SECOND DIVISION [G.R. No. 144037. September 26, 2003] PEOPLE OF THE PHILIPPINES, p !"#t"$$%!ppe ee, &'.

NOEL T()T() * P+,P+ !#- )IN)O .OLONG * N+RET, !//0'e-%!ppe !#t'. )E1ISION TING+, J.2 . It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pa for other crimes, !hen the are the means b !hich the evidence is to be obtained. If it pa s its officers for having got evidence b crime, I do not see !h it ma not as !ell pa them for getting it in the same !a , and I can attach no importance to protestations of disapproval if it "no!ingl accepts and pa s and announces that it !ill pa for the fruits. #e have to choose, and for m part I thin" it a less evil that some criminals should escape than that the government should pla an ignoble part. So !rote $ustice Oliver #endell %olmes in Olmstead v. U.S.&'( On this occasion, this Court is made to choose bet!een letting suspected criminals escape or letting the government pla an ignoble part. Sometime during the months of $ul and )ugust '***, the +oril ,olice Station, Davao Cit received a report from a -civilian asset. named /obong Solier about a certain Noel +udtud.&0( Solier related that his neighbors have been complaining about +udtud, !ho !as allegedl responsible for the proliferation of mari1uana in their area.&2( 3eacting to the report, ,O' 3onald Desierto, ,O' 3amil 4loreta and their superior, S,O' Villalonghan, &5( all members of the Intelligence Section of the +oril ,olice Station, conducted surveillance in Solier6s neighborhood in Sapa, +oril, Davao Cit . &7( 4or five da s, the gathered information and learned that +udtud !as involved in illegal drugs.&8( )ccording to his neighbors, +udtud !as engaged in selling mari1uana.&9( On )ugust ', '***, Solier informed the police that +udtud had headed to Cotabato and !ould be bac" later that da !ith ne! stoc"s of mari1uana.&:( Solier described +udtud as big;bodied and short, and usuall !ore a hat.&*( )t around 5<== in the afternoon that same da , a team composed of ,O' Desierto, ,O' 4loreta and S,O' Villalonghan posted themselves at the corner of Saipon and >c)rthur %igh!a to a!ait +udtud6s arrival.&'=( )ll !ore civilian clothes.&''(

)bout :<== later that evening, t!o men disembar"ed from a bus and helped each other carr a carton&'0( mar"ed -?ing 4la"es..&'2( Standing some five feet a!a from the men, ,O' Desierto and ,O' 4loreta observed that one of the men fit +udtud6s description.&'5( +he same man also toted a plastic bag.&'7( ,O' 4loreta and ,O' Desierto then approached the suspects and identified themselves as police officers. &'8( ,O' Desierto informed them that the police had received information that stoc"s of illegal drugs !ould be arriving that night.&'9( +he man !ho resembled +udtud6s description denied that he !as carr ing an drugs.&':( ,O' Desierto as"ed him if he could see the contents of the bo@.&'*( +udtud obliged, sa ing, -it !as alright..&0=( +udtud opened the bo@ himself as his companion loo"ed on.&0'( +he bo@ ielded pieces of dried fish, beneath !hich !ere t!o bundles, one !rapped in a striped plastic bag&00( and another in ne!spapers.&02( ,O' Desierto as"ed +udtud to un!rap the pac"ages. &05( +he contained !hat seemed to the police officers as mari1uana leaves.&07( +he police thus arrested +udtud and his companion, informed them of their rights and brought them to the police station.&08( +he t!o did not resist.&09( +he confiscated items !ere turned over to the ,hilippine National ,olice A,N,B Crime Caborator for e@amination.&0:( 4orensic tests conducted b ,olice Chief Inspector Noemi )ustero, forensic chemist of the ,N, Crime Caborator , 3egion DI, on specimens ta"en from the confiscated items confirmed the police officers6 suspicion. +he plastic bag contained 2,0== grams of mari1uana leaves !hile the ne!spapers contained another :*= grams.&0*( ,olice Chief Inspector )ustero reduced her findings in her report, ,h sical Sciences 3eport No. D;00=; ** dated 0 )ugust '***.&2=( Noel +udtud and his companion, Dindo /ulong, !ere subseEuentl charged&2'( before the 3egional +rial Court A3+CB of Davao Cit !ith illegal possession of prohibited drugs.&20( Fpon arraignment, both accused pleaded not guilt . &22( +he defense, ho!ever, reserved their right to Euestion the validit of their arrest and the seiGure of the evidence against them.&25( +rial ensued thereafter. +he prosecution presented five !itnesses, namel , arresting officers ,O' Desierto and ,O' 4loreta, their civilian informant /obong Solier, forensic chemist ,olice Chief Inspector Noemi )ustero, and S,O2 Nicolas )lgabre, e@hibit custodian of the ,N, Crime Caborator . Said !itnesses testified to the foregoing narration of facts.

