted here, except to emphasize that the
petitioners paid rent, directly or indirectly, for practically all the premises searched
(Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008,
Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the
corporate offices (IBMC, USTC); had made improvements or furnished such
offices; or had paid for the filing cabinets in which the papers were stored (Room
204, Army & Navy Club); and individually, or through their respective spouses,
owned the controlling stock of the corporations involved. The petitioners'
proprietary interest in most, if not all, of the premises searched therefore
independently gives them standing to move for the return and suppression of the
books, papers and affects seized therefrom.
In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature
and extent of the interest in the searched premises necessary to maintain a motion
to suppress. After reviewing what it considered to be the unduly technical standard
of the then prevailing circuit court decisions, the Supreme Court said (362 U.S.
266):
We do not lightly depart from this course of decisions by the lower courts.
We are persuaded, however, that it is unnecessarily and ill-advised to import
into the law surrounding the constitutional right to be free from
unreasonable searches and seizures subtle distinctions, developed and
refined by the common law in evolving the body of private property law
which, more than almost any other branch of law, has been shaped by
distinctions whose validity is largely historical. Even in the area from which
they derive, due consideration has led to the discarding of those distinctions
in the homeland of the common law. See Occupiers' Liability Act, 1957, 5
and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report,
Cmd. 9305. Distinctions such as those between "lessee", "licensee,"
"invitee," "guest," often only of gossamer strength, ought not be
determinative in fashioning procedures ultimately referable to constitutional
safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17
(1961).
It has never been held that a person with requisite interest in the premises searched
must own the property seized in order to have standing in a motion to return and
suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for
several corporations from whose apartment the corporate records were seized
successfully moved for their return. In United States vs. Antonelli, Fireworks Co.,
53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully
moved for the return and suppression is to him of both personal and corporate
documents seized from his home during the course of an illegal search:
The lawful possession by Antonelli of documents and property, "either his
own or the corporation's was entitled to protection against unreasonable
search and seizure. Under the circumstances in the case at bar, the search
and seizure were unreasonable and unlawful. The motion for the return of
seized article and the suppression of the evidence so obtained should be
granted. (Emphasis supplied).
Time was when only a person who had property in interest in either the place
searched or the articles seize had the necessary standing to invoke the protection of
the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948),
Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that
"even a guest may expect the shelter of the rooftree he is under against criminal
intrusion." This view finally became the official view of the U.S. Supreme Court
and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years
later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court
went a step further. Jones was a mere guest in the apartment unlawfully searched
but the Court nonetheless declared that the exclusionary rule protected him as well.
The concept of "person aggrieved by an unlawful search and seizure" was enlarged
to include "anyone legitimately on premise where the search occurs."
Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals
for the Fifth Circuit held that the defendant organizer, sole stockholder and
president of a corporation had standing in a mail fraud prosecution against him to
demand the return and suppression of corporate property. Henzel vs. United States,
296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that the defendant
had standing on two independent grounds: First — he had a sufficient interest in
the property seized, and second — he had an adequate interest in the premises
searched (just like in the case at bar). A postal inspector had unlawfully searched
the corporation' premises and had seized most of the corporation's book and
records. Looking to Jones, the court observed:
Jones clearly tells us, therefore, what is not required qualify one as a "person
aggrieved by an unlawful search and seizure." It tells us that appellant
should not have been precluded from objecting to the Postal Inspector's
search and seizure of the corporation's books and records merely because the
appellant did not show ownership or possession of the books and records or
a substantial possessory interest in the invade premises . . . (Henzel vs.
United States, 296 F. 2d at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th
Cir. 1962). In Villano, police officers seized two notebooks from a desk in the
defendant's place of employment; the defendant did not claim ownership of either;
he asserted that several employees (including himself) used the notebooks. The
Court held that the employee had a protected interest and that there also was an
invasion of privacy. Both Henzel and Villano considered also the fact that the
search and seizure were "directed at" the moving defendant. Henzel vs. United
States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683.
In a case in which an attorney closed his law office, placed his files in storage and
went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his
standing to move to quash as unreasonable search and seizure under the Fourth
Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed
to the custodian of his files. The Government contended that the petitioner had no
standing because the books and papers were physically in the possession of the
custodian, and because the subpoena was directed against the custodian. The court
rejected the contention, holding that
Schwimmer legally had such possession, control and unrelinquished
personal rights in the books and papers as not to enable the question of
unreasonable search and seizure to be escaped through the mere procedural
device of compelling a third-party naked possessor to produce and deliver
them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956).
Aggrieved person doctrine where the search warrant s primarily directed against
said person gives "standing."
The latest United States decision squarely in point is United States vs. Birrell, 242
F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an
attorney certain files and papers, which attorney, by the name of Dunn, was not, at
the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored
most of the records at his home in the country and on a farm which, according to
Dunn's affidavit, was under his (Dunn's) "control and management." The papers
turned out to be private, personal and business papers together with corporate
books and records of certain unnamed corporations in which Birrell did not even
claim ownership. (All of these type records were seized in the case at bar).
Nevertheless, the search in Birrell was held invalid by the court which held that
even though Birrell did not own the premises where the records were stored, he
had "standing" to move for the return of all the papers and properties seized. The
court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F.
Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S.,
supra, pointed out that
It is overwhelmingly established that the searches here in question were
directed solely and exclusively against Birrell. The only person suggested in
the papers as having violated the law was Birrell. The first search warrant
described the records as having been used "in committing a violation of
Title 18, United States Code, Section 1341, by the use of the mails by one
Lowell M. Birrell, . . ." The second search warrant was captioned: "United
States of America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than ownership, gives standing
to move to suppress. Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least constructive possession of the
records stored with Dunn, it matters not whether he had any interest in the
premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58,
187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459
(1951).
The ruling in the Birrell case was reaffirmed on motion for reargument; the United
States did not appeal from this decision. The factual situation in Birrell is
strikingly similar to the case of the present petitioners; as in Birrell, many personal
and corporate papers were seized from premises not petitioners' family residences;
as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY AND
EXCLUSIVELY" against the petitioners. Still both types of documents were
suppressed in Birrell because of the illegal search. In the case at bar, the petitioners
connection with the premises raided is much closer than in Birrell.
Thus, the petitioners have full standing to move for the quashing of all the warrants
regardless whether these were directed against residences in the narrow sense of
the word, as long as the documents were personal papers of the petitioners or (to
the extent that they were corporate papers) were held by them in a personal
capacity or under their personal control.
Prescinding a from the foregoing, this Court, at all events, should order the return
to the petitioners all personal and private papers and effects seized, no matter
where these were seized, whether from their residences or corporate offices or any
other place or places. The uncontradicted sworn statements of the petitioners in
their, various pleadings submitted to this Court indisputably show that amongst the
things seized from the corporate offices and other places
were personal and private papers and effects belonging to the petitioners.
If there should be any categorization of the documents, papers and things which
where the objects of the unlawful searches and seizures, I submit that the grouping
should be: (a) personal or private papers of the petitioners were they were
unlawfully seized, be it their family residences offices, warehouses and/or
premises owned and/or possessed (actually or constructively) by them as shown in
all the search and in the sworn applications filed in securing the void search
warrants and (b) purely corporate papers belonging to corporations. Under such
categorization or grouping, the determination of which unlawfully seized papers,
documents and things are personal/private of the petitioners or purely corporate
papers will have to be left to the lower courts which issued the void search
warrants in ultimately effecting the suppression and/or return of the said
documents.
And as unequivocally indicated by the authorities above cited, the petitioners
likewise have clear legal standing to move for the suppression of purely
corporate papers as "President and/or General Manager" of the corporations
involved as specifically mentioned in the void search warrants.
Finally, I must articulate my persuasion that although the cases cited in my
disquisition were criminal prosecutions, the great clauses of the constitutional
proscription on illegal searches and seizures do not withhold the mantle of their
protection from cases not criminal in origin or nature.
Columbia Pictures v. Flores, G.R. No. 78631, June 29, 1993
Before us is a petition for certiorari seeking to set aside the order dated May 29,
1987 of the Regional Trial Court of the National Capital Region (Branch 167,
Pasig) directing the immediate release and return of television sets, video cassette
recorders, rewinders, tape head cleaners, accessories, equipment, and other
paraphernalia or pieces of machinery which had been seized by operatives of the
National Bureau of Investigation by virtue of a search warrant.chanrobles virtual
lawlibrary
Petitioners herein are all foreign corporations organized and existing under the
laws of the United States of America and represented in the Philippines by their
attorney-in-fact, Rebecca Benitez-Cruz of the Motion Picture Association of
America, Inc. (MPAA for brevity). Private respondent FGT Video Network, Inc. is
a merger of Fox, Galactic, and Technica Video. It is registered with and licensed
by the Videogram Regulatory Board as a distributor under License No. 1333
VMM. Technica Video, Inc. which is part of the merger, is registered with and
licensed as a reproducer by the said board under License No. 967 VMM (p. 11,
Rollo).
In a letter dated April 20, 1987, the MPAA, through counsel Rico V. Domingo,
lodged a complaint before then Director Antonio Carpio of the National Bureau of
Investigation (NBI) against certain video establishments for violation of
Presidential Decree No. 49 (Protection of Intellectual Property), as amended by
Presidential Decree No. 1988, in connection with its anti-piracy campaign.
Specifically complaining of the "unauthorized sale, rental, reproduction and/or
disposition of copyrighted film", the MPAA sought the NBI’s "urgent assistance in
the conduct of search and seizure operations in Metro Manila and elsewhere." (p.
29, Rollo.)
On the basis of said letter, NBI and private agents conducted discreet surveillance
operations on certain video establishments, among them private respondent FGT
Video Network, Inc. (FGT). Thus, on April 20, 1987, Danilo Manalang, a.k.a.
Ronaldo Lim, allegedly an NBI agent, went to the office of FGT to have the
copyrighted motion pictures "Cleopatra" owned by Twentieth Century Fox Film
Corp. and "The Ten Commandments" owned by Paramount Pictures, Inc.
reproduced or retaped in video format. For the reproduction services, FGT issued
Order Slip No. 3482 dated April 20, 1987 and Delivery Slip No. 118667 dated
April 22, 1987, for which services Danilo Manalang paid P45.00. On May 5, 1987,
Manalang also had MGM’s copyrighted film "Walk Like a Man" reproduced or
retaped by FGT for P15.00 (p. 5, Rollo).chanrobles.com.ph : virtual law library
Consequently, on May 14, 1987, NBI Agent III Lauro C. Reyes, with Manalang
and Rebecca Benitez-Cruz as witnesses, applied for a search warrant with the
Regional Trial Court in Pasig. Introduced as evidence in support of the application
were the following: the letter dated April 20, 1987 of the MPAA through Rico V.
Domingo (Exh. A): FGT’s Order Slip No. 3842 (Exh. B); FGT’s Delivery Slip No.
118667 (Exh. B-1); video cassettes containing the film "The Ten Commandments"
(Exh. B-1-A, B-1-B); video cassette containing the film "Cleopatra" (Exh. B-1-C);
video cassette containing the film "Walk Like a Man" (Exh. B-1-D); FGT’s Order
Slip No. 3923 dated May 5, 1987 (Exh. B-2); FGT’s Delivery Slip No. 123321
dated May 6, 1987 (Exh. B-3); list of copyrighted MPAA member company titles
(Exh. C); sketch of location of FGT’s office or premises (Exh. D); affidavit of
Rebecca Benitez-Cruz (Exh. E); special power of attorney designating Ms.
Benitez-Cruz as petitioners’ attorney-in-fact (Exh. F to F-8); and affidavit of
Danilo Manalang (Exh. G).chanrobles law library : red
Upon the offer of these pieces of evidence, Judge Alfredo C. Flores of the
aforesaid court, issued Search Warrant No. 45 which reads:chanrob1es virtual 1aw
library
TO ANY PEACE OFFICER:chanrob1es virtual 1aw library
GREETINGS:chanrob1es virtual 1aw library
It appearing to the satisfaction of the Undersigned after examining under oath NBI
Senior Agent Lauro C. Reyes and his witnesses Mr. Danilo Manalang and Ms.
Rebecca Benitez-Cruz, that there is a probable cause to believe that Violation of
Section 56 P.D. No. 49 as amended by P.D. No. 1988 (otherwise known as the
Decree on Protection of Intellectual Property) has been committed and that there
are good and sufficient reasons to believe that FGT Video Network, Inc., Manuel
Mendoza, Alfredo C. Ongyanco, Eric Apolonio, Susan Yang and Eduardo Yotoko
are responsible and have in control/possession at No. 4 Epifanio de los Santos
corner Connecticut, Greenhills, San Juan, Metro Manila (per attached sketch and
list of MPAA member Company Titles) the following properties to wit:chanrob1es
virtual 1aw library
(a) Pirated video tapes of the copyrighted motion pictures/films the titles of which
are mentioned in the attached list;
(b) Posters, advertising leaflets, flyers, brochures, invoices, lists of titles being
reproduced or retaped, journals, ledgers, jon (sic) order slips, delivery slips and
books of accounts bearing and/or mentioning the pirated films with titles (as per
attached list), or otherwise used in the reproduction/repating business of the
defendants;
(c) Television sets, video cassette recorders, rewinders, tape head cleaners,
accessories, equipment and other machines and paraphernalia or materials used or
intended to be used in the unlawful sale, lease, distribution, or possession for
purpose of sale, lease, distribution, circulation or public exhibition of the abovementioned pirated video tapes which they are keeping and concealing in the
premises above-described, which should be seized and brought to the Undersigned.
You are hereby commanded to make an immediate search at any time in the day
between 8:00 A.M. to 5:00 P.M. of the premises above-described and forthwith
seize and take possession of the above-enumerated personal properties, and bring
said properties to the undersigned immediately upon implementation to be dealt
with as the law directs.
WITNESS MY HAND this 14th day of May, 1987, at Pasig, Metro Manila. (pp.
30-31, Rollo; Emphasis supplied.)
At or about high noon of the same day, agents from the NBI, led by Lauro C.
Reyes and Mamerto Espartero, with the assistance of the personnel of the
Videogram Regulatory Board headed by Elmer San Pascual, duly served Search
Warrant No. 45 on the operators or representatives of FGT. In the course of the
search of the premises of FGT, the NBI agents found and seized various video
tapes of duly copyrighted motion pictures or films owned and exclusively
distributed by petitioners. Also seized were machines and equipment, television
sets, paraphernalia, materials, accessories, rewinders, tape head cleaners,
statements of order, return slips, video prints, flyers, production orders, and
posters. Inventories of these seized articles were then prepared and copies thereof
were furnished Jess Ayson, production manager of FGT. On May 18, 1987, the
NBI agents filed a return of the search warrant with a motion to retain custody of
the seized items (p. 32, Rollo).
Meanwhile, FGT filed an urgent motion for the immediate release of equipment
and accessories "not covered" by the search warrant, without prejudice to the filing
of a motion to quash the said search warrant (p. 101, Rollo). It argued that as a
licensed video reproducer, FGT had the right to maintain possession of the seized
reproduction equipment and paraphernalia which are not contraband or illegal per
se, but are rather "exclusively used and intended to be used for reproduction" and
not in the "sale, lease, distribution or possession for purposes of sale, lease
distribution, circulation or public exhibition of pirated video tapes." (p. 102,
Rollo.)chanrobles law library
Petitioners opposed the motion, asserting that the seized articles were all lawfully
taken. They explained that since FGT was a videogram distributor and not a
reproducer, "it may be logically concluded that such 634 VCRs, accessories, etc."
were "used or intended to be used in the unlawful sale, lease, distribution or
possession for purposes of sale, lease, distribution, circulation or public exhibition
of, at the very least, the 310 videocassette tapes containing the copyrighted
films/motion pictures." They asserted that Search Warrant No. 45 was issued upon
the proper determination of probable cause and that, therefore, it is not for FGT "to
second-guess the wisdom" of the court’s directive to seize the questioned VCRs
and accessories "as an inquiry thereon would involve evidentiary matters which are
better ventilated in the criminal prosecution proper." (pp. 107-116, Rollo.)
Finding that FGT was a "registered and duly licensed distributor and in certain
instances and under special instructions and conditions . reproducer of videograms"
and that, therefore, its right to possess and use the seized equipment had been
"placed in serious doubt", the lower court resolved the doubt "against the
Government and in favor of a lawful business enterprise." Applying the
constitutional precept of presumption of innocence and considering that the seized
articles are not contraband, respondent court ruled that to allow the Government
"to keep possession of the equipment(s) and machines where there is no actual
criminal charge" would amount to a "confiscation in violation of the due process
clause of the constitution, notwithstanding the filing by the Director of the NBI of
a letter to the Department of Justice recommending that the defendants be charged
with violation of Section 56 of P.D. No. 49, as amended by P.D. No. 1988." (pp.
131-132, Rollo.)
Thus, in its order on May 29, 1987, the lower court granted FGT’s motion and
ordered the immediate release and return of the "television sets, video cassette
recorders, rewinders, tape head cleaners, accessories, equipment and other
machines or paraphernalias, as reflected in the ‘Receipt for Properties Seized’
attached to the records of the case beginning from page 84 to page 130, to the
defendants, excluding video cassette tapes reflected in the ‘Receipts for Properties
Seized’, beginning from page 132 to page 146 of the records." Respondent court
also ordered the inventory of all articles returned with individual descriptions "to
evidence their existence" copies of which inventory should be furnished the NBI
and the court (p. 132, Rollo).
Hence, the present recourse.
As prayed for by petitioners, on June 17, 1987, the Court issued a temporary
restraining order enjoining respondents from implementing the lower court’s order
of May 29, 1987 upon a bond in the amount of P750,000.00 which petitioners
accordingly posted on June 19, 1987. (pp. 138-141,
Rollo.)chanrobles.com:cralaw:red
The sole issue to be resolved is whether or not the lower court acted with grave
abuse of discretion amounting to lack of jurisdiction in ordering the immediate
release and return of some of the items seized by virtue of the search warrant.
Petitioners insist that the search warrant was issued upon due determination of
probable cause. They argue that FGT’s act of illegally reproducing copyrighted
films had been clearly established by evidence on record and that FGT’s principal
ground in praying for the immediate release of the seized articles is a matter of
defense which should be ventilated at the trial of the case on the merits.chanrobles
virtual lawlibrary
Private respondents, on the other hand, claim that the issuance of Search Warrant
No. 45 is tainted with illegality as no particular or specific acts or omissions
constituting the offense charged had been alleged in the application for its
issuance.
The right to security against unreasonable searches and seizures is guaranteed
under Section 2, Article III of the 1987 Constitution which provides:chanrob1es
virtual 1aw library
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 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.
Thus, Sections 3 and 4 of Rule 126 of the Rules of Court provide for the requisites
in the issuance of search warrants:chanrob1es virtual 1aw library
SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue
but upon probable cause in connection with one specific offense 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 things to be seized.
SEC. 4. Examination of complainant; record. — The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.
In issuing a search warrant, the judge must strictly comply with the constitutional
and statutory requirements. He must determine the existence of probable cause by
personally examining the applicant and his witnesses in the form of searching
questions (Silva v. Presiding Judge, RTC of Negros Oriental, Br. XXXIII (203
SCRA 140 [1991]). The search warrant must contain a specific description of the
place to be searched and the articles sought to be seized must be described with
particularity (Pendon v. Court of Appeals, 191 SCRA 429 [1990]).
Withal, measured by the foregoing constitutional and legal provisions as well as
the existing jurisprudence on the matter, we find that Search Warrant No. 45 fails
to satisfy the test of legality. More so because the Court has previously decided a
case dealing with virtually the same search warrant.
In 20th Century Fox Film Corp. v. Court of Appeals (164 SCRA 655 [1988]),
wherein therein petitioner is also one of the petitioners herein, we upheld the
legality of the order of the lower court lifting the search warrant issued under
circumstances similar to those obtaining in the case at bar.
A striking similarity between the case at bar and 20th Century Fox is the fact that
Search Warrant No. 45, specifically paragraph (c) thereof describing the articles to
be seized, contains an almost identical description as the warrant issued in the 20th
Century Fox case, to wit:chanrob1es virtual 1aw library
(c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners,
accessories, equipments and other machines used or intended to be used in the
unlawful reproduction, sale, rental/lease, distribution of the above-mentioned video
tapes which she is keeping and concealing in the premises above-described. (at p.
664.)
On the propriety of the seizure of the articles above-described, we held in said
case:chanrob1es virtual 1aw library
Television sets, video cassette recorders, rewinders and tape cleaners are articles
which can be found in a video tape store engaged in the legitimate business of
lending or renting out betamax tapes. In short, these articles and appliances are
generally connected with, or related to a legitimate business not necessarily
involving piracy of intellectual property or infringement of copyright laws. Hence,
including these articles without specification and/or particularity that they were
really instruments in violating an Anti-Piracy law makes the search warrant too
general which could result in the confiscation of all items found in any video store.
(at p. 665.)
The language used in paragraph (c) of Search Warrant No. 45 is thus too allembracing as to include all the paraphernalia of FGT in the operation of its
business. As the search warrant is in the nature of a general one, it is
constitutionally objectionable (Corro v. Lising, 137 SCRA 541 [1985]).
In consequence, respondent court was merely correcting its own erroneous
conclusions in issuing Search Warrant No. 45 when it ordered the return of the
seized television sets and other paraphernalia specified in the motion filed by FGT.
This can be gleaned from its statement that" .. the machines and equipment could
have been used or intended to be used in the illegal reproduction of tapes of the
copyrighted motion pictures/films, yet, it cannot be said with moral certainty that
the machines or equipment(s) were used in violating the law by the mere fact that
pirated video tapes of the copyrighted motion pictures/films were reproduced. As
already stated, FGT Video Network, Inc. is a registered and duly licensed
distributor and in certain instances and under special instructions .. reproducer of
videograms, and as such, it has the right to keep in its possession, maintain and
operate reproduction equipment(s) and paraphernalia(s)." (pp. 131-132, Rollo.)
Far from being despotic or arbitrary, respondent judge must be commended for
rectifying his error when he found that his initial conclusions were inaccurate and
erroneous, colliding as they did with the constitutional rights of
private Respondent.
Much has been said in the media about piracy of films and videotapes and that
violators of the law must be brought to the courts but, as the Court said in
Bagalihog v. Fernandez (198 SCRA 614 [1991])," [z]eal in the pursuit of criminals
cannot ennoble the use of arbitrary methods that the Constitution itself abhors." (at
p. 622.)
WHEREFORE, the petition is DISMISSED, the assailed order of May 29, 1987
AFFIRMED, and the temporary restraining order issued on June 18, 1987, vacated
and lifted.
Issue: WON the search warrant (Search Warrant No. 45) is invalid for lacking
particular or specific acts or omissions constituting the offense charged had been
alleged in the application for its issuance.
Ruling: Yes, the search warrant (Search Warrant No. 45) is invalid.
The search warrant must contain a specific description of the place to be
searched and the articles sought to be seized must be described with
particularity (Pendon vs. Court of Appeals, 191 SCRA 429 [1990]).
The Court has previously decided a case dealing with virtually the same search
warrant. Search Warrant No. 45, specifically paragraph (c) thereof describing the
articles to be seized, contains an almost identical description as the warrant issued
in 20th Century Fox Film Corp. vs. Court of Appeals. In the said case, the Court
held:
Television sets, video cassette recorders, rewinders and tape cleaners are
articles which can be found in a video tape store engaged in the legitimate
business of lending or renting out betamax tapes. In short, these articles and
appliances are generally connected with, or related to a legitimate business
not necessarily involving piracy of intellectual property or infringement of
copyright laws. Hence, including these articles without specification and/or
particularity that they were really instruments in violating an Anti-Piracy law
makes the search warrant too general which could result in the confiscation
of all items found in any video store.
The language used in paragraph (c) of Search Warrant No. 45 is thus too allembracing as to include all the paraphernalia of FGT in the operation of its business.
In consequence, respondent court was merely correcting its own erroneous
conclusions in issuing Search Warrant No. 45 when it ordered the return of the seized
television sets and other paraphernalia specified in the motion filed by FGT.
This can be gleaned from its statement that ".. the machines and equipment could
have been used or intended to be used in the illegal reproduction of tapes of the
copyrighted motion pictures/films, yet, it cannot be said with moral certainty that the
machines or equipment(s) were used in violating the law by the mere fact that pirated
video tapes of the copyrighted motion pictures/films were reproduced. As already
stated, FGT Video Network, Inc. is a registered and duly licensed distributor and
in certain instances and under special instructions .. reproducer of videograms,
and as such, it has the right to keep in its possession, maintain and operate
reproduction equipment(s) and paraphernalia(s)."
The SC held that Search Warrant No. 45 fails to satisfy the test of legality. Hence,
the petition was dismissed.
CASE: Prudente v. Dayrit, G.R. No. 82870 December 14, 1989
This is a petition for certiorari to annul and set aside the order of respondent Judge
dated 9 March 1988 which denied the petitioner's motion to quash Search Warrant
No. 87-14, as well as his order dated 20 April 1988 denying petitioner's motion for
reconsideration of the earlier order.
It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the
Intelligence Special Action Division (ISAD) of the Western Police District (WPD)
filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by
respondent Judge Abelardo Dayrit, now Associate Justice of the Court of Appeals.
an application 1 for the issuance of a search warrant, docketed therein as SEARCH
WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of
Firearms, etc.) entitled "People of the Philippines, Plaintiff, versus Nemesis E.
Prudente, Defendant." In his application for search warrant, P/Major Alladin
Dimagmaliw alleged, among others, as follows:
1. That he has been informed and has good and sufficient reasons to
believe that NEMESIO PRUDENTE who may be found at the
Polytechnic University of the Philippines, Anonas St. Sta. Mesa,
Sampaloc, Manila, has in his control or possession firearms,
explosives handgrenades and ammunition which are illegally
possessed or intended to be used as the means of committing an
offense which the said NEMESIO PRUDENTE is keeping and
concealing at the following premises of the Polytechnic University of
the Philippines, to wit:
a. Offices of the Department of Military Science and
Tactics at the ground floor and other rooms at the
ground floor;
b. Office of the President, Dr. Nemesio Prudente at
PUP, Second Floor and other rooms at the second floor;
2. That the undersigned has verified the report and found it to be a
fact, and therefore, believes that a Search Warrant should be issued to
enable the undersigned or any agent of the law to take possession and
bring to this Honorable Court the following described properties:
a. M 16 Armalites with ammunitions;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and handgrenades; and,
d. assorted weapons with ammunitions.
In support of the application for issuance of search warrant, P/Lt. Florenio C.
Angeles, OIC of the Intelligence Section of (ISAD) executed a "Deposition of
Witness" dated 31 October 1987, subscribed and sworn to before respondent
Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as follows:
Q: Do you know P/Major Alladin Dimagmaliw, the
applicant for a Search Warrant?
A: Yes, sir, he is the Chief, Intelligence and Special
Action Division, Western Police District.
Q: Do you know the premises of Polytechnic University
of the Philippines at Anonas St., Sta. Mesa, Sampaloc,
Manila
A: Yes, sir, the said place has been the subject of our
surveillance and observation during the past few days.
Q: Do you have personal knowledge that in the said
premises is kept the following properties subject of the
offense of violation of PD No. 1866 or intended to be
used as a means of committing an offense:
a. M 16 Armalites with ammunitions;
b. .38 and 45 Caliber handguns and pistols;
c. explosives and handgrenades; and d. Assorted weapons with
ammunitions?
A: Yes sir.
Q: Do you know who is or who are the person or
persons who has or have control of the above-described
premises?
A: Yes sir, it is Dr. Nemesio Prudente, President of the
Polytechnic University of the Philippines.
Q: How do you know that said property is subject of the
offense of violation of Pres. Decree No. 1866 or
intended to be used as the means of committing an
offense?
A: Sir, as a result of our continuous surveillance
conducted for several days, we gathered information
from verified sources that the holder of said firearms
and explosives as well as ammunitions aren't licensed to
possess said firearms and ammunition. Further, the
premises is a school and the holders of these firearms
are not students who were not supposed to possess
firearms, explosives and ammunition.
On the same day, 31 October 1987, respondent Judge issued Search Warrant No.
87-14, 3 the pertinent portions of which read as follows:
It appearing to the satisfaction of the undersigned, after examining
under oath applicant ALLADIN M. DIMAGMALIW and his witness
FLORENIO C. ANGELES that there are good and sufficient reasons
to believe (probable cause) that NEMESIO PRUDENTE has in his
control in the premises of Polytechnic University of the Philippines,
Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are
subject of the above offense or intended to be used as the means of
committing the said offense.
You are hereby commanded to make an immediate search at any time
in the day or night of the premises of Polytechnic University of the
Philippines, more particularly (a) offices of the Department of
Military Science and Tactics at the ground floor and other rooms at
the ground floor; (b) office of the President, Dr. Nemesio Prudente at
PUP, Second Floor and other rooms at the second floor, and forthwith
seize and take possession of the following personal properties, to wit:
a. M 16 Armalites with ammunition;
b. .38 and .45 Caliber handguns and pistols;
c. explosives and hand grenades; and
d. assorted weapons with ammunitions.
and bring the above described properties to the undersigned to be
dealt with as the law directs.
On 1 November 1987, a Sunday and All Saints Day, the search warrant was
enforced by some 200 WPD operatives led by P/Col. Edgar Dula Torre, Deputy
Superintendent, WPD, and P/Major Romeo Maganto, Precinct 8 Commander.
In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of
the searching team, alleged that he found in the drawer of a cabinet inside the wash
room of Dr. Prudente's office a bulging brown envelope with three (3) live
fragmentation hand grenades separately wrapped with old newspapers, classified
by P/Sgt. J.L. Cruz as follows (a) one (1) pc.—M33 Fragmentation hand grenade
(live); (b) one (11) pc.—M26 Fragmentation hand grenade (live); and (c) one (1)
pc.—PRB—423 Fragmentation hand grenade (live).
On 6 November 1987, petitioner moved to quash the search warrant. He claimed
that (1) the complainant's lone witness, Lt. Florenio C. Angeles, had no personal
knowledge of the facts which formed the basis for the issuance of the search
warrant; (2) the examination of the said witness was not in the form of searching
questions and answers; (3) the search warrant was a general warrant, for the reason
that it did not particularly describe the place to be searched and that it failed to
charge one specific offense; and (4) the search warrant was issued in violation of
Circular No. 19 of the Supreme Court in that the complainant failed to allege under
oath that the issuance of the search warrant on a Saturday was urgent. 5
The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and Legal
Affairs Division, WPD, opposed the motion. 6 After petitioner had filed his
reply 7 to the opposition, he filed a supplemental motion to quash. 8
Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the
petitioner's motion and supplemental motion to quash. Petitioner's motion for
reconsideration 10 was likewise denied in the order 11 dated 20 April 1988.
Hence, the present recourse, petitioner alleging that respondent Judge has decided
a question of substance in a manner not in accord with law or applicable decisions
of the Supreme Court, or that the respondent Judge gravely abused his discretion
tantamount to excess of jurisdiction, in issuing the disputed orders.
For a valid search warrant to issue, there must be probable cause, which is 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.12 The probable cause
must be in connection with one specific offense 13 and the judge must, before
issuing the warrant, personally examine in the form of searching questions and
answers, in writing and under oath, the complainant and any witness he may
produce, on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted. 14
The "probable cause" for a valid search warrant, has been defined "as such facts
and circumstances which would lead a reasonably discreet arid prudent man to
believe that an offense has been committed, and that objects sought in connection
with the offense are in the place sought to be searched." 15 This probable cause
must be shown to be within the personal knowledge of the complainant or the
witnesses he may produce and not based on mere hearsay. 16
Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it
was issued on the basis of facts and circumstances which were not within the
personal knowledge of the applicant and his witness but based on hearsay
evidence. In his application for search warrant, P/Major Alladin Dimagmaliw
stated that "he has been informed" that Nemesio Prudente "has in his control and
possession" the firearms and explosives described therein, and that he "has verified
the report and found it to be a fact." On the other hand, in his supporting
deposition, P/Lt. Florenio C. Angeles declared that, as a result of their continuous
surveillance for several days, they "gathered informations from verified sources"
that the holders of the said fire arms and explosives are not licensed to possess
them. In other words, the applicant and his witness had no personal knowledge of
the facts and circumstances which became the basis for issuing the questioned
search warrant, but acquired knowledge thereof only through information from
other sources or persons.
While it is true that in his application for search warrant, applicant P/Major
Dimagmaliw stated that he verified the information he had earlier received that
petitioner had in his possession and custody the t there is nothing in the record to
show or indicate how and when said applicant verified the earlier information
acquired by him as to justify his conclusion that he found such information to be a
fact. He might have clarified this point if there had been searching questions and
answers, but there were none. In fact, the records yield no questions and answers,
whether searching or not, vis-a-vis the said applicant.
What the records show is the deposition of witness, P/Lt. Angeles, as the only
support to P/Major Dimagmaliw's application, and the said deposition is based on
hearsay. For, it avers that they (presumably, the police authorities) had conducted
continuous surveillance for several days of the suspected premises and, as a result
thereof, they "gathered information from verified sources" that the holders of the
subject firearms and explosives are not licensed to possess them.
In Alvarez vs. Court of First Instance, 17 this Court laid the following test in
determining whether the allegations in an application for search warrant or in a
supporting deposition, are based on personal knowledge or not—
The true test of sufficiency of a deposition or affidavit to warrant
issuance of a search warrant is whether it has been drawn in a manner
that perjury could be charged thereon and the affiant be held liable for
damage caused. The oath required must refer to the truth of the facts
within the personal knowledge of the applicant for search warrant,
and/or his witnesses, not of the facts merely reported by a person
whom one considers to be reliable.
Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his
deposition, do not come up to the level of facts of his personal knowledge so much
so that he cannot be held liable for perjury for such allegations in causing the
issuance of the questioned search warrant.
In the same Alvarez case, 18 the applicant stated that his purpose for applying for a
search warrant was that: "It had been reported to me by a person whom I consider
to be reliable that there are being kept in said premises books, documents, receipts,
lists, chits and other papers used by him in connection with his activities as a
money lender, challenging usurious rate of interests, in violation of law." The
Court held that this was insufficient for the purpose of issuing a search warrant.
In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had
been a report to the affiant by a person whom lie considered reliable that in said
premises were "fraudulent books, correspondence and records," this was likewise
held as not sufficient for the purpose of issuing a search warrant. Evidently, the
allegations contained in the application of P/ Major Alladin Dimagmaliw and the
declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis
for the issuance of a valid search warrant. As held in the Alvarez case:
The oath required must refer to the truth of the facts within the
personal knowledge of the petitioner or his witnesses, because the
purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the
warrant, of the existence of probable cause.
Besides, respondent Judge did not take the deposition of the applicant as required
by the Rules of Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the
complainant and his witnesses are thus not sufficient. The examining Judge has to
take depositions in writing of the complainant and the witnesses he may produce
and attach them to the record."
Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was
too brief and short. Respondent Judge did not examine him "in the form of
searching questions and answers." On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs.
NBI," 21 the questions propounded by respondent Executive Judge to the applicant's
witness are not sufficiently searching to establish probable cause. Asking of
leading questions to the deponent in an application for search warrant, and
conducting of examination in a general manner, would not satisfy the requirements
for issuance of a valid search warrant."
Manifestly, in the case at bar, the evidence failed to show the existence of probable
cause to justify the issuance of the search warrant. The Court also notes post
facto that the search in question yielded, no armalites, handguns, pistols, assorted
weapons or ammunitions as stated in the application for search warrant, the
supporting deposition, and the search warrant the supporting hand grenades were
itself Only three (3) live fragmentation found in the searched premises of the PUP,
according to the affidavit of an alleged member of the searching party.
The Court avails of this decision to reiterate the strict requirements for
determination of "probable cause" in the valid issuance of a search warrant, as
enunciated in earlier cases. True, these requirements are stringent but the purpose
is to assure that the constitutional right of the individual against unreasonable
search and seizure shall remain both meaningful and effective.
Petitioner also assails the validity of the search warrant on the ground that it failed
to particularly describe the place to be searched, contending that there were several
rooms at the ground floor and the second floor of the PUP.
The rule is, that a description of a place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and Identify the place
intended .22 In the case at bar, the application for search warrant and the search
warrant itself described the place to be searched as the premises of the Polytechnic
University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila
more particularly, the offices of the Department of Military Science and Tactics at
the ground floor, and the Office of the President, Dr. Nemesio Prudente, at PUP,
Second Floor and other rooms at the second floor. The designation of the places to
be searched sufficiently complied with the constitutional injunction that a search
warrant must particularly describe the place to be searched, even if there were
several rooms at the ground floor and second floor of the PUP.
Petitioner next attacks the validity of the questioned warrant, on the ground that it
was issued in violation of the rule that a search warrant can be issued only in
connection with one specific offense. The search warrant issued by respondent
judge, according to petitioner, was issued without any reference to any particular
provision of PD No. 1866 that was violated when allegedly P.D. No. 1866
punishes several offenses.
In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon
applications stating that the natural and juridical persons therein named had
committed a "violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue Code and Revised Penal Code," the Court held that no specific offense
had been alleged in the applications for a search warrant, and that it would be a
legal hearsay of the highest order to convict anybody of a "Violation of Central
Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal
Code" without reference to any determinate provision of said laws and codes.
In the present case, however, the application for search warrant was captioned:
"For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the said
decree punishes several offenses, the alleged violation in this case was, qualified
by the phrase "illegal possession of firearms, etc." As explained by respondent
Judge, the term "etc." referred to ammunitions and explosives. In other words, the
search warrant was issued for the specific offense of illegal possession of firearms
and explosives. Hence, the failure of the search warrant to mention the particular
provision of PD No. 1-866 that was violated is not of such a gravity as to call for
its invalidation on this score. Besides, while illegal possession of firearms is
penalized under Section 1 of PD No. 1866 and illegal possession of explosives is
penalized under Section 3 thereof, it cannot be overlooked that said decree is a
codification of the various laws on illegal possession of firearms, ammunitions and
explosives; such illegal possession of items destructive of life and property are
related offenses or belong to the same species, as to be subsumed within the
category of illegal possession of firearms, etc. under P.D. No. 1866. As observed
by respondent Judge: 24
The grammatical syntax of the phraseology comparative with the title
of PD 1866 can only mean that illegal possession of firearms,
ammunitions and explosives, have been codified under Section 1 of
said Presidential Decree so much so that the second and third are
forthrightly species of illegal possession of firearms under Section (1)
thereof It has long been a practice in the investigative and prosecution
arm of the government, to designate the crime of illegal possession of
firearms, ammunitions and explosives as 'illegal possession of
firearms, etc.' The Constitution as well as the Rules of Criminal
Procedure does not recognize the issuance of one search warrant for
illegal possession of firearms, one warrant for illegal possession of
ammunitions, and another for illegal possession of explosives.
Neither is the filing of three different informations for each of the
above offenses sanctioned by the Rules of Court. The usual practice
adopted by the courts is to file a single information for illegal
possession of firearms and ammunitions. This practice is considered
to be in accordance with Section 13, Rule 110 of the 1985 Rules on
Criminal Procedure which provides that: 'A complaint or information
must charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various
offenses. Describably, the servers did not search for articles other than
firearms, ammunitions and explosives. The issuance of Search
Warrant No. 87-14 is deemed profoundly consistent with said rule
and is therefore valid and enforceable. (Emphasis supplied)
Finally, in connection with the petitioner's contention that the failure of the
applicant to state, under oath, the urgent need for the issuance of the search
warrant, his application having been filed on a Saturday, rendered the questioned
warrant invalid for being violative of this Court's Circular No. 19, dated 14 August
1987, which reads:
3. Applications filed after office hours, during Saturdays, Sundays
and holidays shall likewise be taken cognizance of and acted upon by
any judge of the court having jurisdiction of the place to be searched,
but in such cases the applicant shall certify and state the facts under
oath, to the satisfaction of the judge, that the issuance is urgent.
it would suffice to state that the above section of the circular merely provides for a
guideline, departure from which would not necessarily affect the validity of an
otherwise valid search warrant.
WHEREFORE, all the foregoing considered, the petition is GRANTED. The
questioned orders dated 9 March 1988 and 20 April 1988 as well as Search
Warrant No. 87-14 are hereby ANNULLED and SET ASIDE.
The three (3) live fragmentation hand grenades which, according to Ricardo Y.
Abando, a member of the searching team, were seized in the washroom of
petitioner's office at the PUP, are ordered delivered to the Chief, Philippine
Constabulary for proper disposition.
SO ORDERED.
Issue Related to the Topic: Whether the warrant was issued in violation of the
rule that a search warrant can be issued only in connection with one specific
offense, given that it was issued without any reference to any particular
provision of PD No. 1866 that was violated when allegedly P.D. No. 1866
punishes several offenses.
Ruling: No, the failure of the search warrant to mention the particular provision of
PD No. 1-866 that was violated is not of such a gravity as to call for its invalidation
on this score.
Explanation by the Supreme Court:
In Stonehill vs. Diokno, Where the warrants involved were issued upon applications
stating that the natural and juridical persons therein named had committed a
"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code
and Revised Penal Code," the Court held that no specific offense had been alleged
in the applications for a search warrant, and that it would be a legal hearsay of the
highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and
Customs Laws, Internal Revenue Code and Revised Penal Code" without reference
to any determinate provision of said laws and codes.
In this case, however, the application for search warrant was captioned: "For
Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the said decree
punishes several offenses, the alleged violation in this case was qualified by the
phrase "illegal possession of firearms, etc." As explained by the respondent Judge,
the term "etc." referred to ammunition and explosives. In other words, the search
warrant was issued for the specific offense of illegal possession of firearms and
explosives. Hence, the failure of the search warrant to mention the particular
provision of PD No. 1-866 that was violated is not of such a gravity as to call for
its invalidation on this score. Besides, while illegal possession of firearms is
penalized under Section 1 of PD No. 1866 and illegal possession of explosives is
penalized under Section 3 thereof, it cannot be overlooked that said decree is a
codification of the various laws on illegal possession of firearms, ammunitions and
explosives; such illegal possession of items destructive of life and property are
related offenses or belong to the same species, as to be subsumed within the category
of illegal possession of firearms, etc. under P.D. No. 1866. As observed by
respondent Judge:
The grammatical syntax of the phraseology comparative with the title
of PD 1866 can only mean that illegal possession of firearms,
ammunitions and explosives, have been codified under Section 1 of
said Presidential Decree so much so that the second and third are
forthrightly species of illegal possession of firearms under Section (1)
thereof It has long been a practice in the investigative and prosecution
arm of the government, to designate the crime of illegal possession of
firearms, ammunitions and explosives as 'illegal possession of
firearms, etc.' The Constitution as well as the Rules of Criminal
Procedure does not recognize the issuance of one search warrant for
illegal possession of firearms, one warrant for illegal possession of
ammunitions, and another for illegal possession of explosives. Neither
is the filing of three different informations for each of the above
offenses sanctioned by the Rules of Court. The usual practice adopted
by the courts is to file a single information for illegal possession of
firearms and ammunitions. This practice is considered to be in
accordance with Section 13, Rule 110 of the 1985 Rules on Criminal
Procedure which provides that: 'A complaint or information must
charge but one offense, except only in those cases in which existing
laws prescribe a single punishment for various offenses. Describably,
the servers did not search for articles other than firearms, ammunitions
and explosives. The issuance of Search Warrant No. 87-14 is deemed
profoundly consistent with said rule and is therefore valid and
enforceable. (Emphasis supplied)
CASE: People v. Salanguit, G.R. No. 133254-55, April 19, 2001
This is an appeal from the decision,1 dated January 27, 1998, of the Regional Trial
Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko
guilty of violation of §16 of Republic Act No. 6425, as amended, and sentencing
him accordingly to suffer imprisonment ranging from six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum, and of §8 of the same law and sentencing him for such
violation to suffer the penalty of reclusion perpetua and to pay a fine of P700,
000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon City,
Philippines, the said accused, did then and there willfully, unlawfully and
knowingly possess and/or use 11.14 grams of Methamphetamine
Hydrochloride (Shabu) a regulated drug, without the necessary license
and/or prescription therefor, in violation of said law.
CONTRARY TO LAW .2
In Criminal Case No. Q-95-64358, the information charged:
That on or about the 26th day of December 1995, in Quezon City,
Philippines, the said accused not being authorized by law to possess or use
any prohibited drug, did, then and there willfully, unlawfully and knowingly
have in his possession and under his custody and control 1,254 grams of
Marijuana, a prohibited drug.
CONTRARY TO LAW ,3
When arraigned on May 21, 1996, accused-appellant pleaded not
guilty4 whereupon he was tried.
Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico,
forensic chemist and chief of the Physical Science Branch of the Philippine
National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the
Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of
Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence
established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant5 in the Regional
Trial Court, Branch 90, Dasmariñias, Cavite, to search the residence of accused-
appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He
presented as his witness SPO1 Edmund Badua, who testified that as a poseurbuyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The
sale took place in accused-appellant's room, and Badua saw that the shabu was
taken by accused-appellant from a cabinet inside his room. The application was
granted, and a search warrant was later issued by Presiding Judge Dolores L.
Español.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along
with one civilian informer, went to the residence of accused-appellant to serve the
warrant.6
The police operatives knocked on accused-appellant’s door, but nobody opened it.
