Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-45950 June 20, 1938

LEONA PASION VIUDA DE GARCIA, petitioner, vs. DIEGO LOCSIN, Judge of First Instance of Tarlac, FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents. Benigo S. Aquino and Marcial P. Lichauco for petitioner Adolfo N. Feliciano for the respondent Anti-Usury Board. Office of the Solicitor-General Tuason for other respondents. LAUREL, J.: This is a petition for mandamus presented to secure the annulment of a search warrant and two orders of the respondent judge, and the restoration of certain documents alleged to have been illegally seized by an agent of the Anti-Usuary Board. It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-Usuary Board, obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding any officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for "certain books, lists, chits, receipts, documents and other papers relating to her activities as usurer." The search warrant was issued upon an affidavit given by the said Almeda "that he has and there (is) just and probable cause to believe and he does believe that Leona Pasion de Garcia keeps and conceals in her house and store at Victoria, Tarlac, certain books, lists, chits, receipts, documents, and other papers relating to her activities as usurer, all of which is contrary to the statute in such cases made and provided." On the same date, the said Mariano G. Almeda, accompanied by a captain of the Philippine Constabulary, went to the office of the petitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner's bookkeeper, Alfredo Salas, and, without the presence of the petitioner who was ill and confined at the time, proceeded with the execution thereof. Two packages of records and a locked filing cabinet containing several Papers and documents were seized by Almeda and a receipt therefor issued by him to Salas. The papers and documents seized were kept for a considerable length of time by the Anti-Usury Board and thereafter were turned over by it to the respondent fiscal who subsequently filed, in the Court of First Instance of Tarlac, six separate criminal cases against the herein petitioner for violation of the Anti-Usury Law. On several occasions, after seizure, the petitioner, through counsel, demanded from the respondent Anti-Usury Board the return of the documents seized. On January 7. and, by motion, on June 4, 1937, the legality of

the search warrant was challenged by counsel for the petitioner in the six criminal cases and the devolution of the documents demanded. By resolution of October 5, 1937, the respondent Judge of First Instance denied the petitioner's motion of June 4 for the reason that though the search warrant was illegal, there was a waiver on the part of the petitioner. "En el caso presente," declared the respondent judge, "teniendo en cuenta que la acusada Por si o por medio de su representante, no presento protests alguna contra el registro de autos, at verificarse el mismo, o despues de un tiempo rezonable, el juzgado declare que la citada con su silencio y conducta, ha renunciado implicitanmente a su derecho a no ser sometido a un registro irrazonable, por lo que no le es pemitido quejarse despues, puesto que cualquier defecto queha adolecido lo expedicion de la orden de registro y su ejecucion, ha quidado implilcitamente subsanado." A motion for reconsideration was presented but was denied by order of January 3, 1938. Petitioner registered her exception. The resolution of October 5, 1937 and the order of January 3, 1938 are sought, together with the search warrant, Exhibit B, to be nullified in these proceedings. Paragraph 3, section 1 of the bill of right of our Constitution provides 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 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. Freedom from unreasonable searches and seizures is declared a popular right and for a search warrant to be valid, (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. These requirements are complemented by the Code of Criminal Procedure (G. O. No. 58), particularly with reference to the duration of the validity of the search warrant and the obligation of the officer seizing the property to deliver the same to the corresponding court (secs. 102-104). On more than one occasion, since the approval of the Constitution, we had emphasized the necessity of adherence to the constitutional requirements on this subject (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937], G.R. No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco [1936], 35 Off. Gaz., 1935) and we do not deem it necessary to reiterate what has been said or observed in these cases. In the instant case the existence of probable cause was determined not by the judge himself but by the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did not decide for himself. It does not appear that he examined the applicant and his witnesses, if any. Even accepting the description of the