+he accused, den ing the charges against them, cried frame;up. Noel +udtud recalled that on )ugust ', '*** he had gone to ?abacan, North Cotabato to sell pairs of Cevi6s pants, !hich !as his -sideline..&27( )t about 7<== in the afternoon, he returned to Davao Cit b bus. &28( Fpon reaching +oril, +udtud, along !ith less than ten passengers, got do!n the bus.&29( Suddenl , a man !ho identified himself as a police officer approached him, pointing a .2: caliber revolver. &2:( +he man told him not to run. &2*( +udtud raised his arms and as"ed, -Sir, !hat is this aboutH.&5=( +he man ans!ered that he !ould li"e to inspect the plastic bag +udtud !as carr ing, and instructed +udtud to open the bag, !hich revealed several pairs of Cevi6s pants.&5'( +he man then directed +udtud to open a carton bo@ some t!o meters a!a .&50( )ccording to +udtud, the bo@ !as alread there !hen he disembar"ed the bus. &52( +udtud told the man the bo@ !as not his, but proceeded to open it out of fear after the man again pointed his revolver at him. &55( +udtud discovered pieces of dried fish, underneath !hich !as something !rapped in cellophane.&57( -#hat is thatH. the man as"ed.&58( +udtud replied that he did not "no!.&59( #ithout even un!rapping the cellophane, the man said it !as mari1uana and abruptl handcuffed +udtud.&5:( Simultaneousl , another man !as pointing a firearm at Dindo /olong at the other side of the street, some eight meters from +udtud.&5*( /olong recounted that he !as on his !a to a relative in Daliao after attending a cousin6s !edding in %agono , Davao del Sur !hen he !as accosted.&7=( )fter alighting the bus, /olong crossed the street.&7'( Someone then approached him and pointed a gun at him. &70( +he man ordered him not to move and handcuffed him. &72( /olong as"ed !h he !as being arrested but the man 1ust told him to go !ith them.&75( +he suspects !ere then ta"en to the police station !here, the !ould later claim, the met each other for the first time.&77( )ssailing the credibilit of informant /obong Solier, the defense offered the testimonies of 4elicia $ulaton, &78( /ranch 2 Cler" of Court, Claudio /ohevia,&79( /ranch 9 Cler" of Court, and >ercedita )bunda,&7:( /ranch * Ftilit Cler", all of the Davao Cit >unicipal +rial Circuit Court. +he testified and presented court documents sho!ing that one -/obo. or -/obong. 3amireG !as charged in their respective branches !ith various crimes, specificall , light threats, less serious

ph sical in1uries and robber . +he defense asserted that the -/obo. or -/obong. 3amireG accused in these cases is the same person as the informant /obong Solier.&7*( S!a ed b the prosecution6s evidence be ond reasonable doubt, the 3+C rendered 1udgment convicting both accused as charged and sentencing them to suffer the penalt of reclusion perpetua and to pa a fine of ,7==,===.==.&8=( On appeal, Noel +udtud and Dindo /olong assign, among other errors, the admission in evidence of the mari1uana leaves, !hich the claim !ere seiGed in violation of their right against unreasonable searches and seiGures. +he right against unreasonable searches and seiGures is secured b Section 0, )rticle III of the Constitution, !hich states< SEC. 0. +he right of the people to be secured in their persons, houses, papers, and effects against unreasonable searches and seiGures of !hatever nature and for an purpose shall be inviolable, and no search !arrant or !arrant of arrest shall issue e@cept upon probable cause to be determined personall b the 1udge after e@amination under oath or affirmation of the complainant and the !itnesses he ma produce, and particularl describing the places to be searched and the persons or things to be seiGed. +he rule is that a search and seiGure must be carried out through or !ith a 1udicial !arrantI other!ise, such search and seiGure becomes -unreasonable. !ithin the meaning of the above;Euoted constitutional provision, and an evidence secured thereb , !ill be inadmissible in evidence -for an purpose in an proceeding..&8'( Section 2 A0B, )rticle III of the Constitution e@plicitl provides< A0B )n evidence obtained in violation of the preceding section shall be inadmissible for an purpose in an proceeding. +he proscription in Section 0, )rticle III, ho!ever, covers onl -unreasonable. searches and seiGures. +he follo!ing instances are not deemed -unreasonable. even in the absence of a !arrant< 1. Warrantless search incidental to a lawful arrest . ASec. '0, 3ule '08 of the 3ules of Court and prevailing 1urisprudenceBI 2. Search of evidence in plain view. +he elements are< AaB a prior valid intrusion based on the valid !arrantless arrest in !hich the police are legall present in the pursuit of their official dutiesI AbB the evidence !as inadvertentl