They heard people inside the house, apparently panicking. The police operatives
then forced the door open and entered the house.7
After showing the search warrant to the occupants of the house, Lt. Cortes and his
group started searching the house.8 They found 12 small heat-sealed transparent
plastic bags containing a white crystalline substance, a paper clip box also
containing a white crystalline substance, and two bricks of dried leaves which
appeared to be marijuana wrapped in newsprint9 having a total weight of
approximately 1,255 grams.10 A receipt of the items seized was prepared, but the
accused-appellant refused to sign it. 11
After the search, the police operatives took accused-appellant with them to Station
10, EDSA, Kamuning, Quezon City, along with the items they had seized.12
PO3 Duazo requested a laboratory examination of the confiscated evidence.13 The
white crystalline substance with a total weight of 2.77 grams and those contained
in a small box with a total weight of 8.37 grams were found to be positive for
methamphetamine hydrochloride. On the other hand, the two bricks of dried
leaves, one weighing 425 grams and the other 850 grams, were found to be
marijuana.14
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were
about to leave their house, they heard a commotion at the gate and on the roof of
their house. Suddenly, about 20 men in civilian attire, brandishing long firearms,
climbed over the gate and descended through an opening in the roof.15
When accused-appellant demanded to be shown a search warrant, a piece of paper
inside a folder was waved in front of him. As accused-appellant fumbled for his
glasses, however, the paper was withdrawn and he had no chance to read it.16
Accused-appellant claimed that he was ordered to stay in one place of the house
while the policemen conducted a search, forcibly opening cabinets and taking his
bag containing money, a licensed .45 caliber firearm, jewelry , and canned goods.17
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA,
Quezon City, where accused-appellant was detained.18
Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony.
Arcano testified that the policemen ransacked their house, ate their food, and took
away canned goods and other valuables. 19
After hearing, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act
No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO
guilty beyond reasonable doubt of the crime charged and he is hereby
accordingly sentenced to suffer an indeterminate sentence with a minimum
of six (6) months of arresto mayor and a maximum of four (4) years and
two (2) months of prision correccional; and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act
No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO
guilty beyond reasonable doubt of the crime charged and he is hereby
accordingly sentenced to suffer reclusion perpetua and to pay a fine of
P700,000.00.
The accused shall further pay the costs of suit.
The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams
of marijuana bricks are hereby confiscated and condemned for disposition
according to law. The evidence custodian of this Court is hereby directed to
turn such substances over to the National Bureau of Investigation pursuant
to law.
SO ORDERED.20
Hence this appeal. Accused-appellant contends that THE COURT A QUO GRAVELY ERRED IN DECLARING THE
SEARCH WARRANT VALID
THE COURT A QUO ERRED IN CONVICTING ACCUSEDAPPELLANT FOR ILLEGAL POSSESSION OF METHAMPHETAMINE
HYDRO-CHLORIDE(SHABU)
THE COURT A QUO GRAVELY ERRED IN CONVICTING
ACCUSSED-APPELLANT FOR VIOLATION §8, R.A. No. 6425
THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE
TWO (2) BRICKS OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT THE
POLICEMEN USED EXCESSIVE FORCE IN ENFORCING THE
SEARCH WARRANT.
Accused-appellant is contesting his conviction on three grounds. First, the
admissibility of the shabu allegedly recovered from his residence as evidence
against him on the ground that the warrant used in obtaining it was invalid.
Second, the admissibility in evidence of the marijuana allegedly seized from
accused-appellant pursuant to the "plain view" doctrine. Third, the employment of
unnecessary force by the police in the execution of the warrant.
First. Rule 126, §4 of the Revised Rules on Criminal Procedure21 provides that a
search warrant shall not issue except upon probable cause in connection with one
specific offense 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 things to be seized which
may be anywhere in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of
the Constitution and the Rules of Criminal Procedure. No presumption of
regularity can be invoked in aid of the process when an officer undertakes to
justify its issuance.22 Nothing can justify the issuance of the search warrant unless
all the legal requisites are fulfilled.
In this case, the search warrant issued against accused-appellant reads:
S
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SEARCH WARRANT
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned after examining under
oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1
EDMUND M. BADUA, PNP that there is probable cause to believe that
ROBERT SALANGUIT has in his possession and control in his premises
Binhagan St., San Jose, Quezon City as shown in Annex "A", the properties
to wit:
UNDETERMINED QUANTITY OF SHABU AND DRUG
PARAPHERNALIA
which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search anytime of the
day/night of the premises above-described and forthwith seize and take
possession of the above-stated properties and bring said properties to the
undersigned to be dealt with as the law directs.
GIVEN UNDER MY HAND this 26th day of December 1995 at Imus,
Cavite, Philippines.
(
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Accused-appellant assails the validity of the warrant on three grounds: (1) that
there was no probable cause to search for drug paraphernalia; (2) that the search
warrant was issued for more than one specific offense; and (3) that the place to be
searched was not described with sufficient particularity.
Existence of Probable Cause
The warrant authorized the seizure of "undetermined quantity of shabu and drug
paraphernalia." Evidence was presented showing probable cause of the existence of
methamphetamine hydrochloride or shabu. Accused-appellant contends, however,
that the search warrant issued is void because no evidence was presented showing
the existence of drug paraphernalia and the same should not have been ordered to
be seized by the trial court.23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence
officer who acted as a poseur-buyer, did not testify in the proceedings for the
issuance of a search warrant on anything about drug paraphernalia. He stated:
Q -Being a member of the Intelligence and Operation Section, NMDU,
NARCOM, do you remember if you were assigned into a monitoring or
surveillance work?
A -Yes, sir.
Q – Of what particular assignment or area were you assigned for monitoring
or surveillance?
A – Its within the Quezon City area particularly a house without a number
located at Binhagan St., San Jose Quezon City, Sir.
Q – Do You know the person who occupies the specific place?
A – Yes, sir, he is ROBERT SALANGUIT @ Robert.
Q – Are you familiar with that place?
A – Yes, sir, as part of my surveillance, I was able to penetrate inside the
area and established contract with ROBERT SALANGUIT alias Robert
through my friend who introduced me to the former.
Q – In what particular occasion did you meet ROBERT SALANGUIT alias
Robert?
A – When I was introduced by my friend as a good buyer and drug pusher
of shabu, sir .
Q – Were you able to buy at that time?
A – Yes, sir.
Q – How much if you can still remember the amount involved?
A – I was able to buy two point twelve (2.12) grams of shabu in the amount
of Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir .
Q – Having established contact with ROBERT SALANGUIT @ Robert, do
you know where the stuff (shabu) were being kept?
A – Yes, sir, inside a cabinet inside his room.
Q – How were you able to know the place where he kept the stuff?
A – When I first bought the 2.12 grams of shabu from him, it was done
inside his room and I saw that the shabu was taken by him inside his
cabinet.
Q – Do you know who is in control of the premises?
A – Yes, sir, it was ROBERT SALANGUIT @ Robert.
Q – How sure are you, that the shabu that you bought from ROBERT
SALANGUIT @ Robert is genuine shabu?
A – After I left the house of ROBERT SALANGUIT @ Robert, I proceeded
back to our office and reported the progress of my mission to our Chief and
presented to him the 2.12, grams of shabu I bought from the subject. Then
afterwards, our Chief formally requested the Chief PNP Central Crime
Laboratory Services, NPDC, for Technical Analysis which yielded positive
result for shabu, a regulated drug as shown in the attached certification of
PNP CLS result No. D-414-95 dated 19 December 95.
Q – Do you have anything more to add or retract from your statement?
A – Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that
anything I wish to buy bigger quantity of shabu, he is willing to transact to
me on cash basis at his price of One Thousand Seven Hundred Fifty
(P1,750.00) pesos per gram.
Q – Are you willing to sign your statement freely and voluntarily?
A – Yes, sir.24
However, the fact that there was no probable cause to support the application for
the seizure of drug paraphernalia does not warrant the conclusion that the search
warrant is void. This fact would be material only if drug paraphernalia was in fact
seized by the police. The fact is that none was taken by virtue of the search warrant
issued. If at all, therefore, the search warrant is void only insofar as it authorized
the seizure of drug paraphernalia, but it is valid as to the seizure of
methamphetamine hydrochloride as to which evidence was presented showing
probable cause as to its existence. Thus, in Aday v. Superior Court,25 the warrant
properly described two obscene books but improperly described other articles. It
was held:
Although the warrant was defective in the respects noted, it does not follow
that it was invalid as a whole. Such a conclusion would mean that the
seizure of certain articles, even though proper if viewed separately, must be
condemned merely because the warrant was defective with respect to other
articles. The invalid portions of the warrant are severable from the
authorization relating to the named books, which formed the principal basis
of the charge of obscenity. The search for and seizure of these books, if
otherwise valid, were not rendered illegal by the defects concerning other
articles. ...In so holding we do not mean to suggest that invalid portions "of
a warrant will be treated as severable under all circumstances. We recognize
the danger that warrants might be obtained which are essentially general in
character but as to minor items meet the requirement of particularity, and
that wholesale seizures might be made under them, in the expectation that
the seizure would in any event be upheld as to the property specified. Such
an abuse of the warrant procedure, of course, could not be tolerated.
It would be a drastic remedy indeed if a warrant, which was issued on probable
cause and particularly describing the items to be seized on the basis thereof, is to
be invalidated in toto because the judge erred in authorizing a search for other
items not supported by the evidence.26 Accordingly, we hold that the first part of
the search warrant, authorizing the search of accused-appellant's house for an
undetermined quantity of shabu, is valid, even though the second part, with respect
to the search for drug paraphernalia, is not.
Specificity of the Offense Charged
Accused-appellant contends that the warrant was issued for more than one specific
offense because possession or use of methamphetamine hydrochloride and
possession of drug paraphernalia are punished under two different provisions of
R.A. No. 6425.27 It will suffice to quote what this Court said in a similar case to
dispose of this contention:
While it is true that the caption of the search warrant states that it is in
connection with "Violation of R.A. 6425, otherwise known as the
Dangerous Drugs Act of 1972," it is clearly recited in the text thereof that
"There is probable cause to believe that Adolfo Olaes alias 'Debie' and alias
'Baby' of No.628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their
session and control and custody of marijuana dried stalks/leaves/
seeds/cigarettes and other regulated/prohibited and exempt narcotics
preparations which is the subject of the offense stated above." Although the
specific section of the Dangerous Drugs Act is not pinpointed, there is no
question at all of the specific offense alleged to have been committed as a
basis for the finding of probable cause. The search warrant also satisfies the
requirement in the Bill of Rights of the particularity of the description to be
made of the "place to be searched and the persons or things to be seized." 28
Indeed, in People v. Dichoso29 the search warrant was also for "Violation of R.A.
6425," without specifying what provisions of the law were violated, and it
authorized the search and seizure of "dried marijuana leaves and methamphetamine
hydrochloride (shabu) and sets of paraphernalias (sic)." This Court, however,
upheld the validity of the warrant:
Appellant's contention that the search warrant in question was issued for
more than (1) offense, hence, in violation of Section 3, Rule 126 of the
Rules of Court, is unpersuasive. He engages in semantic juggling by
suggesting that since illegal possession of shabu, illegal possession of
marijuana and illegal possession of paraphernalia are covered by different
articles and sections of the Dangerous Drugs Act of 1972, the search warrant
is clearly for more than one (1) specific offense. In short, following this
theory, there should have been three (3) separate search warrants, one for
illegal possession of shabu, the second for illegal possession of marijuana
and the third for illegal possession of paraphernalia. This argument is
pedantic. The Dangerous Drugs Act of 1972 is a special law that deals
specifically with dangerous drugs which are subsumed into "prohibited" and
"regulated" drugs and defines and penalizes categories of offenses which are
closely related or which belong to the same class or species. Accordingly,
one (1) search warrant may thus be validly issued for the said violations of
the Dangerous Drugs Act. 30
Similarly, in another case,31 the search warrant was captioned: "For Violation of P
.D. No.1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant was
questioned on the ground that it was issued without reference to any particular
provision in P.D. No.1866, which punished several offenses. We held, however,
that while illegal possession of firearms is penalized under §1 of P.D. No.1866 and
illegal possession of explosives is penalized under §3 thereof, the decree is a
codification of the various laws on illegal possession of firearms, ammunitions,
and explosives which offenses are so related as to be subsumed within the category
of illegal possession of firearms, etc. under P.D. No.1866. Thus, only one warrant
was necessary to cover the violations under the various provisions of the said law.
Particularly of the Place
Accused-appellant contends that the search warrant failed to indicate the place to
be searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:
.....While the address stated in the warrant is merely "Binhagan St., San
Jose, Quezon City," the trial court took note of the fact that the records of
Search Warrant Case No.160 contained several documents which identified
the premises to be searched, to wit: 1) the application for search warrant
which stated that the premises to be searched was located in between No.7
and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of
witness which described the premises as "a house without a number located
at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the
location of the premises to be searched. In fact, the police officers who
raided appellant's house under the leadership of Police Senior Inspector
Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides
in the same neighborhood in Binhagan where appellant lives and in fact
Aguilar's place is at the end of appellant's place in Binhagan. Moreover, the
house raided by Aguilar's team is undeniably appellant'.s house and it was
really appellant who was the target. The raiding team even first ascertained
through their informant that appellant was inside his residence before they
actually started their operation.32
The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched.33 For example, a search warrant authorized a search of
Apartment Number 3 of a building at 83 Pleasant Street, Malborough,
Massachusetts. As it turned out, there were five apartments in the basement and six
apartments on both the ground and top floors and that there was an Apartment
Number 3 on each floor. However, the description was made determinate by a
reference to the affidavit supporting the warrant that the apartment was occupied
by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass."34 In this
case, the location of accused-appellant's house being indicated by the evidence on
record, there can be no doubt that the warrant described the place to be searched
with sufficient particularity.1âwphi1.nêt
In sum, we hold that with respect to the seizure of shabu from accused-appellant's
residence, Search Warrant No.160 was properly issued, such warrant being
founded on probable cause personally determined by the judge under oath or
affirmation of the deposing witness and particularly describing the place to be
searched and the things to be seized.
Second. The search warrant authorized the seizure of methamphetamine
hydrochloride or shabu but not marijuana. However, seizure of the latter drug is
being justified on the ground that the drug was seized within the "plain view" of
the searching party. This is contested by accused-appellant.
Under the "plain view doctrine," unlawful objects within the "plain view" of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented in evidence.35 For this doctrine to apply, there must
be: (a) prior justification; (b ) inadvertent discovery of the evidence; and (c)
immediate apparent illegality of the evidence before the police.36 The question is
whether these requisites were complied with by the authorities in seizing the
marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known to
the police operatives, it is reasonable to assume that the police found the packets of
the shabu first. Once the valid portion of the search warrant has been executed, the
"plain view doctrine" can no longer provide any basis -for admitting the other
items subsequently found. As has been explained:
What the 'plain view' cases have in common is that the police officer in each
of them had a prior justification for an intrusion in the course of which he
came inadvertently across a piece of evidence incriminating the accused.
The doctrine serves to supplement the prior justification -whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present unconnected with a search
directed against the accused -and permits the warrantless seizure. Of course,
the extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before them; the
'plain view' doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges.37
The only other possible justification for an intrusion by the police is the conduct of
a search pursuant to "accused-appellant's lawful arrest for possession
of shabu. However, a search incident to a lawful arrest is limited to the person of
the one arrested and the premises within his immediate control.18 The rationale for
permitting such a search is to prevent the person arrested from obtaining a weapon
to commit violence, or to reach for incriminatory evidence and destroy it.
The police failed to allege in this case the time when the marijuana was
found, i.e., whether prior to, or contemporaneous with, the shabu subject of the
warrant, or whether it was recovered on accused-appellant's person or in an area
within his immediate control. Its recovery, therefore, presumably during the search
conducted after the shabu had been recovered from the cabinet, as attested to by
SPO1 Badua in his depostion, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent illegality
to justify their seizure. This case is similar to People. v. Musa39 in which we
declared inadmissible the marijuana recovered by NARCOM agents because the
said drugs were contained in plastic bag which gave no indication of its contents.
We explained:
Moreover, when the NARCOM agents saw the plastic bag hanging in one
corner of the kitchen, they had no clue as to its contents. They had to ask the
appellant what the bag contained. When the appellant refused to respond,
they opened it and found the marijuana. Unlike Ker v. California, where the
marijuana was visible to the police officer's eyes, the NARCOM agents in
this case could not have discovered the inculpatory nature of the contents of
the bag had they not forcibly opened it; Even assuming then, that the
NARCOM agents inadvertently came across the plastic bag because it was
within their "plain view," what may be said to be the object in their "plain
view" was just the plastic bag and not the marijuana. The incriminating
nature of the contents of the plastic bag was not immediately apparent from
the "plain view" of said object. It cannot be claimed that the plastic bag
clearly betrayed its contents, whether by its distinctive configuration, is
transparency, or otherwise, that its contents are obvious to an observer .40
No presumption of regularity may be invoked by an officer in aid of the process
when he undertakes to justify an encroachment of rights secured by the
Constitution.41 In this case, the marijuana allegedly found in the possession of
accused-appellant was in the form of two bricks wrapped in newsprint. Not being
in a transparent container, the contents wrapped in newsprint could not have been
readily discernible as marijuana. Nor was there mention of the time or manner
these items were discovered. Accordingly, for failure of the prosecution to prove
that the seizure of the marijuana without a warrant was conducted in accordance
with the "plain view doctrine," we hold that the marijuana is inadmissible in
evidence against accused-appellant. However, the confiscation of the drug must be
upheld.
Third. Accused-appellant claims that undue and unnecessary force was employed
by the searching party in effecting the raid.
Rule 126, §7 of the Revised Rules on Criminal Procedure42 provides:
Right to break door or window to effect search. - The officer, if refused
admittance to the place of directed search after giving notice of his purpose
and authority, may break open any outer or inner door or window of a house
or any part of a house or anything therein to execute the warrant or liberate
himself or any person lawfully aiding him when unlawfully detained therein.
Accused-appellant's claim that the policemen had clambered up the roof of his
house to gain entry and had broken doors and windows in the process is
unsupported by reliable and competent proof. No affidavit or sworn statement of
disinterested persons, like the barangay officials or neighbors, has been presented
by accused-appellant to attest to the truth of his claim.
In contrast, Aguilar and Duano's claim that they had to use some force in order to
gain entry cannot be doubted. The occupants of the house, especially accusedappellant, refused to open the door despite the fact that the searching party
knocked on the door several times. Furthermore, the agents saw the suspicious
movements of the people inside the house. These circumstances justified the
searching party's forcible entry into the house, founded as it is on the apprehension
that the execution of their mission would be frustrated unless they do so.
WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional
Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit
y Ko guilty of possession of illegal drugs under §16 of R.A. No.6425, otherwise
known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a
prison term ranging from six (6) months of arresto mayor, as minimum, and four
(4) years and two (2) months of prision correccional, as maximum, and ordering
the confiscation of 11.14 grams of methamphetamine hydrochloride is
AFFIRMED .
In Criminal Case No. Q-95-64358, the decision of the same court finding accusedappellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under §8
of R.A. No. 6425, as amended, and sentencing him to suffer the penalty
of reclusion perpetua and to pay a fine of Pl00,000.00 is hereby REVERSED and
SET ASIDE and accused- appellant is ACQUITTED of the crime charged.
However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14
grams of methamphetamine hydrochloride, and its disposition as ordered by the
trial court is AFFIRMED .
CASES:
Alih v. Castro, G.R. No. L-69401, June 23, 1987
On November 25, 1984, a contingent of more than two hundred Philippine marines
and elements of the home defense forces raided the compound occupied by the
petitioners at Gov. Alvarez street, Zamboanga City, in search of loose firearms,
ammunition and other explosives. 1
The military operation was commonly known and dreaded as a "zona," which was
not unlike the feared practice of the kempeitai during the Japanese Occupation of
rounding up the people in a locality, arresting the persons fingered by a hooded
informer, and executing them outright (although the last part is not included in the
modern refinement).
The initial reaction of the people inside the compound was to resist the invasion
with a burst of gunfire. No one was hurt as presumably the purpose was merely to
warn the intruders and deter them from entering. Unfortunately, as might be
expected in incidents like this, the situation aggravated soon enough. The soldiers
returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2
The besieged compound surrendered the following morning, and sixteen male
occupants were arrested, later to be finger-printed, paraffin-tested and
photographed over their objection. The military also inventoried and confiscated
nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of
ammunition found in the premises. 3
On December 21, 1984, the petitioners came to this Court in a petition for
prohibition and mandamus with preliminary injunction and restraining order. Their
purpose was to recover the articles seized from them, to prevent these from being
used as evidence against them, and to challenge their finger-printing,
photographing and paraffin-testing as violative of their right against selfincrimination.4
The Court, treating the petition as an injunction suit with a prayer for the return of
the articles alleged to have been illegally seized, referred it for hearing to Judge
Omar U. Amin of the regional trial court, Zamboanga City. 5 After receiving the
testimonial and documentary evidence of the parties, he submitted the report and
recommendations on which this opinion is based. 6
The petitioners demand the return of the arms and ammunition on the ground that
they were taken without a search warrant as required by the Bill of Rights. This is
confirmed by the said report and in fact admitted by the respondents, "but with
avoidance. 7
Article IV, Section 3, of the 1973 Constitution, which was in force at the time of
the incident in question, provided as follows:
Sec. 3. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall not be violated, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and
the persons or things to be seized.
It was also declared in Article IV, Section 4(2) thatSec. 4(2) Any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
The respondents, while admitting the absence of the required such warrant, sought
to justify their act on the ground that they were acting under superior
orders. 8 There was also the suggestion that the measure was necessary because of
the aggravation of the peace and order problem generated by the assassination of
Mayor Cesar Climaco. 9
Superior orders" cannot, of course, countermand the Constitution. The fact
that the petitioners were suspected of the Climaco killing did not excuse the
constitutional short-cuts the respondents took. As eloquently affirmed by the
U.S. Supreme Court in Ex parte Milligan: 10
The Constitution is a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of men, at all times
and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of
government.
The precarious state of lawlessness in Zamboanga City at the time in question
certainly did not excuse the non-observance of the constitutional guaranty against
unreasonable searches and seizures. There was no state of hostilities in the area to
justify, assuming it could, the repressions committed therein against the petitioners.
It is so easy to say that the petitioners were outlaws and deserved the arbitrary
treatment they received to take them into custody; but that is a criminal argument.
It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners were
unquestionably guilty on the strength alone of unsubstantiated reports that they
were stockpiling weapons.
The record does not disclose that the petitioners were wanted criminals or fugitives
from justice. At the time of the "zona," they were merely suspected of the mayor's
slaying and had not in fact even been investigated for it. As mere suspects, they
were presumed innocent and not guilty as summarily pronounced by the military.
Indeed, even if were assumed for the sake of argument that they were guilty, they
would not have been any less entitled to the protection of the Constitution, which
covers both the innocent and the guilty. This is not to say, of course, that the
Constitution coddles criminals. What it does simply signify is that, lacking the
shield of innocence, the guilty need the armor of the Constitution, to protect them,
not from a deserved sentence, but from arbitrary punishment. Every person is
entitled to due process. It is no exaggeration that the basest criminal, ranged
against the rest of the people who would condemn him outright, is still, under the
Bill of Rights, a majority of one.
If the respondents did not actually disdain the Constitution when they made their
illegal raid, they certainly gave every appearance of doing so. This is truly
regrettable for it was incumbent on them, especially during those tense and tindery
times, to encourage rather than undermine respect for the law, which it was their
duty to uphold.
In acting as they did, they also defied the precept that "civilian authority is at all
times supreme over the military" so clearly proclaimed in the 1973
Constitution. 11 In the instant case, the respondents simply by-passed the civil
courts, which had the authority to determine whether or not there was probable
cause to search the petitioner's premises. Instead, they proceeded to make the raid
without a search warrant on their own unauthorized determination of the
petitioner's guilt.
The respondents cannot even plead the urgency of the raid because it was in fact
not urgent. They knew where the petitioners were. They had every opportunity to
get a search warrant before making the raid. If they were worried that the weapons
inside the compound would be spirited away, they could have surrounded the
premises in the meantime, as a preventive measure. There was absolutely no
reason at all why they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way into the petitioner's
premises with all the menace of a military invasion.
Conceding that the search was truly warrantless, might not the search and seizure
be nonetheless considered valid because it was incidental to a legal arrest? Surely
not. If all the law enforcement authorities have to do is force their way into any
house and then pick up anything they see there on the ground that the occupants
are resisting arrest, then we might as well delete the Bill of Rights as a fussy
redundancy.
When the respondents could have easily obtained a search warrant from any of the
TEN civil courts then open and functioning in Zamboanga City, 12 they instead
simply barged into the beleaguered premises on the verbal order of their superior
officers. One cannot just force his way into any man's house on the illegal orders of
a superior, however lofty his rank. Indeed, even the humblest hovel is protected
from official intrusion because of the ancient rule, revered in all free regimes, that
a man's house is his castle.
It may be frail; its roof may shake; the wind may enter; the rain may enter.
But the King of England may not enter. All the forces of the Crown dare not
cross the threshold of the ruined tenement. 13
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
justification. 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. 14
If follows that as the search of the petitioners' premises was violative of the
Constitution, all the firearms and ammunition taken from the raided compound are
inadmissible in evidence in any of the proceedings against the petitioners. These
articles are "fruits of the poisonous tree. 15 As Judge Learned Hand observed,
"Only in case the prosecution which itself controls the seizing officials, knows that
it cannot profit by their wrong, will the wrong be repressed. 16 Pending
determination of the legality of such articles, however, they shall remain
in custodia legis, subject to such appropriate disposition as the corresponding
courts may decide. 17
The objection to the photographing, fingerprinting and paraffin-testing of the
petitioners deserves slight comment. The prohibition against self-incrimination
applies to testimonial compulsion only. As Justice Holmes put it in Holt v. United
States, 18 "The prohibition of compelling a man in a criminal court to be a witness
against himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may
be material."
The fearful days of hamleting salvaging, "zona" and other dreaded operations
should remain in the past, banished with the secret marshals and their covert
license to kill without trial. We must be done with lawlessness in the name of law
enforcement. Those who are supposed to uphold the law must not be the first to
violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion
in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy of the
law of force be discarded and that there be a return to the force and rule of law."
All of us must exert efforts to make our country truly free and democratic, where
every individual is entitled to the full protection of the Constitution and the Bill of
Rights can stand as a stolid sentinel for all, the innocent as well as the guilty,
including the basest of criminals.
WHEREFORE, the search of the petitioners' premises on November 25, 1984, is
hereby declared ILLEGAL and all the articles seized as a result thereof are
inadmissible in evidence against the petitioners in any proceedings. However, the
said articles shall remain in custodia legis pending the outcome of the criminal
cases that have been or may later be filed against the petitioners.
Uy Kheytin v. Villareal, G.R. No. 16009, September 21, 1920
This is an original petition, filed in this court, for the writs of injunction and
prohibition. It appears from the record that on April 30, 1919, one Ramon
Gayanilo, corporal of the Philippine Constabulary, presented to the judge of the
Court of First Instance of Iloilo an application for search warrant, the said Ramon
Gayanilo stating in his application; "That in the house of Chino Uy Kheytin, Sto.
Niño St., No. 20, Iloilo, under the writing desk in his store, there is kept a certain
amount of opium." The application was subscribed and sworn to by the said
complainant before the Honorable L. M. Southworth, judge of the Twenty-third
Judicial District.
Upon that application the said judge, on the same day, issued a search warrant in
the following terms:
The United States, to any officer of the law.
Whereas on this day proof , by affidavit, having been presented before me
by Corporal Ramon Gayanilo, Philippine Constabulary, that there is
probable cause to believe that in the house of Chino Uy Kheytin, Sto. Niño
St., No. 20, under the desk for writing in his store there is kept a certain
amount of opium.
Therefore, you are hereby commanded during day or night to make an
immediate search on the person of Uy Kheytin or in the house, Sto. Niño
St., No. 20, for the following property opium and, if you find the same or
any part thereof, to bring it forthwith before me in the Court of First
Instance of Iloilo.
Witness my hand this 30th day of April, 1919.
(Sgd.) L. M. SOUTHWORTH,
Judge of the Court of Iloilo.
Armed with that search warrant, the respondent M. S. Torralba, lieutenant of the
Philippine Constabulary, accompanied by some of his subordinates, on the same
day (April 30th) searched the house of the petitioner Uy Kheytin and found therein
60 small cans of opium. They wanted to search also the bodega on the groundfloor of the house, but Uy Kheytin positively denied that it was his or that he
rented it. Lieutenant Torralba wanted to be sure, and for this reason he placed a
guard in the premises to see that nothing was removed therefrom, and then went
away to find out who the owner of the bodega was. The next morning he learned
from the owner of the house, one Segovia, of the town of Molo, that the Chinaman
Uy Kheytin was the one who was renting the bodega. Thereupon Lieutenant
Torralba and his subordinates resumed the search and then and there found and
seized the following articles:
No. 2. — One wrap of paper containing a broken bottle of opium liquid,
which is kept in a tin box No. 1.
No. 3. — One wrap of paper containing an opium pipe, complete, one opium
container, one wrap of opium ashes, one rag soaked in opium and one
thimble with opium.
No. 4. — One leather hand bag containing 7 small bottle containing opium,
with two cedulas belonging to Tian Liong, with key.
No. 5. — One wooden box containing 75 empty cans, opium containers.
No. 6. — One tin box containing 23 small empty cans, opium containers.
No. 7. — One cardboard box containing 3 pieces of wood, one old chisel,
one file, one piece of soldering lead, one box of matches, 5 pieces of iron
plates, and several other tin plates.
No. 8. — One roll of 7 ½ sheets of brass.
No. 9. — Three soldering outfits.
No. 10. — One hammer.
No. 11. — One Chinese scale for opium.
No. 12. — Twelve small bottles empty.
No. 13. — Two bottles containing opium.
No. 14. — One bundle of Chinese books of accounts with several personal
letter of Chine Uy Kheytin.
No. 15. — One tin box containing 60 cans of molasses, with 1 small bottle
containing molasses.
Thereafter a criminal complaint was filed in the court of the justice of the peace of
Iloilo against all the petitioners herein, charging them with a violation of the
Opium Law. They were duly arrested, and a preliminary investigation was
conducted by the justice of the peace, after which he found that there was probable
cause for believing that the crime complained of had been committed and that the
defendants were the persons responsible therefor. The cause was duly transmitted
to the Court of First Instance.
While said cause was in the Court of First Instance, pending the filing of a
complaint by the provincial fiscal, the defendants, petitioners herein, through their
attorney, filed a petition in the Court of First Instance, asking for the return of
"private papers, books and other property" which the Constabulary officers had
seized from said defendants, upon the ground that they had been so seized illegally
and in violation of the constitutional rights of the defendants. It was urged (1) that
the search warrant of April 30th was illegal because the requisites prescribed by
the General Orders No. 58 had not been complied with in its issuance; (2) that the
searches and seizures made on May 1st had been made without any semblance of
authority and hence illegal; and (3) that the seizure of the defendants' books and
letters was a violation of the provisions of the Jones Law providing that no person
shall be compelled to testify against himself, and protecting him against
unreasonable searches and seizures.
After a hearing upon said motion, the Honorable Antonio Villareal, judge, in a
very carefully prepared opinion, reached the conclusion that the searches and
seizures complained of had been legally made, and consequently, denied the
defendants' petition.
Thereafter and on November 22, 1919, the said defendants, petitioners herein, filed
the present petition in this court, praying as follows:
Wherefore, in view of the foregoing allegations, it is respectfully prayed that
a preliminary injunction issue.
First, restraining the respondent judge, and his successors from making any
cognizance of any action of any kind which has or may be brought against
these petitioners which have resulted directly or indirectly from the unlawful
searches and seizures above-mentioned;
Second, restraining the respondent clerk of the court, the respondent fiscal,
the respondent commandant of the Constabulary, and the successors of any
of them, and the assistants of any of them, from any further examination of
the private papers, books, and other property unlawfully seized as above
alleged; from making or using the same for the purpose or in such a manner
that the character or reputation of these petitioners might be injured; from
making or using any copies, memorandum, notes, or extracts obtained from
the books, papers, etc., so seized; from making any examinations of any of
the property thus obtained or from using any reports or from publishing in
any manner any reports already prepared as a result of the examination of
such property; or from making any other use of the property and papers so
obtained until orders are received from this court regarding the disposition
of the same.
It is further requested, that a writ of prohibition issue, restraining the
respondent judge from at any time taking cognizance of any action or
prosecution growing out of the unlawful searches and seizures abovementioned, and directing such judge or his successor to order the immediate
return to these petitioners of all of the papers and other property thus
unlawfully obtained, together with all copies, extracts, memorandum, notes,
photographs, reports, samples, or evidence obtained by reason of such
searches and seizures whereby the reputation and character of petitioners
may be further damaged; furthermore enjoining all of the respondents and
their assistants from divulging any of the secrets or information which they
have thus unlawfully obtained from these petitioners; and especially
ordering the respondent judge to dismiss all actions or prosecutions already
filed before him or which may hereafter come before him as a result of the
unlawful acts herein alleged.
I
THE SEARCH WARRANT OF APRIL 30TH
The petitioners contend that the search warrant of April 30, 1919, was illegal, (1)
because it was not issued upon either of the grounds mentioned in section 96 of
General Orders No. 58, and (2) because the judge who issued it did not determine
the probable cause by examining witnesses under oath, a required by section 98 of
said General Orders No. 58.
Section 96 of General Orders No. 58 is as follows:
SEC. 96. It (a search warrant) may be issued upon either of the following
grounds:
1. When the property was stolen or embezzled.
2. When it was used or when the intent exists to use it as the means of
committing a felony.
In support of their first contention the petitioners argue that the property ordered to
be seized, namely, opium, under the said search warrant, had not been stolen or
embezzled, nor had it been used or intended to be used as the means of committing
a felony; that the word "felony" is applicable only to a serious crime which
is malum per se and not to one which is merely malum prohibitum, such as the
possession of opium.
For the purpose of this decision we deem it unnecessary to draw the distinction
between the words "felony" and "misdemeanor" a used in the common law. Suffice
it to say that, whatever may be the technical common-law meaning of the word
"felony," which is used in paragraph 2 of section 96 above quoted, we believe it
would be the height of absurdity to hold, upon technical grounds, that a search
warrant is illegal which is issued to search for and seize property the very
possession of which is forbidden by law and constitutes a crime. Opium is such
property. "Search-warrants have heretofore been allowed to search for stolen
goods, for goods supposed to have been smuggled into the country in violation of
the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or
prohibited liquors kept for sale contrary to law, for obscene books and paper kept
for sale or circulation, and for powder or other explosive and dangerous material so
kept as to endanger the public safety." (Cooley on Constitutional Limitations, 7th
ed., p. 432.)
In support of their second contention, the petitioners invoke section 98 of General
Orders No. 58, which provides a follow:
SEC. 98. The judge or justice must, before issuing the warrant, examine on
oath the complainant and any witnesses he may produce and take their
depositions in writing.
Section 97 provides that "a search warrant shall not issue except for probable
cause" and section 98 above quoted provides the manner in which that probable
cause shall be determined by the judge issuing the warrant. In the present case,
however, the judge did not examine any witness under oath but relied solely upon
the sworn application of the Constabulary officer in determining whether there was
probable cause. In that application the complainant swore positively: "That in the
house of Chino Uy Kheytin, Sto. Niño St., No. 20, Iloilo, under the writing desk in
his store, there is kept a certain amount of opium." This statement was found to be
true by the subsequent finding and seizure of a considerable quantity of opium in
the place mentioned. The question now is, whether the omission of the judge to
comply with the requirements of section 98 would, under the circumstances, justify
the court in declaring that the search warrant in question was illegal and ordering
the return of the opium found and seized under said warrant.
A search warrant may be likened to a warrant of arrest. The issuance of both is
restricted by the same provision of the Jones Law (sec. 3) which is as follows:
That no warrant shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and the
person or thing to be seized.
A person, then, is protected from unreasonable arrests just as much as he is
protected from unreasonable searches. But suppose he happened to be arrested
without any warrant, or upon a warrant which had been issued by a judge without
first properly determining whether there was probable cause, and upon
investigation it should be found, from his own admission, that he was the author of
the crime, — should he be released upon the ground that he had not been legally
arrested? In the case of Ker vs. Illinois (119 U. S., 436) Ker having committed the
crime of larceny, escaped and went to Peru. He was kidnapped in Peru and brought
back to the State of Illinois without any pretense of authority. Passing upon the
question of the constitutionality of the arrest of Ker, the Supreme Court of the
United States, speaking through Mr. Justice Miller, said:
We do not intend to say that there may not be proceedings previous to the
trial in regard to which the prisoner could invoke in some manner the
provisions of this clause of the Constitution; but for mere irregularities in
the manner in which he may be brought into the custody of the law, we do
not think he is entitled to say that he should not be tried at all for the crime
with which he is charged in a regular indictment. He may be arrested for a
very heinous offense by persons without any warrant, or without any
previous complaint, and brought before a proper officer, and this may be in
some sense said to be "without due process of law." But it would hardly be
claimed that after the case had been investigated, and the defendant held by
the proper authorities to answer for the crime, he could plead that he was
first arrested "without due process of law." (Followed in U. S. vs. Grant and
Kennedy, 18 Phil., 122, 146; U. S. vs. Wilson, 4 Phil., 317.)
In the present case there was an irregularity in the issuance of the search warrant in
question in that the judge did not first examine the complainant or any witnesses
under oath, as required by section 98 of General Orders No. 58. But the property
sought to be searched for and seized having been actually found in the place
described by the complainant, reasoning by analogy from the case of an improper
arrest, we are of the opinion that that irregularity is not sufficient cause for
ordering the return of the opium found and seized under said warrant, to the
petitioners, and exonerating the latter.
II
THE SEARCH MADE ON MAY 1ST
Petitioners content that this was made without any search warrant and without any
authority of law; that the search warrant of April 30th could not be used on May
1st because that warrant had been executed on the day of its issuance. In support of
this contention counsel for the petitioners, in the lower court, argued that:
While it is true that a warrant is good for 10 days after the date of issuance,
this cannot be interpreted to mean that a search warrant can be used every
day for 10 days, and for a different purpose each day. This would be absurd.
It is admitted, for sake of argument, that if upon a search, under a legally
issued warrant, some other prohibited articles than those named in the
warrant should be found, these articles might be seized. Also, it might
possibly be true, that if a warrant was issued to search for a certain article
and it was not found after the first search, that another search could be made
sometime within the 10 days. But this is certainly the furthest possible
extreme the doctrine could be carried. It certainly could not be interpreted to
allow a search to be made, and after the articles for which the warrant was
issued had been seized, to use this same warrant as authority to make
another search.
We agree with counsel that a search warrant cannot be used every day for ten days,
"and for a different purpose each day," and that after the articles for which the
warrant was issued have been seized the same warrant cannot be used as authority
to make another search. But this argument is not applicable to the facts in this
case. It appears from the oral evidence adduced during the hearing of the
petitioners' motion in the court below that the search for opium, the property
mentioned in the warrant, was not completed on April 30th; it was interrupted by
the necessity to ascertain who the owner of the bodega on the ground-floor was,
because the petitioner Uy Kheytin falsely disclaimed ownership thereof. In other
words, the search of May 1st was not made "for a different purpose," nor could it
be considered "another search," but was really a continuation of the search begun
on April 30th. This is shown by the fact that during the interval between the two
searches the premises in question were guarded by Constabulary soldiers, and the
petitioners were made to understand on April 30th that the authorities were not yet
through with the search and would continue the same as soon as they found out
that the bodega was also occupied by the petitioner Uy Kheytin. We are, therefore,
of the opinion that the search made on May 1st was authorized under the search
warrant of April 30th
III
THE SEIZURE OF BOOKS, LETTERS, ETC.
The important question that remains to be decided is whether, under a search
warrant for opium, the officers of the law were authorized to seize books, personal
letters, and other property having a remote or no connection with opium. The
respondent M. S. Torralba, lieutenant of the Constabulary, testified that he seized
these articles because he believed or suspected that they had some relation with the
opium in question; in other words, he thought that they might be used as evidence
against the petitioners when they are prosecuted for a violation of the Opium Law.
The respondents contend that this was a sufficient justification under the law for
the seizure of such articles under the same warrant for opium.
We are of the opinion that the respondent's contention in untenable. Both the Jones
Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search
warrant should particularly describe the place to be searched and the things to be
seized. The evident purpose and intent of this requirement is to limit the things to
be seized to those, and only those, particularly described in the search warrant —
to leave the officers of the law with no discretion regarding what articles they shall
seize, to the end that "unreasonable searches and seizures" may not be made, —
that abuses may not be committed. That this is the correct interpretation of this
constitutional provision is borne out by American authorities.
In order to comply with the constitutional provisions regulating the issuance
of search warrants, the property to be seized under a warrant must be
particularly described therein and no other property can be taken
thereunder. The goods to be seized must be described with such certainty as
to identify them, and the description must be so particular that the officer
charged with the execution of the warrant will be left with no discretion
respecting the property to be taken. . . . Under a warrant to search a person
for stolen goods, the officer cannot lawfully take from the person a letter,
such letter not being particularly described in the warrant as property to be
searched for. (24 R. C. L., 714, 715.)
It is a violation of the declaration of rights respecting searches and seizures
for an officer, while searching one's person under a search warrant for stolen
goods, to take from it, against the party's will, a letter written to him. (State
vs. Slamon, 87 Am. St. Rep., 711.)
We have said that if the officer follows the command of his warrant, he is
protected; and this is so even when the complaint proves to have been
unfounded. But if he exceed the command by searching in places not
described therein, or by seizing persons or articles not commanded, he is not
protected by the warrant, and can only justify himself as in other cases
where he assumes to act without process. Obeying strictly the command of
his warrant, he may break open outer or inner doors, and his justification
does not depend upon his discovering that for which he is to make search.
(Cooley on Constitutional Limitations, 7th ed., p. 434)
That the officers of the law believed that the books, papers, etc., which they seized
might be used as evidence against the petitioners herein a criminal action against
them for a violation of the Opium Law, is no reason or justification under the law
for the seizure: First, because they were not "particularly described" or even
mentioned in the search warrant; second, because, even if they had been mentioned
in the search warrant, they could not be legally seized, for a search warrant cannot
be used for the purpose of obtaining evidence; and third, because to compel a
person to produce his private papers to be used in evidence against him would be
equivalent to compelling him to be a witness against himself.
1. The authorities for the first proposition have already been given above.
2. It may be said that —
Books of account, private documents, and private papers are property which
men may lawfully possess. It is not believed that the stature (subsection 2 of
section 96, G. O. 58) was intended to cover property of this class. Granting
that property of which men may lawfully possess themselves has been used
in the commission of a crime and not possessed nor created purely for the
purpose of committing a crime, and not likely to be used again, then
certainly its seizure can only be for the purpose of using the same as
evidence to prove the commission of the crime already committed. This
purpose is not contemplated by the provision of the law. The finding of
evidence can not be the immediate reason for issuing the search warrant. To
use a search warrant for the purpose of obtaining possession of property for
this purpose would be an "unreasonable" use of the remedy by search
warrant, which is prohibited by law. (Regidor vs. Araullo, 5 Off. Gaz., 955,
961, 962; U. S. vs. De los Reyes and Esguerra, 20 Phil., 467.)
Judge Cooley in his work on Constitutional Limitations, 7th ed., p. 431, says:
The warrant is not allowed for the purpose of obtaining evidence of an
intended crime; but only after the lawful evidence of an offense actually
committed. Nor even then is it allowable to invade one's privacy for the sole
purpose of obtaining evidence against him, except in a few special cases
where that which is the subject of the crime is supposed to be concealed, and
the public or the complainant has an interest in it on its destruction.
3. In the case of Boyd vs. United States (116 U. S., 616), the Supreme Court of the
United States, speaking through Mr. Justice Bradley, said:
The seizure or compulsory production of a man's private papers to be used
in evidence against him is equivalent to compelling him to be a witness
against himself, and, in a prosecution for a crime, penalty or forfeiture, is
equally within the prohibition of the Fifth Amendment.
Both amendments (fourth and fifth) relate to the personal security of the
citizen. They nearly run into and mutually throw light upon each other.
When the thing forbidden in the Fifth Amendment, namely, compelling a
man to be a witness against himself, is the object of a search and seizure of
his private papers, it is an "unreasonable search and seizure" within the
Fourth Amendment.
Search and seizure of a man's private papers to be used in evidence for the
purpose of convicting him of a crime, recovering a penalty, or of forfeiting
his property, is totally different from the search and seizure of stolen goods,
dutiable articles on which the duties have not been paid, and the like, which
rightfully belong to the custody of the law. (Se also Silverthorne Lumber
Co. vs. United States, decided Jan. 26, 1920, by the Supreme Court of the
United States.)
The seizure of a person's private papers, to be used in evidence against him,
is equivalent to compelling him to be a witness against himself. (State vs.
Slamon, 73 Vt., 212; 87 Am. St. Rep., 711.)
From all of the foregoing our conclusions are:
1. That although in the issuance of the search warrant in question the judge did not
comply with the requirements of section 98 of General Orders No. 58, the
petitioners are not entitled to the return of the opium and its paraphernalia which
were found and seized under said warrant, and much less are they entitled to be
exonerated because of such omission of the judge.
2. That the search made on May 1st was a continuation of the search begun on the
previous day, and, therefore, did not require another search warrant.
3. That the seizure of the petitioner's books, letters, telegrams, and other articles
which have no inherent relation with opium and the possession of which is not
forbidden by law, was illegal and in violation of the petitioners' constitutional
rights.