properties to be seized to be sufficient and on the assumption that the receipt issued is sufficiently detailed within the meaning of the law, the properties seized were not delivered to the court which issued the warrant, as required by law. (See, secs. 95 and 104, G. O. No. 58.) instead, they were turned over to the respondent provincial fiscal and used by him in building up cases against the petitioner. Considering that at the time the warrant was issued there was no case pending against the petitioner, the averment that the warrant was issued primarily for exploration purposes is not without basis. The lower court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was illegally issued by the justice of the peace of Tarlac, Tarlac. The important question presented is whether upon the facts and under the circumstances of the present case, there has been a waiver by the petitioner of her constitutional immunity against unreasonable searches and seizures. While the Solicitor-General admits that, in the light of decisions of this court, the search warrant was illegally issued, he maintains "(1) that the petitioner had waived her constitutional right by her acquiescence after the search and seizure, and (2) that the application for the return of the documents illegally seized was made after an unreasonable length of time after the date of seizure." Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. (People vs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs. Villamiel, supra.) The waiver may be either express or implied (67 C.J., p. 304). No express waiver has been made in the case before us. It is urged, however, that there has been a waiver by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. (67 C. J., 299.) It is true that the petitioner did not object to the legality of the search when it was made. She could not have objected because she was sick and was not present when the warrant was served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. (56 C. J., p. 1183.) Of course, the petitioner came to know later of the seizure of some of her papers and documents. But this was precisely the reason why she sent her attorneys to the office of the Anti-Usuary Board to demand the return of the documents seized. In any event, the failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (56 C.J., pp. 1180, 1181.) As a general proposition, it may be admitted that waiver may be the result of a failure to object within a reasonable time to a search and seizure illegally made. It must be

observed, however, that the petitioner, on several occasions, and prior to the filing of criminal actions against her, had demanded verbally, through counsel, the return by the Anti-Usuary Board of the properties seized. This is admitted by Adolfo N. Feliciano, acting chief of the board, who said that the demand was refused simply because no habiamos terminado con nuestra investigacion. (T.s.n., pp. 24-25.) On July 7, 1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board demanding again the return of the documents withheld. And in connection with the criminal cases pending against the petitioner, similar demands were made on January 7, 1937 and on June 4, 1937. In the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication. In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the respondent judge are set aside; and the respondents Anti-Usuary Board and the provincial fiscal of Tarlac or those acting in their behalf, are hereby ordered to return and restore to the petitioner all the properties, documents, papers and effects illegally seized from her, within forty-eight (48) hours from the time this decision becomes final. Without costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 124442 July 20, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARMANDO COMPACION y SURPOSA, accused-appellant. KAPUNAN, J.: Armando S. Compacion was charged with violating Section 9 of R.A. No. 6425 (known as the Dangerous Drugs Act of 1972), as amended by R.A. No. 7659, in an information which reads as follows: The undersigned accuses ARMANDO COMPACION y Surposa, Barangay Captain of Barangay Bagonbon, San Carlos City, Negros Occidental, of the crime of "VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972 AS AMENDED BY REPUBLIC ACT NO. 7659" committed as follows: "That on or about 1:30 o'clock A.M., July 13, 1995, at Barangay Bagonbon, San Carlos City, Negros Occidental, 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 criminally plant, cultivate or culture two (2) full grown Indian Hemp Plants, otherwise known as "Marijuana plants", more or less eleven (11) feet tall, in gross violation of Section 9, Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as amended by Republic Act No. 7659." CONTRARY TO LAW.1 Upon arraignment on August 16, 1995, the accused pleaded not guilty to the crime charged. Thereafter, trial ensued. On January 2, 1996, the trial court convicted the accused of the crime charged. The decretal portion of the decision reads as follows: WHEREAS, the Court finds the accused ARMANDO COMPACION Y SURPOSA GUILTY BEYOND REASONABLE DOUBT of the crime of "Violation of Section 9, R.A. No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as