discovered b the police !ho have the right to be !here the areI AcB the evidence must be immediatel apparentI AdB -plain vie!. 1ustified mere seiGure of evidence !ithout further searchI 3. Search of a moving vehicle. %ighl regulated b the government, the vehicle6s inherent mobilit reduces e@pectation of privac especiall !hen its transit in public thoroughfares furnishes a highl reasonable suspicion amounting to probable cause that the occupant committed a criminal activit I 5. 7. 8. 9. Consented warrantless searchI Customs searchI Stop and ris!" and #$igent and emergenc% circumstances.&80(

reversed.&9'( Nevertheless, a search substantiall contemporaneous !ith an arrest can precede the arrest if the police have probable cause to ma"e the arrest at the outset of the search.&90( +he Euestion, therefore, is !hether the police in this case had probable cause to arrest appellants. ,robable cause has been defined as< an actual belief or reasonable grounds of suspicion. +he grounds of suspicion are reasonable !hen, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probabl guilt of committing the offense, is based on actual facts, i.e., supported b circumstances sufficientl strong in themselves to create the probable cause of guilt of the person to be arrested. ) reasonable suspicion therefore must be founded on probable cause, coupled !ith good faith of the peace officers ma"ing the arrest.&92( +he long;standing rule in this 1urisdiction, applied !ith a great degree of consistenc , is that -reliable information. alone is not sufficient to 1ustif a !arrantless arrest under Section 7 AaB, 3ule ''2. +he rule reEuires, in addition, that the accused perform some overt act that !ould indicate that he -has committed, is actuall committing, or is attempting to commit an offense.. In the leading case of &eople v. .urgos,&95( this Court held that -the officer arresting a person !ho has 1ust committed, is committing, or is about to commit an offense must have per'o#! 3#o4 e-5e of that fact. +he offense must also be committed in his presence or !ithin his vie!..&97( In .urgos, the authorities obtained information that the accused had forcibl recruited one Cesar >asamlo" as member of the Ne! ,eople6s )rm , threatening the latter !ith a firearm. Fpon finding the accused, the arresting team searched his house and discovered a gun as !ell as purportedl subversive documents. +his Court, in declaring then Section 8 AaB, 3ule ''2 of the 3ules of Court inapplicable, ruled that< +here is no such personal "no!ledge in this case. #hatever "no!ledge !as possessed b the arresting officers, it came in its entiret from the information furnished b Cesar >asamlo". +he location of the firearm !as given b the appellant6s !ife. )t the time of the appellant6s arrest, he !as not in actual possession of an firearm or subversive document. Neither !as he committing an act !hich could be described as subversive. %e !as, in fact, plo!ing his field at the time of the arrest. +he right of a person to be secure against an unreasonable seiGure of his bod and an deprivation of his libert is a most basic and fundamental one. +he statute or rule !hich allo!s e@ceptions to the reEuirement of !arrants of arrest is

+he 3+C 1ustified the !arrantless search of appellants6 belongings under the first e@ception, as a search incident to a la!ful arrest. It cited as authorities this Court6s rulings in &eople v. Claudio,&82( &eople v. 'angli(en,&85( &eople v. )ontilla,&87( and &eople v. *alde+.&88( +he Office of the Solicitor Jeneral AOSJB, in arguing for the affirmance of the appealed decision, invo"es the cases of &eople v. )aspil, -r.,&89( &eople v. )almstedt,&8:( and &eople v. .agista.&8*( ) search incidental to a la!ful arrest is sanctioned b the 3ules of Court. ,rior to its revision in 0===, Section '0, &9=( 3ule '08 of said 3ules read as follo!s< SEC. '0. Search incident to lawful arrest. K ) person la!full arrested ma be searched for dangerous !eapons or an thing !hich ma be used as proof of the commission of an offense, !ithout a search !arrant. Section 7 AaB, 3ule ''2 of the 3ules, in turn, allo!s !arrantless arrests< SEC. 7. /rrest without warrant" when lawful. K ) peace officer or a private person ma , !ithout a !arrant, arrest a person< AaB #hen, in his presence, the person to be arrested has committed, is actuall committing, or is attempting to commit an offenseI . It is significant to note that the search in Euestion preceded the arrest. 3ecent 1urisprudence holds that the arrest must precede the searchI the process cannot be