Therefore, it is hereby ordered and decreed that each and all of the respondents
herein, their assistants or successors, be, and they hereby are, forbidden from
examining or making any use of said books, letters, telegrams, etc., namely, the
articles described in items Nos. 7, 8, 9, 10, 12, 14, and 15 of the sheriff's return
(Exhibit 3, reproduced at the top of page 3 of this decision 1) and they are hereby
ordered to immediately return the said articles to the petitioners. So ordered.
Araullo and Villamor, JJ., concur.
Mapa, C.J., concurs in the result.
F. Warrantless search and seizure
1. Search incident to a lawful arrest
2. Stop-and-frisk (“Terry” search)
3. Consented warrantless search
4. Customs search; search of vessels
5. The plain view doctrine
6. Warrantless search of moving land vehicles
7. Warrantless search under urgent and exigent circumstances
CASES:
Malacat v. CA, G.R. No. 123595, December 12, 1997
[G.R. No. 123595. December 12, 1997.]
SAMMY MALACAT y MANDAR, Petitioner, v. COURT OF APPEALS, and
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
DAVIDE, JR., J.:
In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748
before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy
Malacat y Mandar was charged with violating Section 3 of Presidential Decree No.
1866, 2 as follows:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
That on or about August 27, 1990, in the City of Manila, Philippines, the said
accused did then and there willfully, unlawfully and knowingly keep, possess
and/or acquire a hand grenade, without first securing the necessary license and/or
permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, Petitioner, assisted by counsel de officio,
entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A,"
"A-1," and "A-2," 4 while the prosecution admitted that the police authorities were
not armed with a search warrant nor warrant of arrest at the time they arrested
petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino C. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on
27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven
days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store
at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with
each group, comprised of three to four men, posted at opposite sides of the corner
of Quezon Boulevard near the Mercury Drug Store. These men were acting
suspiciously with" [t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed both
groups for about thirty minutes. The police officers then approached one group of
men, who then fled in different directions. As the policemen gave chase, Yu caught
up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner’s "front waist line." 7 Yu’s
companion, police officer Rogelio Malibiran, apprehended Abdul Casan from
whom a .38 caliber revolver was recovered. Petitioner and Casan were then
brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the
grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a
report that a group of Muslims was going to explode a grenade somewhere in the
vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25
August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen chased
petitioner and his companions; however, the former were unable to catch any of
the latter. Yu further admitted that petitioner and Casan were merely standing on
the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although
they were not creating a commotion, since they were supposedly acting
suspiciously, Yu and his companions approached them. Yu did not issue any
receipt for the grenade he allegedly recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner
and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation.
Forthwith, Serapio conducted the inquest of the two suspects, informing them of
their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio’s advice, petitioner and Casan manifested their
willingness to answer questions even without the assistance of a lawyer. Serapio
then took petitioner’s uncounselled confession (Exh. "E"), there being no PAO
lawyer available, wherein petitioner admitted possession of the grenade.
Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner
and Casan. Later, Serapio turned over the grenade to the Intelligence and Special
Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination. 11
On cross-examination, Serapio admitted that he took petitioner’s confession
knowing it was inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that
on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo
Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then
affixed an orange tag on the subject grenade detailing his name, the date and time
he received the specimen. During the preliminary examination of the grenade, he
"found that [the] major components consisting of [a] high filler and fuse assembly
[were] all present," and concluded that the grenade was" [l]ive and capable of
exploding." On even date, he issued a certification stating his findings, a copy of
which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on
22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30
in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of
fresh air. Shortly after, several policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two other men, but found nothing in
their possession. However, he was arrested with two others, brought to and
detained at Precinct No. 3, where he was accused of having shot a police officer.
The officer showed the gunshot wounds he allegedly sustained and shouted at
petitioner" [i]to ang tama mo sa akin." This officer then inserted the muzzle of his
gun into petitioner’s mouth and said," [y]ou are the one who shot me."cralaw
virtua1aw library
Petitioner denied the charges and explained that he only recently arrived in Manila.
However, several other police officers mauled him, hitting him with benches and
guns. Petitioner was once again searched, but nothing was found on him. He saw
the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was akin
to a "stop and frisk," where a "warrant and seizure can be effected without
necessarily being preceded by an arrest" and "whose object is either to maintain the
status quo momentarily while the police officer seeks to obtain more information."
15 Probable cause was not required as it was not certain that a crime had been
committed, however, the situation called for an investigation, hence to require
probable cause would have been "premature." 16 The RTC emphasized that Yu
and his companions were" [c]onfronted with an emergency, in which the delay
necessary to obtain a warrant, threatens the destruction of evidence" 17 and the
officers" [h]ad to act in haste," as petitioner and his companions were acting
suspiciously, considering the time, place and "reported cases of bombing." Further,
petitioner’s group suddenly ran away in different directions as they saw the
arresting officers approach, thus" [i]t is reasonable for an officer to conduct a
limited search, the purpose of which is not necessarily to discover evidence of a
crime, but to allow the officer to pursue his investigation without fear of violence."
18
The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner" [l]ater voluntarily admitted such
fact to the police investigator for the purpose of bombing the Mercury Drug Store,"
concluded that sufficient evidence existed to establish petitioner’s guilt beyond
reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994,
the trial court thus found petitioner guilty of the crime of illegal possession of
explosives under Section 3 of P.D. No. 1866, and sentenced him to
suffer:chanrob1es virtual 1aw library
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS
AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more
than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was
appealing to this Court. However, the record of the case was forwarded to the
Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice
to file briefs. 21
In his Appellant’s Brief 22 filed with the Court of Appeals, petitioner asserted
that:chanrob1es virtual 1aw library
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON
THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE
ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE
INCIDENT TO HIS ARREST."cralaw virtua1aw library
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST
ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED
FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND
ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of
any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People v. Mengote. 23 As such, the search was illegal, and the hand grenade
seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the
trial court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court,
noting, first, that petitioner abandoned his original theory before the court a quo
that the grenade was "planted" by the police officers; and second, the factual
finding of the trial court that the grenade was seized from petitioner’s possession
was not raised as an issue. Further, respondent court focused on the admissibility in
evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the
issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground
that there was probable cause for the arrest as petitioner was "attempting to commit
an offense," thus:chanrob1es virtual 1aw library
We are at a loss to understand how a man, who was in possession of a live grenade
and in the company of other suspicious character[s] with unlicensed firearm[s]
lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a
series of terroristic activities, [can] claim that he was not attempting to commit an
offense. We need not mention that Plaza Miranda is historically notorious for being
a favorite bomb site especially during times of political upheaval. As the mere
possession of an unlicensed grenade is by itself an offense, Malacat’s posture is
simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner’s failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a
bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior
to the latter’s arrest, or on 27 August 1990; and that petitioner and his companions
acted suspiciously, the "accumulation" of which was more than sufficient to
convince a reasonable man that an offense was about to be committed. Moreover,
the Court of Appeals observed:chanrob1es virtual 1aw library
The police officers in such a volatile situation would be guilty of gross negligence
and dereliction of duty, not to mention of gross incompetence, if they [would] first
wait for Malacat to hurl the grenade, and kill several innocent persons while
maiming numerous others, before arriving at what would then be an assured but
moot conclusion that there was indeed probable cause for an arrest. We are in
agreement with the lower court in saying that the probable cause in such a situation
should not be the kind of proof necessary to convict, but rather the practical
considerations of everyday life on which a reasonable and prudent mind, and not
legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26
which petitioner relied upon, was inapplicable in light of" [c]rucial differences," to
wit:chanrob1es virtual 1aw library
[In Mengote] the police officers never received any intelligence report that
someone [at] the corner of a busy street [would] be in possession of a prohibited
article. Here the police officers were responding to a [sic] public clamor to put a
check on the series of terroristic bombings in the Metropolis, and, after receiving
intelligence reports about a bomb threat aimed at the vicinity of the historically
notorious Plaza Miranda, they conducted foot patrols for about seven days to
observe suspicious movements in the area. Furthermore, in Mengote, the police
officers [had] no personal knowledge that the person arrested has committed, is
actually committing, or is attempting to commit an offense. Here, PO3 Yu [had]
personal knowledge of the fact that he chased Malacat in Plaza Miranda two days
before he finally succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:chanrob1es virtual 1aw library
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF
THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER
WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN
PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT
CASE.
In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of the
Court of Appeals that he was "attempting to commit a crime," as the evidence for
the prosecution merely disclosed that he was "standing at the corner of Plaza
Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at
every person that come (sic) nearer (sic) to them." Finally, petitioner points out the
factual similarities between his case and that of People v. Mengote to demonstrate
that the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:chanrob1es virtual 1aw library
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY
(30) YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period
to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum
of the penalty, and not the minimum, is taken into account. Since the maximum of
the penalty is reclusion perpetua, the appeal therefrom should have been to us, and
not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of
1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of
Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section
9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be
deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the
Constitution.
Petitioner’s Notice of Appeal indicated that he was appealing from the trial court’s
decision to this Court, yet the trial court transmitted the record to the Court of
Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us,
with the petition for review as petitioner’s Brief for the Appellant, the comment
thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioner’s guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was
found in and seized from petitioner’s possession. Notably, Yu did not identify, in
court, the grenade he allegedly seized. According to him, he turned it over to his
commander after putting an "X" mark at its bottom; however, the commander was
not presented to corroborate this claim. On the other hand, the grenade presented in
court and identified by police officer Ramilo referred to what the latter received
from Lt. Eduardo Cabrera and police officer Diotoy not immediately after
petitioner’s arrest, but nearly seven (7) months later or on 19 March 1991; further,
there was no evidence whatsoever that what Ramilo received was the very same
grenade seized from petitioner. In his testimony, Yu never declared that the
grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. YU did not, and was not made to, identify the grenade examined by
Ramilo, and the latter did not claim that the grenade he examined was that seized
from petitioner. Plainly, the law enforcement authorities failed to safeguard and
preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he
was with a group about to detonate an explosive at Plaza Miranda, and YU and his
fellow officers chased, but failed to arrest them, then considering that Yu and his
three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed
petitioner for thirty minutes and must have been close enough to petitioner in order
to discern petitioner’s eyes "moving very fast."cralaw virtua1aw library
Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1) and
(3) of Article III of the Constitution, which provide as follows:chanrob1es virtual
1aw library
SEC. 12 (1). Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own 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.
x
x
x
(3) Any confession or admission obtained in violation of this or Section 17 hereof
shall be inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to
counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed
in order to validly effect the same. 31 The Constitutional prohibition against
unreasonable arrests, searches and seizures refers to those effected without a
validly issued warrant, 32 subject to certain exceptions. As regards valid
warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court,
which reads, in part:chanrob1es virtual 1aw library
Sec. 5. Arrest, without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:chanrob1es virtual 1aw library
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has
been denominated as one "in flagrante delicto," while that under Section 5(b) has
been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6)
a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and
frisk" with "the seizure of the grenade from the accused [as] an appropriate
incident to his arrest," hence necessitating a brief discussion on the nature of these
exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-andfrisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of proof before they may be
validly effected and in their allowable scope.
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. 36 In this instance, the law requires that there first be a lawful
arrest before a search can be made — the process cannot be reversed. 37 At
bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be used as
evidence, or which might furnish the arrestee with the means of escaping or
committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
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.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful
arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down in
Terry; thus:chanrob1es virtual 1aw library
We merely hold today that where a police officer observes unusual conduct which
leads him reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or others’ safety, he is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the outer clothing of such persons
in an attempt to discover weapons which might be used to assault him. Such a
search is a reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk," 40 it nevertheless holds that mere suspicion or a hunch
will not validate a "stop and frisk." A genuine reason must exist, in light of the
police officer’s experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. 41 Finally, a "stop-andfrisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer may,
under appropriate circumstances and in an appropriate manner, approach a person
for purposes of investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person with whom
he deals is not armed with a deadly weapon that could unexpectedly and fatally be
used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was
invalid:chanrob1es virtual 1aw library
First, we harbor grave doubts as to Yu’s claim that petitioner was a member of the
group which attempted to bomb Plaza Miranda two days earlier. This claim is
neither supported by any police report or record nor corroborated by any other
police officer who allegedly chased that group. Aside from impairing Yu’s
credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the
credibility of Yu’s testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest
(Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."cralaw
virtua1aw library
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 corner and were not
creating any commotion or trouble, as Yu explicitly declared on crossexamination:chanrobles virtual lawlibrary
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not create any
commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
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. In fact, as noted by the trial court:chanrob1es virtual 1aw library
When the policemen approached the accused and his companions, they were not
yet aware that a handgrenade was tucked inside his waistline. They did not see any
bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner’s rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court
of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the
part of said Court and, on ground of reasonable doubt, the decision of 10 February
1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and
petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is
justified for any other lawful cause.
People v. Chua, G.R. No. 128222, June 17, 1999
Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquittal 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
judgment 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.chanrobles.com:cralaw:red
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 sidearms, 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 seemed 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 interpreter. In the meantime, BADUA opened
the bag and counted twenty-nine (29) plastic packets containing yellowish
crystalline substances 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 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.
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.chanroblesvirtuallawlibrary
CHUA was initially charged with illegal possession of methamphetamine
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 of San Fernando, 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.
Expert 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 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 methamphetamine
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.chanrobles virtual lawlibrary
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 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:chanrob1es virtual 1aw library
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 Methamphetamine 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 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.chanrobles lawlibrary : rednad
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 contemporaneous 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 of 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 proceeding. 8
The Constitutional 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 search
warrant issued in compliance with the procedure outlined in 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 pursuant to an equally
valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid warrant 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 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 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 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:chanroblesvirtual|awlibrary
[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 an ongoing
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 "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:chanrob1es virtual 1aw
library
Q How far were you when the accused put the bag on his shoulder?
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 Tagalog, 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 behavior
as clearly established in CID’s testimony, thus:chanrob1es virtual 1aw library
Q Was the accused committing a crime when you introduced
yourselves:chanrob1es virtual 1aw library
A No, sir.
Q No, so there was no reason for you to approach the accused because he was not
doing anything wrong?
A No, sir, that is our objective, to approach the person and if ever or whatever
assistance that we can give we will give.25cralaw:red
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. From all indications, the search was nothing
but a fishing expedition. It is worth mentioning here that after introducing
themselves, the police officers 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." chanrobles.com : virtual law library
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 was
performed, thus:chanrob1es virtual 1aw library
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.
x
x
x
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,
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.
x
x
x
SHERIFF:chanrob1es virtual 1aw library
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:chanrob1es virtual 1aw library
From the start of the zipper where you open it up to the end of the zipper.
Witness:chanrob1es virtual 1aw library
Yes, sir, and then I made a motion like this.
(The witness repeating the motion described on record.)
COURT:chanrob1es virtual 1aw library
Did you open that personally?
WITNESS:chanrob1es virtual 1aw library
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.
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 substance. 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 tree 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.chanroblesvirtualawlibrary
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 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 prosecution
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.
People v. Cuizon, G.R. No. 109287, April 18, 1996
In deciding the case at bench, the Court reiterates doctrines on illegal searches and
seizures, and the requirements for a valid warrantless search incident to a valid
warrantless arrest. While the Court appreciates and encourages pro-active law
enforcement, it nonetheless upholds the sacredness of constitutional rights and
repeats the familiar maxim, "the end never justifies the means" .
This is an appeal from the Decision 1 dated January 5, 1993 (Criminal Case No.
92-0230) of the Regional Trial Court, Branch 116, 2 Pasay City finding appellants
guilty of violating Section 15 of R.A. 6425, otherwise known as the Dangerous
Drugs Act of 1972.
On March 10, 1992, an Information 3 was filed against the appellants charging
them as follows:jgc:chanrobles.com.ph
"That on or about February 21, 1992 in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did then and there, willfully,
unlawfully and feloniously carry and transport into the country, without lawful
authority, 16 kilograms, more or less, of METHAMPHETAMINE
HYDROCHLORIDE, also popularly known as ‘SHABU’, a regulated drug.
CONTRARY TO LAW."cralaw virtua1aw library
Upon arraignment, appellant Antolin Cuizon, assisted by counsel de parte, pleaded
not guilty. During the arraignment of appellants Paul Lee and Steve Pua, the latter
translated the Information into Chinese-Cantonese for the understanding of
appellant Lee, who does not speak nor understand English, Pilipino or any other
Philippine dialect. Both of them, duly assisted by their counsel, also pleaded not
guilty. 4 Trial ensued and on January 5, 1993, the court a quo found appellants
guilty as charged and rendered the following disposition: 5
"WHEREFORE, Accused Antolin Cuizon y Ortega, Steve Pua y Clofas alias
Stephen Po y Uy or Tommy Sy, and Paul Lee y Wong, alias Paul Leung, are found
guilty beyond reasonable doubt of transporting, without legal authority,
methamphetamine hydrochloride, or ‘shabu’, a regulated drug, as charged in the
aforequoted Information; and they are each sentenced to suffer the penalty of life
imprisonment and to pay a fine of 20,000.00.
"The methamphetamine hydrochloride or ‘shabu’ involved in this case is declared
forfeited in favor of the government and is ordered turned over to the Dangerous
Drug Board for proper disposal."cralaw virtua1aw library
The Facts
According to the Prosecution
The facts as summarized by the trial court and adopted by the Solicitor General,
who added the page references to the transcript of stenographic notes as indicated
in brackets, are as follows: 6
"In January 1992, the Reaction Group of the National Bureau of Investigation
(NBI) gathered an information regarding the drug activities of accused Antolin
Cuizon y Ortega and his wife, Susan Cuizon. A surveillance was conducted on
them. The residence of the spouses was traced to Caloocan City (tsn, May 19,
1992, pp. 17-18, 21).
"In the morning of February 21, 1992, the Reaction Group received a report from
its informant in Hong Kong that accused Cuizon, together with his wife, was
arriving on the same day at the Ninoy Aquino International Airport (NAIA) in
Pasay City, Metro Manila, from the British crown colony, carrying with him a big
quantity of ‘shabu’. A team was organized to intercept the suspects. Heading the
team was Jose Yap, with Ernesto Diño, Marcelino Amurao, Jose Bataller and
Alfredo Jacinto, as members. Some belonged to the Narcotics Division and the
others to the Reaction Group of the NBI (tsn, May 19, 1992, pp. 4, 18).
"Arriving at the NAIA shortly before 12:00 noon of February 21, 1992, Diño
positioned himself at the Arrival Area, while Yap and the other members of the
team posted themselves at the parking area of the airport. At about 12:45 in the
afternoon of the same date, Accused Cuizon and his wife, who had just returned
from Hong Kong, after passing through the Immigration and Customs Areas at the
NAIA, proceeded to the Arrival Area of the airport preparatory to their boarding a
car. While there, Accused Cuizon, together with his wife, handed four (4)
travelling bags to accused Steve Pua y Clofas and accused Paul Lee y Wong, who
were at the vicinity of the Arrival Area. Accused Pua and Lee loaded the bags in a
taxicab which they boarded in leaving the airport. Accused Cuizon and his wife
took another vehicle (tsn, May 19, 1992, pp. 4-5, 8-9).
"At this juncture, Diño, who was observing the activities of the accused, radioed
the group of Yap at the parking area, describing the vehicle boarded by accused
Pua and Lee so that Yap and his companions could apprehend the two. However,
the message of Diño was not completely received by his teammates as the radio he
was using ran short of battery power (tsn, May 19, 1992, pp. 25-26).
"Immediately after the vehicle boarded by Pua and Lee had left, Diño proceeded to
the place where his companions were stationed for the purpose of giving assistance
to them, believing that they were already in the process of apprehending accused
Pua and Lee. When he realized that the two accused were not apprehended, Diño
told the group of Yap to follow him as he was following the vehicle taken by Pua
and Lee which, according to an earlier tip he learned, was proceeding to the Manila
Peninsula Hotel in Makati, Metro Manila (tsn, May 19, 1992 pp. 25-26; tsn, May
21, 1992 pp. 6, 15).
"Upon arriving at about 2:00 p.m. of the same date of February 21, 1992, in the
Manila Peninsula Hotel, in whose premises the taxicab boarded by accused Pua
and Lee entered, Diño and the other members of the team coordinated with Col.
Regino Arellano, Chief Security Officer of the hotel, for the purpose of
apprehending the two accused. A verification made by the Chief Security Officer
showed that accused Pua and Lee occupied Room 340 of the hotel. The two
accused allowed Diño and Yap, together with Col. Arellano, to enter their room.
Found inside Room 340 were four (4) travelling bags, which were similar to the
ones handed by accused Cuizon to accused Pua and Lee at the Arrival Area of the
NAIA. After having introduced themselves as NBI agents, Diño and Yap were
permitted by accused Pua and Lee to search their bags in the presence of Col.
Arellano. The permission was made in writing.(Exh. I). Three (3) of the four (4)
bags each yielded a plastic package containing a considerable quantity of white
crystalline substance suspected to be methamphetamine hydrochloride or ‘shabu’.
Each package was sandwiched between two (2) pieces of board which appear to be
‘lawanit’ placed at the bottom of each of the three (3) bags. The suspected ‘shabu’
contained in one bag weighed 2.571 kilos, that found in the other had a weight of
2.768 kilos, and the suspected ‘shabu’ retrieved from the third bag weighed 2.970
kilos. Pua and Lee were then apprehended by Diño and his companions (tsn, May
20, 1992, pp. 9-13; tsn, May 7, 1992, p. 9, Exh. "F-2", p. 75, Records.
"Immediately thereafter, Diño and the other members of the team proceeded to the
house of accused Cuizon in Caloocan City, taking with them accused Pua and Lee
and the bags with their contents of suspected dangerous drugs. They reached the
place at about 5:50 in the afternoon of the same date of February 21, 1992.
Retrieved from accused Cuizon in his residence was another bag also containing a
white crystalline substance weighing 2.695 kilos, likewise believed to be
methamphetamine hydrochloride or ‘shabu’. In addition, a .38 Cal. firearm was
taken from accused Cuizon (tsn, May 19, 1992, pp. 10-11).
"Pua, Lee, Cuizon and his wife were then brought by the arresting officers to the
NBI headquarters at Taft Avenue, Manila, for further investigation. They were
subsequently referred to the Prosecution Division of the Department of Justice for
inquest. However, only the present three accused were charged in court (tsn, May
19, 1992, pp. 12-13, 16-17).
"In the meantime, at about 5:30 p.m. of the same date of February 21, 1992,
Joselito Soriano, roomboy of the Manila Peninsula Hotel, while cleaning Room
340, observed that a portion of the ceiling was misaligned. While fixing it, he
discovered in the ceiling a laundry bag containing suspected ‘shabu’ of more than
five (5) kilos (Exh.’X,’ p. 110). Informed of the discovery while they were already
in their office in the NBI, Yap and some companions returned to the hotel. The
suspected ‘shabu’ was turned over to them (tsn, May 20, 1992, pp. 19-22).
"When examined in the Forensic Chemistry Section of the NBI, the white
crystalline substance taken from the three (3) travelling bags found in the room of
accused Pua and Lee in the Manila Peninsula Hotel, the white crystalline substance
retrieved from the bag confiscated from accused Cuizon in his house in Caloocan
City, and the white crystalline substance hidden in the ceiling of Room 340 of the
hotel were confirmed to be methamphetamine hydrochloride or ‘shabu’, a
regulated drug. (Board Regulation No. 6, dated December 11, 1972, of the
Dangerous Drugs Board) (tsn, May 7, 1992, p. 12)."cralaw virtua1aw library
The Defense’s Version(s)
Appellant Pua, on his part, interposed the defense of alibi. On direct examination,
he testified that at the time of the alleged commission of the offense, he and his coappellant Lee were in their room at the Manila Peninsula Hotel. 7 His version of
what happened on February 21, 1992 can be summarized as follows:chanrob1es
virtual 1aw library
At around 9:30 in the morning, he accompanied appellant Paul Lee to check-in at
the Manila Peninsula Hotel for and in behalf of the latter’s personal friend named
Leong Chong Chong or Paul Leung, who was expected to arrive that evening
because of a delayed flight. Appellant Pua was engaged by appellant Lee to act as
interpreter as Lee does not know how to speak English and the local language. 8
While in Room 340, past 1:00 in the afternoon, they received a call from the lobby
informing them of the arrival of Paul Leung’s luggage. At Pua’s instructions, the
said luggage were brought to the room by a bellboy. Thereafter, two persons
knocked on their door, accompanied by a "tomboy" and a thin man with curly hair.
The two men identified themselves as NBI agents and asked appellant Pua to let
them in. He declined since he did not know who they were. However, when Col.
Arellano, the Chief Security Officer of the hotel, arrived and identified the two
NBI agents, he and Lee relented and permitted them to enter. Thereafter, he and
Lee were told by the agents to sign a piece of paper. Made to understand that they
were merely giving their consent for the agents to enter their room, Pua and Lee
signed the same. Whereupon, the agents told them that they will open Paul Leung’s
bags. Again appellant Pua refused, saying that the bags did not belong to them. Just
the same, the agents, without appellants Pua and Lee’s consent, opened the bags
and found the shabu. Pua and Lee were then apprehended and brought to the NBI
headquarters. 9
Appellant Cuizon, on the other hand, flatly rejected the prosecution’s version of
the incident. While admitting that on February 21, 1992, he and his wife Susan did
arrive from Hong Kong with several pieces of luggage, he denied that he met Pua
and Lee at the arrival area of the airport, much less passed to them the four pieces
of luggage. According to him, only his two-year old son, accompanied by his
cousin, Ronald Allan Ong, met them outside the airport. Ong fetched them from
the airport and brought them to their home in Caloocan City. They arrived at their
house around 3:00 in the afternoon. 10
About two hours later, while he was resting together with his wife and son on his
bed, two NBI agents suddenly barged in and poked a gun at him. They manhandled
him in front of his wife and son. His hands were tied with a necktie and he was
forcibly brought out of their house while the NBI agents ransacked the place
without any warrant. He, his wife Susan, and his cousin Ronald Allan Ong, were
afterwards brought to the NBI Headquarters in Manila and there the NBI agents
continued mauling him. 11
Appellant Cuizon’s wife Susan, his cousin Ronald Allan Ong, and his nephew
Nestor Dalde, testified in his favor basically reiterating or confirming his
testimony. 12
Unfortunately, appellant Paul Lee, who does not speak or understand a word of
English or Pilipino and only knows Chinese-Cantonese, was not able to take the
witness stand for lack of an interpreter who would translate his testimony to
English. In the hearing set on October 28, 1992, the last trial date allotted to the
defense for the reception of Lee’s testimony, his counsel, although notified of the
proceedings, did not appear. Thus, the trial court deemed him and Pua to have
waived their right to present additional evidence, 13 and the case was considered
submitted for decision after the filing of memoranda. The counsel for Pua and Lee
did not ask for the reconsideration of such ruling; neither did he submit any
memorandum. Only accused Cuizon, who was assisted by another counsel, was
able to submit his memorandum.
The Issues
In their brief, appellants Pua and Lee made the following assignments of errors: 14
"I. The trial court erred in finding conspiracy among the accused.
"II. The trial court erred in giving credence to the testimonies of prosecution
witnesses Marcelino Amurao, Jose Yap and Ernesto Diño despite contradictions
made on material points.
"III. The trial court erred in not giving accused Paul Lee the opportunity to present
his evidence in his defense in violation of his constitutional right to due
process."cralaw virtua1aw library
Appellant Cuizon, in a separate brief, essentially reiterates the first two
assignments of errors above-quoted, and in addition challenges the legality and
validity of his warrantless arrest and the search and seizure incidental thereto. 15
As this Court sees it, the resolution of this case hinges on the pivotal question of
the legality of the arrest and search of herein appellants effected by the NBI
operatives. Put differently, were the warrantless arrests and the warrantless
searches conducted by the NBI legal and constitutional?
The answer to this threshold question determines whether the judgment of the
court a quo will stand or fall. Consequently, there is a need to resolve first this
issue before endeavoring to consider the other issues raised by appellants.
A necessary side issue to be considered is, assuming the searches and arrests to
have been illegal, whether failure by appellants Pua and Lee to explicitly assign the
same as errors before this Court amounted to a waiver of their constitutional rights
against such illegal searches and arrests.
The Court’s Ruling
General Rule on Warrantless
Arrests, Searches, & Seizures
Well entrenched in this country is the rule that no arrest, search and seizure can be
made without a valid warrant issued by a competent judicial authority. So sacred is
this right that no less than the fundamental law of the land 16 ordains
it:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
It further decrees that any evidence obtained in violation of said right shall be
inadmissible for any purpose in any proceeding. 17
However, the right against warrantless arrest and search and seizure is not
absolute. Thus, under Section 5 of Rule 113 of the Revised Rules of Court, an
arrest without a warrant may be lawfully made by a peace officer or a private
person:jgc:chanrobles.com.ph
"a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
"(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
"(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another."cralaw virtua1aw library
On the occasion of any of the aforementioned instances of legitimate arrest without
warrant, the person arrested may be subjected to a search of his body and of his
personal effects or belongings, "for dangerous weapons or anything which may be
used as proof of the commission of an offense," likewise without need of a search
warrant. 18
However, where a person is searched without a warrant, and under circumstances
other than those justifying a warrantless arrest, as discussed above, upon a mere
suspicion that he has embarked on some criminal activity, and/or for the purpose of
discovering if indeed a crime has been committed by him, then the search made of
such person as well as his arrest are deemed illegal. 19 Consequently, any evidence
which may have been obtained during such search, even if tending to confirm or
actually confirming such initial suspicion, is absolutely inadmissible for any
purpose and in any proceeding, 20 the same being "the fruit of the poisonous tree."
21 Emphasis is to be laid on the fact that the law requires that the search be
incident to a lawful arrest, in order that the search itself may likewise be
considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the
search of a person and his belongings. Were a search first undertaken, then an
arrest effected based on evidence produced by the search, both such search and
arrest would be unlawful, for being contrary to law.
The Instant Case Does Not Fall Under
The Exceptions for Warrantless Searches, etc.
Re-assessing the factual backdrop of the case at bench, this Court cannot agree
with and accept the conclusion of the trial court that the appellants were caught in
flagrante delicto which would justify the search without a warrant. The shaky
reasoning of the court a quo gives away the baselessness of its findings and
conclusion:jgc:chanrobles.com.ph
". . . the search conducted on their bags in the hotel room could still be regarded as
valid for being incidental to a lawful arrest. . . . The arrest of accused Pua and Lee
without a warrant of arrest was lawful, as they could be considered to have
committed the crime of transporting ‘shabu’ in the presence of the arresting
officers from the time they received the bags containing the regulated drug in the
airport up to the time they brought the bags to the hotel. Or their arrest without a
warrant was legal as falling under the situation where an offense had in fact just
been committed, and the arresting officers had personal knowledge of facts
indicating that the said accused were the ones who committed it. . . ." 22
Scrutinizing the provisions of Sec. 5 of Rule 113 of the Rules of Court on lawful
arrests without warrant, we note that par. (c) of said section is obviously
inapplicable, the appellants not being escapees from a penal institution at the time
of arrest. Par. (a) on the other hand requires that the person be arrested (i) after he
has committed or while he is actually committing or is at least attempting to
commit an offense, (ii) in the presence of the arresting officer(s). These
requirements are not present in the case at bench, for at the time of their arrest,
appellants Pua and Lee were merely resting in their hotel room, and appellant
Cuizon for his part was in bed resting with his wife and child inside his home. No
offense had just been committed, or was being actually committed or being
attempted by any of the accused in the presence of the lawmen. 23
Par. (b) Or the same provision is likewise inapplicable since its equally exacting
requirements have also not been met. The prosecution failed to establish that at the
time of the arrest, an offense had in fact just been committed and the arresting
officers had personal knowledge of facts indicating that the accused-appellants had
committed it. Appellant Cuizon could not, by the mere act of handing over four
pieces of luggage to the other two appellants, be considered to have committed the
offense of "carrying and transporting" prohibited drugs. Under the circumstances
of the case, there was no sufficient probable cause for the arresting officers to
believe that the accused were then and there committing a crime. The act per se of
handing over the baggage, assuming the prosecution’s version to be true, cannot in
any way be considered a criminal act. It was not even an act performed under
suspicious circumstances as indeed, it took place in broad daylight, practically at
high noon, and out in the open, in full view of the public. 24 Furthermore, it can
hardly be considered unusual, in an airport setting, for travellers and/or their
welcomers to be passing, handing over and delivering pieces of baggage,
especially considering the somewhat obsessive penchant of our fellow countrymen
for sending along ("pakikipadala") things and gifts through friends and relatives.
Moreover, one cannot determine from the external appearance of the luggage that
they contained "shabu" hidden beneath some secret panel or false bottom. The only
reason why such act of parting with luggage took on the color and dimensions of a
felonious deed, at least as far as the lawmen were concerned, was the alleged tip
that the NBI agents purportedly received that morning, to the effect that appellant
Cuizon would be arriving that same day with a shipment of shabu. To quote from
another decision of like import," (A)ll they had was hearsay information (from the
telephone caller), and about a crime that had yet to be committed."25cralaw:red
In the leading case of People v. Burgos, 26 this Court laid down clear guidelines,
as follows:jgc:chanrobles.com.ph
"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 that fact. The offense must also be committed in his presence or
within his view. (Sayo v. Chief of Police, 80 Phil. 859)."cralaw virtua1aw library
The same decision is highly instructive as it goes on to state:jgc:chanrobles.com.ph
"The Solicitor General is of the persuasion that the arrest may still be considered
lawful under Section 6(b) using the test of reasonableness. He submits that the
information given by Cesar Masamlok was sufficient to induce a reasonable
ground (for belief) that a crime has been commit-ted and that the accused is
probably guilty thereof.
"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.
"In this case, the accused was arrested on the sole basis of Masamlok’s verbal
report. Masamlok led the authorities to suspect that the accused had committed
crime. They were still fishing for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on the basis of information from the lips
of a frightened wife cannot make the arrest lawful. . . ."cralaw virtua1aw library
The foregoing doctrine was affirmed in the case of Alih v. Castro, 27 where this
Court ruled 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."cralaw virtua1aw library
In the case at bench, not only did the NBI agents rely merely on hearsay
information ("tips"), but they were completely uncertain that anything was really
"going down" that day. That much is undisputed, from a reading of the testimony
of Agent Diño:jgc:chanrobles.com.ph
"Q Now, but you were informed by the personnel of the airport that the spouses
Cuizon were going to bring in or transport into the country shabu on February 21,
1992?
A Yes, sir.
Q Now, you were not sure or your group was not sure that they indeed would bring
in shabu, is it not? That was only the information relayed to your group?
A Yes, sir.
x
x
x
Q But then you were jumping ahead. You were not sure is it not that they were
bringing in shabu?
A Yes, sir." (TSN, May 19, 1992, pp. 37-38.)
In his testimony, NBI Investigator Jose Justo Yap, who was with Agent Diño
during the operation, likewise admitted in substantially the same tenor their
uncertainty regarding the commission of the offense (cf . TSN, May 20, 1992, pp.
29 & 34.).
We therefore hold that under the circumstances obtaining, the prosecution failed to
establish that there was sufficient and reasonable ground for the NBI agents to
believe that appellants had committed a crime at the point when the search and
arrest of Pua and Lee were made; hence, said search and arrest do not come under
the exception in par. (b) of Sec. 5 of Rule 113, and therefore should be deemed
illegal. We might add that the search conducted on Pua and Lee was not incident to
a lawful warrantless arrest, having preceded the same and produced the
justification therefor. On the other hand, the search on Cuizon’s residence, without
the benefit of a search warrant, was clearly illegal and the ‘shabu’ seized thereat
cannot but be considered inadmissible in evidence. More on these points later.
Comparison Between The Present Case
and Earlier Decisions of This Court
For clarity’s sake, it is imperative to compare the foregoing holding with previous
decisions by this Court in various drug cases, in which apparently different
conclusions were reached, in order to distinguish them from the instant case and
avoid any potential misunderstanding of the foregoing holding as well as the
constitutional and legal principles on which it is based.
1. In People v. Claudio, 28 the accused, a passenger on a bus bound for Baguio
City, was arrested by a policeman on the same bus because of the distinctive odor
of marijuana emanating from the plastic bag she was carrying. The Court held the
warrantless arrest under the circumstances to be lawful, the search justified and the
evidence thus discovered admissible in evidence.
2. In People v. Tangliben, 29 the accused, carrying a travelling bag at a bus
terminal, was noticed by lawmen to be acting suspiciously, and was also positively
fingered by an informer as carrying marijuana, and so he was accosted by
policemen who happened to be on a surveillance mission; the lawmen asked him to
open the bag, in which was found a package of marijuana leaves. It was held that
there was a valid warrantless arrest and search incident thereto. The Court in effect
considered the evidence on hand sufficient to have enabled the law enforcers to
secure a search warrant had there been time, but as the case "presented urgency,"
and there was actually no time to obtain a warrant since the accused was about to
board a bus, and inasmuch as an informer had given information "on the spot" that
the accused was carrying marijuana, the search of his person and effects was thus
considered valid.
3. In Posadas v. Court of Appeals, 30 the accused was seen acting suspiciously,
and when accosted by two members of the Davao INP who identified themselves
as lawmen, he suddenly fled, but was pursued, subdued and placed in custody. The
buri bag he was carrying yielded an unlicensed revolver, live ammunition and a
tear gas grenade. This Court upheld his conviction for illegal possession of
firearms, holding that there was under the circumstances sufficient probable cause
for a warrantless search.
4. In People v. Moises Maspil, Jr., Et Al., 31 agents of the Narcotics Command set
up a checkpoint on a highway in Atok, Benguet, to screen vehicular traffic on the
way to Baguio City due to confidential reports from informers that Maspil and a
certain Bagking would be transporting a large quantity of marijuana. At about 2
a.m. of November 1, 1986, the two suspects, riding a jeepney, pulled up to the
checkpoint and were made to stop. The officers noticed that the vehicle was loaded
with some sacks and tin cans, which, when opened, were seen to contain marijuana
leaves. The Court upheld the search thus conducted as being incidental to a valid
warrantless arrest.
5. In People v. Lo Ho Wing, Et Al., 32 the Court ruled that the search of the
appellants’ moving vehicles and the seizure of ‘shabu’ therefrom was legal, in
view of the intelligence information, including notably, clandestine reports by a
planted deep penetration agent or spy who was even participating in the drug
smuggling activities of the syndicate, to the effect that appellants were bringing in
prohibited drugs into the country. The Court also held that it is not practicable to
secure a search warrant in cases of smuggling with the use of a moving vehicle to
transport contraband, because the vehicle can be quickly moved out of the locality
or jurisdiction in which the warrant must be sought.
6. In People v. Malmstedt, 33 NARCOM agents stationed at Camp Dangwa,
Mountain Province, set up a temporary checkpoint to check vehicles coming from
the Cordillera Region, due to persistent reports that vehicles from Sagada were
transporting marijuana and other drugs, and because of particular information to
the effect that a Caucasian would be travelling from Sagada that day with
prohibited drugs. The bus in which accused was riding was stopped at the
checkpoint. While conducting an inspection, one of the NARCOM men noticed
that accused, the only foreigner on board, had a bulge at the waist area. Thinking it
might be a gun, the officer sought accused’s passport or other identification papers.
When the latter failed to comply, the lawman directed him to bring out whatever it
was that was bulging at his waist. It was a pouch bag which, when opened by the
accused, was found to contain packages of hashish, a derivative of marijuana.
Invited for questioning, the accused disembarked from the bus and brought along
with him two pieces of luggage; found inside were two teddy bears stuffed with
more hashish. The Court held that there was sufficient probable cause in the
premises for the lawmen to believe that the accused was then and there committing
a crime and/or trying to hide something illegal from the authorities. Said probable
cause arose not only from the persistent reports of the transport of prohibited drugs
from Sagada, and the "tip" received by the NARCOM that same day that a
Caucasian coming from Sagada would be bringing prohibited drugs, but also from
the failure of the accused to present his passport or other identification papers
when confronted by the lawmen, which only triggered suspicion on the part of the
law enforcers that accused was trying to hide his identity, it being the normal thing
expected of an innocent man with nothing to hide, that he readily present
identification papers when asked to do so. The warrantless arrest and search were
thus justified.
In all the cases discussed hereinabove, there were facts which were found by the
Court to provide probable cause justifying warrantless arrests and searches, i.e.,
distinct odor of marijuana, reports about drug transporting or positive identification
by informers, suspicious behaviour, attempt to flee, failure to produce
identification papers, and so on. Too, urgency attended the arrests and searches
because each of the above-mentioned cases involved the use of motor vehicles and
the great likelihood that the accused would get away long before a warrant can be
procured. And, lest it be overlooked, unlike in the case before us now, the law
enforcers in the aforementioned cases acted immediately on the information
received, suspicions raised, and probable causes established, and effected the
arrests and searches without any delay.
Unexplained Matters in the Instant Case
In the case before us, the NBI agents testified that they purportedly decided against
arresting the accused-appellants inside the airport as they allegedly wanted to
discover the identities of the airport immigration, security or customs personnel
who might be protecting the accused or otherwise involved in the drug smuggling
activities, and also in order to avoid the possibility of an armed encounter with
such protectors, which might result in injuries to innocent bystanders. These
excuses are simply unacceptable. They are obviously after-thoughts concocted to
justify their rank failure to effect the arrest within constitutional limits. Indeed, the
NBI men failed to explain how come they did not apprehend the appellants at the
moment Cuizon handed over the baggage to Pua and Lee, or even afterwards, in
relative safety. Such arrest would have been consistent with the settled
constitutional, legal and jurisprudential precedents earlier cited.
The spouses Cuizon had already passed through the airport security checks
allegedly with their contraband cargo undetected in their luggage. Apparently, the
NBI agents did not see (as indeed they did not testify that they saw) anyone from
the airport immigration, security or customs who could have escorted the spouses
Cuizon, and therefore, there was no danger of any "live ammo encounter" with
such group(s). The alleged drug couriers had already made their way outside the
NAIA, had allegedly made contact with the accused Pua and Lee, and were in the
very act of handing over the luggage to the latter. Why the NBI men did not move
in and pounce on them at that very instant has not been satisfactorily explained.
Instead one of the agents, Diño, merely watched as Pua and Lee loaded the luggage
into a cab and took off for Makati. Furthermore, it taxes the imagination too much
to think that at the most critical and climactic moment, when agent Diño radioed
his companions for help to close in on the suspects, the most amazing and
stupendous thing actually happened: Murphy’s Lay Kicked in — whatever could
go wrong, did, and at the worst possible time — the batteries in Agent Diño’s
hand-held radio supposedly went dead and his message was not transmitted. Thus
the departing Pua and Lee proceeded merrily and unimpeded to the Peninsula
Hotel, while the spouses Cuizon simultaneously sped off to their residence in
Caloocan City, leaving the lawmen empty-handed and scampering madly to catch
up. Such absolutely astounding and incredible happenstance might find a place in a
fourth-rate movie script, but expecting the courts to swallow it — hook, line and
sinker — is infinite naivete, if not downright malevolence.
Even granting arguendo that the radio really went dead, nevertheless, the agents
were not thereby rendered helpless or without recourse. The NBI agents,
numbering five in all, not counting their so-called informant, claimed to have piled
into three cars (TSN, May 19, 1992) and tailed the suspects Pua and Lee into
Makati, keeping a safe two-car distance behind (TSN, May 20, 1992). The lawmen
and the prosecutors failed to explain why the agents did not intercept the vehicle in
which Pua and Lee were riding, along the way, pull them over, arrest them and
search the luggage. And since the agents were in three (3) cars, they also could
have easily arranged to have agents in one vehicle follow, intercept and apprehend
the Cuizons while the others went after Pua and Lee. All or any of these possible
moves are mere ordinary, common-sense steps, not requiring a great deal of
intelligence. The NBI men who testified claimed to have conducted or participated
in previous drug busts or similar operations and therefore must have been familiar
with contingency planning, or at least should have known what to do in this
situation where their alleged original plan fell through. At any rate, what the
lawmen opted to do, i.e., allow Pua and Lee to freely leave the airport, allegedly
bringing the drug cache to the hotel, and Cuizon to leave unimpededly the airport
and reach his residence with one of the luggage, increased significantly the risk of
the suspects (and/or the drugs) slipping through the lawmen’s fingers, and puts into
question the regularity of performance of their official functions. The agents’
alleged actions in this case compare poorly with the forthright and decisive steps
taken by lawmen in the cases earlier cited where this Court held the arrests and
seizures to be valid.