amended by R.A. No. 7659" whereof he is charged in the information in the instant case and sentences him to reclusion perpetua and to pay a fine of half a million (P500,000.00) Pesos, Philippine Currency. The portion of the backyard of his residence in the poblacion proper of Brgy. Bagonbon this City and Province, in which the two (2) marijuana plants, Exh. "F", subject-matter of this case, were planted, cultivated and cultured, is hereby ordered confiscated and escheated in favor of the State, pursuant to the aforequoted Sec. 13 R.A. 7659. It would seem that the penalty imposed upon the accused in the instant case for having planted, cultivated and cultured just two (2) marijuana plants is extremely harsh. But there is nothing in the law which allows the Court to impose a lesser penalty in view of the peculiar facts and circumstances in this particular case. Hence, dura lex, sed lex. The law is, indeed, harsh but it is the law. The obvious message of the law is that people should not have a nonchalant or cavalier attitude towards dangerous prohibited drugs. They should not dabble in it as if they were a flippant thing. These dangerous and prohibited drugs are a terrible menace to the minds and morality of our people for their distortive and pervertive effects on them resulting in rampant criminality. That is why the government wants this evil exterminated from our country. It is too bad that the accused instead of helping the government in this drive, in his capacity as barangay captain of his barangay, made a mockery of it by planting, cultivating and culturing said two (2) marijuana plants himself. A word of counsel and hope for the accused. This is a time of reflection forced upon him by the result of his own act in violating the law. It is time for him to humbly submit to the compassion of God and of his only begotten Son, whose birth on earth to become the Saviour of all sinners, we have just celebrated, to change and transform his own life by his coming to Him for the purpose, so that with a changed life, God might be gracious enough to move the heart of His Excellency, the President, of this Country, to pardon and let him walk out of prison a freeman. It would be good for him to read God's Word daily while in prison for his guidance, comfort and hope. Accused convicted of the crime whereof he is charged in the information in the instant case. SO ORDERED.2 The accused now appeals from the above judgment of conviction and asks the Court to reverse the same on the following grounds, viz: The lower court erred: 1. In holding that Exhibit "F" of the prosecution, consisting of two marijuana plants wrapped in plastic, is admissible in evidence against the accused as the

corpus delicti in the instant case, inspite of the fact that the prosecution failed to prove that the specimens of marijuana (Exhibit "F") examined by the forensic chemist were the ones purportedly planted and cultivated by the accused, and of the fact that the prosecution failed to establish the evidence's chain of custody; and 2. In holding that the warrantless search of the residence of the accused at 1:30 o'clock in the morning of July 13, 1995 at Barangay Bagonbon, San Carlos City, Negros Occidental, and seizure of two eleven feet tall, more or less, full grown suspected Indian Hemp, otherwise known as Marijuana plants, leading to the subsequent arrest of the accused, were valid on the ground that the accused has committed the crime of cultivating the said marijuana plants in violation of Sec. 9, RA 6425 (Dangerous Drugs Act of 1972), as amended by RA 7659 in open view, inspite of the fact that they had to enter the dwelling of the accused to get to the place where the suspected marijuana plants were planted, and in admitting in evidence the said plants, later marked as Exhibit "F", against the accused, inspite of the fact that the said plants were the fruits of the poisonous tree.3 The relevant facts are as follows: Acting on a confidential tip supplied by a police informant that accused-appellant was growing and cultivating marijuana plants, SPO1 Gilbert L. Linda and SPO2 Basilio Sarong of the 6th Narcotic Regional Field Unit of the Narcotics Command (NARCOM) of the Bacolod City Detachment conducted a surveillance of the residence of accusedappellant who was then the barangay captain of barangay Bagonbon, San Carlos City, Negros Occidental on July 9, 1995. During the said surveillance, they saw two (2) tall plants in the backyard of the accused-appellant which they suspected to be marijuana plants.4 SPO1 Linda and SPO2 Sarong reported the result of their surveillance to SPO4 Ranulfo T. Villamor, Jr., Chief of NARCOM, Bacolod City, who immediately formed a team composed of the members of the Intelligence Division Provincial Command, the Criminal Investigation Command and the Special Action Force. Two members of the media, one from DYWF Radio and another from DYRL Radio, were also included in the composite team. On July 12, 1995, the team applied for a search warrant with the office of Executive Judge Bernardo Ponferrada in Bacolod City. However, Judge Ponferrada informed them that he did not have territorial jurisdiction over the matter.5 The team then left Bacolod City for San Carlos City. They arrived there around six-thirty in the evening, then went to the house of Executive Judge Roberto S. Javellana to secure a search warrant. They were not able to do so because it was nighttime and office hours were obviously over. They were told by the judge to go back in the morning.6 Nonetheless, the team proceeded to barangay Bagonbon and arrived at the residence of accused-appellant in the early morning of July 13, 1995. SPO4 Villamor knocked at