strictl construed. )n e@ception must clearl fall !ithin the situations !hen securing a !arrant !ould be absurd or is manifestl unnecessar as provided b the 3ule. #e cannot liberall construe the rule on arrests !ithout !arrant or e@tend its application be ond the cases specificall provided b la!. +o do so !ould infringe upon personal libert and set bac" a basic right so often violated and so deserving of full protection.&98( ConseEuentl , the items seiGed !ere held inadmissible, having been obtained in violation of the accused6s constitutional rights against unreasonable searches and seiGures. In &eople v. /minnudin,&99( this Court li"e!ise held the !arrantless arrest and subseEuent search of appellant therein illegal, given the follo!ing circumstances< the accused;appellant !as not, at the moment of his arrest, committing a crime nor !as it sho!n that he !as about to do so or that he had 1ust done so. #hat he !as doing !as descending the gangplan" of the >LV #ilcon * and there !as no out!ard indication that he called for his arrest. +o all appearances, he !as li"e an of the other passengers innocentl disembar"ing from the vessel. It !as onl !hen the informer pointed to him as the carrier of the mari1uana that he suddenl became suspect and so sub1ect to apprehension. It !as the furtive finger that triggered his arrest. +he identification b the informer !as the probable cause as determined b the officers Aand not a 1udgeB that authoriGed them to pounce upon )minnudin and immediatel arrest him.&9:( +hus, not!ithstanding tips from confidential informants and regardless of the fact that the search ielded contraband, the mere act of loo"ing from side to side !hile holding one6s abdomen,&9*(or of standing on a corner !ith one6s e es moving ver fast, loo"ing at ever person !ho came near,&:=( does not 1ustif a !arrantless arrest under said Section 7 AaB. Neither does putting something in one6s poc"et,&:'( handing over one6s baggage,&:0( riding a motorc cle,&:2( nor does holding a bag on board a trisi!ad&:5(sanction State intrusion. +he same rule applies to crossing the street per se.&:7( ,ersonal "no!ledge !as also reEuired in the case of &eople v. 0oria.&:8( 3ecentl , in &eople v. .inad S% Chua, &:9( this Court declared invalid the arrest of the accused, !ho !as !al"ing to!ards a hotel clutching a sealed Mest;O 1uice bo@. 4or the e@ception in Section 7 AaB, 3ule ''2 to appl , this Court ruled, t!o elements must concur< A'B the person to be arrested must e@ecute an overt act indicating he has 1ust committed, is actuall committing, or is attempting to commit a crimeI and A0B such overt act is done in the presence or !ithin the vie! of the arresting officer. 3eliable information alone is insufficient.

In the follo!ing cases, the search !as held to be incidental to a la!ful arrest because of -suspicious. circumstances< &eople v. 'angli(en&::( Aaccused !as -acting suspiciousl .B, &eople v. )almstedt&:*( Aa bulge on the accused6s !aistB, and &eople v. de 1u+man&*=( Ali"e!ise a bulge on the !aist of the accused, !ho !as !earing tight; fitting clothesB. +here is, ho!ever, another set of 1urisprudence that deems -reliable information. sufficient to 1ustif a search incident to a !arrantless arrest under Section 7 AaB, 3ule ''2, thus deviating from.urgos. +o this class of cases belong &eople v. )aspil, -r.,&*'( &eople v. .agista,&*0( &eople v. .alingan,&*2( &eople v. 2ising,&*5( &eople v. )ontilla, &*7( &eople v. *alde+,&*8( and &eople v. 1on+ales.&*9( In these cases, the arresting authorities !ere acting on information regarding an offense but there !ere no overt acts or suspicious circumstances that !ould indicate that the accused has committed, is actuall committing, or is attempting to commit the same. Significantl , these cases, e@cept the last t!o, come under some other e@ception to the rule against !arrantless searches. +hus, )aspil, -r. involved a chec"point search, .alingan !as a search of a moving vehicle, .agista !as both, and 2ising and )ontilla !ere consented searches. Nevertheless, the great ma1orit of cases conforms to the rule in .urgos, !hich, in turn, more faithfull adheres to the letter of Section 7AaB, 3ule ''2. Note the phrase -in his presence. therein, connoting personal "no!ledge on the part of the arresting officer. +he right of the accused to be secure against an unreasonable searches on and seiGure of his o!n bod and an deprivation of his libert being a most basic and fundamental one, the statute or rule that allo!s e@ception to the reEuirement of a !arrant of arrest is strictl construed. Its application cannot be e@tended be ond the cases specificall provided b la!.&*:( +he cases invo"ed b the 3+C and the OSJ are, therefore, gravel misplaced. In Claudio,&**( the accused, !ho !as seated aboard a bus in front of the arresting officer, put her bag behind the latter, thus arousing the latter6s suspicion. In 'angli(en and )almstedt, the accused had also acted suspiciousl . )s noted earlier, )aspil, -r., .agista and )ontilla !ere 1ustified b other e@ceptions to the rule against !arrantless searches. )ontilla, moreover, !as not !ithout its critics. +here, ma1orit of the Court held< )ppellant insists that the mere fact of seeing a person carr ing a traveling bag and a carton bo@ should not elicit the slightest suspicion of the commission of an crime since that is normal. /ut precisel , it is in the ordinar nature of things that drugs being illegall transported are necessaril hidden in containers and concealed from vie!. +hus, the officers could reasonabl assume, and not merel on a hollo!