Had the arrests and searches been made in transitu, i.e., had the agents intercepted
and collared the suspects on the way to Makati and Caloocan, or better yet, at the
very moment of the hand-over, then there would not have been any question at all
as to the legality of their arrest and search, as they would presumably have been
caught red-handed with the evidence, and consequently for that reason and by the
very nature and manner of commission of the offense charged, there would have
been no doubt also as to the existence of conspiracy among the appellant to
transport the drugs. However, because of the way the operation actually turned out,
there is no sufficient proof of conspiracy between Pua and Lee on the one hand,
and Cuizon on the other, inasmuch as there is no clear and convincing evidence
that the four (4) bags handed by Cuizon to Pua and Lee at the airport were the very
same ones found in the possession of the latter in Room 340 of the Peninsula
Hotel. Not one of the NBI agents when testifying could definitely and positively
state that the bags seized from Room 340 were the very same ones passed by
Cuizon at the airport; at best, they could only say that they "looked like" the ones
they saw at the airport. And even assuming them to be the same bags, there
remains doubt and uncertainty as to the actual ownership of the said bags as at the
alleged turnover vis-a-vis the time they were seized by the agents. For these
reason, we cannot sustain the finding of conspiracy as between Cuizon on the one
hand and Pua and Lee on the other. Well-settled is the rule that conspiracy must be
prove independently and beyond reasonable doubt. 34
Additionally, in light of the foregoing discussion, we find it extremely difficult to
subscribe to the trial court’s finding as to the existence and sufficiency of probable
cause in this case, one major component of which would have been the alleged
information or "tip" purportedly received by the agents as to the expected arrival of
the spouses Cuizon that fateful day with a large cache of ‘shabu’. The question that
defies resolution in our minds is why, if indeed the information or "tip" was
genuine and from a highly reliable source as claimed by the government agents,
did they not act on it? Throw in the alleged month-long surveillance supposedly
conducted by some of the NBI people on the Cuizon couple, and the mystery only
deepens. Even with the so-called tip and the results of surveillance, the government
officers were still seemingly hesitant, reluctant, uncertain, or perhaps afraid, to
arrest and search the accused appellants, so much so that the NBI agents who went
after Pua and Lee at the Peninsula Hotel, instead of outrightly cuffing and
searching them, as they were supposed to, opted instead to play it safe and meekly
beseeched the two to sign a written consent for the agents to search their personal
effects! Indeed, this is one for the books. If this is how confident the agents were
about their "hot tips", reliable informers and undercover surveillance, then we
cannot be blamed for failing to appreciate the existence/sufficiency of probable
cause to justify a warrantless arrest and search in this case. There is a whole lot
more that can be said on this score, but we shall leave it at that for now. We shall
now dispose of the appeals of the accused-appellants individually.
Re: Appellant Antolin Cuizon
The search of the house of appellant Cuizon, having been conducted without any
warrant, and not on the occasion or as an incident of a valid warrantless arrest, was
indubitably illegal, and the shabu seized thereat could not be admissible in
evidence. That is why even the trial judge did not make an effort to hold him liable
under such seizure. He lamely argued:" (A)t any rate, Accused Cuizon is not held
criminally liable in this case in connection with the bag containing ‘shabu’
confiscated from his residence. His responsibility is based on the bags containing
‘shabu’ which he handed to Pua and Lee at the NAIA. Consequently, even if the
bag and its contents of ‘shabu’ taken from his house were not admitted in evidence,
the remaining proofs of the prosecution would still be sufficient to establish the
charge against him." However, contrary to the trial judge’s conclusion, we hold
that insofar as Cuizon is concerned, all the evidence seized are considered fruit of
the poisonous tree and are inadmissible as against him, and thus, he should be
acquitted, since, as shown hereinabove, (i) the warrantless search conducted on
Pua and Lee was clearly illegal per se, not being incident to a valid warrantless
arrest either; (ii) and even if the search on Pua and Lee were not illegal, conspiracy
as between Cuizon on the one hand and appellants Pua and Lee on the other had
not been established by sufficient proof beyond reasonable doubt; and (iii)
appellant Cuizon had timely raised before this Court the issue of the illegality of
his own arrest and the search and seizure conducted at his residence, and
questioned the admission of the seized shabu in evidence.
Re: Appellant Steve Pua @ "Tommy Sy"
What has been said for Cuizon cannot, alas, be said for appellant Pua. While the
search and arrest carried out on him and Lee may have been illegal for not being
incident to a lawful warrantless arrest, the unfortunate fact is that appellant Pua
failed to challenge the validity of his arrest and search, as well as the admission of
the evidence obtained thereby; he did not raise the issue or assign the same as an
error before this Court. Accordingly, any possible challenge thereto based on
constitutional grounds is deemed waived. This Court has upheld and recognized
waivers of constitutional rights, including, particularly, the right against
unreasonable searches and seizures, in cases such People v. Malasugui 35 and De
Garcia v. Locsin. 36
Additionally, the prosecution had argued and the trial court agreed that by virtue of
the handwritten consent (Exhibit "I") secured by the arresting officers from
appellants Pua and Lee, the latter freely gave their consent to the search of their
baggage, and thus, the drugs discovered as a result of the consented search is
admissible in evidence. The said written permission is in English, and states
plainly that they (Pua and Lee) freely consent to the search of their luggage to be
conducted by NBI agents to determine if Pua and Lee are carrying shabu. It
appears that appellant Pua understands both English and Tagalog; he is born of a
Filipino mother, had resided in Vito Cruz, Manila, and gave his occupation as that
of salesman. He admitted that he was asked to sign the written consent, and that he
did in fact sign it (TSN, May 28, 1992, pp. 33-34). His barefaced claim made
during his direct and cross examinations to the effect that he did not really read the
consent but signed it right away, and that by signing it he only meant to give
permission for the NBI agents to enter the room (and not to search) is hardly
worthy of belief, considering that prior to the search, he seemed to have been extra
careful about who to let into the hotel room.
Thus, the full weight of the prosecution’s testimonial evidence plus the large
amount of prohibited drugs found, must be given full force vis-a-vis Pua’s claim of
innocent presence in the hotel room, which is weak and not worthy of credence.
Re: Appellant Paul Lee @ "Paul Leung"
Appellant Lee’s situation is different from that of Pua. We agree with the Solicitor
General when he noted that the trial judge did not exert sufficient effort to make
available compulsory process and to see to it that accused appellant Lee was given
his day in court. It is clear that appellant Lee was effectively denied his right to
counsel, for although he was provided with one, he could not understand and
communicate with him concerning his defense such that, among other things, no
memorandum was filed on his behalf; further, he was denied his right to have
compulsory process to guarantee the availability of witnesses and the production of
evidence on his behalf, including the services of a qualified and competent
interpreter to enable him to present his testimony. 37 In sum, he was denied due
process. For this reason, we hold that the case as against Lee must be remanded to
the court of origin for a re-trial.
Epilogue
It is evident and clear to us that the NBI agents gravely mishandled the drug bust
operation and in the process violated the constitutional guarantees against unlawful
arrests and illegal searches and seizures. Because of the large haul of illegal drugs
that the government officers claimed to have recovered, this Court agonized over
the case before us and struggled to apply the law with an even hand. In the final
analysis, we in the administration of justice would have no right to expect ordinary
people to be law-abiding if we do not insist on the full protection of their rights.
Some lawmen, prosecutors and judges may still tend to gloss over an illegal search
and seizure as long as the law enforcers show the alleged evidence of the crime
regardless of the methods by which they were obtained. This kind of attitude
condones law-breaking in the name of law enforcement. Ironically, it only fosters
the more rapid breakdown of our system of justice, and the eventual denigration of
society. While this Court appreciates and encourages the efforts of law enforcers to
uphold the law and to preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the parameters set by the
Constitution and the law. Truly, the end never justifies the means.
WHEREFORE, in view of the foregoing considerations, Accused-appellant
Antolin Cuizon y Ortega is hereby ACQUITTED on constitutional grounds. His
immediate release is ordered unless he is detained for other valid causes. Accusedappellant Steve Pua y Clofas is hereby found GUILTY of the crime of Illegal
Transport of Regulated Drugs, penalized under Section 15, R.A. No. 6425, as
amended, and is hereby sentenced to suffer the penalty of reclusion perpetua; the
Decision appealed from, as herein modified, is hereby affirmed as to appellant Pua.
Finally, the case as to appellant Lee is hereby ordered REMANDED to the trial
court in order that said accused may be given his day in court. The Decision
appealed from is also AFFIRMED with respect to the disposition of the prohibited
drugs involved in the case.
People v. Encinada, G.R. No. 116720, October 2, 1997
In acquitting the appellant, the Court reiterates the constitutional proscription that
evidence (in this case, prohibited drugs) seized without a valid search warrant is
inadmissible in any proceeding. A yield of incriminating evidence will not
legitimize an illegal search. Indeed, the end never justifies the means.
The Case
This principle is stressed in this appeal from the Judgment, 1 promulgated on July
15, 1994 by the Regional Trial Court of Surigao City, Branch 32, 2 in Criminal
Case No. 3668, convicting Appellant Roel Encinada of illegal transportation of
prohibited drugs under Section 4 of Republic Act No. 6425, as amended by Batas
Pambansa Blg. 179.
An Information, 3 dated May 22, 1992, was filed by Third Asst. Surigao City
Prosecutor Virgilio M. Egay charging appellant of said crime allegedly committed
as follows:jgc:chanrobles.com.ph
"That on or about May 21, 1992, in the City of Surigao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, in gross disregard
of the prohibition of the provisions of Republic Act No. 6425 as amended by Batas
Pambansa Bilang 179, did then and there willfully, unlawfully and feloniously
have in his possession, custody and control dried marijuana leaves weighing 800
grams, more or less, which he transported to Surigao City from Cebu City aboard a
passenger ship, well knowing that such acts are expressly prohibited by
law."cralaw virtua1aw library
Before arraignment, appellant, assisted by Counsel Antonio Casurra, offered to
plead guilty to a lesser offense, i.e., illegal possession of prohibited drugs. 4 The
trial court requested the prosecution to study the offer, 5 but the records do not
show any agreement on such proposal.
Upon his arraignment, appellant pleaded "not guilty" to the charge. 6 After the
prosecution presented its evidence, the defense filed, with leave of court, 7 a
"Demurrer to Evidence" dated September 1, 1993, 8 questioning the admissibility
of the evidence which allegedly was illegally seized from appellant. The court a
quo denied the motion, ruling: 9
"For resolution is the demurrer to evidence dated September 1, 1993 of the
accused, Roel Encinada, praying that he be acquitted of the crime charged on the
ground of the inadmissibility of the evidence for the prosecution consisting of the
marijuana (seized) from him by the police. The accused raised the following
issues, to wit: (1) Whether the arrest and search of the accused without a warrant
would fall under the doctrine of warrantless search as an incident to a lawful arrest;
and, (2) Whether the subject marijuana is admissible in evidence against the
accused.
x
x
x
A scrutiny of the evidence for the prosecution shows that the events leading to the
arrest of the accused started when SPO4 Nicolas Bolonia, chief of the PNP vice
control section, received a tip from his informer that the accused, Roel Encinada
would be arriving on board the M/V Sweet Pearl at about seven o’clock in the
morning of May 21, 1992. On cross-examination SPO4 Bolonia testified that the
information was given to him by his asset at about four o’clock in the afternoon of
May 20, 1992. After receiving the tip he relayed the information to SPO4 Cipriano
Iligan, Jr., PNP chief of intelligence. SPO4 Bolonia further declared that he would
have applied for a search warrant but there was simply no time for it.
x
x
x
In the later case of People v. Tangliben (184 SCRA 220) the Supreme Court
modified its ruling in the Aminuddin case when it held that the arrest and search is
lawful when the police had to act quickly and there was no more time to secure a
search warrant. It is noted that the tip was given to SPO4 Bolonia by his informant
at about the closing time of the offices of the various courts. He still had to inform
SPO4 Iligan in order to coordinate with him. The boat carrying the accused was
scheduled to dock in Surigao City at seven o’clock the following morning when
the courts had not yet opened.
It is therefore quite obvious that the police did not have enough time to apply for a
search warrant in the interim. The police cannot be faulted for acting on the tip and
for stopping and searching the accused even without a warrant.
In the case at bar, the accused was caught in flagrante delicto in actual possession
of the marijuana. The search made upon his personal effects falls squarely under
paragraph (a) of Rule 113, Section 5 of the 1985 Rules on Criminal Procedure
which allows a warrantless search as an incident to a lawful arrest (People v.
Malmstedt, 198 SCRA 401).
x
x
x
WHEREFORE, premises considered, the demurrer to evidence in question is
denied for lack of merit."cralaw virtua1aw library
After trial in due course, the assailed Judgment was rendered, the decretal portion
of which reads:jgc:chanrobles.com.ph
"WHEREFORE, premises considered, the Court finds the accused, Roel Encinada,
guilty beyond reasonable doubt of the violation of Section 4, Article II, of Republic
Act No. 6425 as amended by Batas Pambansa Bilang 179, and hereby sentences
him to suffer the penalty of life imprisonment and to pay a fine of twenty thousand
pesos (P20,000.00) without subsidiary imprisonment in case of insolvency; and to
pay the costs.
The marijuana (Exhibit B) involved in this case is hereby forfeited to the
government to be destroyed or disposed of pursuant to present rules and
regulations. The two plastic chairs (Exhibits D and D-1) are also forfeited to the
government."cralaw virtua1aw library
The Facts
Version of the Prosecution
The Solicitor General, in the Appellee’s Brief, recounts the events leading to
appellant’s arrest, as follows: 10
"At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was in his house when
he received a tip from an informant that Roel Encinada would be arriving in
Surigao City from Cebu City in the morning of May 21, 1992 on board the M/V
Sweet Pearl bringing with him ‘marijuana.’ Bolonia was then Chief of the Vice
Control Squad of the Surigao City Police (pp. 27-29; TSN, November 27, 1992,
34-40; p. 10, TSN, May 14, 1993).
Bolonia already knew Encinada because the latter previously was engaged in
illegal gambling known as ‘buloy-buloy.’ After receiving the tip, Bolonia notified
the members of his team — SPO3 Marcial Tiro, SPO3 Glen Abot and SPO3
Charlito Duero — as well as his colleague SPO4 Cipriano Iligan, Jr., the chief of
the Intelligence and Investigation Division, of the information he received.
Because the information came late, there was no more time to secure a search
warrant (pp. 38; TSN, November 27, 1992, May 14, 1993, p. 13; pp. 4, 19; TSN,
March 3, 1993).
In the early morning of May 21, 1992, Bolonia, Iligan and other police officers
deployed themselves in different strategic points at the city wharf to intercept
Encinada. At about 8:15 a.m. of the same day, the M/V Sweet Pearl finally docked.
The police officers saw Encinada walk briskly down the gangplank, carrying two
small colored plastic baby chairs in his hand (p. 11 TSN, May 14, 1993; pp. 4, 5,
15-16 TSN, March 3, 1993; pp. 29-30 TSN, November 27, 1992, pp. 29-30).
From their various positions, the police officers followed Encinada immediately
boarded a tricycle at Borromeo Street, still holding the plastic chairs. As the
tricycle slowly moved forward, Bolonia chased it and ordered the driver to stop
after identifying himself as a police officer. When the vehicle stopped, Bolinia
identified himself to Encinada and ordered him to alight from the tricycle. Bolonia
asked Encinada to hand over the plastic chairs, to which the latter complied (pp. 5,
6, 17 TSN, March 3, 1993, pp. 30-32, 35 TSN, November 27, 1992).
Bolonia noticed that there were two small chairs, one green and the other blue,
stacked together and tied with a piece of string. Between the stack of chairs, there
was a bulky package. Bolonia examined it closely and smelled the peculiar scent of
marijuana. Making a small tear in the cellophane cover, Bolonia could see and
smell the what appeared to be ‘marijuana,’ a prohibited drug (pp. 6-9 TSN, March
3, 1993, Exh.’B’, ‘D’ and sub-markings; pp. 32-34. 35-39 TSN, November 27,
1992).
Encinada was brought to the central police station. Bolonia, in the presence of one
Nonoy Lerio who is a member of the local media and a friend of Encinada, opened
the package. It was discovered that indeed, the contents consisted of dried leaves
known as marijuana. In the course of the investigation, Encinada surrendered to
Bolonia his passenger ticket issued by M/V Sweet Pearl (pp. 9-11 TSN, March 3,
1993, Exh.’E’; pp. 34-35, 39-40 TSN, November 27, 1992).
On July 13, 1992, Bolonia brought the package of dried leaves for examination at
the PNP Crime Laboratory at Camp Evangelista, Cagayan de Oro City. The
forensic chemist, Inspector Vicente Armada, tested the leaves and confirmed that
they were positive for marijuana. However, the marijuana only weighed 610
grams, which Armada opined to be probably due to shrinkage and moisture loss
(pp. 12-17, 19-21, 24-40, 41; TSN, November 27, 1992, Exh.’A’, ‘B’, ‘C’ and submarkings.)"
Version of the Defense
Appellant sets up denial as his defense. In his brief, he denied ownership and
possession of said plastic baby chairs, as follows: 11
"1) In the morning of May 21, 1992, at around 8:00 o’clock in the morning, more
or less, the accused was seen to have disembarked from M/V Sweet Pearl after an
overnight trip from Cebu City;
2) The accused proceeded to the Surigao PPA Gate and boarded a motorela bound
for his residence at Little Tondo, (within the City Proper), Surigao City. The
Motorela was fully loaded with passengers, with the accused as the fourth
passenger;
3) When the motorela was already able to travel a distance of about ten (10) meters
more or less, the same was forcibly stopped by persons who ordered the passengers
to disembarked (sic). Thereafter, all the (baggage) of the passengers and the driver
were ordered to stand in a line for which a body search was made individually
(sic);
4) After the search was made, the accused was singled out in the line and ordered
to board the service vehicle of the police and was brought to the PNP Police
Station.
Before however the accused boarded the jeep, he was openly protesting to the
action taken by the police authorities and demanded from the apprehending
officers a copy of a search warrant and/or warrant of arrest for the search made and
for his apprehension;
5) In the police headquarters, the accused was made to undergo custodial
investigation for which a plastic bag was presented to him allegedly containing the
subject marijuana leaves. The accused denied that the said plastic bag belonged to
him.
The denial was witnessed by Mr. Daniel ‘Nonoy’ Lerio, Jr. a member of the
Surigao City Press, who was invited by the Police Investigators to witness the
presentation of the alleged marijuana leaves, during the said
investigation;chanrobles virtual lawlibrary
6) After the custodial investigation, the accused was placed immediately behind
bars and the Information for Violation of RA 6425 as amended by Batas Pambansa
Blg. 179 was filed before the Court;
x
x
x"
Aside from appellant, the defense also presented five (5) other witnesses whose
testimony allegedly established the following: 12
"8.a) Ruben Concha — the driver of the motorela who testified that he was
surprised when the motorela he was driving was forcibly stopped (while already in
motion) by the police authorities while directing his four (4) passengers, (3 males
and 1 female) to disembarked (sic) together with their (baggage).
That after the search was made, the accused was singled out, and despite the
protests made, was ordered to board the Police service vehicle, while the 2 other
male passengers just left the scene while the female passenger continued to board
the motorela who directed him to proceed to the residence of Baby Encinada to
verify whether the person picked up by the police authorities was related to the
latter;
8.b) Josephine Nodalo — testified that she is a beautician, and that she was one of
the four (4) passengers of the motorela driven by Ruben Concha, which motorela
was forcibly stopped by men who are chasing it after travelling a distance of 5 to
10 meters away from its loading area near the PPA Gate.
All the four (4) passengers were ordered to disembarked (sic) from the motorela
whereupon they were all subjected to body search including their (baggage).
That it was the male passenger who was sitting at the rear portion of the motorela
who was picked up by the Police Authorities and despite the protests made was
ordered to board the Police service vehicle.
Upon learning from the persons who were gathered at the scene, that the one who
was picked up was the son of Mr. Encinada, the latter boarded back the motorela
and directed the driver to proceed to the residence of the Encinada’s at Little
Tondo to verify whether it was really their son who was picked up by the police
authorities. She made this, as Mrs. Encinada, (the mother of the accused) is his
(regular) customer;
8.c) Mr. Daniel ‘Nonoy’ Lerio, Jr. — testified that, being a member of the Press,
he was requested by the police authorities to witness the custodial investigation
conducted upon the person of the accused, who, during the entire proceedings of
the investigation vehemently denied having any knowledge about the marijuana
leaves placed inside the plastic bag;
8.d) Isabelita Encinada — testified that she was informed by her manicurist
(Josephine Nodalo) about the arrest . . . (of) her son, somewhere at the PPA Port
Area and upon being informed, she and her husband immediately went to the
Surigao PNP Headquarters to verify the (news) . . .;"
x
x
x"
Ruling of the Trial Court
The trial court rejected appellant’s claim that he was merely an innocent passenger
and that his package contained mango and otap samples, not marijuana.
Emphasizing that the Surigao City Police had no ill motive against appellant, the
trial court gave credence to SPO4 Bolonia’s story that he actually received from
his police asset the information regarding appellant’s arrival in Surigao City. The
trial court further emphasized that appellant was caught carrying marijuana in
flagrante delicto. Hence, the warrantless search following his lawful arrest was
valid and the marijuana obtained was admissible in evidence.
Assignment of Errors
In his Brief, appellant submits the following assignment of errors: 13
"I. The lower court erred in finding that the accused was caught in flagranti (sic)
delicto in possession of the subject marijuana leaves and is the one responsible in
transporting the same;
II. The lower court gravely erred in finding that search and the arrest of the
accused without a warrant would fall under the doctrine of warrantless search as
incident to a lawful arrest —
III. The lower court gravely erred in finding that the subject marijuana leaves is
admissible in evidence —"
In short, the main issues are (1) the sufficiency of the evidence showing possession
of marijuana by appellant and (2) the validity of the search conducted on the
person and belongings of the Appellant.
The Court’s Ruling
The petition is meritorious.
First Issue: Illegal Possession of Prohibited Drugs
Appellant claims that the prosecution failed to prove his possession and ownership
of the plastic baby chairs. He contends that the testimonies of Bolonia and Iligan
conflicted as to the number of passengers riding the motorela. Such alleged conflict
is peripheral and irrelevant. Hence, it deserves scant consideration. Appellant adds
that such testimonies also conflicted as to the place where appellant sat inside the
motorela. This claim, aside from being flimsy, is also not supported by the
transcript of stenographic notes.
In his testimony, appellant vehemently denied possession of the plastic baby
chairs, stressing that he was not holding them when the search was conducted.
However, his denial is easily rebutted by Bolonia’s testimony: 14
"Q: When you saw Roel Encinada who disembarked from M/V Sweet Pearl, what
did you observe in his person, if any?
A: He was carrying a (sic) baby chairs.
Q: What kind of chairs?
A: A (sic) plastic chairs.
x
x
x
Q: After you saw Roel Encinada disembarked (sic) from the boat, what did you
and your companions do?
A: We followed him behind because we posted in the different direction(s) in the
wharf.
x
x
x
Q: You said you followed Roel Encinada, what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let
him stopped (sic).
x
x
x
Q: By the way, where was (sic) this (sic) two plastic chairs placed in the motorize
tricycle?
A: He was sitting at the back of the motor at the right portion of the seat and the
chairs was (sic) placed besides him. ([W]itness indicating that he was sitting (sic)
an imaginary seat at the back of the motor and holding an (sic) imaginary chairs
with his left arm)."cralaw virtua1aw library
Between these two contentions, the choice of the trial court prevails because this is
a matter that involves credibility of witnesses. On this subject of credibility, the
opinion of the trial court deserves great respect as it was in a better position to
observe the demeanor and deportment of the witnesses on the stand; 15 hence, it
was in a superior situation to assess their testimonies.
Furthermore, proof of ownership of the marijuana is not necessary in the
prosecution of illegal drug cases; 16 it is sufficient that such drug is found in
appellant’s possession.
Second Issue: Illegal Search and Seizure
Based on the foregoing discussion, appellant’s conviction could have been
affirmed by this Court. However, the very evidence implicating him — the
prohibited drugs found in his possession — cannot be used against him in this case
or, for that matter, in "any proceeding."cralaw virtua1aw library
Generally, a search and seizure must be validated by a previously secured warrant;
otherwise, such search and seizure is subject to challenge. 17 Section 2, Article III
of the 1987 Constitution, is apropos:jgc:chanrobles.com.ph
"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." chanroblesvirtualawlibrary
Any evidence obtained in violation of this provision is legally inadmissible in
evidence as a "fruit of the poisonous tree." This principle is covered by this
exclusionary rule:jgc:chanrobles.com.ph
"SEC. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
inadmissible for any purpose in any proceeding."cralaw virtua1aw library
The plain import of the foregoing provision is that a search and seizure is normally
unlawful unless authorized by a validly issued search warrant or warrant of arrest.
This protection is based on the principle that, between a citizen and the police, the
magistrate stands as a mediator, nay, an authority clothed with power to issue or
refuse to issue search warrants or warrants of arrest. 18
The right against warrantless searches, however, is subject to legal and judicial
exceptions, as follows: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure. 19 In
these cases, the search and seizure may be made only upon probable cause as the
essential requirement. Although the term eludes exact definition, probable cause
signifies 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; or the existence of such facts and
circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to seizure and destruction by law
is in the place to be searched. 20
In this case, Bolonia received at 4:00 p.m. on May 20, 1992 an intelligence report
that appellant who was carrying marijuana would arrive the next morning aboard
the M/V Sweet Pearl. Although such report could have been the basis of probable
cause, Bolonia explained that he could not secure a warrant because the courts in
Surigao City were already closed for the day. Thus, he and the other lawmen had
no choice but to proceed the next morning to the port area. After appellant
disembarked from the ship and rode a motorela, Bolonia stopped the motor vehicle
and conducted the search. He rummaged through the two strapped plastic baby
chairs which were held by appellant and found inserted between them a package of
marijuana wrapped in a small plastic envelope.
Appellant contended before the lower court that the warrantless search of his
belongings was proscribed by the Constitution. But the trial judge rejected this
contention, opining that appellant was caught in flagrante delicto at the time of his
arrest. Hence, it concluded that the warrantless search conducted after his "lawful
arrest" was valid and that the marijuana was admissible in evidence.
Rule 113, Section 5, discusses the instances when a warrantless arrest may be
effected, as follows:jgc:chanrobles.com.ph
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:chanrob1es virtual 1aw library
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
x
x
x."cralaw virtua1aw library
In this case, appellant was not committing a crime in the presence of the Surigao
City policemen. Moreover, the lawmen did not have personal knowledge of facts
indicating that the person to be arrested had committed an offense. The search
cannot be said to be merely incidental to a lawful arrest. Raw intelligence
information is not a sufficient ground for a warrantless arrest. Bolonia’s testimony
shows that the search preceded the arrest: 21
"Q: You said you followed Roel Encinada, what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride with a motorcycle so I chased him and let
him stopped (sic).
x
x
x
Q: You said you stopped the motor tricycle in which Roel Encinada (sic) riding,
what did you do?
A: At first I identified myself to the driver and to some of the passengers.
x
x
x
Q: And after that, what happened next?
A: I requested Roel Encinada to disembark from the motor tricycle because of that
information given to us in his possession;
Q: Possession of what?
A: Possession of marijuana, Sir.
Q: And Roel Encinada alighted from the motor vehicle?
A: Yes, Sir.
Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried."cralaw virtua1aw library
Contrary to the trial court’s ruling, People v. Tangliben 22 is factually inapplicable
to the case at bar. The 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.
We disagree with the trial court’s justification for the search:jgc:chanrobles.com.ph
"The arrest of the accused without warrant was lawful because there was a
probable cause or ground for his apprehension. The police had received reliable,
albeit confidential information from their informant that Roel Encinada would be
bringing in marijuana from Cebu City on board the M/V Sweet Pearl.
Unfortunately there was no more time for the police to apply for and secure a
search warrant as the information was received late in the afternoon of May 20,
1992 and the accused was expected to arrive at seven o’clock the following
morning. The different courts were closed by then. Nevertheless the police felt
constrained to act on the valuable piece of information."cralaw virtua1aw library
Even if the information was received by Bolonia about 4:00 p.m. of May 20, 1992
at his house, there was sufficient time to secure a warrant of arrest, as the M/V
Sweet Pearl was not expected to dock until 7:00 a m. the following day.
Administrative Circular No. 13 allows applications for search warrants even after
court hours:jgc:chanrobles.com.ph
"3. Rafflling shall be strictly enforced, except only in case where an application for
search warrant may be filed directly with any judge in whose jurisdiction the place
to be searched is located, after office hours, or during Saturdays, Sundays, and
legal holidays, in which case the applicant is required to certify under oath the
urgency of the issuance thereof after office hours, or during Saturdays, Sundays
and legal holidays; (Emphasis supplied)
The same procedural dispatch finds validation and reiteration in Circular No. 19,
series of 1987, entitled "Amended Guidelines and Procedures on Applications for
Search Warrants for Illegal Possession of Firearms and Other Serious Crimes Filed
in Metro Manila Courts and Other Courts with Multiple Salas"
:jgc:chanrobles.com.ph
"This Court has received reports of delay while awaiting raffle, in acting on
applications for search warrants in the campaign against loose firearms and other
serious crimes affecting peace and order. There is a need for prompt action on such
applications for search warrant. Accordingly, these amended guidelines in the
issuance of a search warrant are issued:chanrob1es virtual 1aw library
1. All applications for search warrants relating to violation of the Anti-subversion
Act, crimes against public order as defined in the Revised Penal Code, as amended,
illegal possession of firearms and/or ammunition and violations of the Dangerous
Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately
be taken cognizance of and acted upon by the Executive Judge of the Regional
Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose
jurisdiction the place to be searched is located.
2. In the absence of the Executive Judge, the Vice-Executive Judge shall take
cognizance of and personally act on the same. In the absence of the Executive
Judge or Vice-Executive Judge, the application may be taken cognizance of and
acted upon by any judge of the Court where the application is filed.chanrobles
virtual lawlibrary
3. Applications filed after office hours, during Saturdays, Sundays and holidays,
shall likewise be taken cognizance of and acted upon by any judge of the Court
having jurisdiction of the place to be searched, but in such cases the applicant shall
certify and state the facts under oath, to the satisfaction of the judge, that its
issuance is urgent.
4. Any judge acting on such application shall immediately and without delay
personally conduct the examination of the applicant and his witnesses to prevent
the possible leakage of information. He shall observe the procedures, safeguards,
and guidelines for the issuance of search warrants provided for in this Court’s
Administrative Circular No. 13, dated October 1, 1985."cralaw virtua1aw library
In People v. Aminnudin, the Court declared as inadmissible in evidence the
marijuana found in appellant’s possession during a search without a warrant,
because it had been illegally seized. The Court firmly struck down the policemen’s
cavalier disregard for the Bill of Rights, explaining:jgc:chanrobles.com.ph
"The present case presented no urgency. From the conflicting declarations of the
PC witnesses, it is clear that they had at least two days within which they could
have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo
on the M/V Wilcon 9. His name was known. The vehicle was identified. The date
of its arrival was certain. And from the information they had received, they could
have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Yet they did nothing. No effort was made to comply with the
law. The Bill of Rights was ignored altogether because the PC lieutenant who was
the head of the arresting team, had determined on his own authority that a ‘search
warrant was not necessary.’"
Lawmen cannot be allowed to violate the very law they are expected to enforce.
Bolonia’s receipt of the intelligence information regarding the culprit’s identity,
the particular crime he allegedly committed and his exact whereabouts underscored
the need to secure a warrant for his arrest. But he failed or neglected to do so. Such
failure or neglect cannot excuse him from violating a constitutional right of
the Appellant.
It is significant that the Solicitor General does not share the trial judge’s opinion.
Taking a totally different approach to justify the search, the Republic’s counsel
avers that appellant voluntarily handed the chairs containing the package of
marijuana to the arresting officer and thus effectively waived his right against the
warrantless search. This, he gleaned from Bolonia’s testimony: 23
"Q: After Roel Encinada alighted from the motor tricycle, what happened next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, Sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two
plastic chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the two
chairs."cralaw virtua1aw library
We are not convinced. While in principle we agree that consent will validate an
otherwise illegal search, we believe that appellant — based on the transcript quoted
above — did not voluntarily consent to Bolonia’s search of his belongings.
Appellant’s silence should not be lightly taken as consent to such search. 24 the
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. 25 Furthermore, considering that the search was conducted irregularly,
i.e, without a warrant, we cannot appreciate consent based merely on the
presumption of regularity of the performance of duty.
Appellant’s alleged acquiescence should be distinguished from the consent
appreciated in the recent case of People v. Lacerna. 26 In said case, the search was
conducted at a validly established checkpoint and was made in the regular
performance of the policemen’s duty. Although it became intrusive when the
policemen opened his baggage, it was validated by the consent of appellant, who
testified in open court that he allowed such search because he had nothing to hide.
In the present case, there was no checkpoint established. The policemen stopped
the motorela and forthwith subjected the passengers to a search of their persons
and baggage. In contrast to the accused in Lacerna, herein appellant testified that
he openly objected to the search by asking for a warrant.
Without the illegally seized prohibited drug, the appellant’s conviction cannot
stand. There is simply no sufficient evidence remaining to convict him. That the
search disclosed a prohibited substance in appellant’s possession, and thus
confirmed the police officers’ initial information and suspicion, did not cure its
patent illegality. An illegal search cannot be undertaken and then an arrest effected
on the strength of the evidence yielded by the search.
We should stress that the Court is not unmindful of the difficulties of law
enforcement agencies in suppressing the illegal traffic of dangerous drugs.
However, quick solutions of crimes and apprehensions of malefactors do not
justify a callous disregard of the Bill of Rights. Law enforcers are required to
follow the law and to respect the people’s rights. Otherwise, their efforts become
counterproductive. We remind them of this recent exhortation by this Court: 27
". . . In the final analysis, we in the administration of justice would have no right to
expect ordinary people to be law-abiding if we do not insist on the full protection
of their rights. Some lawmen, prosecutors and judges may still tend to gloss over
an illegal search and seizure as long as the law enforcers show the alleged evidence
of the crime regardless of the methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law enforcement. Ironically, it only
fosters the more rapid breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates and encourages the efforts of
law enforcers to uphold the law and to preserve the peace and security of society,
we nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never justifies the
means."cralaw virtua1aw library
WHEREFORE, the appeal is hereby GRANTED. The assailed Decision is
REVERSED and SET ASIDE. Appellant is ACQUITTED. Unless convicted for
any other crime or detained for some lawful reason, Appellant Roel Encinada is
ORDERED RELEASED immediately.
SO ORDERED.
Espano v. CA, G.R. No. 120431, April 1, 1998
This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR
No. 13976 dated January 16, 1995,1 which affirmed in toto the judgment of the
Regional Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano
for violation of Article II, Section 8 of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act.
Petitioner was charged under the following information:
That on or about July 14, 1991, in the City of Manila, Philippines, the said
accused not being authorized by law to possess or use any prohibited drug,
did then and there willfully, unlawfully and knowingly have in his
possession and under his custody and control twelve (12) plastic cellophane
(bags) containing crushed flowering tops, marijuana weighing 5.5 grams
which is a prohibited drug.
Contrary to law. 2
The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan,
shows that on July 14, 1991, at about 12:30 a.m., he and other police officers,
namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the
Western Police District (WPD), Narcotics Division went to Zamora and Pandacan
Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner
selling "something" to another person. After the alleged buyer left, they
approached petitioner, identified themselves as policemen, and frisked him. The
search yielded two plastic cellophane tea bags of marijuana. When asked if he had
more marijuana, he replied that there was more in his house. The policemen went
to his residence where they found ten more cellophane tea bags of marijuana.
Petitioner was brought to the police headquarters where he was charged with
possession of prohibited drugs. On July 24, 1991, petitioner posted bail3 and the
trial court issued his order of release on July 29, 1991.4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory
Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the
apprehension of a certain Rodolfo Espano for examination tested positive for
marijuana, with a total weight of 5.5 grams.
By way of defense, petitioner testified that on said evening, he was sleeping in his
house and was awakened only when the policemen handcuffed him. He alleged
that the policemen were looking for his brother-in-law Lauro, and when they could
not find the latter, he was instead brought to the police station for investigation and
later indicted for possession of prohibited drugs. His wife Myrna corroborated his
story.
The trial court rejected petitioner's, defense as a "mere afterthought" and found the
version of the prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner
of the crime charged, the dispositive portion of which reads:
WHEREFORE there being proof beyond reasonable doubt, the court finds
the accused Rodolfo Espano y Valeria guilty of the crime of violation of
Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No.
6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby
sentences him to suffer imprisonment of six (6) years and one (1) day to
twelve (12) years and to pay a fine of P6,000.00 with subsidiary
imprisonment in case of default plus costs.
The marijuana is declared forfeited in favor of government and shall be
turned over to the Dangerous Drugs Board without delay.
SO ORDERED. 5
Petitioner appealed the decision to the Court of Appeals. The appellate court,
however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on the
basis of the following: (a) the pieces of evidence seized were inadmissible; (b) the
superiority of his constitutional right to be presumed innocent over the doctrine of
presumption of regularity, (c) he was denied the constitutional right of
confrontation and to compulsory process; and (d) his conviction was based on
evidence which was irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no
compelling reason sufficient to reverse the decisions of the trial and appellate
courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of
witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the
issue of credibility and, thus, his findings will not be disturbed during appeal in the
absence of any clear showing that he had overlooked, misunderstood or misapplied
some facts or circumstances of weight and substance which could have altered the
conviction of the appellants.6
In this case, the findings of the trial court that the prosecution witnesses were more
credible than those of the defense must stand. Petitioner failed to show that Pat.
Pagilagan, in testifying against him, was motivated by reasons other than his duty
to curb drug abuse and had any intent to falsely impute to him such a serious crime
as possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity in the performance of his official duty must prevail.
In People v. Velasco,7 this Court reiterated the doctrine of presumption of
regularity in the performance of official duty which provides:
. . . Appellant failed to establish that Pat. Godoy and the other members of
the buy-bust team are policemen engaged in mulcting or other unscrupulous
activities who were motivated either by the desire to extort money or exact
personal vengeance, or by sheer whim and caprice, when they entrapped
her. And in the absence of proof of any intent on the part of the police
authorities to falsely impute such a serious crime against appellant, as in this
case, the presumption of regularity in the performance of official duty, . . . ,
must prevail over the self-serving and uncorroborated claim of appellant that
she had been framed. 8
Furthermore, the defense set up by petitioner does not deserve any consideration.
He simply contended that he was in his house sleeping at the time of the incident.
This Court has consistently held that alibi is the weakest of all defenses; and for it
to prosper, the accused has the burden of proving that he was not at the scene of
the crime at the time of its commission and that it was physically impossible for
him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that
has been invariably viewed by the Court with disfavor for it can just as easily be
concocted but difficult to prove, and is a common and standard line of defense in
most prosecutions arising from violations of the Dangerous Drugs Act."9 No clear
and convincing evidence was presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is
again without merit, since failure of the prosecution to produce the informant in
court is of no moment especially when he is not even the best witness to establish
the fact that a buy-bust operation had indeed been conducted. In this case, Pat.
Pagilagan, one of the policemen who apprehended petitioner, testified on the actual
incident of July 14, 1991, and identified him as the one they caught in possession
of prohibited drugs. Thus,
We find that the prosecution had satisfactorily proved its case against
appellants. There is no compelling reason for us to overturn the finding of
the trial court that the testimony of Sgt. Gamboa, the lone witness for the
prosecution, was straightforward spontaneous and convincing. The
testimony of a sole witness, if credible and positive and satisfies the court
beyond reasonable doubt, is sufficient to convict. 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove
that petitioner indeed committed the crime charged; consequently, the finding of
conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be
ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:
A peace officer or a private person may, without a warrant, arrest a person:
a. when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
xxx
xxx
xxx
Petitioner's arrest falls squarely under the aforecited rule. He was caught in
flagranti as a result of a buy-bust operation conducted by police officers on the
basis of information received regarding the illegal trade of drugs within the area of
Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing
over something to an alleged buyer. After the buyer left, they searched him and
discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the
two cellophane bags of marijuana seized were admissible in evidence, being the
fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence,
however, the same are inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which provides:
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.
An exception to the said rule is a warrantless search incidental to a lawful arrest for
dangerous weapons or anything which may be used as proof of the commission of
an offense.11 It may extend beyond the person of the one arrested to include the
premises or surroundings under his immediate control. In this case, the ten
cellophane bags of marijuana seized at petitioner's house after his arrest at
Pandacan and Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua,12 this Court held:
As regards the brick of marijuana found inside the appellant's house, the trial
court correctly ignored it apparently in view of its inadmissibility. While
initially the arrest as well as the body search was lawful, the warrantless
search made inside the appellant's house became unlawful since the police
operatives were not armed with a search warrant. Such search cannot fall
under "search made incidental to a lawful arrest," the same being limited to
body search and to that point within reach or control of the person arrested,
or that which may furnish him with the means of committing violence or of
escaping. In the case at bar, appellant was admittedly outside his house
when he was arrested. Hence, it can hardly be said that the inner portion of
his house was within his reach or control.
The articles seized from petitioner during his arrest were valid under the doctrine
of search made incidental to a lawful arrest. The warrantless search made in his
house, however, which yielded ten cellophane bags of marijuana became unlawful
since the police officers were not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of petitioner.
In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt
of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act
No. 6425, as amended. Under the said provision, the penalty imposed is six years
and one day to twelve years and a fine ranging from six thousand to twelve
thousand pesos. With the passage of Republic Act No. 7659, which took effect on
December 31, 1993, the imposable penalty shall now depend on the quantity of
drugs recovered. Under the provisions of Republic Act No. 7629, Section 20, and
as interpreted in People v. Simon13 and People v. Lara,14 if the quantity of
marijuana involved is less than 750 grams, the imposable penalty ranges
from prision correccional to reclusion temporal. Taking into consideration that
petitioner is not a habitual delinquent, the amendatory provision is favorable to him
and the quantity of marijuana involved is less than 750 grams, the penalty imposed
under Republic Act No. 7659 should be applied. There being no mitigating nor
aggravating circumstances, the imposable penalty shall be prision correccional in
its medium period. Applying the Indeterminate Sentence Law, the maximum
penalty shall be taken from the medium period of prision correccional, which is
two (2) years, four (4) months and one (1) day to four (4) years and two (2)
months, while the minimum shall be taken from the penalty next lower in degree,
which is one (1) month and one (1) day to six (6) months of arresto mayor.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court
of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED
with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an
indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as
minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision
correccional, as maximum.
SO ORDERED.
People v. Claudio, G.R. No. 72564, April 15, 1988 [CRITIQUE]
This is an appeal from the decision of the Regional Trial Court of Olongapo City,
Branch 73 finding the accused Anita Claudio y Bagtang guilty beyond reasonable
doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a
fine of P20,000.00, and to pay the costs.
The information filed against the accused alleged:jgc:chanrobles.com.ph
"That on or about the 21st day of July 1981, in the City of Olongapo, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused
without being lawfully authorized, did then and there wilfully, unlawfully and
knowingly transport 1.1 kilos of Marijuana dried leaves, which are prohibited
drugs for the purpose of selling the same from Baguio City to Olongapo City."
(Rollo, p. 13)
The lower court established her guilt beyond reasonable doubt on the basis of the
prosecution’s evidence as follows:jgc:chanrobles.com.ph
"To prove the guilt of the accused, the prosecution offered the following
documentary and testimonial evidence as follows: Exhibit "A" — Letter request
for Examination of suspected marijuana dried leaves weighing approximately 1.1
kilos dated July 25, 1981; "B" — plastic container; "B" marijuana contained in the
plastic container; "B" -1-a" — another plastic container; "C" — Chemistry Report
No. D-668-81; "C" Findings: Positive for marijuana; "D, "D-1," D-2 and "D-3;"
"E" and "E" photographs of accused with Pat. Daniel Obiña and Paulino Tiongco
showing the marijuana, "F — Victory Liner Ticket No. 84977; "G" — Sworn
Statement of Pat. Daniel Obiña, "H" — Request for Field Test on suspected
marijuana from accused by P/Lt. Antonio V. Galindo; "H" -1 date of receipt of the
request; "L" — Certificate of Field Test dated duly 22, 1981; "B-2" and "B-2-a" —
additional Wrapping paper; and the testimonies of witnesses of the prosecution,
Theresa Ann Bugayong; Pat. Daniel Obiña, Cpl. Paulino Tiongco, Cpl. Ernesto
Abello and Sgt. Leoncio Bagang.
"Theresa Ann Bugayong - 22 years old, single, Forensic Chemist and a resident of
1150 Sampaloc, Metro Manila, testified that she received a request from the Task
Force Bagong Buhay, Olongapo City, dated July 25, 1981, on specimen of
marijuana submitted for examination. The specimen consisted of 900 grams of
suspected dried marijuana flowering tops wrapped in a newspaper placed in a
plastic bag with a marking "MB Store" (Exh. "B").
"The examination conducted by her proved to be positive for marijuana. After her
examination, she prepared Chemistry Report No. D-668-81 dated July 29, 1981
(Exhs. "C" and "C-1"). She conducted three examinations; microscopic
examination, the duguenoi levine test and thirdly, the confirmatory examination of
thin layer chromatographic test. The said specimen was submitted to them by OIC
Danilo Santiago, a representative of the CANU, Olongapo City.cralawnad
"The second witness for the prosecution was Daniel Obiña, 37 years old, married,
policeman and residing at 34 Corpuz St., East Tapinac, Olongapo City. Obiña
testified that he has been a member of the INP, since 1970 up to the present. He
was assigned in June, 1972 at the Investigation Division as operative. His job then
was among other things to follow up reports in their office, recover stolen items
and apprehend suspects on July 21, 1981, he was on Detached Service with the
ANTI-NARCOTICS Unit; and that on that date, he came from Baguio City and
arrived in Olongapo City at about 1:30 o’clock in the Afternoon having left Baguio
at about 8:30 o’clock in the morning. He took the Victory Liner in going back to
Olongapo City. His family lives in Baguio City. On board the Victory Liner, he
was seated on the second seat at the back. While he was thus seated, suspect Anita
Claudio boarded the same bus and took the seat in front of him after putting a bag
which she was carrying at the back of the seat of Obiña. The bag placed by suspect
behind his seat was a wooven buri bag made of plastic containing some vegetables.