the gate and called out for the accused-appellant. What happened thereafter is subject to conflicting accounts. The prosecution contends that the accused-appellant opened the gate and permitted them to come in. He was immediately asked by SPO4 Villamor about the suspected marijuana plants and he admitted that he planted and cultivated the same for the use of his wife who was suffering from migraine. SPO4 Villamor then told him that he would be charged for violation of Section 9 of R.A. No. 6425 and informed him of his constitutional rights. The operatives then uprooted the suspected marijuana plants. SPO1 Linda conducted an initial field test of the plants by using the Narcotics Drug Identification Kit. The test yielded a positive result.7 On July 15, 1995, the plants were turned over to the Philippine National Police (PNP) Crime Laboratory, Bacolod City Police Command, particularly to Senior Inspector Reah Abastillas Villavicencio. Senior Inspector Villavicencio weighed and measured the plants, one was 125 inches and weighed 700 grams while the other was 130 inches and weighed 900 grams. Three (3) qualitative examinations were conducted, namely: the microscopic test, the chemical test, and the thin layer chromatographic test. All yielded positive results.8 On his part, accused-appellant maintains that around one-thirty in the early morning of July 13, 1995 while he and his family were sleeping, he heard somebody knocking outside his house. He went down bringing with him a flashlight. After he opened the gate, four (4) persons who he thought were members of the military, entered the premises then went inside the house. It was dark so he could not count the others who entered the house as the same was lit only by a kerosene lamp. One of the four men told him to sit in the living room. Some of the men went upstairs while the others went around the house. None of them asked for his permission to search his house and the premises.9 After about twenty (20) minutes of searching, the men called him outside and brought him to the backyard. One of the military men said: "Captain, you have a (sic) marijuana here at your backyard" to which accused-appellant replied: "I do not know that they were (sic) marijuana plants but what I know is that they are medicinal plants for my wife" who was suffering from migraine.10 After he was informed that the plants in his backyard were marijuana, the men took pictures of him and themselves. Thereafter, he was brought inside the house where he and the military men spent the night.11 At around ten o'clock that same morning, they brought him with them to the city hall. Accused-appellant saw that one of the two (2) service vehicles they brought was fully loaded with plants. He was later told by the military men that said plants were marijuana.12 Upon arrival at the city hall, the men met with the mayor and then unloaded the alleged marijuana plants. A picture of him together with the arresting team was taken with the alleged marijuana as back drop. Soon thereafter, he was taken to Hda. Socorro at the SAF Headquarters.13

A criminal complaint for violation of Section 9 of R.A. No. 6425, as amended by R.A. No. 7659 was filed against accused-appellant. Turning to the legal defenses of accused-appellant, we now consider his allegation that his constitutional right against unreasonable searches and seizures had been violated by the police authorities. The relevant constitutional provisions are found in Sections 2 and 3 [2], Article III of the 1987 Constitution which read as follows: 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. xxx (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Said constitutional provisions are safeguards against reckless, malicious and unreasonable invasion of privacy and liberty. The Court, in Villanueva v. Querubin,14 underscored their importance: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. In the same vein, Landynski in his authoritative work could fitly characterize this constitutional right as the embodiment of "a spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards."15

A search and seizure, therefore, must be carried out through or with a judicial warrant; otherwise, such search and seizure becomes "unreasonable" within the meaning of the constitutional provision.16 Evidence secured thereby, i.e., the "fruits" of the search and seizure, will be inadmissible in evidence for any purpose in any proceeding." 17 The requirement that a warrant must be obtained from the proper judicial authority prior to the conduct of a search and seizure is, however, not absolute. There are several instances when the law recognizes exceptions, such as when the owner of the premises consents or voluntarily submits to a search;18 when the owner of the premises waives his right against such incursion;19 when the search is incidental to a lawful arrest;20 when it is made on vessels and aircraft for violation of customs laws; 21 when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws;22 when it involves prohibited articles in plain view;23 when it involves a "stop and frisk" situation;24 when the search is under exigent and emergency circumstances; 25 or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.26 In these instances, a search may be validly made even without a warrant. In the instant case, the search and seizure conducted by the composite team in the house of accused-appellant was not authorized by a search warrant. It does not appear either that the situation falls under any of the above mentioned cases. Consequently, accused-appellant's right against unreasonable search and seizure was clearly violated. It is extant from the records that accused-appellant did not consent to the warrantless search and seizure conducted. While the right to be secure from unreasonable search and seizure may, like every right, be waived either expressly or impliedly,27 such waiver must constitute a valid waiver made voluntarily, knowingly and intelligently. The act of the accused-appellant in allowing the members of the military to enter his premises and his consequent silence during the unreasonable search and seizure could not be construed as voluntary submission or an implied acquiescence to warrantless search and seizure especially so when members of the raiding team were intimidatingly numerous and heavily armed. His implied acquiescence, if any, could not have been more than mere passive conformity given under coercive or intimidating circumstances and is, thus, considered no consent at all within the purview of the constitutional guarantee. Consequently, herein accused-appellant's lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.28 The case of People v. Burgos,29 is instructive. In Burgos, the Court ruled that the accused is not to be presumed to have waived the unlawful search "simply because he failed to object." There, we held: xxx To constitute a waiver, it must appear first 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 (Pasion Vda. De Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to