suspicion since the informant !as b their side and had so informed them, that the drugs !ere in appellant6s luggage. It !ould obviousl have been irresponsible, if no! do!nright absurd under the circumstances, to reEuire the constable to adopt a -!ait and see. attitude at the ris" of eventuall losing the Euarr . %ere, there !ere sufficient facts antecedent to the search and seiGure that, at the point prior to the search !ere alread constitutive of probable cause, and !hich b themselves could properl create in the minds of the officers a !ell; grounded and reasonable belief that appellant !as in the act of violating the la!. +he search ielded affirmance both of that probable cause and the actualit that appellant !as then actuall committing a crime b illegall transporting prohibited drugs. #ith these attendant facts, it is ineluctable that appellant !as caught in flagrante delicto, hence his arrest and the search of his belongings !ithout the reEuisite !arrant !ere both 1ustified.&'==( #hile concurring !ith the ma1orit , >r. $ustice Vitug reserved his vote on the discussion on the !arrantless search being incidental to a la!ful arrest. >r. $ustice ,anganiban, 1oined b >essrs. $ustices >elo and ,uno, filed a Separate Opinion. )lthough li"e!ise concurring in the ma1orit 6s ruling that appellant consented to the inspection of his baggage, $ustice ,anganiban disagreed !ith the conclusion that the !arrantless search !as incidental to a la!ful arrest. %e argued that 1urisprudence reEuired personal "no!ledge on the part of the officers ma"ing the in flagrante delicto arrest. In )ontilla, the appellant -did not e@hibit an overt act or strange conduct that !ould reasonabl arouse in their minds suspicion that he !as embar"ing on some felonious enterprise.. Ca! and 1urisprudence in fact reEuire stricter grounds for valid arrests and searches !ithout !arrant than for the issuance of !arrants therefore. In the former, the arresting person must have actuall !itnessed the crime being committed or attempted b the person sought to be arrestedI or he must have personal "no!ledge of facts indicating that the person to be arrested perpetrated the crime that had 1ust occurred. In the latter case, the 1udge simpl determines personall from testimonies of !itnesses that there e@ists reasonable grounds to believe that a crime !as committed b the accused. . +o sa that -reliable tips. constitute probable cause for a !arrantless arrest or search is in m opinion, a dangerous precedent and places in great 1eopard the doctrines laid do!n in man decisions made b this Court, in its effort to Gealousl guard and protect the sacred constitutional right

against unreasonable arrests, searches and seiGures. Ever one !ould be practicall at the merc of so; called informants, reminiscent of the ma"apilis during the $apanese occupation. )n one !hom the point out to a police officer as a possible violator of the la! could then be sub1ect to search and possible arrest. +his is placing limitless po!er upon informants !ho !ill no longer be reEuired to affirm under oath their accusations, for the can al!a s dela their giving of tips in order to 1ustif !arrantless arrests and searches. Even la! enforcers can use this as an oppressive tool to conduct searches !ithout !arrants, for the can al!a s claim that the received ra! intelligence information onl on the da or afternoon before. +his !ould clearl be a circumvention of the legal reEuisites for validl effecting an arrest or conducting a search and seiGure. Indeed the ma1orit 6s ruling !ould open loopholes that !ould allo! unreasonable arrests, searches and seiGures.&'='( )ontilla !ould shortl find mention in $ustice ,anganiban6s concurring opinion in &eople v. 0oria, supra, !here this Court ruled< )ccused;)ppellant Jaddao !as arrested solel% on the basis of the alleged identification made b her co;accused. ,O2 >anlangit, ho!ever, declared in his direct e@amination that appellant Doria named his co;accused in response to his A,O2 >anlangit6sB Euer as to !here the mar"ed mone% !as. )ppellant Doria did not point to appellant Jaddao as his associate in the drug business, but as the person !ith !hom he left the mar"ed bills. +his identification does not necessaril lead to the conclusion that appellant Jaddao conspired !ith her co;accused in pushing drugs. )ppellant Doria ma have left the mone in her house, !ith or !ithout an conspirac . Save for accused; appellant Doria6s !ord, the Narcom agents had no sho!ing that the person !ho affected the !arantless arrest had, in his o!n right, "no!ledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legall ob1ectionable.&'=0( &Italics in the original.( E@pressing his accord !ith >r. $ustice ,uno6s ponencia, $ustice ,anganiban said that 0oria -rightfull brings the Court bac" to !ell;settled doctrines on !arrantless arrests and searches, !hich have seemingl been modified through an o(iter in &eople v. 3u(en )ontilla..&'=2( )ontilla, therefore, has been seemingl discredited insofar as it sanctions searches incidental to la!ful arrest under similar circumstances. )t an rate, )ontilla !as a consented search. )s !ill be demonstrated later, the same could not be said of this case. +hat leaves the prosecution !ith &eople v. *alde+, !hich, ho!ever, involved an -on;the;spot information.. +he urgenc of the circumstances, an element

