G.R. No.

128587

March 16, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
HON. PERFECTO A.S. LAGUIO, JR., in his capacity as
Presiding Judge, Branch 18, RTC, Manila, and
LAWRENCE WANG Y CHEN, Respondents.
DECISION
GARCIA, J.:
On pure questions of law, petitioner People of the Philippines
has directly come to this Court via this petition for review on
certiorari to nullify and set aside the Resolution 1 dated 13
March 1997 of the Regional Trial Court of Manila, Branch 18,
in Criminal Case Nos. 96-149990 to 96-149992, entitled
People of the Philippines v. Lawrence Wang y Chen, granting
private respondent Lawrence C. Wangs Demurrer to Evidence
and acquitting him of the three (3) charges filed against him,
namely: (1) Criminal Case No. 96-149990 for Violation of
Section 16, Article III in relation to Section 2(e)(2), Article I
of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2)
Criminal Case No. 96-149991 for Violation of Presidential
Decree No. 1866 (Illegal Possession of Firearms); and (3)
Criminal Case No. 96-149992 for Violation of Comelec
Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC
Gun1Ban).
The three (3) separate Informations filed against Lawrence C.
Wang in the court of origin respectively read:
Criminal Case No. 96-149990 (Violation of Dangerous Drugs
Act):
That on or about the 17th day of May 1996, in the City of
Manila, Philippines, the said accused did then and there
willfully, unlawfully and knowingly have in his possession
and under his custody and control a bulk of white and
yellowish crystalline substance known as SHABU contained
in thirty-two (32) transparent plastic bags weighing
approximately
29.2941
kilograms,
containing
methamphetamine hydrochloride, a regulated drug, without
the corresponding license or prescription therefor.
Contrary to law.2
Criminal Case No. 96-149991 (Illegal Possession of
Firearms):
That on or about the 17th day of May 1996, in the City of
Manila, Philippines, the said accused did then and there
willfully, unlawfully and knowingly have in his possession
and under his custody and control one (1) DAEWOO Cal.
9mm, automatic pistol with one loaded magazine and one

AMT Cal. .380 9mm automatic backup pistol with magazine

loaded with ammunitions without first having secured the
necessary license or permit therefor from the proper
authorities.
Contrary to law. 3
Criminal Case No. 96-149992 (Violation of Comelec Gun
Ban):
That on or about the 17th day of May 1996, in the City of
Manila, Philippines, the said accused did then and there
willfully, unlawfully and knowingly have in his possession
and under his custody and control one (1) DAEWOO Cal.
9mm automatic pistol with one loaded magazine and one (1)
AMT Cal. 380 9mm automatic backup pistol with magazine
loaded with ammunitions, carrying the same along Maria
Orosa St., Ermita, Manila, which is a public place, on the date
which is covered by an election period, without first securing
the written permission or authority from the Commission on
Elections, as provided by the COMELEC Resolution 2828 in
relation to Republic Act 7166.
Contrary to law. 4
During his arraignment, accused Wang refused to enter a plea
to all the Informations and instead interposed a continuing
objection to the admissibility of the evidence obtained by the
police operatives. Thus, the trial court ordered that a plea of
"Not Guilty" be entered for him.5 Thereafter, joint trial of the
three (3) consolidated cases followed.
The pertinent facts are as follows:
On 16 May 1996, at about 7:00 p.m., police operatives of the
Public Assistance and Reaction Against Crime of the
Department of Interior and Local Government, namely,
Captain Margallo, Police Inspector Cielito Coronel and SPO3
Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio
Anoble and a certain Arellano, for unlawful possession of
methamphetamine hydrochloride, a regulated drug popularly
known as shabu. In the course of the investigation of the three
arrested persons, Redentor Teck, alias Frank, and Joseph Junio
were identified as the source of the drug. An entrapment
operation was then set after the three were prevailed upon to
call their source and pretend to order another supply of shabu.
At around 11:00 p.m. that same date, Redentor Teck and
Joseph Junio were arrested while they were about to hand over
another bag of shabu to SPO2 De Dios and company.
Questioned, Redentor Teck and Joseph Junio informed the
police operatives that they were working as talent manager
and gymnast instructor, respectively, of Glamour Modeling
Agency owned by Lawrence Wang. Redentor Teck and Joseph
Junio did not disclose their source of shabu but admitted that
they were working for Wang.6 They also disclosed that they