make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. De Garcia v. Locsin (supra); xxx xxx xxx

x x x As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights."30 Neither could the members of the composite team have justified their search of accused-appellant's premises by invoking the necessity and urgency of the situation. It was admitted by the members of the arresting team that the residence of accusedappellant had already been put under surveillance following a tip from a confidential informant. The surveillance was conducted on July 9, 1995 while the alleged marijuana plants were seized four (4) days later or on July 13, 1995. Surely, the raiding team had all the opportunity to have first secured a search warrant before forcing their way into accused-appellant's premises. In fact, they earlier had approached then Executive Judge Ponferrada of Bacolod City who declined to issue one on the ground that the matter was outside his territorial jurisdiction. Then, they went to Executive Judge Javellana of San Carlos City in the evening of July 12, 1995 who asked them to come back in the morning as it was already nighttime and outside of office hours. However, in their haste to apprehend the accused-appellant on the pretext that information of his impending arrest may be leaked to him, the team proceeded to go to his residence to arrest him and seize the alleged marijuana plants. The team's apprehension of a tip-off was unfounded. It is far-fetched that one could have gone to accused-appellant's place before the following morning to warn him of his impending arrest as barangay Bagonbon is an isolated and difficult to reach mountain barangay. The road leading to it was rough, hilly and eroded by rain and flood. 31 A few hours delay to await the issuance of a warrant in the morning would not have compromised the team's operation. In justifying the validity of the warrantless arrest, search and seizure on July 13, 1995, the trial court ruled that the accused-appellant was caught "in flagrante delicto of having planted, grown and cultivated the marijuana plants" which was "easily visible from outside of the residence of the accused."32 Thus, the trial court concluded that: xxx (T)he said two (2) marijuana plants, Exh. "F", were the very corpus delicti of the crime the accused has been committing since the time he planted them in the backyard of his residence for whatever reason acorpus delicti which the NARCOM agents saw with their very own eyes as the same were in plain view

when they made a surveillance in the accused's place on July 9, 1995. Said corpus delicti has remained on the spots in accused's backyard where they had been growing since the time they were planted there and, therefore, any peace officer or even private citizen, for that matter, who has seen said plants and recognized them as marijuana, was by law empowered and authorized to arrest the accused even without any warrant of arrest. The accused was caught in flagrante delicto for he was carrying marijuana, hence, committing a crime, at the time of his arrest. The warrantless search which was conducted following a lawful arrest, was valid. People vs. Bandin (Dec. 10, 1993) 226 SCRA 299, at p. 300 The accused was caught in flagrante delicto growing, cultivating and culturing said two (2) marijuana plants, Exh. "F", in the backyard of his residence, which the NARCOM agents uprooted from there at the time they arrested and apprehended him. Under said circumstances, a search warrant and/or warrant of arrest were not legally needed before the NARCOM agents could effect the arrest of the accused.33 As a general rule, objects in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure without a warrant. 34 It is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. 35 Thus, the following elements must be present before the doctrine may be applied: (a) a prior valid intention based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and (d) "plain view" justified were seizure of evidence without further search. 36 Here, there was no valid warrantless arrest. They forced their way into accusedappellant's premises without the latter's consent. It is undisputed that the NARCOM agents conducted a surveillance of the residence of accused-appellant on July 9, 1995 on the suspicion that he was growing and cultivating marijuana when they allegedly came in "plain view" of the marijuana plants. When the agents entered his premises on July 13, 1995, their intention was to seize the evidence against him. In fact, they initially wanted to secure a search warrant but could not simply wait for one to be issued. The NARCOM agents, therefore, did not come across the marijuana plants inadvertently when they conducted a surveillance and barged into accused-appellant's residence. In People v. Musa,37 the Court held:

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [Id., 29 L.Ed. 2d 583. See also Texas v. Brown, 460 U.G. 730, 75 L. Ed. 2d 502 (1983)] It was not even apparent to the members of the composite team whether the plants involved herein were indeed marijuana plants. After said plants were uprooted, SPO1 Linda had to conduct a field test on said plants by using a Narcotics Drug Identification Kit to determine if the same were indeed marijuana plants. 38 Later, Senior Inspector Villavicencio, a forensic chemist, had to conduct three (3) qualitative examinations to determine if the plants were indeed marijuana.39 Since the evidence was secured on the occasion of an unreasonable search and seizure, the same is tainted and illegal and should therefore be excluded for being the proverbial fruit of a poisonous tree.40 In People v. Aruta,41we held that: The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The nonexclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, the Stonehill case observed that most jurisdictions have realized that the exclusionary rule is "he only practical means of enforcing the constitutional injunction" against abuse. This approach is based on the justification made 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."

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 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 to pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil that some criminals escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself.42 WHEREFORE, the decision of the Regional Trial Court of San Carlos City, Branch 58 is hereby REVERSED andSET ASIDE. Accused-appellant Armando S. Compacion is hereby ACQUITTED of the crime charged on ground of reasonable doubt. He is ordered released from confinement unless he is being held for some other legal grounds. The subject marijuana is ordered disposed of in accordance with law.
1w phi 1.nt

SO ORDERED. Davide, Jr., C.J., Puno, Pardo, Ynares-Santiago, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G. R. Nos. 102009-10 July 6, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE GRACIA, accused-appellant. The Solicitor General for plaintiff-appellee. Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.: The incidents involved in this case took place at the height of the coup d' etat staged in December, 1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the Government. At that time, various government establishments and military camps in Metro Manila were being bombarded by the rightist group with their "tora-tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters of the Philippine Army, the Army Operations Center, and Channel 4, the government television station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan, Metro Manila. 1 Accused-appellant Rolando de Gracia was charged in two separate informations for illegal possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of Quezon City, Branch 103. In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose true names and identities have not as yet been ascertained, were charged with the crime of illegal possession of ammunition and explosives in furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows:

That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, and without authority of law, did then and there willfully, unlawfully, feloniously and knowingly have in their possession, custody and control, the following to wit: Five (5) bundles of C-4 or dynamites Six (6) cartoons of M-16 ammunition at 20 each One hundred (100) bottles of MOLOTOV bombs
without first securing the necessary license and/or permit to possess the same from the proper authorities, and armed with said dynamites, ammunition and explosives and pursuant to their conspiracy heretofore agreed upon by them and prompted by common designs, come to an agreement and decision to commit the crime of rebellion, by then and there participating therein and publicly taking arms against the duly constituted authorities, for the purpose of overthrowing the Government of the Republic of the Philippines, disrupting and jeopardizing its activities and removing from its allegiance the 2 territory of the Philippines or parts thereof.

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor and several John Does were charged with attempted homicide allegedly committed on December 1, 1989 in Quezon City upon the person of Crispin Sagario who was shot and hit on the right thigh. Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide. During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he is not authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise stipulated that there was a rebellion during the period from November 30 up to December 9, 1989. 4 The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence Division, National Capital Region Defense Command, was on board a brown Toyota car conducting a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City, together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received by the division that said establishment was being occupied by elements of the RAM-SFP as a communication command post. Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the on-going bombardment near Camp

Aguinaldo. After a while, a group of five men disengaged themselves from the crowd and walked towards the car of the surveillance team. At that moment, Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt. Sagario to start the car and leave the area. As they passed by the group, then only six meters away, the latter pointed to them, drew their guns and fired at the team, which attack resulted in the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate because they sought cover inside the car and they were afraid that civilians or bystanders might be caught in the cross-fire. As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia was the only person then present inside the room. A uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building. They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team because, according to them, at that time there was so much disorder considering that the nearby Camp Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant is supposedly a "boy" therein. Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November 30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut which is adjacent to the building. According to him, he was tasked to guard the office of Col. Matillano which is located at the right side of the building. He denies, however, that he was inside the room of Col. Matillano when the raiding team barged in and that he had explosives in his possession. He testified that when the military raided the office, he was ordered to get out of his house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors of the building. He avers that he does not know anything about the explosives and insists that when they were asked to stand up, the explosives were already there. Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-Integrated National Police (PC-INP), and that he knew Matillano was