The act of the accused putting her bag behind Pat. Obiña seat aroused his suspicion
and made him felt (sic) nervous. With the feeling that there was something
unusual, he had the urge to search the woven plastic bag. But it was only at San
Fernando, Pampanga when he was able to go to the bag. He inserted one of his
fingers in a plastic bag located at the bottom of the woven bag and smelt
marijuana. The plastic woven bag appearing to contain camote tops on the top has
a big bundle of plastic of marijuana at the bottom. He could recognize the smell of
marijuana because he was assigned at that time at the ANTI-NARCOTICS Unit.
He did not, however, do anything after he discovered that there was marijuana
inside the plastic bag of the accused until they reached Olongapo City and the
accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita.
Right after the accused alighted from the bus, policeman Obiña intercepted her and
showed her his ID identifying himself as a policeman and told her he will search
her bag because of the suspicion that she was carrying marijuana inside said bag.
In reply, Accused told him, "Please go with me, let us settle this at home."
However, the witness did not heed her plea and instead handcuffed her right hand
and with her, boarded a tricycle right away and brought the suspect to the police
headquarters with her bag appearing to contain vegetables.
"At the police headquarters Investigation Section. the bag was searched in the
presence of Investigator Cpl. Tiongco; Pat. Obiña, the accused and Sgt. Leoncio
Bagang Inside the plastic bag was found a big bundle of plastic containing
marijuana weighing about one kilo. Witness stated that he could detect marijuana
even before the application of chemicals because of his one year and a half
assignment with the CANU. After the marijuana was taken from the bag of the
accused, photographs were taken of the accused and the marijuana confiscated
from her possession with Pat. Obiña and that of Investigator Tiongco, Accused and
himself identified photographs shown to him in open Court. (Exhs. "D," "D-1," "D2" and "D-3"). Witness was likewise shown a plastic bag of marijuana contained in
a plastic container (Exhs. "B," "B-1" and "B-1-a") and identified it as the one
confiscated from the accused and pointed to his initials on the newspaper wrapping
which also shows the date and time, although the wrapper at the time he testified
appeared to be soiled already. The marijuana was allegedly still fresh when
confiscated.
"To prove further that the accused transported the confiscated marijuana from
Baguio City to Olongapo City, witness identified Victory Liner Ticket No. 684977
which was confiscated from the accused and for identification purposes, the
witness presented the body number of the bus he wrote at the back of the ticket
which is "309" (Exhs. "F" and "F-1"). Regarding himself, he did not pay his fare
from Baguio City because as a policeman, he used his badge and a free ride.
"On cross-examination, witness stated that he went to Baguio City on July 15,
1981 and underwent treatment of his heart while he was there. He was given a
furlough for medical treatment. He stayed in Baguio City for about five days and
returned to Olongapo City or July 21, 1981. Prior to July 21, 1981, witness never
knew the accused, and the first time he saw her was in Baguio when she boarded
the same Victory Liner he took. Wi en the accused who was bringing with her a
woven plastic bag placed the bag right behind his seat instead of placing it in front
of her or beside her seat Witness Obiña became suspicious and his suspicion was
confirmed when they reached San Fernando, Pampanga, after he checked the buri
bag. The bus stopped at said town to load some gasoline. Witness inserted one of
his fingers inside the buri bag and thereafter smelt marijuana. He confirmed his
testimony on direct that when witness confronted accused he was invited to go
with her in order to settle the matter to which he refused. Accused further testified
that from the time the accused placed her bag behind his seat from Baguio City, he
felt so nervous and had to take his medicine at the Tarlac Station. It was only after
having taken his medicine that his apprehension was contained and thus was able
to insert his right hand inside the buri bag in San Fernando, Pampanga. His fingers
reached the very bottom of the bag. He identified his sworn statement regarding
this incident given on July 21, 1981 which is Exhibit "G." Witness likewise
identified accused Anita Claudio in open court.
"Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac
Bajac, Olongapo City, testified that as a policeman on the afternoon of July 21,
1981, he was inside the Investigation Division of the Police Station, Olongapo
City. As Duty Investigator, between 1:46 and 2:00 o’clock in the afternoon of the
same day, Pat. Daniel Obiña arrived at the Police Station with a woman and
identified her in the courtroom as Anita Claudio. Pat. Obiña reported to him that he
apprehended Anita Claudio inside the Victory Liner bus for possession of
marijuana dried leaves. The marijuana leaves were contained in a buri bag with
some vegetables such as camote tops, bananas and some other vegetable." The
marijuana was placed in a plastic wrapper with the name National Book Store
colored black and white. Witness identified the wrapper (Exh. "B-2"). The bag
contained the markings of Pat. Obiña which are his initials, (Exh. "B-2-a"), and
numbers 210781 representing the date which was placed by Pat. Obiña after Cpl.
Tiongco examined the suspected marijuana.chanrobles virtual lawlibrary
"After examining and seeing the marijuana together with the vegetables, he
interviewed apprehending officer Obiña and reduced his statements in writing. Cpl.
Tiongco identified the sworn statement of Obiña (Exh.’G). He also interviewed
accused Anita Claudio who was all the while inside the Investigation room seated
on a chair. After appraising her of her constitutional rights, he asked the accused
whether she was willing to give her written statements to which the accused
refused. Hence, no statements were taken of her. However, pictures were taken
inside the investigation room. Exhs. "D" and "E," series which were already
previously identified by Pat. Obiña. Witness identified the persons appearing in the
pictures as that of Pat. Obiña and the accused and also of himself. Thereafter, the
marijuana contained in the plastic bag were turned over to Lt. Galindo and Anita
Claudio was detained.
"Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East
Tapinac, Olongapo City, testified he was since March 1972 a policeman and was
stationed at Police Station 21, Olongapo City, Metrodiscom. However, in 1981, he
was already assigned to the CANU-General Anti-NARCOTICS Unit. On July 22,
1981, he reported for work at the CANU and received from Lt. Galindo more than
a kilo of suspected marijuana dried leaves. As requested by Lt. Galindo, he
conducted a field test on this marijuana which he received from Lt. Galindo, as
evidenced by a request signed by him dated July 22, 1981 (Exh. "H").
"In connection with the field test conducted by him on the specimen, he prepared a
Certificate of Field Test dated July 22, 1981 (Exhs. "I"). The Certificate of Field
Test indicated the presence of tetra-hydrocannabinol (THC), an active substance
that can only be found in marijuana, a prohibited drug. Cpl. Abello identified a
plastic bag of marijuaua received from Lt. Galindo which he later give to CIC
Danilo Santiago, the Evidence Custodian, for the latter to bring the specimen to the
PC Crime Laboratory.
"The last witness for the prosecution was Leoncio Bagang, 40 years old, married,
residing at No. 27 Jones St., East Tapinac, Olongapo City, a policeman of
Olongapo City, assigned with Police Station "21." He has been a policeman since
1966 up to the present. In July, 1981, he was then assigned at the Patrol Division
and his duty was to patrol the city proper from Magsaysay Drive up to east Bajac
Bajac.
"He narrated that on July 21, 1981, between the hours of 1:00 and 2:00 o’clock in
the afternoon, he was at the Caltex Gasoline Station, East Bajac Bajac, Olongapo
City along Rizal Avenue. He was then on duty patrol using a motorcycle. While he
was at the said place, he saw Pat. Obiña alighted from the Victory Liner bus
ordering somebody to alight from the same bus. When he heard Pat. Obiña, he
approached him and asked him what was happening. Pat. Obiña told him he
apprehended a certain woman possessing dried marijuana. The woman was shall
then inside the bus. Pat. Obiña then brought the woman to the police department
who was bringing with her a buri bag. They boarded a tricycle, the woman riding
inside the tricycle while Pat. Obiña sat behind the driver. He then followed in his
motorcycle the said tricycle to police station. He went inside the Investigation
Section of the Police Station and he was there when Pat. Obiña reported to Cpl.
Tiongco his apprehension of the woman possessing marijuana. He saw the
marijuana for the first time inside the Investigation Section placed in a buri bag
covered with newspaper. He witnessed the taking out of the marijuana from inside
the bag by Pat. Obiña in the presence of Cpl. Tiongco and the woman or the
accused in this case, and himself Policeman Bagang identified the accused in open
Court. When asked about the nature of the marijuana when it was brought out from
the bag, he said that the marijuana was dried but not well dried. Aside from the
marijuana inside the buri bag, there were vegetables and bananas. Witness
identified in open Court, the marijuana he saw found in the buri bag of the accused.
His means of identification was the signature of Pat. Obiña, (Exh. "B-1"). He
likewise identified a newspaper wrapping which was already torn.
"While in the Investigation Division, witness Bagang heard the accused’s answer
to Cpl. Tiongco’s question that she was going to deliver the marijuana to Sta. Rita.
He, however, did not linger long at the investigation Division. After he saw the
marijuana and heard the answer of the accused to Cpl. Tiongco’s question the
place of delivery of the marijuana, he left the police station. Witness likewise
identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO which is an
initial, and not a signature, stands for Daniel Obiña. After the testimony of Leoncio
Bagang, the prosecution rested its case." (Rollo, pp. 42-47)
Accused Claudio raised the following assignments of errors in this
appeal:chanrob1es virtual 1aw library
I
"CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF
ONE OR SOME OF THE ELEMENTS OF THE OFFENSE IS OR ARE
ABSENT.
II
"CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A.
6425 IF THE ALLEGED BUYMAN WAS NOT PRESENTED TO TESTIFY.
III
"APPELLANT’S CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A.
6424) IS WRONG BECAUSE SOME MATERIAL FACTS WERE
OVERLOOKED AND NOT CONSIDERED IN FAVOR OF APPELLANT.
(Rollo, p. 91)
The accused alleges that she is only liable, at the most, for possession under Sec. 8,
Art. II of Rep. Act No. 6425 and not for violating Sec. 4 of the same Act.
The latter section, Sec. 4 provides:jgc:chanrobles.com.ph
"Sec. 4. Sale, Administration, Delivery Distribution and Transportation of
Prohibited Drugs. — The penalty of life imprisonment to death and a fine ranging
from twenty thousand to thirty thousand pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions. If the victim of the offense is a minor, or should
a prohibited drug involved in any offense under this Section be the proximate
cause of the death of a victim thereof, the maximum penalty herein provided shall
be imposed."cralaw virtua1aw library
Claudio contends that there was no delivery as there was no recipient of the
prohibited drugs. Therefore, she may not be convicted under Sec. 4 of Rep. Act
No. 6425.chanrobles.com:cralaw:red
The contention is without merit. A closer perusal of the subject provision shows
that it is not only delivery which is penalized but also the sale, administration,
distribution and transportation of prohibited drugs. Claudio was caught
transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her
guilty of violating Sec. 4.
The accused also alleges that before the completion of delivery, the intention of the
possessor is unknown.
This allegation is also unavailing. It is undisputed that Claudio had in her
possession 1.1 kilos of marijuana. This is a considerable quantity. As held in the
case of People v. Toledo, (140 SCRA 259, 267) "the possession of such
considerable quantity as three plastic bags of marijuana leaves and seeds coupled
with the fact that he is not a user of prohibited drugs cannot indicate anything
except the intention of the accused to sell, distribute and deliver said
marijuana."cralaw virtua1aw library
The accused next contends the warrantless search, seizure and apprehension as
unlawful.
The applicable provisions on this issue are found in the 1985 Rules on Criminal
Procedure.
Rule 113, Sec. 5(a) of the said Rules provides:jgc:chanrobles.com.ph
". . . A peace officer or a private person may, without a warrant, arrest a
person:jgc:chanrobles.com.ph
"(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
x
x
x
Meanwhile, its Rule 126, Sec. 12 provides:jgc:chanrobles.com.ph
"Section 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant. (12a)"
Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obiña did
not need a warrant to arrest Claudio as the latter was caught in flagrante delicto.
The warrantless search being an incident to a lawful arrest is in itself lawful.
(Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure
of the 1.1 kilos of marijuana.
The accused takes inconsistent positions in her appellant’s brief At first, she does
not deny having had with her marijuana at the time of her arrest. Instead, she
claims that she should just be guilty of possession. In a complete turnabout, in the
latter portion of said brief, she claims that the evidence against her were mere
fabrications and the marijuana allegedly found in her possession was only planted.
We have carefully examined the records of the case and we find no ground to alter
the trial court’s findings and appreciation of the evidence presented.
Credence is accorded to the prosecution’s evidence, more so as it consisted mainly
of testimonies of policemen. Law enforcers are presumed to have regularly
performed their duty in the absence of proof to the contrary (People v. De Jesus,
145 SCRA 521). We also find no reason from the records why the prosecution
witnesses should fabricate their testimonies and implicate appellant in such a
serious crime (See People v. Bautista, 147 SCRA 500).chanrobles virtual
lawlibrary
The accused testified that she was not on that bus that came from Baguio City but
rather she was in Olongapo City all that time. She alleged that she was arrested by
Pat. Obiña for no reason at all.
In the case at bar, alibi does not deserve much credit as it was established only by
the accused herself (People v. De la Cruz, 148 SCRA 582).
Moreover, it is a well-established rule that alibi cannot prevail over positive
testimony (People v. De La Cruz, supra).
WHEREFORE, the judgment appealed from is AFFIRMED.
People v. Aminnudin, G.R. No. 74869 July 6, 1988
The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana. The
trial court, disbelieving him, held it was high time to put him away and sentenced
him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the
M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who
were in fact waiting for him simply accosted him, inspected his bag and finding
what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was
filed against him. 2 Later, the information was amended to include Farida Ali y
Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn
statement of the arresting officers absolving her after a "thorough investigation." 5
The motion was granted, and trial proceeded only against the accused-appellant,
who was eventually convicted. 6
According to the prosecution, the PC officers had earlier received a tip from one of
their informers that the accused-appellant was on board a vessel bound for Iloilo
City and was carrying marijuana. 7 He was identified by name. 8 Acting on this
tip, they waited for him in the evening of June 25, 1984, and approached him as he
descended from the gangplank after the informer had pointed to him. 9 They
detained him and inspected the bag he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner, 10 who testified that she conducted microscopic, chemical and
chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his
bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He
alleged that he was arbitrarily arrested and immediately handcuffed. His bag was
confiscated without a search warrant. At the PC headquarters, he was manhandled
to force him to admit he was carrying the marijuana, the investigator hitting him
with a piece of wood in the chest and arms even as he parried the blows while he
was still handcuffed. 12 He insisted he did not even know what marijuana looked
like and that his business was selling watches and sometimes cigarettes. 13 He also
argued that the marijuana he was alleged to have been carrying was not properly
identified and could have been any of several bundles kept in the stock room of the
PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused
that he claimed to have come to Iloilo City to sell watches but carried only two
watches at the time, traveling from Jolo for that purpose and spending P107.00 for
fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two
watches in a secret pocket below his belt but, strangely, they were not discovered
when he was bodily searched by the arresting officers nor were they damaged as a
result of his manhandling. 16 He also said he sold one of the watches for P400.00
and gave away the other, although the watches belonged not to him but to his
cousin, 17 to a friend whose full name he said did not even know. 18 The trial
court also rejected his allegations of maltreatment, observing that he had not
sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it was
the trial judge who had immediate access to the testimony of the witnesses and had
the opportunity to weigh their credibility on the stand. Nuances of tone or voice,
meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal
the truth or expose the lie, are not described in the impersonal record. But the trial
judge sees all of this, discovering for himself the truant fact amidst the falsities.
The only exception we may make in this case is the trial court’s conclusion that the
accused-appellant was not really beaten up because he did not complain about it
later nor did he submit to a medical examination. That is hardly fair or realistic. It
is possible Aminnudin never had that opportunity as he was at that time under
detention by the PC authorities and in fact has never been set free since he was
arrested in 1984 and up to the present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it is
Aminnudin’s claim that he was arrested and searched without warrant, making the
marijuana allegedly found in his possession inadmissible in evidence against him
under the Bill of Rights. The decision did not even discuss this point. For his part,
the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules
of Court on warrantless arrests. This made the search also valid as incidental to a
lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized the
bag he was carrying. Their only justification was the tip they had earlier received
from a reliable and regular informer who reported to them that Aminnudin was
arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they
received the tip, one saying it was two days before the arrest, 20 another two weeks
21 and a third "weeks before June 25." 22 On this matter, we may prefer the
declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified
as follow:jgc:chanrobles.com.ph
"Q You mentioned an intelligence report, you mean with respect to the coming of
Idel Aminnudin on June 25, 1984?
"A Yes, sir.
"Q When did you receive this intelligence report?
"A Two days before June 25, 1984 and it was supported by reliable sources.
"Q Were you informed of the coming of the Wilcon 9 and the possible trafficking
of marijuana leaves on that date?
"A Yes, sir, two days before June 25,1984 when we received this information from
that particular informer, prior to June 25, 1984 we have already reports of the
particular operation which was being participated by Idel Aminnudin.
"Q You said you received an intelligence report two days before June 25,1984 with
respect to the coming of Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this intelligence report?
"A Well, I have received also other reports but not pertaining to the coming of
Wilcon 9. For instance, report of illegal gambling operation.
"COURT:jgc:chanrobles.com.ph
"Q Previous to that particular information which you said two days before June 25,
1984, did you also receive any report regarding the activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the activities of Idel
Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a required sheet of information,
maybe for security reason and we cannot identify the person.
"Q But you received it from your regular informer?
"A Yes, sir.
"ATTY. LLARIZA:jgc:chanrobles.com.ph
"Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is
coming with drugs?
"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin’s coming to Iloilo with
marijuana was received by you many days before you received the intelligence
report in writing?
"A Not a report of the particular coming of Aminnudin but his activities.
"Q You only knew that he was coming on June 25, 1984 two days before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know that Aminnudin was
coming?
"A Before June 23, 1984, I, in my capacity, did not know that he was coming but
on June 23, 1984 that was the time when I received the information that he was
coming. Regarding the reports on his activities, we have reports that he was
already consummated the act of selling and shipping marijuana stuff.
"COURT:jgc:chanrobles.com.ph
"Q And as a result of that report, you put him under surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel Aminnudin was mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on June 23, 1984, you had
already gathered information to the effect that Idel Aminnudin was coming to
Iloilo on June 25,1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure or search of the
subject mentioned in your intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will yield positive result.
"Q Is that your procedure that whenever it will yield positive result you do not
need a search warrant anymore?
"A Search warrant is not necessary." 23
That last answer is a cavalier pronouncement, especially as it comes from a mere
lieutenant of the PC. The Supreme Court cannot countenance such a statement.
This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not caught
in flagrante nor was a crime about to be committed or had just been committed to
justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even
expediency could not be invoked to dispense with the obtention of the warrant as
in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and
aircraft are subject to warrantless searches and seizures for violation of the customs
law because these vehicles may be quickly moved out of the locality or jurisdiction
before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of
the PC witnesses, it is clear that they had at least two days within which they could
have obtained a warrant to arrest and search Aminnudin who was coming 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 "search
warrant was not necessary."cralaw virtua1aw library
In the many cases where this Court has sustained the warrantless arrest of violators
of the Dangerous Drugs Act, it has always been shown that they were caught redhanded, as result of what are popularly called "buy-bust" operations of the
narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of
arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of the marijuana that the
suddenly became suspect and so subject to apprehension. It was the furtive finger
that triggered his arrest. The identification by the informer was the probable cause
as determined by the officers (and not a judge) that authorized them to pounce
upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen
years of the despised dictatorship, when any one could be picked up at will,
detained without charges and punished without trial, we will have only ourselves to
blame if that kind of arbitrariness is allowed to return, to once more flaunt its
disdain of the Constitution and the individual liberties its Bill of Rights guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very
own words suggest that he is lying, that fact alone does not justify a finding that he
is guilty. The constitutional presumption is that he is innocent, and he will be so
declared even if his defense is weak as long as the prosecution is not strong enough
to convict him.
Without the evidence of the marijuana allegedly seized from Aminnudin, the case
of the prosecution must fall. That evidence cannot be admitted, and should never
have been considered by the trial court for the simple fact is that the marijuana was
seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes’
felicitous phrase. The search was not an incident of a lawful arrest because there
was no warrant of arrest and the warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence, the warrantless search was also
illegal and the evidence obtained thereby was inadmissible.
The Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers against those
who would inflict this malediction upon our people, especially the susceptible
youth. But as demanding as this campaign may be, it cannot be more so than the
compulsions of the Bill of Rights for the protection of the liberty of every
individual in the realm, including the basest of criminals. The Constitution covers
with the mantle of its protection the innocent and the guilty alike against any
manner of high-handedness from the authorities, however praiseworthy their
intentions.
Those who are supposed to enforce the law are not justified in disregarding the
rights of the individual in the name of order. Order is too high a price for the loss
of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable
doubt and he must therefore be discharged on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSE: and the accusedappellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea JJ. concur.
Issue: WON the search was an incident of a lawful arrest.
Ruling:
No. The search was not an incident of a lawful arrest.
"Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized."
In the case at bar, there was no warrant of arrest or search warrant issued by
a judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not caught
in flagrante nor was a crime about to be committed or had just been committed to
justify the warrantless arrest allowed under Rule 113 of the Rules of Court.
Even expediency could not be invoked to dispense with the obtention of the warrant
as in the case of Roldan v. Arca, for example. Here it was held that vessels and
aircraft are subject to warrantless searches and seizures for violation of the customs
law because these vehicles may be quickly moved out of the locality or jurisdiction
before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of the
PC witnesses, it is clear that they had at least two days within which they could have
obtained a warrant to arrest and search Aminnudin. 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 "search warrant was not
necessary."
(Warrantless search during “on-the-spot apprehensions” with probable cause)
In the many cases where this Court has sustained the warrantless arrest of violators
of the Dangerous Drugs Act, it has always been shown that they were caught redhanded, as result of what are popularly called "buy-bust" operations of the narcotics
agents. Rule 113 was clearly applicable because at the precise time of arrest the
accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had
just done so. What he was doing was descending the gangplank of the M/V Wilcon
9 and there was no outward indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension. It was the furtive finger
that triggered his arrest. The identification by the informer was the probable cause
as determined by the officers (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.
Conclusion:
Without the evidence of the marijuana allegedly seized from Aminnudin, the case of
the prosecution must fall. That evidence cannot be admitted, and should never have
been considered by the trial court for the simple fact that the marijuana was seized
illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous
phrase.
The search was not an incident of a lawful arrest because there was no warrant
of arrest and the warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the
evidence obtained thereby was inadmissible.
The Court held that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable doubt
and he must therefore be discharged on the presumption that he is innocent.
Dissenting:
GRIÑO-AQUINO, J., dissenting:
I respectfully dissent. I hold that the accused was caught in flagrante for he was
carrying marijuana leaves in his bag at the moment of his arrest. He was not
"innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime, (Sec. 4, Rep. Act
No. 6425). Since he was committing a crime his arrest could be lawfully effected
without a warrant (Sec. 6-a, Rule 113, Rules of Court), and the search of his bag
(which yielded the marijuana leaves) without a search warrant was also lawful (Sec.
12, Rule 126, Rules of Court). I vote to affirm the judgment of the trial court finding
him guilty of illegally transporting marijuana.
People v. Maspil, G.R. No. 85177, August 20, 1990 [CRITIQUE]
This petition is an appeal from the decision of the Regional Trial Court of Baguio
City, Branch 5, the dispositive portion of which reads:jgc:chanrobles.com.ph
"WHEREFORE, the Court finds and declare the accuse MOISES MASPIL, JR. y
WAYWAY and SALCEDO BAGKING y ALTAKI guilty beyond reasonable
doubt of the crime of illegal transportation of marijuana as charged and hereby
sentences EACH of them to suffer LIFE IMPRISONMENT; to pay a fine of
P20,000.00, without subsidiary imprisonment in case of insolvency; and to pay
their proportionate shares in the costs.
The confiscated marijuana (Exhibits "B", "B-1" to "B-23" ; "C", "C-1" to "C-16",
"D", "D-1" to "D-20" ; "E", "E-1", to "E-14" ; "F", "F-1" ; "G", "G-1") are hereby
declared forfeited in favor of the Government and upon the finality of this
decision, the Branch Clerk of Court is directed to turn over the same to the
Dangerous Drugs Board (NBI), through the Chief, PC Crime Laboratory, Regional
Unit No. 1 Camp Dangwa, La Trinidad, Benguet, for disposition in accordance
with law." (Rollo, pp. 25-26)
In Criminal Case No. 4263-R, the information filed against the two accused
alleged:jgc:chanrobles.com.ph
"That on or about the 1st day of November, 1986, at Sayangan, Municipality of
Atok, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding each other, and without any authority of law, did then and there
willfully, unlawfully and knowingly transport and carry in transit from Sinto,
Bauko, Mt. Province to Atok, Benguet One Hundred Eleven Kilos and Nine Grams
(111.9 kilos), more or less, of dried marijuana leaves which are sources of
dangerous and prohibited drugs and from which dangerous and prohibited drugs
nay be derived and manufactured, in violation of the said law." (Rollo, p. 11)
The narration of facts by the trial court is as follows:jgc:chanrobles.com.ph
"According to Jerry Veleroso, Sgt. Amador Ablang and Sgt. Florentino Baillo, all
members of the First Narcotics Regional Unit of the Narcotics Command stationed
in Baguio City, (See also Exhibit "I") on October 30, 1986, they established a
checkpoint in front of the Municipal Hall at Sayangan, Atok, Benguet, which is
along the Halsema Highway, to check on vehicles proceeding to Baguio City
because their Commanding Officer, Maj. Basilio Cablayan, had been earlier tipped
off by some confidential informers that the herein accused Maspil and Bagking
would be transporting a large volume of marijuana to Baguio City. The informers
went along with the operatives to Sayangan.
"At about 2:00 o’clock in the early morning of November 1, the operatives
intercepted a Sarao type jeep driven by Maspil with Bagking as his companion.
Upon inspection, the jeep was found loaded with two (2) plastic sacks (Exhibits
"B" and "D"), one (1) jute sack (Exhibit "C") and three (3) big round tin cans
(Exhibits "E", "F" and "G") which, when opened contained several bundles of
suspected dried marijuana leaves (Exhibits "B-1", to "B-23" ; "C-1" to "C-16" ;
"D-1" to "D-20" ; "E-1" to "E-14" ; "F-1" and "G-1").
"Maspil and Bagking were arrested and the suspected marijuana leaves were
confiscated.
"The confiscated items were later on referred to the PC Crime Laboratory,
Regional Unit I, for examination (Exhibit "A"). Forensic Chemist Carlos V.
Figuerroa performed the requested examination and determined that the specimen,
with an aggregate weight of 115.66 kilos, were positive to the standard tests for
marijuana.
"The accused admitted that the marijuana dried leaves were indeed confiscated
from the jeep being then driven by Maspil with Bagking as his helper. However,
they claimed that the prohibited drugs belonged to two of their passengers who
loaded them in the jeep as paying cargo for Baguio City without the accused
knowing that they were marijuana.
"The accused declared that on October 31, 1986, at the burned area along
Lakandula Street, Baguio City, a certain Mrs. Luisa Mendoza hired the jeep of
Maspil to transport her stock of dried fish and canned goods contained in cartons to
Abatan, Buguias, Benguet, because her own vehicle broke down. They left Baguio
City at about 1:00 o’clock in the afternoon (11:30 in the morning, according to
Bagking) with Mrs. Mendoza, her helper and salesgirls on board the jeep with
Maspil as driver and Bagking as his own helper. They arrived at Abatan at about
6:00 o’clock in the evening.
"After unloading their cargo, Maspil and Bagking repaired to a restaurant for their
dinner before undertaking the trip back to Baguio City. While thus eating, they
were approached by two persons, one of whom they would learn later on to be a
certain Danny Buteng. Buteng inquired if they were going to Baguio City and upon
being given an affirmative answer, he said that he would ride with them and that he
has some cargo. Asked what the cargo was, Buteng replied that they were flowers
in closed tin cans and sealed sacks for the commemoration of All Souls Day in
Baguio City. After Buteng had agreed to Maspil’s condition that he would pay for
the space to be occupied by his cargo, Buteng himself and his companion loaded
the cargo and fixed them inside Maspil’s jeep.
"Maspil and Bagking left Abatan at about 7:00 o’clock that same evening of
October 31. Aside from Buteng and companion they had four other passengers.
These four other passengers alighted at Natubleng, Buguias, Benguet.
"Upon reaching Sayangan, Atok, Benguet, Maspil stopped at the Marosan
Restaurant where they intended to take coffee. Their remaining passengers —
Buteng and companion — alighted and went to the restaurant. However, a soldier
waved at Maspil to drive to where he was, which Maspil did. The soldier secured
Maspil’s permission to inspect their cargo after which he grabbed Maspil on the
latter’s left shoulder and asked who owned the cargo. Maspil told the soldier that
the cargo belonged to their passengers who went to the restaurant. The soldier
called for his companions and they went to look for Maspil’s passengers in the
restaurant. Later on, they returned and placed Maspil and Bagking under arrest
since their cargo turned out to be marijuana.
"Lawrence Balonglong, alias Banawe, a radio reporter of DZWX Bombo Radio
who was invited by Lt. Valeroso to witness the operation, affirmed the
unsuccessful pursuit of the alleged two companions of Maspil and Bagking. He
recalled that he was awakened from his sleep at the town hall in Sayangan after the
arrest of Maspil and Bagking. When he went to the scene, the NARCOM
operatives boarded the jeep of Maspil to chase the two companions of Maspil and
Bagking. Balonglong climbed on top of the jeep with his camera to join the chase.
They proceeded towards the direction of Bontoc but failed to catch anyone. Hence,
they returned.
"Thereupon, Maspil and Bagking were taken to the town hall where they were
allegedly maltreated to admit ownership of the confiscated marijuana. At about
4:00 o’clock in the afternoon of November 1, the soldiers took them away from
Sayangan to be transferred to their station at Baguio City. On their way,
particularly at Km. 32 or 34, they met Mike Maspil, an elder brother of Moises
Maspil, and the soldiers called for him and then Lt. Valeroso and his men mauled
him on the road.
"Mike testified that between 3:00 and 4:00 o’clock in the afternoon of November
1, he was informed by a neighbor that his brother Moises was detained at the Atok
Municipal Jail. So he called for Jose Pos-el and James Longages, his driver and
helper, respectively, to go along with him to see Moises. They rode in his jeep. On
the way, they met the group of Lt. Valeroso. For no apparent reason, Lt. Valeroso
boxed and kicked him several times. Thereafter, Lt. Valeroso placed him under
arrest together with his driver and helper. They were all brought to a shoe store on
Gen. Luna Road, Baguio City, together with Moises and Bagking. There, Lt.
Valeroso got his wallet containing P210.00 and Seiko wrist watch but the receipt
(Exhibit "3") was issued by a certain Miss Pingil, a companion of Valeroso. He
was released after nine days. He then went to Lt. Valeroso to claim his wallet,
money and watch but he was told that they were with Miss Pingil. However, when
he went to Miss Pingil, the latter said that the items were with Lt. Valeroso. He
sought the assistance of then Tourism Deputy Minister Honorato Aquino who
assigned a lawyer to assist him. The lawyer advised him to file a case against Lt.
Valeroso but because of the intervening congressional elections, the matter has
never been pursued." (Rollo, p. 21-24)
The appellants raise the following assignment of errors in their appeal, to
wit:chanrob1es virtual 1aw library
I
THAT THE TRIAL COURT ERRED IN NOT FINDING THAT THE ALLEGED
MARIJUANA AS CHARGED IN THE INFORMATION IS DIFFERENT FROM
THAT PRESENTED FOR LABORATORY EXAMINATION.
II
THAT THE TRIAL COURT ERRED IN FINDING THAT THERE WERE ONLY
TWO OCCUPANTS, THE APPELLANTS, IN THE VEHICLE WHERE THE
ALLEGED MARIJUANA WAS CONFISCATED.
III
THAT THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED
KNEW THAT THE CARGO THEY WERE TRANSPORTING WAS
MARIJUANA.
IV
THAT THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE
ALLEGED CONFISCATED MARIJUANA.
V
THAT THE TRIAL COURT ERRED IN SHIFTING FROM THE
PROSECUTION THE BURDEN OF PROVING THE COMMISSION OF THE
OFFENSE CHARGED TO THE APPELLANTS TO PROVE THEIR
INNOCENCE." (Rollo, p. 40)
The main defense of the appellants is their claim that the prohibited drugs belonged
to their two passengers who loaded them in the jeep as paying cargo without the
appellants knowing that the cargo was marijuana.
In the second and third assignment of errors, the appellants claim that the trial
court erred in not appreciating their version of the facts.
The appellants state that the trial court’s reliance on Sgt. Baillo’s testimony that
they were the only ones in the jeep cannot be given credence as Sgt. Baillo’s
testimony is full of inconsistencies.
The appellants cite Sgt. Baillo’s inconsistencies as to the time of the arrest whether
morning or afternoon, the time the checkpoint was removed and the persons who
were with him at the time of arrest.
It has been ruled that inconsistencies in the testimonies of the prosecution
witnesses not on material points is not fatal. Moreover, minor inconsistencies are
to be expected but must be disregarded if they do not affect the basic credibility of
the evidence as a whole. (People v. Marcos, G.R. No. 83325, May 8, 1990)
The defense even state that there were a lot of policemen (T.S.N., December 1,
1987, p. 22) and it was but natural that there would be confusion on who was there
at the time of the arrest.
The trial court gave credence to the positive and categorical statement of Sgt.
Baillo that there were only two occupants, and these were the appellants inside the
jeepney at the time (T.S.N., June 30, 1987, p. 18). We see no cogent reason to
reverse this finding of fact.
There is nothing in the records to suggest that the arrest was motivated by any
reason other than the desire of the police officers to accomplish their mission.
Courts generally give full faith and credit to police officers when the facts and
circumstances surrounding then acts sustain the presumption that they have
performed their duties in a regular manner. (Rule 131, Section 5 (m), Rules of
Court; People v. Marcos, supra; People v. Yap and Mendoza, G.R. Nos. 87088-89,
May 9, 1990).
The appellants put forward the testimony of Lawrence Balonglong which
corroborates and affirms their stand that there were, indeed, passengers in the
jeepney.
However, a close perusal of said testimony reveals no such corroboration. The
pertinent portions of Balonglong’s testimony is as follows:jgc:chanrobles.com.ph
"x
x
x
Q Where were you when these two persons were apprehended?
A I was in the Municipal Hall asleep, sir.
Q How did you know then that these people were apprehended?
A It is like this, sir, on the night of October 31, I was then asleep and at around
11:00, I guess, p.m., they awakened me so I went and I saw these two guys being
apprehended by the Narcom operative.
Court:chanrob1es virtual 1aw library
Q You saw them being apprehended?
A No, sir . . . I saw them there.
Q Already apprehended?
A Already apprehended.
Atty. Fianza:chanrob1es virtual 1aw library
Q And when you saw these persons, what did you do, if any?
A What I recall is that when I went to the road, where these two guys were
apprehended, the operatives boarded the same jeep and I even climbed the jeep . . .
on top of the jeep holding my camera and tape recorder and we . . . I don’t know . .
. they chased, according to the operatives, they chased two companions of the two
arrested guys." (T.S.N., May 11, 1988, p. 4)
In their brief, the appellants even admit that "he (Balonglong) did not see the
passengers" and it was just his impression that there were other people present.
(Appellant’s Brief, p. 7)
The appellants maintain that they did not know what was in the cargo. Their main
concern was in going back to Baguio City and they saw no need to question their
two passengers on why flowers were being kept in closed cans and sacks. They
were apprehended after midnight. They traversed a lonely and reputedly dangerous
portion of the mountain highway.
The appellants’ version is not believable. It is inconceivable that the appellants
would not even bother to ask the names of the strangers who approached them in a
restaurant at night wanting to hire their jeepney, considering that they were
familiar with the identity of the passenger, Luisa Mendoza, who hired them to
transport her goods to Abatan, Buguias, Benguet.
It is likewise incredible that the appellants did not show the slightest curiousity as
to why flowers were being kept in closed tin cans and sealed sacks and cellophane.
On the other hand, the appellants had clear knowledge that Luisa Mendoza was
transporting cartons containing dried fish and canned goods on the trip out of
Baguio. It is contrary to human experience that the appellants would inquire about
the name of the passenger and the cargo she was loading on their jeep and not
doing the same about another who would transport goods on a midnight trip.
Well-settled is the rule that evidence to be believed, must not only proceed from
the mouth of a credible witness but it must be credible itself. No better test has yet
been found to measure the value of a witness than its conformity to the knowledge
and common experience of mankind. (People v. Maribung, 149 SCRA 292, 297
[1987]; People v. Aldana, G.R. No. 81817, July 27, 1989; People v. Pascua, G.R.
No. 82303, December 21, 1989).
The appellants further allege that if, indeed they knew about the contents of their
cargo, they would have adopted means to prevent detection or to evade arrest.
At the time the appellants were being motioned by the policemen to come nearer
the checkpoint, there was no way that the appellants could have evaded the arrest
without putting their lives in jeopardy. They decided to just brazen it out with
police and insist on their version of the story.
As for the other assigned errors, the appellants in the first assigned error, contend
that since there is a discrepancy of 3.76 between the number of kilos stated in the
information (111.9 kilos) and in the report (115.66 kilos) of the forensic chemist, it
is very likely that the marijuana presented as evidence was not the one confiscated
from the appellants or even if they were the same, it could have already been
tampered with. The appellants conclude that the marijuana then, cannot be
admitted as evidence.
The marijuana examined by the forensic chemist, which was contained in three big
round tin cans, two jute sacks (there was really only one jute sack colored light
green which was confiscated but since one of the plastic sacks [green] appeared to
be tattered, some of its contents were transferred to a white jute sack), (T.S.N.,
June 23, 1987, p. 5) and two plastic bags colored yellow and green (T.S.N., June
23, 1987, p. 3), was positively identified to be the same as those confiscated from
the appellants. This is very clear from the testimony of Lt. Valeroso who
stated:jgc:chanrobles.com.ph
"x
x
x
Q When you went down, where were these two suspects, as you said?
A They were sitted (sic) at the front seat.
Q Front seat of what?
A The jeep, sir.
Q And did you ask or see what was inside the jeep?
A Yes.
Q And what were those?
A It was all suspected marijuana dried leaves contained in three big cans, one sack
colored green, two sacks colored yellow and green." (Italics supplied, T.S.N.,
September 16, 1987, p. 4)
Lt. Valeroso further testified that Exhibits "B" (yellow plastic bag), "C" light green
jute sack, "D" (green plastic bag), "E" (one big can), "F" (second can), "G" (third
can) were, indeed, the same articles which he saw at the back of the jeepney of the
appellants. (T.S.N., September 16, 1987, p. 5)
One of the appellants, Moises Maspil, even admitted that the articles identified by
Lt. Valeroso in his testimony were indeed, the same articles confiscated from their
jeepney at Sayangan, Atok, Benguet. (T.S.N., February 24, 1988, pp. 34-35)
Moreover, the words "more or less" following the weight in kilos of the marijuana
in the questioned information declare that the number of kilos stated therein is just
an approximation. It can therefore be a little lighter or heavier. The slight
discrepancy is not material.
Another ground stated by the appellants for the inadmissibility in evidence of the
confiscated marijuana is that the marijuana allegedly seized from them was a
product of an unlawful search without a warrant.
In the case of Valmonte v. de Villa, G.R. No. 83988, September 29, 1989, the
Court held that:jgc:chanrobles.com.ph
"x
x
x
True, the manning of checkpoints by the military is susceptible of abuse by the
men in uniform, in the same manner that all governmental power is susceptible of
abuse. But at the cost of occasional inconvenience, discomfort and even irritation
to the citizen, the checkpoints during these abnormal times, when conducted within
reasonable limits are part of the price we pay for an orderly society and a peaceful
community."cralaw virtua1aw library
The search was conducted within reasonable limits. There was information that a
sizeable volume of marijuana will be transported to take advantage of the All
Saints Day holiday wherein there will be a lot of people going to and from Baguio
City (T.S.N., September 16, 1987, p. 6). In fact, during the three day (October 30,
1986 to November 1, 1986) duration of the checkpoint, there were also other drug
related arrests made aside from that of the two appellants.
But even without the Valmonte ruling, the search would still be valid. This case
involves a search incident to a lawful arrest which is one of the exceptions to the
general rule requiring a search warrant. This exception is embodied in Section 12
of Rule 126 of the 1985 Rules on Criminal Procedure which
provides:jgc:chanrobles.com.ph
"SEC. 12. Search incident to lawful arrest. — A person lawfully arrested may be
searched for dangerous weapons or anything which may be used as proof of the
commission of an offense, without a search warrant."cralaw virtua1aw library
and Rule 113, Section 5 (1) which state:jgc:chanrobles.com.ph
"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:chanrob1es virtual 1aw library
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense."cralaw virtua1aw library
This case falls squarely within the exceptions. The appellants were caught in
flagrante delicto since they were transporting the prohibited drugs at the time of
their arrest. (People v. Tangliben, G.R. No. 63630, April 6, 1990) A crime was
actually being committed.
The appellants, however, cite the case of People v. Aminnudin, (163 SCRA 402
[1988]). In said case, the PC officers received information that the accusedappellant, on board a vessel bound for Iloilo City, was carrying marijuana. When
the accused-appellant was descending the gangplank, the PC officers detained him
and inspected the bag that he was carrying and found marijuana. The Court ruled
that since the marijuana was seized illegally, it is inadmissible in evidence.
There are certain facts of the said case which are not present in the case before us.
In the Aminnudin case, the records showed that there was sufficient time and
adequate information for the PC officers to have obtained a warrant. The officers
knew the name of the accused, that the accused was on board M/V Wilcon 9,
bound to Iloilo and the exact date of the arrival of the said vessel.
On the other hand, in this case there was no information as to the exact description
of the vehicle and no definite time of the arrival. A jeepney cannot be equated with
a passenger ship on the high seas. The ruling in the Aminnudin case, is not
applicable to the case at bar.
As for the fifth and last assigned error we agree with the Solicitor General
that:jgc:chanrobles.com.ph
"Examination of the testimonies of appellants show that they admit the fact that the
confiscated marijuana was taken from their jeep while they were transporting it
from Abatan, Buguias, Benguet to Baguio City. This being so, the burden of the
prosecution to prove illegal transportation of prohibited drugs punished under
Section 4 of RA 6425, as amended, has been satisfactorily discharged. The rule in
civil as well as in criminal cases is that each party must prove his own affirmative
allegations. The prosecution avers the guilt of the accused who is presumed to be
innocent until the contrary is proved. Therefore, the prosecution must prove such
guilt by establishing the existence of all elements of the crime charged. But facts
judicially known, presumed, admitted or confessed need not be proved. (Rule 129,
Sec. 4, Rules on Evidence) (Appellee’s Brief, p. 26-27)
WHEREFORE, the guilt of the appellants having been proved beyond reasonable
doubt, the appealed decision is hereby AFFIRMED.
SO ORDERED.
First Issue: Whether or not the seized marijuana was a product of an unlawful
search without a warrant thus making it inadmissible as evidence.
Ruling: No, the search was conducted within reasonable limits.
Explanation:
In the case of Valmonte v. de Villa, G.R. No. 83988, September 29, 1989, the Court
held that:
xxx xxx xxx
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform, in the same manner that all government
power is susceptible of abuse. But at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the
checkpoints during these abnormal times, when conducted within
reasonable limits are part of the price we pay for an orderly society and
a peaceful community.
The search was conducted within reasonable limits. There was information that
a sizeable volume of marijuana will be transported to take advantage of the All Saints
Day holiday wherein there will be a lot of people going to and from Baguio City. In
fact, during the three day (October 30, 1986 to November 1, 1986) duration of the
checkpoint, there were also other drug related arrests made aside from that of the
two appellants.
But even without the Valmonte ruling, the search would still be valid. This case
involves a search incident to a lawful arrest which is one of the exceptions to the
general rule requiring a search warrant. This exception is embodied in Section
12 of Rule 126 of the 1985 Rules on Criminal Procedure which provides:
Sec. 12. Search incident to lawful arrest. A person lawfully arrested
may be searched for dangerous weapons or anything which may
be used as proof of the commission of an offense, without a search
warrant.
and Rule 113, Section 5 (11) which state:
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.
This case falls squarely within the exceptions. The appellants were caught in
flagrante delicto since they were transporting the prohibited drugs at the time of their
arrest.
Second Issue: Whether the rule of seizure in a ship would be applicable in a
seizure in a moving land vehicle.
Ruling: No, seizure in a ship is different from seizure in a moving land vehicle.
Explanation:
The appellants, cited the case of People V. Aminnudin,. In said case, the PC officers
received information that the accused-appellant, on board a vessel bound for Iloilo
City, was carrying marijuana. When the accused-appellant was descending the
gangplank, the PC officers detained him and inspected the bag that he was carrying
and found marijuana. The Court ruled that since the marijuana was seized illegally,
it is inadmissible in evidence.
There are certain facts of the said case which are not present in the case before
us. In the Aminnudin case, the records showed that there was sufficient time and
adequate information for the PC officers to have obtained a warrant. The officers
knew the name of the accused, that the accused was on board M/V Wilcon 9, bound
to Iloilo and the exact date of the arrival of the said vessel.