knew of a scheduled delivery of shabu early the following

morning of 17 May 1996, and that their employer (Wang)
could be found at the Maria Orosa Apartment in Malate,
Manila. The police operatives decided to look for Wang to
shed light on the illegal drug activities of Redentor Teck and
Joseph Junio. Police Inspector Cielito Coronel and his men
then proceeded to Maria Orosa Apartment and placed the same
under surveillance.
Prosecution witness Police Inspector Cielito Coronel testified
that at about 2:10 a.m. of 17 May 1996, Wang, who was
described to the operatives by Teck, came out of the apartment
and walked towards a parked BMW car. On nearing the car, he
(witness) together with Captain Margallo and two other police
officers approached Wang, introduced themselves to him as
police officers, asked his name and, upon hearing that he was
Lawrence Wang, immediately frisked him and asked him to
open the back compartment of the BMW car.7 When frisked,
there was found inside the front right pocket of Wang and
confiscated from him an unlicensed AMT Cal. 380 9mm
automatic Back-up Pistol loaded with ammunitions. At the
same time, the other members of the operatives searched the
BMW car and found inside it were the following items: (a) 32
transparent plastic bags containing white crystalline substance
with a total weight of 29.2941 kilograms, which substance was
later analyzed as positive for methamphetamine
hydrochloride, a regulated drug locally known as shabu; (b)
cash in the amount of P650,000.00; (c) one electronic and one
2
mechanical
scales; and (d) an unlicensed Daewoo 9mm Pistol
with magazine. Then and there, Wang resisted the warrantless
arrest and search.8
On 6 December 1996, the prosecution rested its case and upon
motion, accused Wang was granted 25 days from said date
within which to file his intended Demurrer to Evidence. 9 On
19 December 1996, the prosecution filed a Manifestation10 to
the effect that it had rested its case only in so far as the charge
for Violation of the Dangerous Drugs Act in Criminal Case
No. 96-149990 is concerned, and not as regards the two cases
for Illegal Possession of Firearms (Crim. Case No. 96-149991)
and Violation of the Comelec Gun Ban (Crim. Case No. 96149992). Accordingly, trial continued.
On 9 January 1997, Wang filed his undated Demurrer to
Evidence,11 praying for his acquittal and the dismissal of the
three (3) cases against him for lack of a valid arrest and search
warrants and the inadmissibility of the prosecutions evidence
against him. Considering that the prosecution has not yet filed
its Opposition to the demurrer, Wang filed an Amplification 12
to his Demurrer of Evidence on 20 January 1997. On 12
February 1997, the prosecution filed its Opposition 13 alleging
that the warrantless search was legal as an incident to the
lawful arrest and that it has proven its case, so it is now time
for the defense to present its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto

A.S. Laguio, Jr., issued the herein assailed Resolution 14
granting Wangs Demurrer to Evidence and acquitting him of
all charges for lack of evidence, thus:
WHEREFORE, the accused's undated Demurrer to Evidence
is hereby granted; the accused is acquitted of the charges
against him for the crimes of Violation of Section 16, Article
III of the Dangerous Drugs Act, Illegal Possession of
Firearms, and Violation of Comelec Gun Ban, for lack of
evidence; the 32 bags of shabu with a total weight of 29.2941
kilograms and the two unlicensed pistols, one AMT Cal. .380
9mm and one Daewoo Cal. 9mm. are ordered confiscated in
favor of the government and the branch clerk is directed to
turn over the 32 bags of shabu to the Dangerous Drugs Board
in Intramuros, Manila, and the two firearms to the Firearms
and Explosive Units, PNP, Camp Crame, Quezon City, for
proper disposition, and the officer-in-charge of PARAC,
Department of Interior and Local Government, is ordered to
return the confiscated amount of P650,000.00 to the accused,
and the confiscated BMW car to its registered owner, David
Lee. No costs.
SO ORDERED.
Hence, this petition15 for review on certiorari by the People,
submitting that the trial court erred I
XXX IN HOLDING THAT THE UNDISPUTED FACTS
AND CIRCUMSTANCES DID NOT CONSTITUTE
PROBABLE CAUSE WITHIN THE CONTEMPLATION OF
SECTION 2, ARTICLE III OF THE CONSTITUTION, AND
IN
HOLDING
THAT
SUCH
FACTS
AND
CIRCUMSTANCES
NEITHER
JUSTIFIED
THE
WARRANTLESS SEARCH OF ACCUSED'S VEHICLE
AND THE SEIZURE OF THE CONTRABAND THEREIN.
ll
XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS
SEARCH IS CONSTITUTIONALLY ALLOWABLE AND
CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL
ARREST.
lII
XXX IN DECLARING THE WARRANTLESS ARREST OF
THE ACCUSED AND THE SEARCH AND SEIZURE OF
HIS HANDGUNS UNLAWFUL.
IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING

WAIVED, AS A RESULT OF HIS SUBMISSION AND
FAILURE TO PROTEST THE SEARCH AND HIS ARREST,
HIS
CONSTITUTIONAL
RIGHT
AGAINST
UNREASONABLE SEARCH AND SEIZURE AND HIS
OBJECTION TO THE ADMISSION OF THE EVIDENCE
SEIZED.
V
XXX IN NOT ADMITTING IN EVIDENCE THE
EVIDENCE SEIZED AND OFFERED BY THE
PROSECUTION AND IN NOT DENYING ACCUSED'S
DEMURRER TO EVIDENCE.
In its Resolution16 of 9 July 1997, the Court, without giving
due course to the petition, required the public and private
respondents to comment thereon within ten days from notice.
Private respondent Wang filed his comment 17on 18 August
1997.
On 10 September 1997, the Court required the People to file a
reply,18 which the Office of the Solicitor General did on 5
December 1997, after several extensions.19
On 20 October 2004, the Court resolved to give due course to
the petition and required the parties to submit their respective
20
memoranda,
which they did.
3
The case presents two main issues: (a) whether the prosecution
may appeal the trial courts resolution granting Wangs
demurrer to evidence and acquitting him of all the charges
against him without violating the constitutional proscription
against double jeopardy; and (b) whether there was lawful
arrest, search and seizure by the police operatives in this case
despite the absence of a warrant of arrest and/or a search
warrant.
First off, it must be emphasized that the present case is an
appeal filed directly with this Court via a petition for review
on certiorari under Rule 45 in relation to Rule 41, Section 2,
paragraph (c) of the Rules of Court raising only pure questions
of law, ordinary appeal by mere filing of a notice of appeal not
being allowed as a mode of appeal directly to this Court. Then,
too, it bears stressing that the right to appeal is neither a
natural right nor a part of due process, it being merely a
statutory privilege which may be exercised only in the manner
provided for by law (Velasco v. Court of Appeals 21). Although
Section 2, Rule 122 of the Rules on Criminal Procedure states
that any party may appeal, the right of the People to appeal is,
in the very same provision, expressly made subject to the
prohibition against putting the accused in double jeopardy. It
also basic that appeal in criminal cases throws the whole
records of the case wide open for review by the appellate
court, that is why any appeal from a judgment of acquittal
necessarily puts the accused in double jeopardy. In effect, the