not present in this case, prevented the arresting officer therein from obtaining a !arrant. )ppellants in this case !ere neither performing an overt act or acting in a suspicious manner that !ould hint that a crime has been, !as being, or !as about to be, committed. If the arresting officers6 testimonies are to be believed, appellants !ere merel helping each other carr a carton bo@. )lthough appellant +udtud did appear -afraid and perspiring,.&'=5( -pale.&'=7( and -trembling,.&'=8( this !as onl after, not before, he !as as"ed to open the said bo@. In no sense can the "no!ledge of the herein arresting officers that appellant +udtud !as in possession of mari1uana be described as -personal,. having learned the same onl from their informant Solier. Solier, for his part, testified that he obtained his information onl from his neighbors and the friends of appellant +udtud< NK #hat !as our basis in our report to the police that +udtud is going to Cotabato and get stoc"s of mari1uanaH .

!ith him mari1uana stoc"s on )ugust ', '***H

) K /ecause of the information of his neighbor.

&'=9(

In other !ords, Solier6s information itself is hearsa . %e did not even elaborate on ho! his neighbors or +udtud6s friends acEuired their information that +udtud !as responsible for the proliferation of drugs in their neighborhood. Indeed, it appears that ,O' 4loreta himself doubted the reliablilit of their informant. %e testified on cross; e@amination< NK Oou mean to sa that /obot Solier, is not reliableH

) K %e is trust!orth . N K #h &did( ou not consider his information not reliable if he is reliableH

) K /ecause of the protest of m neighbors !ho !ere sa ing !ho !ill be the person !hou &sic( !ould point to him because he had been giving trouble to the neighborhood because according to them there are &sic( proliferation of mari1uana in our place. +hat !as the complained &sic( of our neighbors. N K Insofar as the accused +udtud is concerned !hat !as our basis in reporting him particularl H

) K A!itness did not ans!erB. )++O. C)PE+E< Never mind, do an more. +hat6s all.&'=:( not ans!er

) K %is friends !ere the once !ho told me about it. NK 4or ho! long have ou "no! &sic( this fact of alleged activit of +udtud in proliferation of mari1uanaH

+he prosecution, on re;direct e@amination, did not attempt to e@tract an e@planation from ,O' 4loreta for his telling silence. Confronted !ith such a dubious informant, the police perhaps felt it necessar to conduct their o!n -surveillance.. +his -surveillance,. it turns out, did not actuall consist of sta"ing out appellant +udtud to catch him in the act of pl ing his illegal trade, but of a mere -gather&ing( of information from the assets there.. &'=*( +he police officers !ho conducted such -surveillance. did not identif !ho these -assets. !ere or the basis of the latter6s information. Clearl , such information is also hearsa , not of personal "no!ledge. Neither !ere the arresting officers impelled b an urgenc that !ould allo! them to do a!a !ith the reEuisite !arrant, ,O' Desierto6s assertions of lac" of time&''=( not!ithstanding. 3ecords sho! that the police had ample opportunit to appl for a !arrant, having received Solier6s information at around *<== in the morningI +udtud, ho!ever, !as e@pected to arrive at around 8<== in the

) K )bout a month. . N K 3egarding the report that +udtud !ent to Cotabato to get stoc"s of mari1uana !hich led to his apprehension sometime in the evening of )ugust ' and according to the report &!hich( is based on our report m Euestion is, ho! did ou "no! that +udtud !ill be bringing along

evening of the same da .&'''( In &eople v. #ncinada, supra, the Court ruled that there !as sufficient time to procure a !arrant !here the police officers received at 5<== in the afternoon an intelligence report that the accused, !ho !as supposedl carr ing mari1uana, !ould arrive the ne@t morning at 9<== a.m.< Even if the information !as received b /olonia about 5<== p.m. of >a 0=, '**0 at his house, there !as sufficient time to secure a !arrant of arrest, as the >LV S!eet ,earl !as not e@pected to doc" until 9<== a.m. the follo!ing da . )dministrative Circular No. '2 allo!s application for search !arrants even after office hours< -2. 3affling shall be strictl enforced, e@cept onl in case !here an application for search !arrant ma be filed directl !ith an 1udge !hose 1urisdiction the place to be searched is located, after office hours, or during Saturda%s, Sunda%s, and legal holida%s, in !hich case the applicant is reEuired to certif under oath the urgenc of the issuance thereof after office hours, or during Saturda s, Sunda s and legal holida sI. . . .. +he same procedural dispatch finds validation and reiteration in Circular No. '*, series of '*:9, entitled -)mended Juidelines and ,rocedures on )pplication for search !arrants for Illegal ,ossession of 4irearms and Other Serious Crimes 4iled in >etro >anila Courts and Other Courts !ith >ultiple Salas.< -+his Court has received reports of dela !hile a!aiting raffle, in acting on applications for search !arrants in the campaign against loose firearms and other serious crimes affecting peace and order. +here is a need for prompt action on such applications for search !arrant. )ccordingl , these amended guidelines in the issuance of a search !arrant are issued< '. )ll applications for search !arrants relating to violation of the )nti;subversion )ct, crimes against public order as defined in the 3evised ,enal Code, as amended, illegal possession of firearms andLor ammunition and violations of the Dangerous Drugs )ct of '*90, as amended, shall no longer be raffled and shall immediatel be ta"en cogniGance of and acted upon b the E@ecutive $udge of the 3egional +rial Court, >etropolitan +rial Court, and >unicipal +rial Court under !hose 1urisdiction the place to be searched is located. 0. In the absence of the E@ecutive $udge, the *ice4 #$ecutive -udge shall ta"e cogniGance of and personall% act on the same. In the absence of the E@ecutive $udge or Vice;E@ecutive $udge, the application ma be ta"en cogniGance of and acted upon b an% 1udge of the Court !here application is filed.