On the other hand, in this case there was no information as to the exact
description of the vehicle and no definite time of the arrival. A jeepney cannot
be equated with a passenger ship on the high seas. The ruling in the Aminnudin
case, is not applicable to the case at bar.
People v. Tangliben, G.R. No. L-63630 April 6, 1990 [CRITIQUE]
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 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 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 ACCUSEDAPPELLANT 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 DEFENDANTAPPELLANT. (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:
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. Paño, 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 Aminnudin to the case at bar. To require search
warrants during on-the-spot 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 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 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 incustody 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.
CASES:
Terry v. Ohio, 392 U.S. 1 (Further reading: Floyd v. City of New York, 959 F.
Supp. 2d 540, August 12, 2013)
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents serious questions concerning the role of the Fourth Amendment
in the confrontation on the street between the citizen and the policeman
investigating suspicious circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to
the statutorily prescribed term of one to three years in the penitentiary. [Footnote
1] Following
[5]
the denial of a pretrial motion to suppress, the prosecution introduced in evidence
two revolvers and a number of bullets seized from Terry and a codefendant,
Richard Chilton, [Footnote 2] by Cleveland Police Detective Martin McFadden. At
the hearing on the motion to suppress this evidence, Officer McFadden testified
that, while he was patrolling in plain clothes in downtown Cleveland at
approximately 2:30 in the afternoon of October 31, 1963, his attention was
attracted by two men, Chilton and Terry, standing on the corner of Huron Road
and Euclid Avenue. He had never seen the two men before, and he was unable to
say precisely what first drew his eye to them. However, he testified that he had
been a policeman for 39 years and a detective for 35, and that he had been assigned
to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for
30 years. He explained that he had developed routine habits of observation over the
years, and that he would "stand and watch people or walk and watch people at
many intervals of the day." He added: "Now, in this case, when I looked over, they
didn't look right to me at the time."
His interest aroused, Officer McFadden took up a post of observation in the
entrance to a store 300 to 400 feet
[6]
away from the two men. "I get more purpose to watch them when I seen their
movements," he testified. He saw one of the men leave the other one and walk
southwest on Huron Road, past some stores. The man paused for a moment and
looked in a store window, then walked on a short distance, turned around and
walked back toward the corner, pausing once again to look in the same store
window. He rejoined his companion at the corner, and the two conferred briefly.
Then the second man went through the same series of motions, strolling down
Huron Road, looking in the same window, walking on a short distance, turning
back, peering in the store window again, and returning to confer with the first man
at the corner. The two men repeated this ritual alternately between five and six
times apiece -- in all, roughly a dozen trips. At one point, while the two were
standing together on the corner, a third man approached them and engaged them
briefly in conversation. This man then left the two others and walked west on
Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and
conferring. After this had gone on for 10 to 12 minutes, the two men walked off
together, heading west on Euclid Avenue, following the path taken earlier by the
third man.
By this time, Officer McFadden had become thoroughly suspicious. He testified
that, after observing their elaborately casual and oft-repeated reconnaissance of the
store window on Huron Road, he suspected the two men of "casing a job, a stickup," and that he considered it his duty as a police officer to investigate further. He
added that he feared "they may have a gun." Thus, Officer McFadden followed
Chilton and Terry and saw them stop in front of Zucker's store to talk to the same
man who had conferred with them earlier on the street corner. Deciding that the
situation was ripe for direct action, Officer McFadden approached the three men,
identified
[7]
himself as a police officer and asked for their names. At this point, his knowledge
was confined to what he had observed. He was not acquainted with any of the three
men by name or by sight, and he had received no information concerning them
from any other source. When the men "mumbled something" in response to his
inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that
they were facing the other two, with Terry between McFadden and the others, and
patted down the outside of his clothing. In the left breast pocket of Terry's
overcoat, Officer McFadden felt a pistol. He reached inside the overcoat pocket,
but was unable to remove the gun. At this point, keeping Terry between himself
and the others, the officer ordered all three men to enter Zucker's store. As they
went in, he removed Terry's overcoat completely, removed a .38 caliber revolver
from the pocket and ordered all three men to face the wall with their hands raised.
Officer McFadden proceeded to pat down the outer clothing of Chilton and the
third man, Katz. He discovered another revolver in the outer pocket of Chilton's
overcoat, but no weapons were found on Katz. The officer testified that he only
patted the men down to see whether they had weapons, and that he did not put his
hands beneath the outer garments of either Terry or Chilton until he felt their guns.
So far as appears from the record, he never placed his hands beneath Katz' outer
garments. Officer McFadden seized Chilton's gun, asked the proprietor of the store
to call a police wagon, and took all three men to the station, where Chilton and
Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns, the prosecution took the position that they had
been seized following a search incident to a lawful arrest. The trial court rejected
this theory, stating that it "would be stretching the facts beyond reasonable
comprehension" to find that Officer
[8]
McFadden had had probable cause to arrest the men before he patted them down
for weapons. However, the court denied the defendants' motion on the ground that
Officer McFadden, on the basis of his experience, "had reasonable cause to believe
. . . that the defendants were conducting themselves suspiciously, and some
interrogation should be made of their action." Purely for his own protection, the
court held, the officer had the right to pat down the outer clothing of these men,
who he had reasonable cause to believe might be armed. The court distinguished
between an investigatory "stop" and an arrest, and between a "frisk" of the outer
clothing for weapons and a full-blown search for evidence of crime. The frisk, it
held, was essential to the proper performance of the officer's investigatory duties,
for, without it, "the answer to the police officer may be a bullet, and a loaded pistol
discovered during the frisk is admissible."
After the court denied their motion to suppress, Chilton and Terry waived jury trial
and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals
for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio
App.2d 122, 214 N.E.2d 114 (1966). The Supreme Court of Ohio dismissed their
appeal on the ground that no "substantial constitutional question" was involved.
We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of
the revolvers in evidence violated petitioner's rights under the Fourth Amendment,
made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U. S.
643 (1961). We affirm the conviction.
I
The Fourth Amendment provides that "the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated. . . ." This inestimable right of
[9]
personal security belongs as much to the citizen on the streets of our cities as to the
homeowner closeted in his study to dispose of his secret affairs. For as this Court
has always recognized,
"No right is held more sacred, or is more carefully guarded, by the common law
than the right of every individual to the possession and control of his own person,
free from all restraint or interference of others, unless by clear and unquestionable
authority of law." Union Pac. R. Co. v. Botsford, 141 U. S. 250, 251 (1891).
We have recently held that "the Fourth Amendment protects people, not
places," Katz v. United States, 389 U. S. 347, 351 (1967), and wherever an
individual may harbor a reasonable "expectation of privacy," id. at 361 (MR.
JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and incidents of this right
must be shaped by the context in which it is asserted. For "what the Constitution
forbids is not all searches and seizures, but unreasonable searches and
seizures." Elkins v. United States, 364 U. S. 206, 222 (1960). Unquestionably
petitioner was entitled to the protection of the Fourth Amendment as he walked
down the street in Cleveland. Beck v. Ohio, 379 U. S. 89 (1964); Rios v. United
States, 364 U. S. 253 (1960); Henry v. United States, 361 U. S. 98 (1959); United
States v. Di Re, 332 U. S. 581 (1948); Carroll v. United States, 267 U. S.
132 (1925). The question is whether, in all the circumstances of this on-the-street
encounter, his right to personal security was violated by an unreasonable search
and seizure.
We would be less than candid if we did not acknowledge that this question thrusts
to the fore difficult and troublesome issues regarding a sensitive area of police
activity -- issues which have never before been squarely
[10]
presented to this Court. Reflective of the tensions involved are the practical and
constitutional arguments pressed with great vigor on both sides of the public
debate over the power of the police to "stop and frisk" -- as it is sometimes
euphemistically termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly unfolding
and often dangerous situations on city streets, the police are in need of an
escalating set of flexible responses, graduated in relation to the amount of
information they possess. For this purpose, it is urged that distinctions should be
made between a "stop" and an "arrest" (or a "seizure" of a person), and between a
"frisk" and a "search." [Footnote 3] Thus, it is argued, the police should be allowed
to "stop" a person and detain him briefly for questioning upon suspicion that he
may be connected with criminal activity. Upon suspicion that the person may be
armed, the police should have the power to "frisk" him for weapons. If the "stop"
and the "frisk" give rise to probable cause to believe that the suspect has committed
a crime, then the police should be empowered to make a formal "arrest," and a full
incident "search" of the person. This scheme is justified in part upon the notion that
a "stop" and a "frisk" amount to a mere "minor inconvenience and petty indignity,"
[Footnote 4] which can properly be imposed upon the
[11]
citizen in the interest of effective law enforcement on the basis of a police officer's
suspicion. [Footnote 5]
On the other side, the argument is made that the authority of the police must be
strictly circumscribed by the law of arrest and search as it has developed to date in
the traditional jurisprudence of the Fourth Amendment. [Footnote 6] It is
contended with some force that there is not -- and cannot be -- a variety of police
activity which does not depend solely upon the voluntary cooperation of the
citizen, and yet which stops short of an arrest based upon probable cause to make
such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe
requirement of specific justification for any intrusion upon protected personal
security, coupled with a highly developed system of judicial controls to enforce
upon the agents of the State the commands of the Constitution. Acquiescence by
the courts in the compulsion inherent
[12]
in the field interrogation practices at issue here, it is urged, would constitute an
abdication of judicial control over, and indeed an encouragement of, substantial
interference with liberty and personal security by police officers whose judgment is
necessarily colored by their primary involvement in "the often competitive
enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10, 14
(1948). This, it is argued, can only serve to exacerbate police-community tensions
in the crowded centers of our Nation's cities. [Footnote 7]
In this context, we approach the issues in this case mindful of the limitations of the
judicial function in controlling the myriad daily situations in which policemen and
citizens confront each other on the street. The State has characterized the issue here
as "the right of a police officer . . . to make an on-the-street stop, interrogate and
pat down for weapons (known in street vernacular as 'stop and frisk'). [Footnote 8]"
But this is only partly accurate. For the issue is not the abstract propriety of the
police conduct, but the admissibility against petitioner of the evidence uncovered
by the search and seizure. Ever since its inception, the rule excluding evidence
seized in violation of the Fourth Amendment has been recognized as a principal
mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.
S. 383, 391-393 (1914). Thus, its major thrust is a deterrent one, see Linkletter v.
Walker, 381 U. S. 618, 629-635 (1965), and experience has taught that it is the
only effective deterrent to police misconduct in the criminal context, and that,
without it, the constitutional guarantee against unreasonable searches and seizures
would be a mere "form of words." Mapp v. Ohio, 367 U. S. 643, 655 (1961). The
rule also serves another vital function -- "the imperative of judicial
integrity." Elkins
[13]
v. United States, 364 U. S. 206, 222 (1960). Courts which sit under our
Constitution cannot and will not be made party to lawless invasions of the
constitutional rights of citizens by permitting unhindered governmental use of the
fruits of such invasions. Thus, in our system, evidentiary rulings provide the
context in which the judicial process of inclusion and exclusion approves some
conduct as comporting with constitutional guarantees and disapproves other
actions by state agents. A ruling admitting evidence in a criminal trial, we
recognize, has the necessary effect of legitimizing the conduct which produced the
evidence, while an application of the exclusionary rule withholds the constitutional
imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control. It
cannot properly be invoked to exclude the products of legitimate police
investigative techniques on the ground that much conduct which is closely similar
involves unwarranted intrusions upon constitutional protections. Moreover, in
some contexts, the rule is ineffective as a deterrent. Street encounters between
citizens and police officers are incredibly rich in diversity. They range from wholly
friendly exchanges of pleasantries or mutually useful information to hostile
confrontations of armed men involving arrests, or injuries, or loss of life.
Moreover, hostile confrontations are not all of a piece. Some of them begin in a
friendly enough manner, only to take a different turn upon the injection of some
unexpected element into the conversation. Encounters are initiated by the police
for a wide variety of purposes, some of which are wholly unrelated to a desire to
prosecute for crime. [Footnote 9] Doubtless some
[14]
police "field interrogation" conduct violates the Fourth Amendment. But a stern
refusal by this Court to condone such activity does not necessarily render it
responsive to the exclusionary rule. Regardless of how effective the rule may be
where obtaining convictions is an important objective of the police, [Footnote 10]
it is powerless to deter invasions of constitutionally guaranteed rights where the
police either have no interest in prosecuting or are willing to forgo successful
prosecution in the interest of serving some other goal.
Proper adjudication of cases in which the exclusionary rule is invoked demands a
constant awareness of these limitations. The wholesale harassment by certain
elements of the police community, of which minority groups, particularly Negroes,
frequently complain, [Footnote 11] will not be
[15]
stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and
unthinking application of the exclusionary rule, in futile protest against practices
which it can never be used effectively to control, may exact a high toll in human
injury and frustration of efforts to prevent crime. No judicial opinion can
comprehend the protean variety of the street encounter, and we can only judge the
facts of the case before us. Nothing we say today is to be taken as indicating
approval of police conduct outside the legitimate investigative sphere. Under our
decision, courts still retain their traditional responsibility to guard against police
conduct which is overbearing or harassing, or which trenches upon personal
security without the objective evidentiary justification which the Constitution
requires. When such conduct is identified, it must be condemned by the judiciary,
and its fruits must be excluded from evidence in criminal trials. And, of course, our
approval of legitimate and restrained investigative conduct undertaken on the basis
of ample factual justification should in no way discourage the employment of other
remedies than the exclusionary rule to curtail abuses for which that sanction may
prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate over the
limits on police investigative conduct in general and the background against which
this case presents itself, we turn our attention to the quite narrow question posed by
the facts before us: whether it is always unreasonable for a policeman to seize a
person and subject him to a limited search for weapons unless there is probable
cause for an arrest.
[16]
Given the narrowness of this question, we have no occasion to canvass in detail the
constitutional limitations upon the scope of a policeman's power when he confronts
a citizen without probable cause to arrest him.
II
Our first task is to establish at what point in this encounter the Fourth Amendment
becomes relevant. That is, we must decide whether and when Officer McFadden
"seized" Terry, and whether and when he conducted a "search." There is some
suggestion in the use of such terms as "stop" and "frisk" that such police conduct is
outside the purview of the Fourth Amendment because neither action rises to the
level of a "search" or "seizure" within the meaning of the Constitution. [Footnote
12] We emphatically reject this notion. It is quite plain that the Fourth Amendment
governs "seizures" of the person which do not eventuate in a trip to the
stationhouse and prosecution for crime -- "arrests" in traditional terminology. It
must be recognized that, whenever a police officer accosts an individual and
restrains his freedom to walk away, he has "seized" that person. And it is nothing
less than sheer torture of the English language to suggest that a careful exploration
of the outer surfaces of a person's clothing all over his or her body in an attempt to
find weapons is not a "search." Moreover, it is simply fantastic to urge that such a
procedure
[17]
performed in public by a policeman while the citizen stands helpless, perhaps
facing a wall with his hands raised, is a "petty indignity." [Footnote 13] It is a
serious intrusion upon the sanctity of the person, which may inflict great indignity
and arouse strong resentment, and it is not to be undertaken lightly. [Footnote 14]
The danger in the logic which proceeds upon distinctions between a "stop" and an
"arrest," or "seizure" of the person, and between a "frisk" and a "search," is
twofold. It seeks to isolate from constitutional scrutiny the initial stages of the
contact between the policeman and the citizen. And, by suggesting a rigid all-ornothing model of justification and regulation under the Amendment, it obscures the
utility of limitations upon the scope, as well as the initiation, of police action as a
means of constitutional regulation. [Footnote 15] This Court has held, in
[18]
the past that a search which is reasonable at its inception may violate the Fourth
Amendment by virtue of its intolerable intensity and scope. Kremen v. United
States, 353 U. S. 346 (1957); Go-Bart Importing Co. v.
[19]
United States, 282 U. S. 344, 356-358 (1931); see United States v. Di Re, 332 U. S.
581, 586-587 (1948). The scope of the search must be "strictly tied to and justified
by" the circumstances which rendered its initiation permissible. Warden v.
Hayden, 387 U. S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see,
e.g., Preston v. United States, 376 U. S. 364, 367-368 (1964); Agnello v. United
States, 269 U. S. 20, 30-31 (1925).
The distinctions of classical "stop-and-frisk" theory thus serve to divert attention
from the central inquiry under the Fourth Amendment -- the reasonableness in all
the circumstances of the particular governmental invasion of a citizen's personal
security. "Search" and "seizure" are not talismans. We therefore reject the notions
that the Fourth Amendment does not come into play at all as a limitation upon
police conduct if the officers stop short of something called a "technical arrest" or a
"full-blown search."
In this case, there can be no question, then, that Officer McFadden "seized"
petitioner and subjected him to a "search" when he took hold of him and patted
down the outer surfaces of his clothing. We must decide whether, at that point, it
was reasonable for Officer McFadden to have interfered with petitioner's personal
security as he did. [Footnote 16] And, in determining whether the seizure and
search were "unreasonable," our inquiry
[20]
is a dual one -- whether the officer's action was justified at its inception, and
whether it was reasonably related in scope to the circumstances which justified the
interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of the Fourth
Amendment, we would have to ascertain whether "probable cause" existed to
justify the search and seizure which took place. However, that is not the case. We
do not retreat from our holdings that the police must, whenever practicable, obtain
advance judicial approval of searches and seizures through the warrant
procedure, see, e.g., Katz v. United States, 389 U. S. 347 (1967); Beck v. Ohio, 379
U. S. 89, 96 (1964); Chapman v. United States, 365 U. S. 610 (1961), or that, in
most instances, failure to comply with the warrant requirement can only be
excused by exigent circumstances, see, e.g., Warden v. Hayden, 387 U. S.
294 (1967) (hot pursuit); cf. Preston v. United States, 376 U. S. 364, 367-368
(1964). But we deal here with an entire rubric of police conduct -- necessarily swift
action predicated upon the on-the-spot observations of the officer on the beat -which historically has not been, and, as a practical matter, could not be, subjected
to the warrant procedure. Instead, the conduct involved in this case must be tested
by the Fourth Amendment's general proscription against unreasonable searches and
seizures. [Footnote 17]
Nonetheless, the notions which underlie both the warrant procedure and the
requirement of probable cause remain fully relevant in this context. In order to
assess the reasonableness of Officer McFadden's conduct as a general proposition,
it is necessary "first to focus upon
[21]
the governmental interest which allegedly justifies official intrusion upon the
constitutionally protected interests of the private citizen," for there is "no ready test
for determining reasonableness other than by balancing the need to search [or
seize] against the invasion which the search [or seizure] entails." Camara v.
Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967). And, in justifying the
particular intrusion, the police officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion. [Footnote 18] The scheme of the Fourth
Amendment becomes meaningful only when it is assured that, at some point, the
conduct of those charged with enforcing the laws can be subjected to the more
detached, neutral scrutiny of a judge who must evaluate the reasonableness of a
particular search or seizure in light of the particular circumstances. [Footnote 19]
And, in making that assessment, it is imperative that the facts be judged against an
objective standard: would the facts
[22]
available to the officer at the moment of the seizure or the search "warrant a man
of reasonable caution in the belief" that the action taken was appropriate? Cf.
Carroll v. United States, 267 U. S. 132 (1925); Beck v. Ohio, 379 U. S. 89, 96-97
(1964). [Footnote 20] Anything less would invite intrusions upon constitutionally
guaranteed rights based on nothing more substantial than inarticulate hunches, a
result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio,
supra; Rios v. United States, 364 U. S. 253 (1960); Henry v. United States, 361 U.
S. 98 (1959). And simple "'good faith on the part of the arresting officer is not
enough.' . . . If subjective good faith alone were the test, the protections of the
Fourth Amendment would evaporate, and the people would be 'secure in their
persons, houses, papers, and effects,' only in the discretion of the police." Beck v.
Ohio, supra, at 97.
Applying these principles to this case, we consider first the nature and extent of the
governmental interests involved. One general interest is, of course, that of effective
crime prevention and detection; it is this interest which underlies the recognition
that a police officer may, in appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating possibly criminal behavior
even though there is no probable cause to make an arrest. It was this legitimate
investigative function Officer McFadden was discharging when he decided to
approach petitioner and his companions. He had observed Terry, Chilton, and Katz
go through a series of acts, each of them perhaps innocent in itself, but which,
taken together, warranted further investigation. There is nothing unusual in two
men standing together on a street corner, perhaps waiting for someone. Nor is there
anything suspicious about people
[23]
in such circumstances strolling up and down the street, singly or in pairs. Store
windows, moreover, are made to be looked in. But the story is quite different
where, as here, two men hover about a street corner for an extended period of time,
at the end of which it becomes apparent that they are not waiting for anyone or
anything; where these men pace alternately along an identical route, pausing to
stare in the same store window roughly 24 times; where each completion of this
route is followed immediately by a conference between the two men on the corner;
where they are joined in one of these conferences by a third man who leaves
swiftly, and where the two men finally follow the third and rejoin him a couple of
blocks away. It would have been poor police work indeed for an officer of 30
years' experience in the detection of thievery from stores in this same
neighborhood to have failed to investigate this behavior further.
The crux of this case, however, is not the propriety of Officer McFadden's taking
steps to investigate petitioner's suspicious behavior, but, rather, whether there was
justification for McFadden's invasion of Terry's personal security by searching him
for weapons in the course of that investigation. We are now concerned with more
than the governmental interest in investigating crime; in addition, there is the more
immediate interest of the police officer in taking steps to assure himself that the
person with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him. Certainly it would be unreasonable
to require that police officers take unnecessary risks in the performance of their
duties. American criminals have a long tradition of armed violence, and every year
in this country many law enforcement officers are killed in the line of duty, and
thousands more are wounded.
[24]
Virtually all of these deaths and a substantial portion of the injuries are inflicted
with guns and knives. [Footnote 21]
In view of these facts, we cannot blind ourselves to the need for law enforcement
officers to protect themselves and other prospective victims of violence in
situations where they may lack probable cause for an arrest. When an officer is
justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others, it would appear to be clearly unreasonable to deny the officer the power to
take necessary measures to determine whether the person is, in fact, carrying a
weapon and to neutralize the threat of physical harm.
We must still consider, however, the nature and quality of the intrusion on
individual rights which must be accepted if police officers are to be conceded the
right to search for weapons in situations where probable cause to arrest for crime is
lacking. Even a limited search of the outer clothing for weapons constitutes a
severe,
[25]
though brief, intrusion upon cherished personal security, and it must surely be an
annoying, frightening, and perhaps humiliating experience. Petitioner contends that
such an intrusion is permissible only incident to a lawful arrest, either for a crime
involving the possession of weapons or for a crime the commission of which led
the officer to investigate in the first place. However, this argument must be closely
examined.
Petitioner does not argue that a police officer should refrain from making any
investigation of suspicious circumstances until such time as he has probable cause
to make an arrest; nor does he deny that police officers, in properly discharging
their investigative function, may find themselves confronting persons who might
well be armed and dangerous. Moreover, he does not say that an officer is always
unjustified in searching a suspect to discover weapons. Rather, he says it is
unreasonable for the policeman to take that step until such time as the situation
evolves to a point where there is probable cause to make an arrest. When that point
has been reached, petitioner would concede the officer's right to conduct a search
of the suspect for weapons, fruits or instrumentalities of the crime, or "mere"
evidence, incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to take
account of traditional limitations upon the scope of searches, and thus recognizes
no distinction in purpose, character, and extent between a search incident to an
arrest and a limited search for weapons. The former, although justified in part by
the acknowledged necessity to protect the arresting officer from assault with a
concealed weapon, Preston v. United States, 376 U. S. 364, 367 (1964), is also
justified on other grounds, ibid., and can therefore involve a relatively extensive
exploration of the person. A search for weapons in the absence of probable cause
to
[26]
arrest, however, must, like any other search, be strictly circumscribed by the
exigencies which justify its initiation. Warden v. Hayden, 387 U. S. 294, 310
(1967) (MR. JUSTICE FORTAS, concurring). Thus, it must be limited to that
which is necessary for the discovery of weapons which might be used to harm the
officer or others nearby, and may realistically be characterized as something less
than a "full" search, even though it remains a serious intrusion.
A second, and related, objection to petitioner's argument is that it assumes that the
law of arrest has already worked out the balance between the particular interests
involved here -- the neutralization of danger to the policeman in the investigative
circumstance and the sanctity of the individual. But this is not so. An arrest is a
wholly different kind of intrusion upon individual freedom from a limited search
for weapons, and the interests each is designed to serve are likewise quite different.
An arrest is the initial stage of a criminal prosecution. It is intended to vindicate
society's interest in having its laws obeyed, and it is inevitably accompanied by
future interference with the individual's freedom of movement, whether or not trial
or conviction ultimately follows. [Footnote 22] The protective search for weapons,
on the other hand, constitutes a brief, though far from inconsiderable, intrusion
upon the sanctity of the person. It does not follow that, because an officer may
lawfully arrest a person only when he is apprised of facts sufficient to warrant a
belief that the person has committed or is committing a crime, the officer is equally
unjustified, absent that kind of evidence, in making any intrusions short of an
arrest. Moreover, a perfectly reasonable apprehension of danger may arise long
before the officer is possessed of adequate information to justify taking a person
into custody for
[27]
the purpose of prosecuting him for a crime. Petitioner's reliance on cases which
have worked out standards of reasonableness with regard to "seizures" constituting
arrests and searches incident thereto is thus misplaced. It assumes that the interests
sought to be vindicated and the invasions of personal security may be equated in
the two cases, and thereby ignores a vital aspect of the analysis of the
reasonableness of particular types of conduct under the Fourth Amendment. See
Camara v. Municipal Court, supra.
Our evaluation of the proper balance that has to be struck in this type of case leads
us to conclude that there must be a narrowly drawn authority to permit a
reasonable search for weapons for the protection of the police officer, where he has
reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime.
The officer need not be absolutely certain that the individual is armed; the issue is
whether a reasonably prudent man, in the circumstances, would be warranted in the
belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U. S. 89,
91 (1964); Brinegar v. United States, 338 U. S. 160, 174-176 (1949); Stacey v.
Emery, 97 U. S. 642, 645 (1878). [Footnote 23] And in determining whether the
officer acted reasonably in such circumstances, due weight must be given not to his
inchoate and unparticularized suspicion or "hunch," but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his experience. Cf.
Brinegar v. United States supra.
IV
We must now examine the conduct of Officer McFadden in this case to determine
whether his search and seizure of petitioner were reasonable, both at their inception
[28]
and as conducted. He had observed Terry, together with Chilton and another man,
acting in a manner he took to be preface to a "stick-up." We think, on the facts and
circumstances Officer McFadden detailed before the trial judge, a reasonably
prudent man would have been warranted in believing petitioner was armed, and
thus presented a threat to the officer's safety while he was investigating his
suspicious behavior. The actions of Terry and Chilton were consistent with
McFadden's hypothesis that these men were contemplating a daylight robbery -which, it is reasonable to assume, would be likely to involve the use of weapons -and nothing in their conduct from the time he first noticed them until the time he
confronted them and identified himself as a police officer gave him sufficient
reason to negate that hypothesis. Although the trio had departed the original scene,
there was nothing to indicate abandonment of an intent to commit a robbery at
some point. Thus, when Officer McFadden approached the three men gathered
before the display window at Zucker's store, he had observed enough to make it
quite reasonable to fear that they were armed, and nothing in their response to his
hailing them, identifying himself as a police officer, and asking their names served
to dispel that reasonable belief. We cannot say his decision at that point to seize
Terry and pat his clothing for weapons was the product of a volatile or inventive
imagination, or was undertaken simply as an act of harassment; the record
evidences the tempered act of a policeman who, in the course of an investigation,
had to make a quick decision as to how to protect himself and others from possible
danger, and took limited steps to do so.
The manner in which the seizure and search were conducted is, of course, as vital a
part of the inquiry as whether they were warranted at all. The Fourth Amendment
proceeds as much by limitations upon the
[29]
scope of governmental action as by imposing preconditions upon its
initiation. Compare Katz v. United States, 389 U. S. 347, 354-356 (1967). The
entire deterrent purpose of the rule excluding evidence seized in violation of the
Fourth Amendment rests on the assumption that "limitations upon the fruit to be
gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914
(C.A.2d Cir.1930); see, e.g., Linkletter v. Walker, 381 U. S. 618, 629-635
(1965); Mapp v. Ohio, 367 U. S. 643 (1961); Elkins v. United States, 364 U. S.
206, 216-221 (1960). Thus, evidence may not be introduced if it was discovered by
means of a seizure and search which were not reasonably related in scope to the
justification for their initiation. Warden v. Hayden, 387 U. S. 294, 310 (1967)
(MR. JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which the
Fourth Amendment places upon a protective seizure and search for weapons.
These limitations will have to be developed in the concrete factual circumstances
of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to
note that such a search, unlike a search without a warrant incident to a lawful
arrest, is not justified by any need to prevent the disappearance or destruction of
evidence of crime. See Preston v. United States, 376 U. S. 364, 367 (1964). The
sole justification of the search in the present situation is the protection of the police
officer and others nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments
for the assault of the police officer.
The scope of the search in this case presents no serious problem in light of these
standards. Officer McFadden patted down the outer clothing of petitioner and his
two companions. He did not place his hands in their pockets or under the outer
surface of their garments until he had
[30]
felt weapons, and then he merely reached for and removed the guns. He never did
invade Katz' person beyond the outer surfaces of his clothes, since he discovered
nothing in his pat-down which might have been a weapon. Officer McFadden
confined his search strictly to what was minimally necessary to learn whether the
men were armed and to disarm them once he discovered the weapons. He did not
conduct a general exploratory search for whatever evidence of criminal activity he
might find.
V
We conclude that the revolver seized from Terry was properly admitted in
evidence against him. At the time he seized petitioner and searched him for
weapons, Officer McFadden had reasonable grounds to believe that petitioner was
armed and dangerous, and it was necessary for the protection of himself and others
to take swift measures to discover the true facts and neutralize the threat of harm if
it materialized. The policeman carefully restricted his search to what was
appropriate to the discovery of the particular items which he sought. Each case of
this sort will, of course, have to be decided on its own facts. We merely hold today
that, where a police officer observes unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may be afoot and that
the persons with whom he is dealing may be armed and presently dangerous,
where, in the course of investigating this behavior, he identifies himself as a
policeman and makes reasonable inquiries, and where nothing in the initial stages
of the encounter serves to dispel his reasonable fear for his own or others' safety,
he is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.
[31]
Such a search is a reasonable search under the Fourth Amendment, and any
weapons seized may properly be introduced in evidence against the person from
whom they were taken.
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and the opinion except where the
opinion quotes from and relies upon this Court's opinion in Katz v. United
States and the concurring opinion in Warden v. Hayden.
MR. JUSTICE HARLAN, concurring.
While I unreservedly agree with the Court's ultimate holding in this case, I am
constrained to fill in a few gaps, as I see them, in its opinion. I do this because
what is said by this Court today will serve as initial guidelines for law enforcement
authorities and courts throughout the land as this important new field of law
develops.
A police officer's right to make an on-the-street "stop" and an accompanying
"frisk" for weapons is, of course, bounded by the protections afforded by the
Fourth and Fourteenth Amendments. The Court holds, and I agree, that, while the
right does not depend upon possession by the officer of a valid warrant, nor upon
the existence of probable cause, such activities must be reasonable under the
circumstances as the officer credibly relates them in court. Since the question in
this and most cases is whether evidence produced by a frisk is admissible, the
problem is to determine what makes a frisk reasonable.
If the State of Ohio were to provide that police officers could, on articulable
suspicion less than probable cause, forcibly frisk and disarm persons thought to be
carrying concealed weapons, I would have little doubt that action taken pursuant to
such authority could be constitutionally reasonable. Concealed weapons create an
immediate
[32]
and severe danger to the public, and though that danger might not warrant routine
general weapons checks, it could well warrant action on less than a "probability." I
mention this line of analysis because I think it vital to point out that it cannot be
applied in this case. On the record before us, Ohio has not clothed its policemen
with routine authority to frisk and disarm on suspicion; in the absence of state
authority, policemen have no more right to "pat down" the outer clothing of
passers-by, or of persons to whom they address casual questions, than does any
other citizen. Consequently, the Ohio courts did not rest the constitutionality of this
frisk upon any general authority in Officer McFadden to take reasonable steps to
protect the citizenry, including himself, from dangerous weapons.
The state courts held, instead, that, when an officer is lawfully confronting a
possibly hostile person in the line of duty, he has a right, springing only from the
necessity of the situation, and not from any broader right to disarm, to frisk for his
own protection. This holding, with which I agree and with which I think the Court
agrees, offers the only satisfactory basis I can think of for affirming this
conviction. The holding has, however, two logical corollaries that I do not think
the Court has fully expressed.
In the first place, if the frisk is justified in order to protect the officer during an
encounter with a citizen, the officer must first have constitutional grounds to insist
on an encounter, to make a forcible stop. Any person, including a policeman, is at
liberty to avoid a person he considers dangerous. If and when a policeman has a
right instead to disarm such a person for his own protection, he must first have a
right not to avoid him, but to be in his presence. That right must be more than the
liberty (again, possessed by every citizen) to address questions to other persons, for
ordinarily the person
[33]
addressed has an equal right to ignore his interrogator and walk away; he certainly
need not submit to a frisk for the questioner's protection. I would make it perfectly
clear that the right to frisk in this case depends upon the reasonableness of a
forcible stop to investigate a suspected crime.
Where such a stop is reasonable, however, the right to frisk must be immediate and
automatic if the reason for the stop is, as here, an articulable suspicion of a crime
of violence. Just as a full search incident to a lawful arrest requires no additional
justification, a limited frisk incident to a lawful stop must often be rapid and
routine. There is no reason why an officer, rightfully but forcibly confronting a
person suspected of a serious crime, should have to ask one question and take the
risk that the answer might be a bullet.
The facts of this case are illustrative of a proper stop and an incident frisk. Officer
McFadden had no probable cause to arrest Terry for anything, but he had observed
circumstances that would reasonably lead an experienced, prudent policeman to
suspect that Terry was about to engage in burglary or robbery. His justifiable
suspicion afforded a proper constitutional basis for accosting Terry, restraining his
liberty of movement briefly, and addressing questions to him, and Officer
McFadden did so. When he did, he had no reason whatever to suppose that Terry
might be armed, apart from the fact that he suspected him of planning a violent
crime. McFadden asked Terry his name, to which Terry "mumbled something."
Whereupon McFadden, without asking Terry to speak louder and without giving
him any chance to explain his presence or his actions, forcibly frisked him.
I would affirm this conviction for what I believe to be the same reasons the Court
relies on. I would, however, make explicit what I think is implicit in affirmance on
[34]
the present facts. Officer McFadden's right to interrupt Terry's freedom of
movement and invade his privacy arose only because circumstances warranted
forcing an encounter with Terry in an effort to prevent or investigate a crime. Once
that forced encounter was justified, however, the officer's right to take suitable
measures for his own safety followed automatically.
Upon the foregoing premises, I join the opinion of the Court.
MR. JUSTICE WHITE, concurring.
I join the opinion of the Court, reserving judgment, however, on some of the
Court's general remarks about the scope and purpose of the exclusionary rule
which the Court has fashioned in the process of enforcing the Fourth Amendment.
Also, although the Court puts the matter aside in the context of this case, I think an
additional word is in order concerning the matter of interrogation during an
investigative stop. There is nothing in the Constitution which prevents a policeman
from addressing questions to anyone on the streets. Absent special circumstances,
the person approached may not be detained or frisked, but may refuse to cooperate
and go on his way. However, given the proper circumstances, such as those in this
case, it seems to me the person may be briefly detained against his will while
pertinent questions are directed to him. Of course, the person stopped is not
obliged to answer, answers may not be compelled, and refusal to answer furnishes
no basis for an arrest, although it may alert the officer to the need for continued
observation. In my view, it is temporary detention, warranted by the circumstances,
which chiefly justifies the protective frisk for weapons. Perhaps the frisk itself,
where proper, will have beneficial results whether questions are asked or not. If
weapons are found, an arrest will follow.
[35]
If none is found, the frisk may nevertheless serve preventive ends because of its
unmistakable message that suspicion has been aroused. But if the investigative stop
is sustainable at all, constitutional rights are not necessarily violated if pertinent
questions are asked and the person is restrained briefly in the process.
MR. JUSTICE DOUGLAS, dissenting.
I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I
also agree that frisking petitioner and his companions for guns was a "search." But
it is a mystery how that "search" and that "seizure" can be constitutional by Fourth
Amendment standards unless there was "probable cause" [Footnote 1] to believe
that (1) a crime had been committed or (2) a crime was in the process of being
committed or (3) a crime was about to be committed.
The opinion of the Court disclaims the existence of "probable cause." If loitering
were in issue and that
[36]
was the offense charged, there would be "probable cause" shown. But the crime
here is carrying concealed weapons; [Footnote 2] and there is no basis for
concluding that the officer had "probable cause" for believing that that crime was
being committed. Had a warrant been sought, a magistrate would, therefore, have
been unauthorized to issue one, for he can act only if there is a showing of
"probable cause." We hold today that the police have greater authority to make a
"seizure" and conduct a "search" than a judge has to authorize such action. We
have said precisely the opposite over and over again. [Footnote 3]
[37]
In other words, police officers up to today have been permitted to effect arrests or
searches without warrants only when the facts within their personal knowledge
would satisfy the constitutional standard of probable cause. At the time of their
"seizure" without a warrant, they must possess facts concerning the person arrested
that would have satisfied a magistrate that "probable cause" was indeed present.
The term "probable cause" rings a bell of certainty that is not sounded by phrases
such as "reasonable suspicion." Moreover, the meaning of "probable cause" is
deeply imbedded in our constitutional history. As we stated in Henry v. United
States, 361 U. S. 98, 100-102:
"The requirement of probable cause has roots that are deep in our history. The
general warrant, in which the name of the person to be arrested was left blank, and
the writs of assistance, against which James Otis inveighed, both perpetuated the
oppressive practice of allowing the police to arrest and search on suspicion. Police
control took the place of judicial control, since no showing of 'probable cause'
before a magistrate was required."
"* * * *"
"That philosophy [rebelling against these practices] later was reflected in the
Fourth Amendment. And as the early American decisions both before and
immediately after its adoption show, common rumor or report, suspicion, or even
'strong reason to suspect' was not adequate to support a warrant
[38]
for arrest. And that principle has survived to this day. . . ."
". . . It is important, we think, that this requirement [of probable cause] be strictly
enforced, for the standard set by the Constitution protects both the officer and the
citizen. If the officer acts with probable cause, he is protected even though it turns
out that the citizen is innocent. . . . And while a search without a warrant is, within
limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to
support an incidental search, it must be made with probable cause. . . . This
immunity of officers cannot fairly be enlarged without jeopardizing the privacy or
security of the citizen."
The infringement on personal liberty of any "seizure" of a person can only be
"reasonable" under the Fourth Amendment if we require the police to possess
"probable cause" before they seize him. Only that line draws a meaningful
distinction between an officer's mere inkling and the presence of facts within the
officer's personal knowledge which would convince a reasonable man that the
person seized has committed, is committing, or is about to commit a particular
crime. "In dealing with probable cause, . . . as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act." Brinegar v. United States, 338 U. S. 160, 175.
To give the police greater power than a magistrate is to take a long step down the
totalitarian path. Perhaps such a step is desirable to cope with modern forms of
lawlessness. But if it is taken, it should be the deliberate choice of the people
through a constitutional amendment.
[39]
Until the Fourth Amendment, which is closely allied with the Fifth, [Footnote 4] is
rewritten, the person and the effects of the individual are beyond the reach of all
government agencies until there are reasonable grounds to believe (probable cause)
that a criminal venture has been launched or is about to be launched.
There have been powerful hydraulic pressures throughout our history that bear
heavily on the Court to water down constitutional guarantees and give the police
the upper hand. That hydraulic pressure has probably never been greater than it is
today.
Yet if the individual is no longer to be sovereign, if the police can pick him up
whenever they do not like the cut of his jib, if they can "seize" and "search" him in
their discretion, we enter a new regime. The decision to enter it should be made
only after a full debate by the people of this country.
Footnotes
[Footnote 1]
Ohio Rev.Code § 2923.01 (1953) provides in part that "[n]o person shall carry a
pistol, bowie knife, dirk, or other dangerous weapon concealed on or about his
person." An exception is made for properly authorized law enforcement officers.
[Footnote 2]
Terry and Chilton were arrested, indicted, tried, and convicted together. They were
represented by the same attorney, and they made a joint motion to suppress the
guns. After the motion was denied, evidence was taken in the case against Chilton.
This evidence consisted of the testimony of the arresting officer and of Chilton. It
was then stipulated that this testimony would be applied to the case against Terry,
and no further evidence was introduced in that case. The trial judge considered the
two cases together, rendered the decisions at the same time, and sentenced the two
men at the same time. They prosecuted their state court appeals together through
the same attorney, and they petitioned this Court for certiorari together. Following
the grant of the writ upon this joint petition, Chilton died. Thus, only Terry's
conviction is here for review.
[Footnote 3]
Both the trial court and the Ohio Court of Appeals in this case relied upon such a
distinction. State v. Terry, 5 Ohio App.2d 122, 125-130, 214 N.E.2d 114, 117-120
(1966). See also, e.g., People v. Rivera, 14 N.Y.2d 441, 201 N.E.2d 32, 252
N.Y.S.2d 458 (1964), cert. denied, 379 U.S. 978 (1965); Aspen, Arrest and Arrest
Alternatives: Recent Trends, 1966 U.Ill.L.F. 241, 249-254; Warner, The Uniform
Arrest Act, 28 Va.L.Rev. 315 (1942); Note, Stop and Frisk in California, 18
Hastings L.J. 623, 629-632 (1967).
[Footnote 4]
People v. Rivera, supra, n 3, at 447, 201 N.E.2d at 36, 252 N.Y.S.2d at 464.
[Footnote 5]
The theory is well laid out in the Rivera opinion:
"[T]he evidence needed to make the inquiry is not of the same degree of
conclusiveness as that required for an arrest. The stopping of the individual to
inquire is not an arrest and the ground upon which the police may make the inquiry
may be less incriminating than the ground for an arrest for a crime known to have
been committed. . . ."
"* * * *"
"And as the right to stop and inquire is to be justified for a cause less conclusive
than that which would sustain an arrest, so the right to frisk may be justified as an
incident to inquiry upon grounds of elemental safety and precaution which might
not initially sustain a search. Ultimately, the validity of the frisk narrows down to
whether there is or is not a right by the police to touch the person questioned. The
sense of exterior touch here involved is not very far different from the sense of
sight or hearing -- senses upon which police customarily act." People v. Rivera, 14
N.Y.2d 441, 445, 447, 201 N.E.2d 32, 34, 35, 252 N.Y.S.2d 458, 461, 463
(1964), cert. denied, 379 U.S. 978 (1965).
[Footnote 6]
See, e.g., Foote, The Fourth Amendment: Obstacle or Necessity in the Law of
Arrest?, 51 J.Crim.L.C. & P.S. 402 (1960).
[Footnote 7]
See n 11, infra.
[Footnote 8]
Brief for Respondent 2.
[Footnote 9]
See L. Tiffany, D. McIntyre D. Rotenberg, Detection of Crime: Stopping and
Questioning, Search and Seizure, Encouragement and Entrapment 186 (1967). This
sort of police conduct may, for example, be designed simply to help an intoxicated
person find his way home, with no intention of arresting him unless he becomes
obstreperous. Or the police may be seeking to mediate a domestic quarrel which
threatens to erupt into violence. They may accost a woman in an area known for
prostitution as part of a harassment campaign designed to drive prostitutes away
without the considerable difficulty involved in prosecuting them. Or they may be
conducting a dragnet search of all teenagers in a particular section of the city for
weapons because they have heard rumors of an impending gang fight.
[Footnote 10]
See Tiffany, McIntyre & Rotenberg, supra, n 9, at 100-101; Comment, 47
Nw.U.L.Rev. 493, 497-499 (1952).
[Footnote 11]
The President's Commission on Law Enforcement and Administration of Justice
found that, "[i]n many communities, field interrogations are a major source of
friction between the police and minority groups." President's Commission on Law
Enforcement and Administration of Justice, Task Force Report: The Police 183
(1967). It was reported that the friction caused by "[m]isuse of field interrogations"
increases "as more police departments adopt 'aggressive patrol,' in which officers
are encouraged routinely to stop and question persons on the street who are
unknown to them, who are suspicious, or whose purpose for being abroad is not
readily evident." Id. at 184. While the frequency with which "frisking" forms a part
of field interrogation practice varies tremendously with the locale, the objective of
the interrogation, and the particular officer, see Tiffany, McIntyre &
Rotenberg, supra, n 9, at 47-48, it cannot help but be a severely exacerbating factor
in police-community tensions. This is particularly true in situations where the "stop
and frisk" of youths or minority group members is "motivated by the officers'
perceived need to maintain the power image of the beat officer, an aim sometimes
accomplished by humiliating anyone who attempts to undermine police control of
the streets." Ibid.