detained because of the latter's involvement in the 1987coup d' etat. In July, 1989, appellant again went to see Matillano because he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the marketing for them. From that time until his arrest at the Eurocar office, appellant worked for Matillano. De Gracia believes that the prosecution witnesses were moved to testify against him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang bata niya ang ipitin natin." On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal possession of firearms in furtherance of rebellion and sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended executive clemency after serving a jail term of five (5) years of good behavior. That judgment of conviction is now challenged before us in this appeal. Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar. Presidential Decree No. 1866 provides as follows: Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of firearms, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed. If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the country. The series of coup d' etats unleashed in the country during the first few years of the transitional government under then President Corazon P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public peace and order. I. The first issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and ammunition. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. 6 This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. 7 But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are not valid defenses. 9 When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. 10 In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. 11 Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order

that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, 12 such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed. Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first one to enter the Eurocar Sales Office when the military operatives raided the same, and he saw De Gracia standing in the room and holding the several explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives. Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col. Matillano does not constitute illegal possession thereof because there was no intent on his part to possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension of impersonal or indifferent material possession does not and cannot inspire credence. Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence without leave (AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition. On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia actually intended to possess the articles confiscated from his person.

II. The next question that may be asked is whether or not there was a valid search and seizure in this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by the raiding team, considering the gravity of the offense for which herein appellant stands to be convicted and the penalty sought to be imposed. It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military operatives raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby compelling the former to break into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted. Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with. The view that we here take is in consonance with our doctrinal ruling which was amply explained in People vs. Malmstedt 20 and bears reiteration: While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime. Probable cause has been defined as such facts and circumstances which 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. The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, or where the accused was acting suspiciously, and attempted to flee. Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City. When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant. It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so? The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the

NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society. In addition, we find the principle enunciated et al., 21 applicable, by analogy, to the present case: in Umil, et al., vs. Ramos,

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but really in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which (are) of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not appellant's possession of the firearms, explosives and ammunition seized and recovered from him was for the purpose and in furtherance of rebellion. The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states

that "any person merely participating or executing the command of others in a rebellion shall suffer the penalty of prision mayor in its minimum period." The court below held that appellant De Gracia, who had been servicing the personal needs of Col. Matillano (whose active armed opposition against the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower court. The above provision of the law was, however, erroneously and improperly used by the court below as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It must be made clear that appellant is charged with the qualified offense of illegal possession of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion. 22 As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No. 1866, the Court has explained that said provision of the law will not be invalidated by the mere fact that the same act is penalized under two different statutes with different penalties, even if considered highly advantageous to the prosecution and onerous to the accused. 23 It follows that, subject to the presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with variant elements. It was a legal malapropism for the lower court to interject the aforestated provision of the Revised Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for its recommendation for executive clemency in favor of appellant De Gracia after he shall have served a jail term of five years with good behavior. In any event, this is a matter within the exclusive prerogative of the President whose decision thereon should be insulated against any tenuous importunity. Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly existing at that time. In the words of the court a quo: 2. the nature and quantity of the items 5 bundles of C-4 dynamites, 6 cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the

reports received by the military that the Eurocar Sales Building was being used by the rebels was not without basis. Those items are clearly not for one's personal defense. They are for offensive operations. De Gracia admitted that per instruction of Col. Matillano he went down to Eurocar Sales Building from Antipolo to stay guard there.
His manifestation of innocence of those items and what he has been guarding in that office is not credible for: (a) he was a former military personnel; (b) at the birthday party of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were present which self-evidently discloses that De Gracia, in the company of his boss, was still very much at home and constantly in touch with soldiers and the armed rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat; (c) it appears that he is the only person tasked with caretaking (sic) there in the Matillano office, which shows that he is a highly trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some men who fired upon a car of the AFP intelligence 25 agents.

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of that law, the imposition of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith. WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its recommendation therein for executive clemency and the supposed basis thereof are hereby DELETED, with costs against accused-appellant. SO ORDERED. Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69401 June 23, 1987 RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO, petitioners, vs. MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.

CRUZ, J.: 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 self-incrimination. 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. 5After 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. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.