very same Section 2 of Rule 122 of the Rules on Criminal

Procedure, disallows appeal by the People from judgments of
acquittal.
An order granting an accuseds demurrer to evidence is a
resolution of the case on the merits, and it amounts to an
acquittal. Generally, any further prosecution of the accused
after an acquittal would violate the constitutional proscription
on double jeopardy. To this general rule, however, the Court
has previously made some exceptions.
The celebrated case of Galman v. Sandiganbayan 22 presents
one exception to the rule on double jeopardy, which is, when
the prosecution is denied due process of law:
No court whose Presiding Justice has received "orders or
suggestions" from the very President who by an amendatory
decree (disclosed only at the hearing of oral arguments on
November 8, 1984 on a petition challenging the referral of the
Aquino-Galman murder cases to the Tanodbayan and
Sandiganbayan instead of to a court martial, as mandatorily
required by the known P.D. 1850 at the time providing for
exclusive jurisdiction of courts martial over criminal offenses
committed by military men) made it possible to refer the cases
to the Sandiganbayan, can be an impartial court, which is the
very essence of due process of law. As the writer then wrote,
"jurisdiction over cases should be determined by law, and not
by preselection of the Executive, which could be much too
easily transformed into a means of predetermining the
outcome of individual cases." This criminal collusion as to the
handling and treatment of the cases by public respondents at
the secret Malacaang conference (and revealed only after
fifteen months by Justice Manuel Herrera) completely
disqualified respondent Sandiganbayan and voided ab initio its
verdict. This renders moot and irrelevant for now the extensive
arguments of respondents accused, particularly Generals Ver
and Olivas and those categorized as accessories, that there has
been no evidence or witness suppressed against them, that the
erroneous conclusions of Olivas as police investigator do not
make him an accessory of the crimes he investigated and the
appraisal and evaluation of the testimonies of the witnesses
presented and suppressed. There will be time and opportunity
to present all these arguments and considerations at the
remand and retrial of the cases herein ordered before a neutral
and impartial court.
The Supreme Court cannot permit such a sham trial and
verdict and travesty of justice to stand unrectified. The courts
of the land under its aegis are courts of law and justice and
equity. They would have no reason to exist if they were
allowed to be used as mere tools of injustice, deception and
duplicity to subvert and suppress the truth, instead of
repositories of judicial power whose judges are sworn and
committed to render impartial justice to all alike who seek the
enforcement or protection of a right or the prevention or
redress of a wrong, without fear or favor and removed from

the pressures of politics and prejudice. More so, in the case at

bar where the people and the world are entitled to know the
truth, and the integrity of our judicial system is at stake. In
life, as an accused before the military tribunal Ninoy had
pleaded in vain that as a civilian he was entitled to due process
of law and trial in the regular civil courts before an impartial
court with an unbiased prosecutor. In death, Ninoy, as the
victim of the "treacherous and vicious assassination" and the
relatives and sovereign people as the aggrieved parties plead
once more for due process of law and a retrial before an
impartial court with an unbiased prosecutor. The Court is
constrained to declare the sham trial a mock trial the nontrial of the century and that the predetermined judgment of
acquittal was unlawful and void ab initio.
1. No double jeopardy. It is settled doctrine that double
jeopardy cannot be invoked against this Court's setting aside
of the trial courts' judgment of dismissal or acquittal where the
prosecution which represents the sovereign people in criminal
cases is denied due process. As the Court stressed in the 1985
case of People vs. Bocar,
Where the prosecution is deprived of a fair opportunity to
prosecute and prove its case, its right to due process is thereby
violated.
The cardinal precept is that where there is a violation of basic
constitutional rights, courts are ousted of their jurisdiction.
4
Thus, the violation of the State's right to due process raises a
serious jurisdictional issue (Gumabon vs. Director of the
Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971])
which cannot be glossed over or disregarded at will. Where
the denial of the fundamental right of due process is apparent,
a decision rendered in disregard of that right is void for lack of
jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731,
51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416
Feb. 27, 1973]). Any judgment or decision rendered
notwithstanding such violation may be regarded as a "lawless
thing, which can be treated as an outlaw and slain at sight, or
ignored wherever it exhibits its head" (Aducayen vs. Flores,
supra).
Respondent Judge's dismissal order dated July 7, 1967 being
null and void for lack of jurisdiction, the same does not
constitute a proper basis for a claim of double jeopardy
(Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid indictment, (b)
before a competent court, (c) after arraignment, (d) a valid
plea having been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the
accused (People vs. Ylagan, 58 Phil. 851). The lower court
was not competent as it was ousted of its jurisdiction when it
violated the right of the prosecution to due process.