2. )pplications filed after office hours, during Saturda%s, Sunda%s and holida%s, shall li!ewise (e ta!en cogni+ance of and acted upon (% an% 5udge of the Court having 5urisdiction of the place to (e searched, but in such cases the applicant shall certif and state the facts under oath, to the satisfaction of the 1udge, that its issuance is urgent. 5. )n 1udge acting on such application shall immediatel and !ithout dela personall conduct the e@amination of the applicant and his !itnesses to prevent the possible lea"age of information. %e shall observe the procedures, safeguards, and guidelines for the issuance of search !arrants provided for in this Court6s )dministrative Circular No. '2, dated October ', '*:7.. &''0( &Italics in the original.( Jiven that the police had adeEuate time to obtain the !arrant, ,O' 4loreta6s testimon that the real reason for their omission !as their belief that the lac"ed sufficient basis to obtain the same assumes greater significance. +his !as ,O' 4loreta6s familiar refrain< N K #hen Solier reported to ou that fact, that +udtud !ill be coming from Cotabato to get that AsicB stoc"s, ou did not go to court to get a search !arrant on the basis of the report of /obot SolierH ) K No. N K #h H ) K /ecause !e have no real basis to secure the search !arrant. N K #hen ou have no real basis to secure a search !arrant, ou have also no real basis to search +udtud and /ulong at that timeH ) K Oes, sir. . N K )nd /obot Solier told ou that +udtud, that he !ould alread bring mari1uanaH ) K Oes, sir. N K )nd this !as *<== a.m.H ) K Oes, sir.

N K +he arrival of +udtud !as e@pected at 8<== p.m.H ) K Oes, sir. N K +oril is 1ust '8 "ilometers from Davao Cit H ) K Oes, sir. N K )nd the Office of the 3egional +rial Court is onl about '8 "ilometers, is that correctH ) K Oes, sir. N K )nd it can be negotiated b thirt minutes b a 1eep rideH ) K Oes, sir. N K )nd ou can as"ed &sic( the assistance of an prosecutor to appl for the search !arrant or the prosecutor do &sic( not assistH ) K +he help. N K /ut ou did not come to Davao Cit , to as"ed &sic( for a search !arrantH ) K )s I said, !e do not have sufficient basis.
&''2(

It ma be conceded that -the mere sub1ective conclusions of a police officer concerning the e@istence of probable cause is not binding on &the courts( !hich must independentl scrutiniGe the ob1ective facts to determine the e@istence of probable cause. and that -a court ma also find probable cause in spite of an officer6s 1udgment that none e@ists..&''5( %o!ever, the fact that the arresting officers felt that the did not have sufficient basis to obtain a !arrant, despite their o!n information;gathering efforts, raises serious Euestions !hether such -surveillance. actuall ielded an pertinent information and even !hether the actuall conducted an information;gathering at all, thereb eroding an claim to personal "no!ledge. 4inall , there is an effective !aiver of rights against unreasonable searches and seiGures if the follo!ing reEuisites are present< '. It must appear that the rights e@istI 0. +he person involved had "no!ledge, actual or constructive, of the e@istence of such rightI