[Footnote 12]
In this case, for example, the Ohio Court of Appeals stated that "we must be
careful to distinguish that the 'frisk' authorized herein includes only a 'frisk' for a
dangerous weapon. It by no means authorizes a search for contraband, evidentiary
material, or anything else in the absence of reasonable grounds to arrest. Such a
search is controlled by the requirements of the Fourth Amendment, and probable
cause is essential." State v. Terry, 5 Ohio App.2d 122, 130, 214 N.E.2d 114, 120
(1966). See also, e.g., Ellis v. United States, 105 U.S.App.D.C. 86, 88, 264 F.2d
372, 374 (1959); Comment, 65 Col.L.Rev. 848, 860, and n. 81 (1965).
[Footnote 13]
Consider the following apt description:
"[T]he officer must feel with sensitive fingers every portion of the prisoner's body.
A thorough search must be made of the prisoner's arms and armpits, waistline and
back, the groin and area about the testicles, and entire surface of the legs down to
the feet." Priar & Martin, Searching and Disarming Criminals, 45 J.Crim.L.C. &
P.S. 481 (1954).
[Footnote 14]
See n 11, supra, and accompanying text.
We have noted that the abusive practices which play a major, though by no means
exclusive, role in creating this friction are not susceptible of control by means of
the exclusionary rule, and cannot properly dictate our decision with respect to the
powers of the police in genuine investigative and preventive situations. However,
the degree of community resentment aroused by particular practices is clearly
relevant to an assessment of the quality of the intrusion upon reasonable
expectations of personal security caused by those practices.
[Footnote 15]
These dangers are illustrated in part by the course of adjudication in the Court of
Appeals of New York. Although its first decision in this area, People v. Rivera, 14
N.Y.2d 441, 201 N.E.2d 32, 252 N.Y.S.2d 458 (1964), cert. denied, 379 U.S. 978
(1965), rested squarely on the notion that a "frisk" was not a "search," see nn. 35 supra, it was compelled to recognize, in People v. Taggart, 20 N.Y.2d 335, 342,
229 N.E.2d 581, 586, 283 N.Y.S.2d 1, 8 (1967), that what it had actually
authorized in Rivera and subsequent decisions, see, e.g., People v. Pugach, 15
N.Y.2d 65, 204 N.E.2d 176, 255 N.Y.S.2d 833 (1964), cert. denied, 380 U.S. 936
(1965), was a "search" upon less than probable cause. However, in acknowledging
that no valid distinction could be maintained on the basis of its cases, the Court of
Appeals continued to distinguish between the two in theory. It still defined
"search" as it had in Rivera -- as an essentially unlimited examination of the person
for any and all seizable items -- and merely noted that the cases had upheld police
intrusions which went far beyond the original limited conception of a "frisk." Thus,
principally because it failed to consider limitations upon the scope of searches in
individual cases as a potential mode of regulation, the Court of Appeals in three
short years arrived at the position that the Constitution must, in the name of
necessity, be held to permit unrestrained rummaging about a person and his effects
upon mere suspicion. It did apparently limit its holding to "cases involving serious
personal injury or grave irreparable property damage," thus excluding those
involving "the enforcement of sumptuary laws, such as gambling, and laws of
limited public consequence, such as narcotics violations, prostitution, larcenies of
the ordinary kind, and the like." People v. Taggart, supra, at 340, 214 N.E.2d at
584, 283 N.Y.S.2d at 6.
In our view, the sounder course is to recognize that the Fourth Amendment
governs all intrusions by agents of the public upon personal security, and to make
the scope of the particular intrusion, in light of all the exigencies of the case, a
central element in the analysis of reasonableness. Cf. Brinegar v. United
States, 338 U. S. 160, 183 (1949) (Mr. Justice Jackson, dissenting). Compare
Camara v. Municipal Court, 387 U. S. 523, 537 (1967). This seems preferable to
an approach which attributes too much significance to an overly technical
definition of "search," and which turns in part upon a judge-made hierarchy of
legislative enactments in the criminal sphere. Focusing the inquiry squarely on the
dangers and demands of the particular situation also seems more likely to produce
rules which are intelligible to the police and the public alike than requiring the
officer in the heat of an unfolding encounter on the street to make a judgment as to
which laws are "of limited public consequence."
[Footnote 16]
We thus decide nothing today concerning the constitutional propriety of an
investigative "seizure" upon less than probable cause for purposes of "detention"
and/or interrogation. Obviously, not all personal intercourse between policemen
and citizens involves "seizures" of persons. Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a
citizen may we conclude that a "seizure" has occurred. We cannot tell with any
certainty upon this record whether any such "seizure" took place here prior to
Officer McFadden's initiation of physical contact for purposes of searching Terry
for weapons, and we thus may assume that, up to that point, no intrusion upon
constitutionally protected rights had occurred.
[Footnote 17]
See generally Leagre, The Fourth Amendment and the Law of Arrest, 54
J.Crim.L.C. & P.S. 393, 396 403 (1963).
[Footnote 18]
This demand for specificity in the information upon which police action is
predicated is the central teaching of this Court's Fourth Amendment
jurisprudence. See Beck v. Ohio, 379 U. S. 89, 96-97 (1964); Ker v. California, 374
U. S. 23, 34-37 (1963); Wong Sun v. United States, 371 U. S. 471, 479-484
(1963); Rios v. United States, 364 U. S. 253, 261-262 (1960); Henry v. United
States, 361 U. S. 98, 100-102 (1959); Draper v. United States, 358 U. S. 307, 312314 (1959); Brinegar v. United States, 338 U. S. 160, 175-178 (1949); Johnson v.
United States, 333 U. S. 10, 15-17 (1948); United States v. Di Re, 332 U. S. 581,
593-595 (1948); Husty v. United States, 282 U. S. 694, 700-701 (1931); Dumbra v.
United States, 268 U. S. 435, 441 (1925); Carroll v. United States, 267 U. S. 132,
159-162 (1925); Stacey v. Emery, 97 U. S. 642,6 45 (1878).
[Footnote 19]
See, e.g., Katz v. United States, 389 U. S. 347, 354-357 (1967); Berger v. New
York, 388 U. S. 41, 54-60 (1967); Johnson v. United States, 333 U. S. 10, 13-15
(1948); cf. Wong Sun v. United States, 371 U. S. 471, 479-480 (1963). See also
Aguilar v. Texas, 378 U. S. 108, 110-115 (1964).
[Footnote 20]
See also cases cited in n 18, supra.
[Footnote 21]
Fifty-seven law enforcement officers were killed in the line of duty in this country
in 1966, bringing the total to 335 for the seven-year period beginning with 1960.
Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted
in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from
gunshot wounds, 41 of them inflicted by handguns easily secreted about the
person. The remaining two murders were perpetrated by knives. See Federal
Bureau of Investigation, Uniform Crime Reports for the United States -- 1966, at
45-48, 152 and Table 51.
The easy availability of firearms to potential criminals in this country is well
known, and has provoked much debate. See, e.g., President's Commission on Law
Enforcement and Administration of Justice, The Challenge of Crime in a Free
Society 239-243 (1967). Whatever the merits of gun control proposals, this fact is
relevant to an assessment of the need for some form of self-protective search
power.
[Footnote 22]
See generally W. LaFave, Arrest -- The Decision to Take a Suspect into Custody
1-13 (1965).
[Footnote 23]
See also cases cited in n. 18, supra.
[Footnote 1]
The meaning of "probable cause" has been developed in cases where an officer has
reasonable grounds to believe that a crime has been or is being committed. See,
e.g., 70 U. S. 3 Wall. 155; Stacey v. Emery, 97 U. S. 642; Director General v.
Kastenbaum, 263 U. S. 25; Carroll v. United States, 267 U. S. 132; United States
v. Di Re, 332 U. S. 581; Brinegar v. United States, 338 U. S. 160; Draper v. United
States, 358 U. S. 307; Henry v. United States, 361 U. S. 98. In such cases, of
course, the officer may make an "arrest" which results in charging the individual
with commission of a crime. But while arresting persons who have already
committed crimes is an important task of law enforcement, an equally if not more
important function is crime prevention and deterrence of would-be criminals.
"[T]here is no war between the Constitution and common sense," Mapp v.
Ohio, 367 U. S. 643, 657. Police officers need not wait until they see a person
actually commit a crime before they are able to "seize" that person. Respect for our
constitutional system and personal liberty demands in return, however, that such a
"seizure" be made only upon "probable cause."
[Footnote 2]
Ohio Rev.Code § 2923.01.
[Footnote 3]
This Court has always used the language of "probable cause" in determining the
constitutionality of an arrest without a warrant. See, e.g., Carroll v. United
States, 267 U. S. 132, 156, 161-162; Johnson v. United States, 333 U. S. 10, 1315; McDonald v. United States, 335 U. S. 451, 455-456; Henry v. United
States, 361 U. S. 98; Wong Sun v. United States, 371 U. S. 471, 479-484. To give
power to the police to seize a person on some grounds different from or less than
"probable cause" would be handing them more authority than could be exercised
by a magistrate in issuing a warrant to seize a person. As we stated in Wong Sun v.
United States, 371 U. S. 471, with respect to requirements for arrests without
warrants:
"Whether or not the requirements of reliability and particularity of the information
on which an officer may act are more stringent where an arrest warrant is absent,
they surely cannot be less stringent than where an arrest warrant is obtained."
Id. at 479. And we said in Brinegar v. United States, 338 U. S. 160, 176:
"These long-prevailing standards [for probable cause] seek to safeguard citizens
from rash and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing the law in the
community's protection. Because many situations which confront officers in the
course of executing their duties are more or less ambiguous, room must be allowed
for some mistakes on their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of probability. The rule of
probable cause is a practical, nontechnical conception affording the best
compromise that has been found for accommodating these often opposing interests.
Requiring more would unduly hamper law enforcement. To allow less would be to
leave law-abiding citizens at the mercy of the officers' whim or caprice."
And see Johnson v. United States, 333 U. S. 10, 14-15; Wrightson v. United States,
95 U.S.App.D.C. 390, 393-394, 222 F.2d 556, 559-560 (1955).
[Footnote 4]
See Boyd v. United States, 116 U. S. 616, 633:
"For the 'unreasonable searches and seizures' condemned in the Fourth Amendment
are almost always made for the purpose of compelling a man to give evidence
against himself, which, in criminal cases, is condemned in the Fifth Amendment,
and compelling a man 'in a criminal case to be a witness against himself,' which is
condemned in the Fifth Amendment, throws light on the question as to what is an
'unreasonable search and seizure' within the meaning of the Fourth Amendment."
Manalili v. CA, G.R. No. 113447, October 9, 1997
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, flexible responses — like "stop-and-frisk" —
which are graduated in relation to the amount of information they possess, the
lawmen being ever vigilant to respect and not to violate or to treat cavalierly the
citizen’s constitutional rights against unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under
Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of
Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA
G.R. CR No. 07266, entitled "People of the Philippines v. Alain Manalili y
Dizon."cralaw virtua1aw library
In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of
Section 8, Article II of Republic Act No. 6425, allegedly committed as follows: 2
"That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused
without any authority of law, did then and there willfully, unlawfully and
feloniously have in his custody, possession and control crushed marijuana residue,
which is a prohibited drug and knowing the same to be such.
Contrary to Law."cralaw virtua1aw library
Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the
charge. 3 With the agreement of the public prosecutor, appellant was released after
filing a P10,000.00 bail bond. 4 After trial in due course, the Regional Trial Court
of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on
May 19, 1989 a decision 5 convicting appellant of illegal possession of marijuana
residue. The dispositive portion of the decision reads: 6
"WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8,
Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana
residue), and hereby sentences (sic) said accused to suffer imprisonment of SIX (6)
YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
x
x
x"
Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for
the defense, filed a Notice of Appeal 8 dated May 31, 1989. On April 19, 1993,
Respondent Court 9 promulgated its assailed Decision, denying the appeal and
affirming the trial court: 10
"ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant."cralaw virtua1aw library
Respondent Court 11 denied reconsideration via its assailed Resolution dated
January 20, 1994, disposing:jgc:chanrobles.com.ph
"ACCORDINGLY, Accused-appellant’s motion for reconsideration is, as is hereby
DENIED."cralaw virtua1aw library
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows: 12
"At about 2:10 o’clock in the afternoon of April 11, 1988, policemen from the
Anti-Narcotics Unit of the Kalookan City Police Station were conducting a
surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City
Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a
driver named Arnold Enriquez was driving a Tamaraw vehicle which was the
official car of the Police Station of Kalookan City. The surveillance was being
made because of information that drug addicts were roaming the area in front of
the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their
vehicle. They then chanced upon a male person in front of the cemetery who
appeared high on drugs. The male person was observed to have reddish eyes and to
be walking in a swaying manner. When this male person tried to avoid the
policemen, the latter approached him and introduced themselves as police officers.
The policemen then asked the male person what he was holding in his hands. The
male person tried to resist. Pat. Romeo Espiritu asked the male person if he could
see what said male person had in his hands. The latter showed the wallet and
allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana residue inside. He kept the
wallet and its marijuana contents.chanrobles.com : virtual lawlibrary
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated
wallet and its suspected marijuana contents. The man turned out to be the accused
ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu,
Cpl. Tamondong wrapped the same with a white sheet of paper on which he wrote
‘Evidence ‘A’ 4/11/88 Alain Manalili’. The white sheet of paper was marked as
Exhibit ‘E-3’. The residue was originally wrapped in a smaller sheet of folded
paper. (Exhibit ‘E-4’).
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana residue
(Exhibit ‘D’). Cpl. Tamondong thereafter prepared a Joint Affidavit of the
apprehending policemen (Exhibit ‘A’). Pat. Angel Lumabas handcarried the
referral slip (Exhibit ‘D’) to the National Bureau of Investigation (NBI), including
the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas
appears on the left bottom corner of Exhibit ‘D’.
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and
the subject marijuana residue at 7:40 o’clock in the evening of April 11, 1988 as
shown on the stamped portion of Exhibit ‘D’.
It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identified. (Exhibit ‘E’) 13 Mrs. Pascual
referred to the subject specimen as ‘crushed marijuana leaves’ in her Certification
dated April 11, 1988 (Exhibit ‘F’). 14 These crushed marijuana leaves gave
positive results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In
this examination, she also found that the ‘crushed marijuana leaves’ gave positive
results for marijuana. She then prepared a Final Report of her examinations
(Exhibit ‘G’).
After conducting the examinations, Ms. Pascual placed the specimen in a white
letter-envelope and sealed it. (Exhibit ‘E’). She then wrote identification notes on
this letter-envelope. (Exhibit ‘E-1’).
Pat. Lumabas carried the Certification marked as Exhibit ‘F’ from the NBI
Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl.
Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City.
(Exhibit ‘C’)"
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended. 15
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
"At about 2:00 o’clock in the afternoon of April 11, 1988, the accused ALAIN
MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City
Cemetery on the way to his boarding house. Three policemen ordered the driver of
the tricycle to stop because the tricycle driver and his lone passenger were under
the influence of marijuana. The policemen brought the accused and the tricycle
driver inside the Ford Fiera which the policemen were riding in. The policemen
then bodily searched the accused and the tricycle driver. At this point, the accused
asked the policemen why he was being searched and the policemen replied that he
(accused) was carrying marijuana. However, nothing was found on the persons of
the accused and the driver. The policemen allowed the tricycle driver to go while
they brought the accused to the police headquarters at Kalookan City where they
said they would again search the accused.
On the way to the police headquarters, the accused saw a neighbor and signaled the
latter to follow him. The neighbor thus followed the accused to the Kalookan City
Police Headquarters. Upon arrival thereat, the accused was asked to remove his
pants in the presence of said neighbor and another companion. The policemen
turned over the pants of the accused over a piece of bond paper trying to look for
marijuana. However, nothing was found, except for some dirt and dust. This
prompted the companion of the neighbor of the accused to tell the policemen to
release the accused. The accused was led to a cell. The policemen later told the
accused that they found marijuana inside the pockets of his pants.
At about 5:00 o’clock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the
policemen to call his parents in order to ‘settle’ the case. The policemen who led
the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl.
Tamondong. Pat. Lumabas was the policeman who told the accused to call his
parents. The accused did not call his parents and he told the policemen that his
parents did not have any telephone.
At about 5:30 o’clock in the afternoon of the same day, the accused was brought in
the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana
was found on his person but the Fiscal told the accused not to say anything. The
accused was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he
and the accused were stopped by policemen and then bodily searched on April 11,
1988, testified. He said that the policemen found nothing either on his person or on
the person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at
the Kalookan City Police Headquarters on April 11, 1988. He said that the police
searched the accused who was made to take off his pants at the police headquarters
but no marijuana was found on the body of the accused" .
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several
pictures showing that tricycles were allowed to ply in front of the Caloocan
Cemetery. 17
The Rulings of the Trial and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue
largely on the strength of the arresting officers testimony. Patrolmen Espiritu and
Lumabas were "neutral and disinterested" witnesses, testifying only on what
transpired during the performance of their duties. Substantially, they asserted that
the appellant was found to be in possession of a substance which was later
identified as crushed marijuana residue.
The trial court disbelieved appellant’s defense that this charge was merely
"trumped up," because the appellant neither took any legal action against the
allegedly erring policemen nor moved for a reinvestigation before the city fiscal of
Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was
based on speculations, surmises or conjectures. On the alleged "serious"
discrepancies in the testimonies of the arresting officers, the appellate court ruled
that the said inconsistencies were insubstantial to impair the essential veracity of
the narration. It further found petitioner’s contention — that he could not be
convicted of illegal possession of marijuana residue — to be without merit,
because the forensic chemist reported that what she examined were marijuana
leaves.chanroblesvirtuallawlibrary:red
Issues
Petitioner assigns the following errors on the part of Respondent Court.
"I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in
ruling that the guilt of the accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies
of the prosecution witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was
framed for the purpose of extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are
inadmissible in evidence."cralaw virtua1aw library
Restated more concisely, petitioner questions (1) the admissibility of the evidence
against him, (2) the credibility of prosecution witnesses and the rejection by the
trial and the appellate courts of the defense of extortion, and (3) the sufficiency of
the prosecution evidence to sustain his conviction.
The Court’s Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized
During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession,
contending that they were products of an illegal search. The Solicitor General, in
his Comment dated July 5, 1994, which was adopted as memorandum for
respondent, counters that the inadmissibility of the marijuana leaves was waived
because petitioner never raised this issue in the proceedings below nor did he
object to their admissibility in evidence. He adds that, even assuming arguendo
that there was no waiver, the search was legal because it was incidental to a
warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a
stop-and-frisk. In the landmark case of Terry v. Ohio, 18 a stop-and-frisk was
defined as the vernacular designation of the right of a police officer to stop a
citizen on the street, interrogate him, and pat him for
weapon(s):jgc:chanrobles.com.ph
". . . (W)here a police officer observes an unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identified himself
as a policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own or others’
safety, he is entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment, and any weapon seized may
properly be introduced in evidence against the person from whom they were
taken." 19
In allowing such a search, the United States Supreme Court held that the interest of
effective crime prevention and detection allows a police officer to approach a
person, in appropriate circumstances and manner, for purposes of investigating
possible criminal behavior even though there is insufficient probable cause to make
an actual arrest. This was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached petitioner and his
companion whom he observed to have hovered alternately about a street corner for
an extended period of time, while not waiting for anyone; paused to stare in the
same store window roughly 24 times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years experience to have failed
to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US
Supreme Court held that what justified the limited search was the more immediate
interest of the police officer in taking steps to assure himself that the person with
whom he was dealing was not armed with a weapon that could unexpectedly and
fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and
seizure is unconstitutional and subject to challenge. 20 Section 2, Article III of the
1987 Constitution, gives this guarantee:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
Any evidence obtained in violation of the mentioned provision is legally
inadmissible in evidence as a "fruit of the poisonous tree," falling under the
exclusionary rule:jgc:chanrobles.com.ph
"SEC. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
inadmissible for any purpose in any proceeding."cralaw virtua1aw library
This right, however, is not absolute. 21 The recent case of People v. Lacerna
enumerated five recognized exceptions to the rule against warrantless search and
seizure, viz.:" (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure." 22 In
People v. Encinada, 23 the Court further explained that" [in] these cases, the search
and seizure may be made only with probable cause as the essential requirement.
Although the term eludes exact definition, probable cause for a search is, at best,
defined as a reasonable ground of suspicion, supported by circumstances
sufficiently strong in themselves to warrant a cautious man in the belief that the
person accused is guilty of the offense with which he is charged; or the existence
of such facts and circumstances which could lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the item(s), article(s) or
object(s) sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched."cralaw virtua1aw library
Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas v. Court of Appeals, 24 the Court
held that there were many instances where a search and seizure could be effected
without necessarily being preceded by an arrest, one of which was stop-and-frisk.
In said case, members of the Integrated National Police of Davao stopped
petitioner, who was carrying a buri bag and acting suspiciously. They found inside
petitioner’s bag one .38-cal. revolver with two rounds of live ammunition, two live
ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of
the search, the Court said that to require the police officers to search the bag only
after they had obtained a search warrant might prove to be useless, futile and much
too late under the circumstances. In such a situation, it was reasonable for a police
officer to stop a suspicious individual briefly in order to determine his identity or
to maintain the status quo while obtaining more information, rather than to simply
shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their
surveillance that appellant had red eyes and was wobbling like a drunk along the
Caloocan City Cemetery, which according to police information was a popular
hangout of drug addicts. From his experience as a member of the Anti-Narcotics
Unit of the Caloocan City Police, such suspicious behavior was characteristic of
drug addicts who were "high." The policemen therefore had sufficient reason to
stop petitioner to investigate if he was actually high on drugs. During such
investigation, they found marijuana in petitioner’s possession:25cralaw:red
"FISCAL RALAR:chanrob1es virtual 1aw library
Q And why were you conducting surveillance in front of the Caloocan Cemetery,
Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were roaming
around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City.
x
x
x
Q While you were conducting your surveillance, together with Pat. Angel Lumabas
and one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan Cemetery then
when we called his attention he tried to avoid us, then prompting us to approach
him and introduce ourselves as police officers in a polite
manner.chanroblesvirtual|awlibrary
x
x
x
Q Could you describe to us the appearance of that person when you chanced upon
him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that you chanced upon
was high on drug?
A Because his eyes were red and he was walking on a swaying manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided you?
A We approached him and introduced ourselves as police officers in a polite
manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked him what he was
holding in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was (sic) holding in his hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
x
x
x
Q What was he holding?
A He was holding his wallet and when we opened it, there was a marijuana (sic)
crushed residue."cralaw virtua1aw library
Furthermore, we concur with the Solicitor General’s contention that petitioner
effectively waived the inadmissibility of any evidence illegally obtained when he
filed to raise this issue or to object thereto during the trial. A valid waiver of a
right, more particularly of the constitutional right against unreasonable search,
requires the concurrence of the following requirements: (1) the right to be waived
existed; (2) the person waiving it had knowledge, actual or constructive, thereof;
and (3) he or she had an actual intention to relinquish the right. 26 Otherwise, the
Courts will indulge every reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have waived
such right for his failure to raise its violation before the trial court. In petitions
under Rule 45, as distinguished from an ordinary appeal of criminal cases where
the whole case is opened for review, the appeal is generally limited to the errors
assigned by petitioner. Issues not raised below cannot be pleaded for the first time
on appeal. 27
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers’ testimony contained
"polluted, irreconcilable and unexplained" contradictions which did not support
petitioner’s conviction.
We disagree. Time and again, this Court has ruled that the trial court’s assessment
of the credibility of witnesses, particularly when affirmed by the Court of Appeals
as in this case, is accorded great weight and respect, since it had the opportunity to
observe their demeanor and deportment as they testified before it. Unless
substantial facts and circumstances have been overlooked or misappreciated by the
trial court which, if considered, would materially affect the result of the case, we
will not countenance a departure from this rule. 28
We concur with Respondent Court’s ruling:jgc:chanrobles.com.ph
"(e)ven assuming as contended by appellant that there had been some
inconsistencies in the prosecution witnesses’ testimonies, We do not find them
substantial enough to impair the essential veracity of their narration. In People v.
Avila, it was held that — "As long as the witnesses concur on the material points,
slight differences in their remembrance of the details, do not reflect on the essential
veracity of their statements."cralaw virtua1aw library
However, we find that, aside from the presumption of regularity in the
performance of duty, the bestowal of full credence on Pat. Espiritu’s testimony is
justified by tangible evidence on record. Despite Pat. Lumabas’ contradictory
testimony, that of Espiritu is supported by the Joint Affidavit 29 signed by both
arresting policemen. The question of whether the marijuana was found inside
petitioner’s wallet or inside a plastic bag is immaterial, considering that petitioner
did not deny possession of said substance. Failure to present the wallet in evidence
did not negate that marijuana was found in petitioner’s possession. This shows that
such contradiction is minor and does not destroy Espiritu’s credibility. 30
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in
possession of an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug. 31
The substance found in petitioner’s possession was identified by NBI Forensic
Chemist Aida Pascual to be crushed marijuana leaves. Petitioner’s lack of authority
to possess these leaves was established. His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by the policemen and
that he resisted when asked to show and identify the thing he was holding. Such
behavior clearly shows that petitioner knew that he was holding marijuana and that
it was prohibited by law.chanrobles.com : virtual lawlibrary
Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did not file
any administrative or criminal case against the arresting officers or present any
evidence other than his bare claim. His argument that he feared for his life was
lame and unbelievable, considering that he was released on bail and continued to
be on bail as early as April 26, 1988. 32 Since then, he could have made the charge
in relative safety, as he was no longer in the custody of the police. His defense of
frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to
concoct and fabricate. 33
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act
No. 4103, as amended) by sentencing petitioner to a straight penalty of six years
and one day of imprisonment, aside from the imposed fine of six thousand pesos.
This Act requires the imposition of an indeterminate
penalty:jgc:chanrobles.com.ph
"SEC. 1. Hereafter, in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of
the attending circumstances, could be properly imposed under the rules of the said
Code, and the minimum which shall be within the range of the penalty next lower
to that prescribed by the Code for the offense; and if the offense is punished by any
other law, the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225.)
"SEC. 2. This Act shall not apply to persons convicted of offenses punished with
death penalty or life-imprisonment; to those convicted of treason; to those
convicted of misprision of treason, rebellion, sedition or espionage; to those
convicted of piracy; to those who are habitual delinquents; to those who shall have
escaped from confinement or evaded sentence; to those who having been granted
conditional pardon by the Chief Executive shall have violated the terms thereof; to
those whose maximum term of imprisonment does not exceed one year, not to
those already sentenced by final judgment at the time of approval of this Act,
except as provided in Section 5 hereof." (Emphasis supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:jgc:chanrobles.com.ph
"Sec. 8. . . .
The penalty of imprisonment ranging from six years and one day to twelve years
and a fine ranging from six thousand to twelve thousand pesos shall be imposed
upon any person who, unless authorized by law, shall possess or use Indian
hemp."cralaw virtua1aw library
Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to
twelve years. 34
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6)
YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a
FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.
People v. Mengote, G.R. No. 87059 June 22, 1992
[G.R. No. 87059. June 22, 1992.]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROGELIO
MENGOTE Y TEJAS, Accused-Appellant.
CRUZ, J.:
Accused-appellant Rogelio Mengote was convicted of illegal possession of
firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was not
admissible as evidence against him because it had been illegally seized and was
therefore the fruit of the poisonous tree. The Government disagrees. It insists that
the revolver was validly received in evidence by the trial judge because its seizure
was incidental to an arrest that was doubtless lawful even if admittedly without
warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in
Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched
to the place. As later narrated at the trial by Patrolmen Rolando Mercado and
Alberto Juan, 1 they there saw two men "looking from side to side," one of whom
was holding his abdomen. They approached these persons and identified
themselves as policemen, whereupon the two tried to run away but were unable to
escape because the other lawmen had surrounded them. The suspects were then
searched. One of them, who turned out to be the accused-appellant, was found with
a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His
companion, later identified as Nicanor Morellos, had a fan knife secreted in his
front right pantspocket. The weapons were taken from them. Mengote and
Morellos were then turned over to police headquarters for investigation by the
Intelligence Division.chanrobles law library : red
On August 11, 1987, the following information was filed against the accusedappellant before the Regional Trial Court of Manila:chanrob1es virtual 1aw library
The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of
Presidential Decree No. 1866, committed as follows:chanrob1es virtual 1aw library
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:chanrob1es virtual
1aw library
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license or permit therefor from the
proper authorities.
Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to the
police, indicating the articles stolen from him, including the revolver. 2 For his
part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted" on
him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A,
B and C and admitted over the objection of the defense. As previously stated, the
weapon was the principal evidence that led to Mengote’s conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant’s Brief that the revolver should not have been
admitted in evidence because of its illegal seizure, no warrant therefor having been
previously obtained. Neither could it have been seized as an incident of a lawful
arrest because the arrest of Mengote was itself unlawful, having been also effected
without a warrant. The defense also contends that the testimony regarding the
alleged robbery in Danganan’s house was irrelevant and should also have been
disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:chanrob1es virtual
1aw library
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."cralaw virtua1aw
library
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:chanrob1es virtual 1aw library
Sec. 5. Arrest without warrant; when lawful. — A peace officer or private person
may without a warrant, arrest a person:chanrobles virtual lawlibrary
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7.
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 had 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 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 he 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.chanrobles law library : red
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, he 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 he
was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was he 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 or 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:chanrob1es virtual
1aw library
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 is presence or within
his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)
x
x
x
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:chanrob1es virtual 1aw
library
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
justification. 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.chanrobles
law library : red
This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The
accused-appellant is ACQUITTED and ordered released immediately unless he is
validly detained for other offenses. No costs.
SO ORDERED.
Griño-Aquino, Medialdea and Bellosillo, JJ., concur.
Posadas v. CA, G.R. No. 89139, August 2, 1990
The validity of a warrantless search on the person of petitioner is put into issue in
this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and
Pat. Umbra Umpar, both members of the Integrated National Police (INP) of the
Davao Metrodiscom assigned with the Intelligence Task Force, were conducting a
surveillance along Magallanes Street, Davao City. While they were within the
premises of the Rizal Memorial Colleges they spotted petitioner carrying a "buri"
bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP.
Petitioner attempted to flee but his attempt to get away was thwarted by the two
notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber
.38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of live
ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade,3 and two (2) live
ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police
station for further investigation. In the course of the same, the petitioner was asked
to show the necessary license or authority to possess firearms and ammunitions
found in his possession but he failed to do so. He was then taken to the Davao
Metrodiscom office and the prohibited articles recovered from him were indorsed
to M/Sgt. Didoy the officer then on duty. He was prosecuted for illegal possession
of firearms and ammunitions in the Regional Trial Court of Davao City wherein
after a plea of not guilty and trial on the merits a decision was rendered on October
8, 1987 finding petitioner guilty of the offense charged as follows:
WHEREFORE, in view of all the foregoing, this Court , finds the
accused guilty beyond reasonable doubt of the offense charged.
It appearing that the accuse d was below eighteen (18) years old at the
time of the commission of the offense (Art. 68, par. 2), he is hereby
sentenced to an indeterminate penalty ranging from TEN (10)
YEARS and ONE (1) DAY of prision mayor to TWELVE (12)
Years, FIVE (5) months and Eleven (11) days of Reclusion Temporal,
and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in favor of
the government and the Branch Clerk of Court is hereby directed to
turn over said items to the Chief, Davao Metrodiscom, Davao City. 5
Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals
wherein in due course a decision was rendered on February 23, 1989 affirming in
toto the appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being
no lawful arrest or search and seizure, the items which were confiscated from the
possession of the petitioner are inadmissible in evidence against him.
The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of
Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant. It
is further alleged that the arrest without a warrant of the petitioner was lawful
under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides 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 in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from
a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail, and he shall be proceeded against in accordance
with Rule 112, Section 7. (6a, 17a)
From the foregoing provision of law it is clear that an arrest without a warrant may
be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of illegal
possession of firearms and ammunitions in the presence of the police officers and
consequently the search and seizure of the contraband was incidental to the lawful
arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal
Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended
the petitioner as he attempted to flee they did not know that he had committed, or
was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag.
They did now know what its contents were. The said circumstances did not justify
an arrest without a warrant.
However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop and
search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte vs.
de Villa, 7 as follows:
Petitioner Valmonte's general allegation to the effect that he had been
stopped and searched without a search warrant by the military
manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his light
against unlawful search and seizure, is not sufficient to enable the
Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but is
to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle or flashes a light therein, these do not constitute
unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure to
enable the NCRDC to pursue its mission of establishing effective
territorial defense and maintaining peace and order for the benefit of
the public. Checkpoints may also be regarded as measures to thwart
plots to destabilize the government in the interest of public security.
In this connection, the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency movement, so
clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the abundance
of unlicensed firearms and the alarming rise in lawlessness and
violence in such urban centers, not all of which are reported in media,
most likely brought about by deteriorating economic conditions —
which all sum up to what one can rightly consider, at the very least,
as abnormal times. Between the inherent right of the state to protect
its existence and promote public welfare and an individual's right
against a warrantless search which is however reasonably conducted,
the former should prevail.
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform in the same manner that all
governmental power is susceptible of abuse. But, at the cost of
occasional inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when conducted
within reasonable limits, are part of the price we pay for an orderly
society and a peaceful community. (Emphasis supplied).
Thus, as between a warrantless search and seizure conducted at military or police
checkpoints and the search thereat in the case at bar, there is no question that,
indeed, the latter is more reasonable considering that unlike in the former, it was
effected on the basis of a probable cause. The probable cause is that when the
petitioner acted suspiciously and attempted to flee with the buri bag there was a
probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.
It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant for
the purpose. Such an exercise may prove to be useless, futile and much too late.
In People vs. CFI of Rizal, 8 this Court held as follows:
. . . In the ordinary cases where warrant is indispensably necessary,
the mechanics prescribed by the Constitution and reiterated in the
Rules of Court must be followed and satisfied. But We need not argue
that there are exceptions. Thus in the extraordinary events where
warrant is not necessary to effect a valid search or seizure, or when
the latter cannot be performed except without warrant, what
constitutes a reasonable or unreasonable search or seizure becomes
purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or
seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched
and the character of the articles procured.
The Court reproduces with approval the following disquisition of the Solicitor
General:
The assailed search and seizure may still be justified as akin to a "stop
and frisk" situation whose object is either to determine the identity of
a suspicious individual or to maintain the status quo momentarily
while the police officer seeks to obtain more information. This is
illustrated in the case of Terry vs. Ohio, 392 U.S. 1 (1968). In this
case, two men repeatedly walked past a store window and returned to
a spot where they apparently conferred with a third man. This aroused
the suspicion of a police officer. To the experienced officer, the
behaviour of the men indicated that they were sizing up the store for
an armed robbery. When the police officer approached the men and
asked them for their names, they mumbled a reply. Whereupon, the
officer grabbed one of them, spun him around and frisked him.
Finding a concealed weapon in one, he did the same to the other two
and found another weapon. In the prosecution for the offense of
carrying a concealed weapon, the defense of illegal search and seizure
was put up. The United States Supreme Court held that "a police
officer may in appropriate circumstances and in an appropriate
manner approach a person for the purpose of investigating possible
criminal behaviour even though there is no probable cause to make an
arrest." In such a situation, it is reasonable for an officer rather than
simply to shrug his shoulder and allow a crime to occur, to stop a
suspicious individual briefly in order to determine his identity or
maintain the status quo while obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under the exceptions
heretofore discussed, and hence, the constitutional guarantee against unreasonable
searches and seizures has not been violated. 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
People v. Cogaed, G.R. No. 200334, July 30, 2014
LEONEN, J.:
The mantle of protection upon one's person and one's effects through Article III,
Section 2 of the Constitution is essential to allow citizens to evolve their autonomy
and, hence, to avail themselves of their right to privacy. The alleged compromise
with the battle against dangerous drugs is more apparent than real. Often, the
compromise is there because law enforcers neglect to perform what could have
been done to uphold the Constitution as they pursue those who traffic this scourge
of society.
Squarely raised in· this appeal1 is the admissibility of the evidence seized as a
result of a warrantless arrest. The police officers identified the alleged perpetrator
through facts that were not based on their personal knowledge. The information as
to the accused’s whereabouts was sent through a text message. The accusedwho
never acted suspicious was identified by a driver. The bag that allegedly contained
the contraband was required to be opened under intimidating circumstances and
without the accused having been fully apprised of his rights. This was not a
reasonable search within the meaning of the Constitution. There was no reasonable
suspicion that would allow a legitimate "stop and frisk" action. The alleged waiver
of rights by the accused was not done intelligently, knowingly, and without
improper pressure or coercion.
The evidence, therefore, used against the accused should be excluded consistent
with Article III, Section 3 (2) of the Constitution. There being no possible
admissible evidence, the accused should be acquitted.
I
According to the prosecution, at about 6:00 a.m. of November 25, 2005, Police
Senior Inspector Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in
San Gabriel,La Union, "received a text message from an unidentified civilian
informer"2 that one Marvin Buya (also known as Marvin Bugat) "[would]be
transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the
Poblacion of San Gabriel, La Union.4
PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan
ordered SPO1 Jaime Taracatac, Jr. (SPO1 Taracatac), a member of the San Gabriel
Police, to set up a checkpoint in the waiting area of passengers from San Gabriel
bound for San Fernando City.6 A passenger jeepney from Barangay Lun-Oy
arrived at SPO1 Taracatac’s checkpoint.7 The jeepney driver disembarked and
signalled to SPO1 Taracatac indicating the two male passengers who were carrying
marijuana.8 SPO1 Taracatac approached the two male passengers who were later
identified as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was
carrying a blue bag and a sack while Dayao was holding a yellow bag. 10
SPO1 Taracatac asked Cogaed and Dayao about the contents of their
bags.11 Cogaed and Dayao told SPO1 Taracatac that they did not know since they
were transporting the bags as a favor for their barriomatenamed Marvin.12 After
this exchange, Cogaed opened the blue bag, revealing three bricks of what looked
like marijuana.13 Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet
gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is]
contained in the bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and
brought them to the police station."15 Cogaed and Dayao "were still carrying their
respective bags"16 inside the station.17
While at the police station, the Chief of Police and Investigator PO3 Stanley
Campit (PO3 Campit) requested Cogaed and Dayao to empty their bags.18 Inside
Cogaed’s sack was "four (4) rolled pieces of suspected marijuana fruiting
tops,"19 and inside Dayao’s yellow bag was a brick of suspected marijuana.20
PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan
personally delivered the suspected marijuana to the PNP Crime
Laboratory.22 Forensic Chemical Officer Police Inspector Valeriano Panem Laya II
performed the tests and found that the objects obtained were indeed
marijuana.23 The marijuana collected from Cogaed’s blue bag had a total weight of
8,091.5 grams.24 The marijuana from Cogaed’s sack weighed 4,246.1 grams.25 The
marijuana collected from Dayao’s bag weighed 5,092 grams.26 A total of 17,429.6
grams werecollected from Cogaed’s and Dayao’s bags.27
According to Cogaed’s testimony during trial, he was at Balbalayan, La Union,
"waiting for a jeepney to take him"28 to the Poblacion of San Gabriel so he could
buy pesticide.29 He boarded a jeepney and recognized Dayao, his younger brother’s
friend.30 Upon arrival at the Poblacion of San Gabriel, Dayao and Cogaed alighted
from the jeepney.31 Dayao allegedly "asked for [Cogaed’s] help in carrying his
things, which included a travelling bag and a sack."32 Cogaed agreed because they
were both going to the market.33 This was when SPO1 Taracatac approached them,
and when SPO1 Taracatac asked Cogaed what was inside the bags, Cogaed replied
that he did not know.34 SPO1 Taracatac then talked to Dayao, however, Cogaed
was not privy to their conversation.35 Thereafter, SPO1 Taracatac arrested Dayao
and Cogaed and brought them to the police station.36 These facts were corroborated
by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot
where Cogaed was apprehended.37
At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the
head."38 The bags were also opened, but Cogaed never knew what was inside.39
It was only later when Cogaed learned that it was marijuana when he and Dayao
were charged with illegal possession of dangerous drugs under Republic Act No.
9165.40 The information against them states:
That on or about the 25th day of November, 2005, in the Municipality of San
Gabriel, Province of La Union, and within the jurisdiction of this Honorable Court,
the above-named accused VICTOR COGAED Y ROMANA and SANTIAGO
DAYAO Y SACPA (who acted with discernment) and JOHN DOE,conspiring,
confederating and mutually helping one another, did then there wilfully,
unlawfully, feloniously and knowingly, without being authorized by law, have in
their control, custody and possession dried marijuana, a dangerous drug, with a
total weight of seventeen thousand,four hundred twenty-nine and sixtenths (17,
429.6) grams.
CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of
Republic Act No. 9165 (otherwise known as the "Comprehensive Dangerous
Drugs Act of 2002").41
The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La
Union.42 Cogaed and Dayao pleaded not guilty.43 The case was dismissed against
Dayao because he was only 14 years old at that time and was exempt from criminal
liability under the Juvenile Justice and Welfare Act of 2006 or Republic Act No.
9344.44 Trial against Cogaed ensued. In a decision45 dated May 21, 2008, the
Regional Trial Court found Cogaed guilty. The dispositive portion of the decision
states:
WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY
beyond reasonable doubt for Violation of Section 11, Article II of Republic Act
No. 9165 (otherwise known as the "Comprehensive Dangerous Drugs Act of
2002") and sentences him to suffer life imprisonment, and to pay a fine of one
million pesos (Php 1,000,000.00).46
The trial court judge initiallyfound Cogaed’s arrest illegal considering that
"Cogaed at that time was not, at the moment of his arrest, committing a crime nor
was shown that hewas about to do so or that had just done so. He just alighted from
the passenger jeepney and there was no outward indication that called for his
arrest."47 Since the arrest was illegal, the warrantless search should also be
considered illegal.48 However, the trial court stated that notwithstanding the
illegality of the arrest, Cogaed "waived his right to object to such
irregularity"49 when "he did not protest when SPO1 Taracatac, after identifying
himself, asked him to open his bag."50
Cogaed appealed51 the trial court’s decision.However, the Court of Appeals denied
his appeal and affirmed the trial court’s decision.52 The Court of Appeals found
that Cogaed waived his right against warrantless searches when "[w]ithout any
prompting from SPO1 Taracatac, [he] voluntarily opened his bag."53 Hence, this
appeal was filed.
The following errors were assigned by Cogaed in his appellant’s brief:
I
THE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED
DANGEROUS DRUGS AS EVIDENCE AGAINST THE ACCUSEDAPPELLANT DESPITE BEING THE RESULT OF AN UNLAWFUL
WARRANTLESS SEARCH AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE ARRESTING OFFICER’S NON-COMPLIANCE
WITH THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED
DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE ARRESTING OFFICER’S FAILURE TO
PRESERVE THE INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED
DANGEROUS DRUGS.54
For our consideration are the following issues: (1) whether there was a valid search
and seizure of marijuana as against the appellant; (2) whether the evidence
obtained through the search should be admitted; and (3) whether there was enough
evidence to sustain the conviction of the accused.
In view of the disposition of this case, we deem that a discussion with respect to
the requirements on the chain of custody of dangerous drugs unnecessary.55
We find for the accused.
II
The right to privacy is a fundamental right enshrined by implication in our
Constitution. It has many dimensions. One of its dimensions is its protection
through the prohibition of unreasonable searches and seizures in Article III,
Section 2 of the Constitution:
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 determinedpersonally 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 provision requires that the court examine with care and diligence whether
searches and seizures are "reasonable." As a general rule, searches conducted with
a warrant that meets all the requirements of this provision are reasonable. This
warrant requires the existence of probable cause that can only be determined by a
judge.56 The existence of probable cause must be established by the judge after
asking searching questions and answers.57 Probable cause at this stage can only
exist if there is an offense alleged to be committed. Also, the warrant frames the
searches done by the law enforcers. There must be a particular description of the
place and the things to be searched.58
However, there are instances when searches are reasonable even when
warrantless.59 In the Rules of Court, searchesincidental to lawful arrests are
allowed even without a separate warrant.60 This court has taken into account the
"uniqueness of circumstances involved including the purpose of the search or
seizure, the presence or absence of probable cause, the manner in which the search
and seizure was made, the place or thing searched, and the character of the articles
procured."61 The known jurisprudential instances of reasonable warrantless
searches and seizures are:
1. Warrantless search incidental to a lawful arrest. . . ;
2. Seizure of evidence in "plain view," . . . ;
3. Search of a moving vehicle. Highly regulated by the government, the
vehicle’s inherent mobility reduces expectation of privacy especially when
its transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal
activity;
4. Consentedwarrantless search;
5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency circumstances.62 (Citations omitted)
III
One of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop
and frisk" searches are often confused with searches incidental to lawful arrests
under the Rules of Court.63 Searches incidental to a lawful arrest require that a
crime be committed in flagrante delicto, and the search conducted within the
vicinity and withinreach by the person arrested is done to ensure that there are no
weapons, as well as to preserve the evidence.64
On the other hand, "stop and frisk"searches are conducted to prevent the
occurrence of a crime. For instance, the search in Posadas v. Court of
Appeals65 was similar "to a ‘stop and frisk’ situation whose object is either to
determine the identity of a suspicious individual or to maintain the status
quomomentarily while the police officer seeks to obtain more information."66 This
court stated that the "stop and frisk" search should be used "[w]hen dealing with a
rapidly unfolding and potentially criminal situation in the city streets where
unarguably there is no time to secure . . . a search warrant."67
The search involved in this case was initially a "stop and frisk" search, but it did
not comply with all the requirements of reasonability required by the Constitution.
"Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary
for law enforcement. That is, law enforcers should be given the legal arsenal to
prevent the commission of offenses. However, this should be balanced with the
need to protect the privacy of citizens in accordance with Article III, Section 2 of
the Constitution.
The balance lies in the concept of"suspiciousness" present in the situation where
the police officer finds himself or herself in. This may be undoubtedly based on the
experience ofthe police officer. Experienced police officers have personal
experience dealing with criminals and criminal behavior. Hence, they should have
the ability to discern — based on facts that they themselves observe — whether an
individual is acting in a suspicious manner. Clearly, a basic criterion would be that
the police officer, with his or her personal knowledge, must observe the facts
leading to the suspicion of an illicit act.
In Manalili v. Court of Appeals,69 the police officers were initially informed about
a place frequented by people abusing drugs.70 When they arrived, one of the police
officers saw a man with "reddish eyes and [who was] walking in a swaying
manner."71 The suspicion increased when the man avoided the police
officers.72 These observations led the police officers to conclude that the man was
high on drugs.73 These were sufficient facts observed by the police officers "to
stop[the] petitioner [and] investigate."74
In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This
man was also "wearing a camouflage uniform or a jungle suit."77 Upon seeing the
police, the man fled.78 His flight added to the suspicion.79 After stopping him, the
police officers found an unlicensed "homemade firearm"80 in his possession.81 This
court ruled that "[u]nder the circumstances, the government agents could not
possibly have procured a search warrant first."82 This was also a valid search.
In these cases, the police officers using their senses observed facts that led to the
suspicion. Seeing a man with reddish eyes and walking in a swaying manner, based
on their experience, is indicative of a person who uses dangerous and illicit drugs.
A drunk civilian in guerrilla wear is probably hiding something as well.
The case of Cogaed was different. He was simply a passenger carrying a bag and
traveling aboarda jeepney. There was nothing suspicious, moreover, criminal,
about riding a jeepney or carrying a bag. The assessment of suspicion was not
made by the police officer but by the jeepney driver. It was the driver who
signalled to the police that Cogaed was "suspicious."
This is supported by the testimony of SPO1 Taracatac himself:
COURT:
Q So you don’t know what was the content while it was still being carried by him
in the passenger jeep?
WITNESS:
A Not yet, Your Honor.83
SPO1 Taracatac likewise stated:
COURT:
Q If the driver did not make a gesture pointing to the accused, did you have reason
to believe that the accused were carrying marijuana?
WITNESS:
A No, Your Honor.84
The jeepney driver had to point toCogaed. He would not have been identified by
the police officers otherwise.
It is the police officer who should observe facts that would lead to a reasonable
degree of suspicion of a person. The police officer should not adopt the suspicion
initiated by another person. This is necessary to justify that the person suspected be
stopped and reasonably searched.85 Anything less than this would be an
infringementupon one’s basic right to security of one’s person and effects.
IV
Normally, "stop and frisk" searches do not give the law enforcer an opportunity to
confer with a judge to determine probable cause. In Posadas v. Court of
Appeals,86 one of the earliest cases adopting the "stop and frisk" doctrine in
Philippine jurisprudence, this court approximatedthe suspicious circumstances as
probable cause:
The probable causeis that when the petitioner acted suspiciously and attempted to
flee with the buri bag there was a probable cause that he was concealing something
illegal in the bag and it was the right and duty of the police officers to inspect the
same.87 (Emphasis supplied)
For warrantless searches, probable cause was defined as "a reasonable ground of
suspicionsupported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which
he is charged."88
Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to
be probable cause,but it cannot be mere suspicion.90 It has to be a "genuine
reason"91 to serve the purposes of the "stop and frisk" exception:92
Other notable points of Terryare that while probable cause is not required to
conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will
not validate a "stop and frisk." A genuine reason must exist, in light of the police
officer’s experience and surrounding conditions, to warrant the belief that the
person detained has weapons concealed about him.93 (Emphasis supplied, footnotes
omitted)
In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police
officers must not rely on a single suspicious circumstance.95 There should be
"presence of more than oneseemingly innocent activity, which, taken together,
warranted a reasonable inference of criminal activity."96 The Constitution prohibits
"unreasonable searches and seizures."97 Certainly, reliance on only one suspicious
circumstance or none at all will not result in a reasonable search.98
There was not a single suspicious circumstance in this case, and there was no
approximation for the probable cause requirement for warrantless arrest. The
person searched was noteven the person mentioned by the informant. The
informant gave the name of Marvin Buya, and the person searched was Victor
Cogaed. Even if it was true that Cogaed responded by saying that he was
transporting the bag to Marvin Buya, this still remained only as one circumstance.
This should not have been enough reason to search Cogaed and his belongings
without a valid search warrant.
V
Police officers cannot justify unbridled searches and be shielded by this exception,
unless there is compliance with the "genuine reason" requirement and that the
search serves the purpose of protecting the public. As stated in Malacat:
[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective
crime prevention and detection, which underlies the recognition that a police
officer may, under appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and selfpreservationwhich permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.99 (Emphasis supplied)
The "stop and frisk" searchwas originally limited to outer clothing and for the
purpose of detecting dangerous weapons.100 As in Manalili,101 jurisprudence also
allows "stop and frisk" for cases involving dangerous drugs.
The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an
informant told the police that a certain "Aling Rosa" would be bringing in drugs
from Baguio City by bus.103 At the bus terminal, the police officers prepared
themselves.104 The informant pointed at a woman crossing the street105 and
identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they
alleged that she allowed them to look inside her bag.107 The bag contained
marijuana leaves.108
In Aruta, this court found that the search and seizure conducted was
illegal.109 There were no suspicious circumstances that preceded Aruta’s arrest and
the subsequent search and seizure.110 It was only the informant that prompted the
police to apprehend her.111 The evidence obtained was not admissible because of
the illegal search.112 Consequently, Aruta was acquitted.113
Arutais almost identical to this case, except that it was the jeepney driver, not the
police’s informant, who informed the police that Cogaed was "suspicious."
The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the
National Bureau ofInvestigation (NBI) acted upon a tip, naming Aminnudin as
somebody possessing drugs.115 The NBI waited for the vessel to arrive and
accosted Aminnudin while he was disembarking from a boat.116 Like in the case at
bar, the NBI inspected Aminnudin’s bag and found bundles of what turnedout to
be marijuana leaves.117 The court declared that the searchand seizure was
illegal.118 Aminnudin was acquitted.119
People v. Chua120 also presents almost the same circumstances. In this case, the
police had been receiving information that the accused was distributing drugs in
"different karaoke bars in Angeles City."121 One night, the police received
information that thisdrug dealer would be dealing drugs at the Thunder Inn Hotel
so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The
informant told the police that the man parked at the hotel was dealing drugs.125 The
man alighted from his car.126 He was carrying a juice box.127 The police
immediately apprehended him and discovered live ammunition and drugs in his
person and in the juice box he was holding.128
Like in Aruta, this court did not find anything unusual or suspicious about Chua’s
situation when the police apprehended him and ruled that "[t]here was no
valid‘stop-and-frisk’."129
VI
None of the other exceptions to warrantless searches exist to allow the evidence to
be admissible.The facts of this case do not qualify as a search incidental to a lawful
arrest.
Rule 126, Section 13 of the Rules of Court allows for searches incidental to a
lawful arrest. For there to be a lawful arrest, there should be either a warrant of
arrest or a lawful warrantless arrest as enumerated in Rule 113, Section 5 of the
Rules of Court:
Section 5. Arrest without warrant; when lawful. – A peace officer or a private
person may, withouta 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
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
The apprehension of Cogaed was not effected with a warrant of arrest. None of the
instances enumerated in Rule 113, Section 5 of the Rules of Court were present
whenthe arrest was made. At the time of his apprehension, Cogaed has not
committed, was not committing, or was about to commit a crime. As in People v.
Chua, for a warrantless arrest of in flagrante delictoto be affected, "two elements
must concur: (1) the person to bearrested must execute anovert act indicating that
he has just committed, is actually committing, or is attempting to commit a crime;
and (2) such overt act is done inthe presence or within the view of the arresting
officer."130 Both elements were missing when Cogaed was arrested.131 There were
no overt acts within plain view of the police officers that suggested that Cogaed
was in possession of drugs at that time.
Also, Cogaed was not an escapee prisoner that time; hence, he could not have
qualified for the last allowable warrantless arrest.
VII
There can be no valid waiver of Cogaed’s constitutional rights even if we assume
that he did not object when the police asked him to open his bags. As this court
previously stated:
Appellant’s silence should not be lightly taken as consent to such search. The
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.132 (Citations omitted) Cogaed’s silence or lack of aggressive objection
was a natural reaction to a coercive environment brought about by the police
officer’s excessive intrusion into his private space. The prosecution and the police
carry the burden of showing that the waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In all cases, such waivers are not
to be presumed.
The coercive atmosphere created by the presence of the police officer can be
discerned again from the testimony of SPO1 Taracatac during cross-examination:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only asked them what are the contents
of their bags, is it not?
WITNESS:
A Yes, ma’am.
Q And then without hesitation and voluntarily they just opened their bags, is it not?
A Yes, ma’am.
Q So that there was not any order from you for them to open the bags?
A None, ma’am.
Q Now, Mr. witness when you went near them and asked them what were the
contents ofthe bag, you have not seen any signs of hesitation or fright from them, is
it not?
A It seems they were frightened, ma’am.
Q But you actually [claimed] that there was not any hesitation from them in
opening the bags, is it not?
A Yes, ma’am but when I went near them it seems that they were
surprised.133 (Emphasis supplied)
The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses
to Judge Florendo’s questions:
COURT:
....
Q Did you have eye contact with Cogaed?
A When I [sic] was alighting from the jeepney, Your Honor I observed that he was
somewhat frightened.1âwphi1 He was a little apprehensive and when he was
already stepping down and he put down the bag I asked him, "what’s that," and he
answered, "I don’t know because Marvin only asked me to carry."134
For a valid waiver by the accused of his or her constitutional right, it is not
sufficient that the police officerintroduce himself or herself, or be known as a
police officer.1âwphi1 The police officer must also inform the person to be
searched that any inaction on his orher part will amount to a waiver of any of his or
her objections that the circumstances do not amount to a reasonable search. The
police officer must communicate this clearly and in a language known to the
person who is about to waive his or her constitutional rights. There must be
anassurance given to the police officer that the accused fully understands his or her
rights. The fundamental nature of a person’s constitutional right to privacy requires
no less.
VIII
The Constitution provides:
Any evidence obtained in violation of [the right against unreasonable searches and
seizures] shall be inadmissible for any purpose in any proceeding.135
Otherwise known as the exclusionary rule or the fruit of the poisonous tree
doctrine, this constitutional provision originated from Stonehill v. Diokno.136 This
rule prohibits the issuance of general warrants that encourage law enforcers to go
on fishing expeditions. Evidence obtained through unlawful seizures should be
excluded as evidence because it is "the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures."137 It ensures
that the fundamental rights to one’s person, houses, papers, and effects are not
lightly infringed upon and are upheld.
Considering that the prosecution and conviction of Cogaed were founded on the
search of his bags, a pronouncement of the illegality of that search means that there
is no evidence left to convict Cogaed.
Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this
menace, law enforcers should be equipped with the resources to be able to perform
their duties better. However, we cannot, in any way, compromise our society’s
fundamental values enshrined in our Constitution. Otherwise, we will be seen as
slowlydismantling the very foundations of the society that we seek to protect.
WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San
Fernando City, La Union and of the Court of Appeals in CA-G.R. CR-HC No.
03394 are hereby REVERSEDand SET ASIDE. For lack of evidence to establish
his guilt beyond reasonable doubt, accused-appellant VICTOR COGAED Y
ROMANA is hereby ACQUITTED and ordered RELEASED from confinement
unless he is being heldfor some other legal grounds. No costs.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
CASES:
People v. Figueroa, G.R No. 134056, July 6, 2000
Accused-appellant ROBERT FIGUEROA (hereafter OBET) appeals from the 18
May 1998 Decision1 of the Regional Trial Court of Parañaque City, Branch 259, in
Criminal Case No. 97-306, convicting him of violation of Section 14-A2 , Article
III of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended by RA. No. 7659. His co-accused Beatrice Valerio (hereafter Betty) was
acquitted.
OBET and Betty were indicted under an information, dated 2 April 1997, whose
accusatory portion reads as follows:
That on 16 February 1997 and for sometime prior thereto in Parañaque City and
within the jurisdiction of this Honorable Court, the above-named accused without
authority of law, conspiring, confederating and helping one another, did then and
there, wilfully, unlawfully and feloniously manufacture, produce, prepare or
process methamphetamine hydrochloride or shabu, a regulated drug amounting to a
2.4 liters, directly by means of chemical synthesis.
CONTRARY TO LAW.3
When arraigned OBET and Betty each entered a plea of not guilty.4 Trial on the
merits then ensued.
The witnesses presented by the prosecution were NBI Forensic Chemist Mary Ann
T. Aranas, NBI Special Investigator III Pio M. Palencia (hereafter PALENCIA),
and NBI Intelligence Agent II Martin Soriano (hereafter SORIANO).
PALENCIA testified that on 15 February 1997, he was in the office of SORIANO
at Project 6, Quezon City, when they received a call from their informant, a
woman, who reported that a certain OBET was allegedly engaged in large-scale
drug trafficking in Makati City. PALENCIA and SORIANO forthwith instructed
their informant to establish contact with OBET for a buy-bust operation. After
several hours, the informant reported that OBET was already waiting for her at No.
1485 Soliman Street, Makati City, with instructions for her to come alone as soon
as she was ready with P150,000. PALENCIA then caused the dusting of
fluorescent powder over ten pieces of authentic P100 bills as buy-bust money and
gave them to the informant.5
On board a taxi, PALENCIA, SORIANO and their informant proceeded to the
rendezvous area. They arrived at half past twelve o'clock in the early morning of
16 February 1997. As the gate was already open, the informant entered the
premises, while PALENCIA and SORIANO discreetly crawled and positioned
themselves near the gate of the house. Strategically positioned, PALENCIA
overheard OBET ask the informant whether she had the money. PALENCIA then
saw the informant hand over the money to OBET. While counting the money,
OBET sensed the presence of other people in the area. OBET, who was in
possession of a .45 caliber pistol, fired it twice toward the direction of
PALENCIA, while hurrying towards the house. OBET then held hostage his
mistress, Estrella Brilliantes, and her two children for the next three hours until the
arrival of one Major Roberto Reyes to whom OBET surrendered. PALENCIA and
SORIANO brought OBET, his firearm and the recovered buy-bust money to the
WPD Headquarters for recording purposes and, thereafter, to the NBI
Headquarters.6
At the NBI Headquarters, PALENCIA and SORIANO methodically interrogated
OBET about the source of his shabu. OBET eventually volunteered that his source
was a certain Betty of 263 El Grande Street, B.F. Homes, Parañaque City.
PALENCIA and SORIANO took OBET to Betty's house as a follow-up operation.
They arrived at around 6:00 a.m. of the same day, 16 February 1997. As OBET
called Betty earlier to tell her that he was arriving, Betty already had the gate
opened for them. After parking, PALENCIA saw Betty waiting for them. Upon
seeing OBET in handcuffs, Betty asked what happened. OBET replied that he was
just caught in a buy-bust operation. PALENCIA and SORIANO then tried to
convince Betty to surrender the shabu that OBET insisted was hidden inside the
house. As Betty persistently denied the existence of the shabu, PALENCIA told
OBET to confer with Betty. After a while, OBET proceeded to the kitchen of the
guesthouse located outside the main house, followed by Betty. OBET then
promptly pointed to what he termed as liquid shabu inside a white pail along with
other drug paraphernalia, such as a beaker spray. PALENCIA and
SORIANO seized the items.7
Thereafter, PALENCIA requested a laboratory examination of all the seized items
and an ultraviolet light examination over the persons of OBET, Betty and a certain
Eva Baluyot.8 PALENCIA claimed that based on the certification issued by the
Forensic Chemistry Division of the NBI, all the items seized from Betty's residence
were positive for methamphetamine hydrochloride except specimen no.7; while
from among the persons subjected to ultraviolet light examination, only OBET was
found positive for fluorescent powder.9
On cross-examination, PALENCIA admitted that he and SORIANO conducted the
search without a search warrant, but with the consent of Betty.10 He also admitted
that he did not actually see OBET or Betty in the act of manufacturing shabu.11
NBI Intelligence Agent II SORIANO corroborated PALENCIA's testimony. He
likewise admitted that the custodial investigation of OBET, during which he
divulged Betty as the source of shabu, was conducted in the absence of any
counsel. SORIANO also confirmed PALENCIA's testimony that they were not
armed with a search warrant, but that they conducted the follow-up operation at
Betty's house under the hot pursuit theory.12 He further maintained that OBET,
after conferring with Betty, uttered, "Ako na nga, ako na nga"(I will do it, I will do
it). OBET then proceeded to the dirty kitchen, pointed to the refrigerator and had it
moved. Thereafter, SORIANO saw a plastic pail containing liquid with floating
brown substances.
SORIANO admitted that he and PALENCIA neither witnessed OBET and Betty
manufacture shabu in the manner described in Section 2(j) of the Dangerous Drugs
Act13 ; nor did they possess evidence, independent of the items they had seized,
that OBET and Betty were engaged in the labeling or manufacturing of shabu.14
Forensic Chemist Mary Ann T. Aranas testified that on 16 February 1997, she
conducted a laboratory examination for the presence of any prohibited or regulated
drug on eleven different specimens (Exhibits "B"-"L").15 The result of the
examination disclosed that all the specimens except specimen no. 7 (Exhibit "H")
were positive for methamphetamine hydrochloride.16 She further observed that
specimen no. 8 (Exhibit I- I-2), the brown liquid with floating solid flakes
contained in a plastic pail, was positive for epedrine,17 a substance used in the
manufacture of methamphetamine hydrochloride. She opined that this crude form
of shabu would have to undergo chemical processes, like extraction,
crystallization, distillation, before it could be finally converted into shabu's
crystalline form. She also conducted a fluorescent powder examination over the
persons of OBET and Betty. Only OBET gave a positive result.18
On the other hand, OBET testified that while he was watching television on the
night of 15 February 1997, he heard the doorbell rang. Upon seeing Eva Baluyot,
his childhood friend, he opened the door for her. Inside the house, Eva handed him
a bundle of money and stated that she was buying shabu from him. OBET
emphatically told Eva that he was not engaged in such illegal trade and returned
the money. OBET then accompanied Eva out of the house. At the garage, OBET
noticed someone peeping from the dark; so he told Eva to go back inside the house
with him. Eva ignored the request. OBET thus left Eva at the garage and got his
.45 caliber gun from his house. While he was locking the door, his handgun
accidentally fired off, as he forgot that it had already been cocked. This blast was
followed by shouts of people outside claiming that they were NBI men. Uncertain,
OBET did not go out of the house but instead told the alleged NBI men to call the
Makati Police, specifically Major Reyes. The NBI agents, however, persisted in
convincing OBET to go out of the house. He did get out of his house after three
hours when he heard the voice of Major Reyes. OBET gave to Major Reyes his
gun. The Makati Police and the NBI men thereafter conducted a joint search inside
OBET's house which, however, yielded nothing. OBET was then brought to the
Makati Police Headquarters where the incident was recorded. Thereafter,
PALENCIA, SORIANO and another NBI man brought OBET to the house of
Betty, his former live-in partner, at El Grande Street, B.F. Homes, Parañaque City,
upon the insistence and information of Eva Baluyot.19
Upon entering B.F. Homes, SORIANO instructed OBET to call and tell Betty that
he was already near. The gate was already opened when they arrived, and the NBI
men freely parked their car at the garage. Then, PALENCIA and SORIANO
alighted from the car and entered Betty's house. OBET was left in the car under the
charge of the third NBI man; hence, he knew nothing of what happened inside
Betty's house.20
For her part, Betty admitted that she was romantically involved with OBET and
had a child by him. She recalled that on 16 February 1997, OBET called at around
6:00 a.m. and requested her to open the gate for him, as he was already near. She
ran down to the garage and opened the gate. Since her car was parked halfway
through the garage, she went to the main house to get her car keys to make way for
OBET's car. But as she came out of the main house, OBET's car was already
parked inside the garage. She noticed that OBET had two companions with long
firearms. The two, whom Betty later found out as NBI men PALENCIA and
SORIANO, informed her that they had just come from a buy-bust operation and
that OBET had led them to her house, as there were illegal chemicals kept in the
premises. Shocked andamazed, she then asked for a search warrant, but the NBI
men could not produce any.21
Betty further recalled that the NBI men claimed that they found contraband items
near the dirty kitchen at a small space behind the refrigerator where cases of
softdrinks were stored. Betty denied any knowledge that there were illegal
chemicals inside her house and that these were manufactured into shabu. She also
denied knowing Eva Baluyot.22
On cross-examination, Betty disclaimed her alleged consent to the search of her
house, for she specifically asked the NBI men for a search warrant. She asserted
that she did not see the NBI men find the shabu paraphernalia because she went up
to the second floor of her house. She only saw that the NBI men were bringing
several items out of her house.23
The trial court agreed with the prosecution's theory that the warrantless arrests of
OBET and Betty were conducted within the purview of valid warrantless arrests
enumerated in Section 5,24 Rule 113 of the Rules of Court. It then ruled as valid the
consented warrantless search conducted at the house of Betty. Consequently, it
found that the very items seized by the NBI agents at the kitchen of Betty's
guesthouse were admissible as the corpus delicti of the violation of Section 14-A
of the Dangerous Drugs Act. Thus, the trial court "believed" that the paraphernalia
seized were indispensable to the processing or manufacturing of shabu into
crystallized form. Although it conceded that the prosecution witnesses did not
actually see the crystallization processes, the trial court observed that the
Dangerous Drug Act does not require that there be actual manufacturing activities
at the time of the seizure.
The trial court, however, acquitted Betty for failure of the prosecution to adduce
evidence that she, in conspiracy with OBET, manufactured shabu without the
requisite authority. It did not arrive at a similar conclusion as far as OBET was
concerned, but declared that based on the evidence on record, OBET's guilt of the
crime charged was proved beyond reasonable doubt. Thus, in the decision of 18
May 1998 the trial court decreed as follows:
WHEREFORE, finding the evidence insufficient to warrant the conviction of
accused Beatrice Valerio y del Rosario for Violation of Sec. 14-a of Article III of
R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT GUILTY and
considering that she is detained at the NBI the NBI is directed to immediately
release her from custody unless there be some reasons for her detention. Finding,
however, accused Robert Figueroa GUILTY as charged [of] the same offense in
the absence of any mitigating or aggravating circumstances, this Court hereby
sentences him to suffer the penalty of Reclusion Perpetua and to pay a fine of
P500,000.00 and to suffer the accessory penalties provided by law, specifically
Art. VI [sic] of the Revised Penal Code.
The Clerk of Court is directed to prepare the Mittimus for the immediate transfer
of Robert Figueroa to the Bureau of Corrections in Muntinlupa City.
SO ORDERED.
Unsatisfied with the verdict, OBET appealed the decision to us. He principally
premises his prayer for acquittal on the failure of the State to show by convincing
evidence that shortly prior to or during custodial investigation, he was apprised of
his constitutional rights to remain silent, to have a competent and independent
counsel preferably of his own choice, and to be informed of such rights. He asserts
that he did not waive those rights. Thus, whatever admissions were allegedly
extracted from him are inadmissible in evidence. Even assuming that his
extrajudicial statements were admissible, Betty's acquittal would work in his favor
because the indictment is based on conspiracy. In a conspiracy, the act of one is the
act of all. Therefore, the acts imputed to him were also the acts of Betty, and vice
versa. Since the trial court considered insufficient for conviction the acts of Betty,
then he, too, should be acquitted.
In the Appellee's Brief, the Office of the Solicitor General (OSG) maintains that
not all warrantless searches and seizures are illegal. For one, a warrantless search
and seizure is not unreasonable and offensive to the Constitution if consent is
shown. In this case, the prosecution convincingly proved that Betty consented to
the search of her house. With her consent, Betty validly waived her constitutional
right against unreasonable searches and seizure. Consequently, the items seized in
her house by virtue of the consented search are admissible in evidence against her
and OBET.
The OSG also contends that the acquittal of Betty does not per se work to absolve
OBET of the crime charged. Betty's believable disavowal of the location of the
paraphernalia and other circumstances on record reasonably indicative of her
innocence cannot redound in favor of OBET. The latter apparently knew the exact
location of the hidden paraphernalia. By such disclosure, it is not far-fetched to
conclude that OBET had been actually engaged in the manufacture of shabu.
We first resolve the question of whether Betty's acquittal would benefit OBET.
We disagree with the theory of OBET that in an indictment based on conspiracy,
the acquittal of a conspirator likewise absolves a co-conspirator from criminal
liability. Indeed, the rule is well-settled that once a conspiracy is established, the
act of one is the act of all, and each of the conspirators is liable for the crimes
committed by the other conspirators.25 It follows then that if the prosecution fails to
prove conspiracy, the alleged conspirators should be held individually responsible
for their own respective acts. Accordingly, OBET's criminal liability in this case
must be judged on the basis of his own acts as established by the quantum of proof
required in criminal cases.
We should then determine whether the prosecution was able to establish beyond
reasonable doubt OBET's guilt for unauthorized manufacture of shabu, a regulated
drug.
After a meticulous review of the records and of the evidence adduced by the
parties in this case, we find that what PALENCIA and SORIANO did left much to
be desired, thereby resulting in a bungled prosecution of the case. The evidence for
the prosecution miserably failed to prove OBET's guilt of the offense charged.
The buy-bust operation was a failure because no shabu or other regulated or
prohibited drug was found in OBET's person and residence. No evidence was
adduced to show that OBET handed shabu over to the informant. Yet, he was
placed in custody. For what offense he was held in custody does not, initially,
appear very clear on the record.
It was established that OBET fired two shots toward the direction of PALENCIA
and SORIANO and held hostage his mistress and her two children. Yet he was not
placed under custodial investigation for such crimes as grave threats, coercion,
illegal possession of firearms, or crimes other than that with which he was charged.
On the contrary, OBET was held in custody and investigated or interrogated about
the source of the shabu, none of which was found during the buy-bust operation. In
short he was held in custody as a consequence of the failed buy-bust operation and
as a follow-up to link him to the source and establish a conspiracy in the illegal
trade of shabu. Allegedly, he admitted that the source was Betty. On the basis of
that admission, PALENCIA and SORIANO, together with OBET, proceeded to the
residence of Betty. Needless to state, OBET cannot be investigated for anything in
relation to shabu while under custody without informing him of his rights to
remain silent and to have a competent and independent counsel preferably of his
own choice. Any waiver of such rights should be in writing and made in the
presence of a counsel pursuant to Section 12 (1)26 , Article III of the Constitution.
It has been held that these rights attach from the moment the investigation
starts, i.e. when the investigating officers begin to ask questions to elicit
information and confessions or admissions from the suspect.27
It is always incumbent upon the prosecution to prove at the trial that prior to incustody questioning, the confessant was informed of his constitutional rights. The
presumption of regularity of official acts does not prevail over the constitutional
presumption of innocence.28 Hence, in the absence of proof that the arresting
officers complied with these constitutional safeguards, extrajudicial statements,
whether inculpatory or exculpatory, made during custodial investigation are
inadmissible and cannot be considered in the adjudication of a case.29 In other
words, confessions and admissions in violation of Section 12 (1), Article III of
the Constitution are inadmissible in evidence against the declarant and more so
against third persons.30 This is so even if such statements are gospel truth and
voluntarily given.31 Such statements are useless except as evidence against the very
police authorities who violated the suspect's rights.32
SORIANO admitted that the custodial investigation of OBET was conducted
without the presence of a lawyer, and there is no proof that OBET waived said
right and the right to remain silent. No waiver in writing and in the presence of a
counsel was presented. Thus, pursuant to paragraph 3 of Section 12 of Article III
of the Constitution any admission obtained from OBET in the course of his
custodial investigation was inadmissible against him and cannot be used as a
justification for the search without a warrant.
The search conducted on Betty's house was allegedly consented to by Betty.
Indeed, a consented search is one of the exceptions to the requirement of a search
warrant. In People v. Chua Ho San @ Tsay Ho San,33 we pointed out that:
This interdiction against warrantless searches and seizures, however, is not
absolute and such warrantless searches and seizures have long been deemed
permissible by jurisprudence in instances of (1) search of moving vehicles, (2)
seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5)
stop and frisk situations (Terry search), and (6) search incidental to a lawful arrest.
The last includes a valid warrantless search and seizure pursuant to an equally
valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid warrant of arrest, the Rules of Court recognize permissible
warrantless arrest, to wit: (1) arrest flagrante delicto, (2) arrest effected in hot
pursuit, and (3) arrest of escaped prisoners.
In case of consented searches or waiver of the constitutional guarantee, against
obtrusive searches, it is fundamental that to constitute, a waiver, it must first
appear that (1) the right exists; (2) that the person involved had knowledge, either
actual or constructive, of the existence of such right; and (3) the said person had an
actual intention to relinquish the right.34 The third condition does not exist in the
instant case. The fact is, Betty asked for a search warrant, thus:
Q And of course, these NBI Special Investigators informed you of their purpose is
that correct?
A Yes sir.
Q And of course believing that there was nothing in your house you acceded?
A No sir, I was asking for a search warrant.
Q And what was their reply?
A They did not have any but that Figueroa had led them to the property.35
Neither can the search be appreciated as a search incidental to a valid warrantless
arrest of either Betty or OBET as intimated by the trial court. First, Betty's arrest
did not precede the search. Second, per the prosecution's evidence OBET was not
arrested for possession or sale of regulated or prohibited drugs as a consequence of
the buy-bust operation. He surrendered after taking hostage Estrella and her two
children, although he was thereafter held in custody for further questioning on
illegal drugs.
There is no showing that the house occupied by Betty and the articles confiscated
therefrom belong to OBET. That OBET pointed to PALENCIA and SORIANO the
places where the articles were found provides no sufficient basis for a conclusion
that they belonged to him. Even if the articles thus seized actually belonged to him,
they cannot be constitutionally and legally used against him to establish his
criminal liability therefor, since the seizure was the fruit of an invalid custodial
investigation.
WHEREFORE, in view of all the foregoing, the 18 May 1998 Decision of the
Regional Trial Court, Branch 259, Parañaque City, convicting herein accusedappellant Robert Figueroa of violation of Section 14-A, Article III of the
Dangerous Drugs Act, as amended, is hereby REVERSED and SET ASIDE. He is
hereby ACQUITTED of the crime charged, and ORDERED immediately released
from confinement or detention unless his continued detention is warranted by
virtue of a valid legal cause. The Director of the Bureau of Corrections is directed
to submit within five (5) days from receipt of a copy of this decision a report on the
release of accused-appellant.
Costs de oficio.
SO ORDERED.
People v. Lacerna, G.R. No. 109250, September 5, 1997
The unrelenting and pervading war against illegal drugs has absorbed the attention
of all branches of government, both national and local, as well as media, parents,
educators, churches and the public at large. This case is one more intrepid battle in
such all-out war. Herein appellant seeks acquittal on the ground that his acts did
not constitute the crime of "giving away prohibited drugs" penalized by Section 4
of Republic Act No. 6425, as amended (The Dangerous Drugs Act). Nonetheless,
he cannot escape the law because the very same deeds, which appellant admits to
have performed, show his culpability for "illegal possession of prohibited drugs"
— penalized in Section 8 of R.A. 6425, as amended — which is necessarily
included in the crime charged in the information.chanrobles
Statement of the Case
This ruling is explained by the Court as it resolves this appeal from the Decision, 1
dated February 24, 1993, of the Regional Trial Court of Manila, Branch 16, 2
convicting Appellant Marlon Lacerna y Aranador "of violation of Section 4 of
Republic Act No. 6425, as amended . . ."cralaw virtua1aw library
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and Noriel
Lacerna in an Information, 3 dated September 16, 1992, which reads as follows: 4
"The undersigned accuses NORIEL LACERNA Y CORDERO and MARLON
LACERNA Y ARANADOR of a violation of Section 4 Art. II, in relation to
Section 21, Art. IV of Republic Act 6425, as amended by Presidential Decree No.
1675, . . .
"That on or about September 12, 1992, in the City of Manila, Philippines, the said
accused, not being authorized by law to sell, deliver or give away to another or
distribute any prohibited drug, did then and there wilfully, unlawfully and jointly
sell, deliver or give away to another the following, to wit:chanrob1es virtual 1aw
library
Eighteen (18) blocks of marijuana
flowering tops - weight — 18.235 kilograms
which is a prohibited drug."cralaw virtua1aw library
When the case was called for arraignment on October 7, 1992, appellant and his
co-accused appeared without counsel but they alleged that they had engaged the
services of a certain Atty. Kangleon. Thus, the trial court provisionally appointed
Atty. Rodolfo P. Libatique of the Public Attorney’s Office as counsel de oficio, in
case Atty. Kangleon did not appear for the arraignment on October 28, 1992. 5
Because the alleged counsel de parte failed to show up during the arraignment on
that date, Atty. Libatique assisted the accused who pleaded "not guilty." 6
After trial on the merits, the court a quo promulgated the assailed Decision, the
dispositive portion of which reads: 7
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered:chanrob1es virtual 1aw library
I. The guilt of the accused Marlon Lacerna having been established beyond
reasonable doubt for the crime of violation of Section 4 of RA 6425, as amended,
he is found guilty of the same, sentencing him to life imprisonment and to pay a
fine of P20,000. With costs.
II. The guilt for the crime charged of accused Noriel Lacerna not having been
established beyond reasonable doubt he is hereby ACQUITTED. The warden of
the Manila City Jail is ordered to release his person, unless held on other charges.
The evidence seized in this case is to remain in the custody of the NBI Director as
Drugs Custodian of the Dangerous Drugs Board. (RA 425, Sec. 36; Supreme Court
Circular No. 9 dated July 18, 1973) to be properly disposed of after the final
disposition of this case."cralaw virtua1aw library
Hence, only Marlon Lacerna (his co-accused having been acquitted) interposed this
appeal direct to the Supreme Court in view of the life penalty imposed. 8
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3 Carlito P. Valenzuela,
Forensic Chemist Aida A. Pascual, and PO3 Rafael Melencio. Their testimonies
are summarized by the Solicitor General in the Appellee’s Brief as follows: 9
"On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a member
of the Mobile Patrol Division of the Western Police District (WPD), was assigned
to man the checkpoint and patrol the area somewhere along the side streets of
Radial Road near Moriones Street. The assignment to monitor strategic places in
the city and barangays of Manila was a direct order from General Nazareno. Thus,
he and his companion PO3 Angelito Camero went about cruising the area in their
Mobile Patrol car, with PO3 Valenzuela at the helm. At about 2:00 p.m., appellant
and co-accused, who were aboard a taxicab, passed by PO3 Valenzuela’s place of
assignment, which was then heavy with traffic, looking suspicious (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-accused was seated at the left
back seat of the taxi. When PO3 Valenzuela looked at the occupants of said taxi,
the latter bowed their heads and slouched, refusing to look at him. Feeling that
something was amiss, PO3 Valenzuela and his companion stopped the vehicle,
signalling the driver to park by the side of the road (t.s.n., PO3 Valenzuela, Nov.
11, 1992, pp. 3-4).
PO3 Valenzuela and his co-police officer asked permission to search the vehicle.
As the occupants readily agreed, the police officers went about searching the
luggage in the vehicle which consisted of a knapsack and a dark blue plastic
grocery bag. They asked appellant what the contents of the plastic bag were. Coaccused Noriel Lacerna immediately answered that the bag contained his vomit
(t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as regards the contents of the
plastic bag, PO3 Valenzuela made a hole in the bag and peeped inside. He found
several blocks wrapped in newspaper, with the distinct smell of marijuana
emanating from it. PO3 Valenzuela opened one of the boxes and saw dried
marijuana leaves. He told appellant and co-accused that the contents of the bag
were marijuana, which co-accused readily affirmed. According to both Lacernas,
the bag was a ‘padala’ of their uncle. Specifically, they claimed that the bag was
sent by their uncle, who happened to be in Baguio City, for shipment to Iloilo
(t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 5-7; Nov. 20, 1992, pp. 8-10).
Appellant and co-accused, and the plastic bag containing blocks of marijuana were
brought by PO3 Valenzuela and PO3 Camero to the WPD Headquarters on UN
Avenue, Manila. 10 At about 9:00 p.m. of the same day, both appellant and coaccused were turned over to PO3 Rafael Melencio for investigation while the
blocks were turned over to Lt. de Soto (tsn., PO3 Melencio, Dec. 11, 1992, pp. 3-5.
20).
Lt. de Soto counted the blocks of marijuana, numbering eighteen (18) in all. Each
block was wrapped in newspaper. After seeing what the contents of the blocks
were, the specimens (Exhs.’B’ to ‘B-19’) were brought to the National Bureau of
Investigation (NBI) for further examination. 11 On the other hand, PO3 Melencio
investigated appellant and co-accused, informing them of their constitutional rights
during a custodial investigation. Thereafter, he prepared the Affidavit of
Apprehension and the Booking Sheet and Arrest Report (Exhs.’A’, ‘G’, List of
Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec. 11, 1992, pp. 15-24).
NBI Forensic Chemist Aida A. Pascual examined the eighteen (18) confiscated
blocks which tested positive of containing marijuana (Exhs.’C’, ‘F’ to ‘F-9’. List
of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992, pp. 2-5)."cralaw virtua1aw
library
Version of the Defense
Appellant sets up the defense of denial, alleging that the blue plastic bag was
owned by his uncle who requested him to bring it to Iloilo. He also denied
knowing that it contained marijuana. In his Brief prepared by the Public Attorney’s
Office, he narrated his version of the factual circumstances of this case, as follows:
12
"On September 12, 1992, at about 2:00 P.M., Accused Marlon and Noriel Lacerna
were riding in a taxicab on their way to (the) North Harbor to board a boat bound
for Iloilo City. While plying along Pier 15 their taxicab was flagged down by a
patrol mobile car. Accused Marlon Lacerna (appellant herein) was sitting in front
while accused Noriel Lacerna was at the back of the taxicab. The accused carried
two bags. One bag contained their personal belongings and the other bag contained
things which their uncle Edwin Lacerna asked them to bring along. When their
taxicab was stopped, the two policemen in the Mobile car requested them that they
and their baggage be searched. Confident that they have not done anything wrong,
they allowed to be searched. During the (search), the two accused were not allowed
to alight from the taxicab. The knapsack bag which contained their clothes was
first examined in front of them. The second bag was taken out from the taxi and
was checked at the back of the taxicab. The accused were not able to see the
checking when the policemen brought the plastic bag at the back of the taxi. After
checking, the policemen told them its ‘positive’. The accused were (asked) to
alight and go to the patrol car. They were brought to the WPD Headquarters at
United Nations. While there, they were brought inside a room. They asked what
wrong they have done but the policemen told them to wait for Major Rival. At
about 8:00 o’clock P.M., Major Rival talked to them and asked them where the
baggage came from and they answered that it was given to them by their uncle.
Then Major Rival asked them to hold the marijuana and pictures were taken. Later,
they were brought inside the cell where they were maltreated by the ‘Kabo’. The
‘Kabo’ forced them to admit ownership of the marijuana. Noriel was boxed on the
chest, blindfolded and a plastic (bag) was placed on his neck and was strangled.
The mauling took place for about 30 minutes inside the toilet. They refused to sign
the Booking and Arrest Report but they impressed their fingerprint on a white bond
paper. They were brought by Melencio to the Inquest Prosecutor at the City Hall.
On the way to the Inquest Prosecutor. Melencio told them to admit the charge
against them before the Inquest Fiscal, because if they will deny, something
(would happen) to them in the afternoon and Melencio even uttered to them ‘vulva
of your mother.’ Because they were apprehensive and afraid, they admitted the
charge before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Muñoz Market.
The second time was on September 11, 1992, when his uncle went to his brother’s
house in Caloocan City and requested him to bring his (uncle) personal belongings
upon learning that he (Marlon) is leaving for Iloilo City the next day, September
12, 1992. He told his uncle to bring his personal belongings either in the evening of
that day or the following day at the (Grand) Central (Station), Monumento because
he was going to buy a ticket for Noriel as he intend (sic) to bring the latter with
him in going home to the province. His uncle already gave a ticket for him. When
he and Noriel (arrived) at the Grand Central at about 10:00 o’clock A.M. on
September 12, 1992, their uncle was already there. The latter placed the plastic bag
besides their baggage. They no longer inspected the contents of the bag as the same
was twisted and knotted on top. After getting a ticket from the office of Don
Sulpicio Lines, Marlon told Noriel to hail a taxi and then they proceeded to the
pier.
(Appellant’s) purpose in going home to Iloilo was to get all the requirements
needed in his application to enter the Marines.
Accused Noriel just arrived in Manila three days before September 12, 1992 to
look for a job and was staying with (appellant) at Caloocan City. In the evening of
September 11, 1992, (appellant) requested him to come . . . with him to Iloilo and
assured him that he (would) be the one to pay for (Noriel’s) fare. (TSN., January 6,
1993, pp. 3-23; January 8, 1993, pp. 2-12; January 11, 1993, pp. 2-18; January 20,
1992, pp. 2-6; January 22, 1993, pp. 2-14)"
Ruling of the Trial Court
The court a quo observed that appellant could not be convicted of "delivering"
prohibited drugs because the Information did not allege that he knowingly
delivered marijuana. Neither could he be convicted of "transporting or dispatching
in transit" such prohibited drugs because these acts were not alleged in the
Information. The trial court mused further that appellant could not be convicted of
"selling" marijuana because the elements constituting this crime were not proven.
However, the Information charged appellant with "giving away to another"
prohibited drugs, a charge which was different from "delivery" defined under
Section 2 (f) 13 of R.A. 6245, as amended. Citing People v. Lo Ho Wing, 14 the
trial court ruled that "giving away" to another is akin to "transporting" prohibited
drugs, a malum prohibitum established by the mere commission of said act. Thus,
the court a quo convicted appellant of "giving away" marijuana to another on the
following premise: 15
"It is not denied by (appellant) that he did give to his co-accused cousin Noriel
Lacerna the bundled 18 blocks of marijuana who thereupon seated himself at the
rear of the taxi with the marijuana. His claim that he did not know the contents of
the blue plastic bag can hardly be believed because it is within judicial notice that
the marijuana contents readily emits a pungent odor so characteristic of marijuana
as what happened when the 18 blocks were displayed in open Court. But as stated,
guilty knowledge is not required by the phrase ‘GIVE AWAY TO ANOTHER’
(Sec. 4). It was clearly established that he gave the stuff to another, that is, to his
co-accused Noriel Lacerna. The law does not distinguish as to whether the word
‘another’ refers to a third person other than a co-accused or to a co-accused. The
information, as in the case at bar, need not allege guilty knowledge on the part of
Marlon Lacerna in ‘giving away’ to another the marijuana. (Appellant) should,
therefor be found culpable for violating Section 4 of RA 6425, as amended, as
charged for ‘giving away to another’ the marijuana."cralaw virtua1aw library
Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency of
evidence. The court a quo reasoned that "it cannot be said that he did ‘give away to
another’ the marijuana for it was (appellant) who gave the marijuana to (Noriel)."
Besides, unlike appellant who was urbanized in mannerism and speech, Noriel
Lacerna manifested probinsyano traits and was, thus, unlikely to have dealt in
prohibited drugs.
The Issues
Appellant objects to the trial court’s Decision and assigns the following errors: 16
"I
The lower court erred in making a sweeping statement that the act of ‘giving away
to another(’) is not defined under R.A. 6425 specifically requiring knowledge what
intent one (sic) is passing is a dangerous drug, as contradistinguished from the term
‘deliver’; where knowledge is required.
II
The lower court erred in not giving credence to the assertion of accused-appellant
that he had no knowledge that what were inside the plastic bag given to him by his
uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant despite failure of the
prosecution to prove his guilt beyond reasonable doubt."cralaw virtua1aw library
The Court’s Ruling
After meticulously reviewing the records of the case and taking into account the
alleged errors cited above and the argument adduced in support thereof, the Court
believes that the issues can be restated as follows: (1) Was appellant’s right against
warrantless arrest and seizure violated? (2) Was the trial court correct in convicting
appellant for "giving away to another" 18 blocks of marijuana? and (3) May the
appellant be held guilty of "illegal possession" of prohibited drugs? The Court
answers the first two questions in the negative and the third in the
affirmative.chanrobles virtuallawlibrary
First Issue: Appellant’s Right Against
Warrantless Search and Seizure
The defense argues that the bricks of marijuana were inadmissible in evidence as
they were obtained through illegal search and seizure. Appellant alleges that at the
time of the search and seizure, he and his co-accused were not committing any
crime as they were merely riding a taxicab on the way to Pier 15, North Harbor in
Manila. Hence, the precipitate arrest and seizure violated their constitutional right
and the marijuana seized constituted "fruits of the poisonous tree."cralaw
virtua1aw library
The Solicitor General disagrees, contending that the search and seizure were
consistent with recent jurisprudential trend liberalizing warrantless search and
seizure where the culprits are riding moving vehicles, because a warrant cannot be
secured in time to apprehend the mobile target.
Both contentions are inaccurate. In the recent case of People v. Cuison, 17 this
Court reiterated the principles governing arrest, search and seizure. To summarize,
let us begin with Section 2, Article III of the 1987 Constitution which
provides:jgc:chanrobles.com.ph
"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 describin