2. Said person had an actual intention to relinEuish the right.&''7( %ere, the prosecution failed to establish the second and third reEuisites. 3ecords disclose that !hen the police officers introduced themselves as such and reEuested appellant that the see the contents of the carton bo@ supposedl containing the mari1uana, appellant +udtud said -it !as alright.. %e did not resist and opened the bo@ himself. +he fundamental la! and 1urisprudence reEuire more than the presence of these circumstances to constitute a valid !aiver of the constitutional right against unreasonable searches and seiGures. Courts indulge ever reasonable presumption against !aiver of fundamental constitutional rightsI acEuiescence in the loss of fundamental rights is not to be presumed.&''8( +he fact that a person failed to ob1ect to a search does not amount to permission thereto. . )s the constitutional guarant is not dependent upon an affirmative act of the citiGen, the courts do not place the citiGen in the position of either contesting an officer6s authorit b force, or !aiving his constitutional rightsI but instead the hold that a peaceful submission to a search or seiGure is not a consent or an invitation thereto, but is merel a demonstration of regard for the supremac of the la!. &''9( &Fnderscoring supplied.( +hus, even in cases !here the accused voluntaril handed her bag&'':( or the chairs&''*( containing mari1uana to the arresting officer, this Court held there !as no valid consent to the search. On the other hand, because a !arrantless search is in derogation of a constitutional right, peace officers !ho conduct it cannot invo"e regularit in the performance of official functions and shift to the accused the burden of proving that the search !as unconsented.&'0=( In an case, an presumption in favor of regularit !ould be severel diminished b the allegation of appellants in this case that the arresting officers pointed a gun at them before as"ing them to open the sub1ect bo@. )ppellant +udtud testified as follo!s< N K +his person !ho approached ou according to ou pointed something at ou&.( &#hat( !as that somethingH ) K ) 2: cal. 3evolver. N K %o! did he point it at ouH

) K Ci"e this A#itness demonstrating as if pointing !ith his t!o arms holding something to!ards somebod B. NK +his man&,( !hat did he tell ou !hen he pointed a gun at ouH

!aiver of his constitutional right or a voluntar submission to the !arrantless search and seiGure.&'02( )s the search of appellants6 bo@ does not come under the recogniGed e@ceptions to a valid !arrantless search, the mari1uana leaves obtained thereb are inadmissible in evidence. )nd as there is no evidence other than the hearsa testimon of the arresting officers and their informant, the conviction of appellants cannot be sustained. +he /ill of 3ights is the bedroc" of constitutional government. If people are stripped na"ed of their rights as human beings, democrac cannot survive and government becomes meaningless. +his e@plains !h the /ill of 3ights, contained as it is in )rticle III of the Constitution, occupies a position of primac in the fundamental la! !a above the articles on governmental po!er.&'05( +he right against unreasonable search and seiGure in turn is at the top of the hierarch of rights, &'07( ne@t onl to, if not on the same plane as, the right to life, libert and propert , !hich is protected b the due process clause. &'08( +his is as it should be for, as stressed b a couple of noted freedom advocates,&'09( the right to personal securit !hich, along !ith the right to privac , is the foundation of the right against unreasonable search and seiGure -includes the right to e@ist, and the right to en1o ment of life !hile e@isting.. EmphasiGing such right, this Court declared in&eople v. /ruta< Fnreasonable searches and seiGures are the menace against !hich the constitutional guarantees afford full protection. #hile the po!er to search and seiGe ma at times be necessar to the public !elfare, still it ma be e@ercised and the la! enforced !ithout transgressing the constitutional rights of the citiGens, for the enforcement of no statute is of sufficient importance to 1ustif indifference to the basic principles of government. +hose !ho are supposed to enforce the la! are not 1ustified in disregarding the rights of the individual in the name of order. Order is too high a price to pa for the loss of libert . )s $ustice %olmes declared< -I thin" it is less evil that some criminals escape than that the government should pla an ignoble part.. It is simpl not allo!ed in free societ to violate a la! to enforce another, especiall if the la! violated is the Constitution itself.&'0:( +hus, given a choice bet!een letting suspected criminals escape or letting the government pla an ignoble part, the ans!er, to this Court, is clear and ineluctable. 6HEREFORE, the Decision of the 3egional +rial Court of Davao Cit is 3EVE3SED. )ppellants Noel +udtud % ,a pa and Dindo /olong % Naret are hereb )CNFI++ED for insufficienc of evidence. +he Director of the /ureau of ,risons is ordered to cause the immediate release of appellants from confinement, unless the are being held for some other la!ful cause, and to report to this

) K %e said do not run. N K #hat did ou doH )K I raised m hands and said -Sir, !hat is this aboutH.

N K #h did ou call him SirH ) K I !as afraid because !hen somebod holding a gun, I am afraid. is

N K ,recisel , !h did ou address him as SirH ) K /ecause he !as holding a gun and I believed that somebod !ho is carr ing a gun is a policeman. N K #hen ou as"ed him !hat is thisH #hat did he sa H

) K %e said -I !ould li"e to inspect !hat ou are carr ing.&.( N K #hat did ou sa !hen ou !ere as"ed to open that carton bo@H ) K I told him that is not mine. N K #hat did this man sa H ) K %e again pointed to me his revolver and again said to open. N K #hat did ou doH ) K So I proceeded to open for fear of being shot.&'0'( )ppellants6 implied acEuiescence, if at all, could not have been more than mere passive conformit given under coercive or intimidating circumstances and is, thus, considered no consent at all !ithin the purvie! of the constitutional guarantee.&'00( ConseEuentl , appellants6 lac" of ob1ection to the search and seiGure is not tantamount to a

Court compliance here!ith !ithin five A7B da s from receipt hereof. SO OR)ERE).