In effect, the first jeopardy was never terminated, and the

remand of the criminal case for further hearing and/or trial
before the lower courts amounts merely to a continuation of
the first jeopardy, and does not expose the accused to a second
jeopardy.
Another exception is when the trial court commits grave abuse
of discretion in dismissing a criminal case by granting the
accuseds demurrer to evidence. In point is the fairly recent
case of People v. Uy,23 which involved the trial courts
decision which granted the two separate demurrers to evidence
filed by the two accused therein, both with leave of court,
resulting in their acquittal of their respective charges of
murder due to insufficiency of evidence. In resolving the
petition for certiorari filed directly with this Court, we had the
occasion to explain:
The general rule in this jurisdiction is that a judgment of
acquittal is final and unappealable. People v. Court of Appeals
explains the rationale of this rule:
In our jurisdiction, the finality-of-acquittal doctrine as a
safeguard against double jeopardy faithfully adheres to the
principle first enunciated in Kepner v. United States. In this
case, verdicts of acquittal are to be regarded as absolutely final
and irreviewable. The cases of United States v. Yam Tung Way,
People v. Bringas, Gandicela v. Lutero, People v. Cabarles,
People v. Bao, to name a few, are illustrative cases. The
fundamental philosophy behind the constitutional proscription
against double jeopardy is to afford the defendant, who has
been acquitted, final repose and safeguard him from
government oppression through the abuse of criminal
processes. As succinctly observed in Green v. United States
"(t)he underlying idea, one that is deeply ingrained in at least
the Anglo-American system of jurisprudence, is that the State
with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that
even though innocent, he may be found guilty." (Underscoring
supplied)
The same rule applies in criminal cases where a demurrer to
evidence is granted. As held in the case of People v.
Sandiganbayan:
The demurrer to evidence in criminal cases, such as the one at
bar, is "filed after the prosecution had rested its case," and
when the same is granted, it calls "for an appreciation of the
evidence adduced by the prosecution and its sufficiency to
warrant conviction beyond reasonable doubt, resulting in a
dismissal of the case on the merits, tantamount to an acquittal
of the accused." Such dismissal of a criminal case by the grant
of demurrer to evidence may not be appealed, for to do so
would be to place the accused in double-jeopardy. The verdict

being one of acquittal, the case ends there. (Italics in the

original)
Like any other rule, however, the above-said rule is not
absolute. By way of exception, a judgment of acquittal in a
criminal case may be assailed in a petition for certiorari under
Rule 65 of the Rules of Court upon a clear showing by the
petitioner that the lower court, in acquitting the accused,
committed not merely reversible errors of judgment but also
grave abuse of discretion amounting to lack or excess of
jurisdiction or a denial of due process, thus rendering the
assailed judgment void. (Emphasis supplied.)
In Sanvicente v. People,24 the Court allowed the review of a
decision of the Court of Appeals (CA) which reversed the
accuseds acquittal upon demurrer to evidence filed by the
accused with leave of court, the CA ruling that the trial court
committed grave abuse of discretion in preventing the
prosecution from establishing the due execution and
authenticity of certain letter marked therein as Exhibit "LL,"
which supposedly "positively identified therein petitioner as
the perpetrator of the crime charged." The Court, in a petition
for certiorari, sustained the CAs power to review the order
granting the demurrer to evidence, explaining thus:
Under Rule 119, Section 23 of the Revised Rules of Criminal
Procedure, as amended, the trial court may dismiss the action
on the ground of insufficiency of evidence upon a demurrer to
5
evidence filed by the accused with or without leave of court.
In resolving accuseds demurrer to evidence, the court is
merely required to ascertain whether there is competent or
sufficient evidence to sustain the indictment or support a
verdict of guilt.
The grant or denial of a demurrer to evidence is left to the
sound discretion of the trial court and its ruling on the matter
shall not be disturbed in the absence of a grave abuse of
discretion. Significantly, once the court grants the demurrer,
such order amounts to an acquittal and any further prosecution
of the accused would violate the constitutional proscription on
double jeopardy. This constitutes an exception to the rule that
the dismissal of a criminal case made with the express consent
of the accused or upon his own motion bars a plea of double
jeopardy. The finality-of-acquittal rule was stressed thus in
People v. Velasco:
The fundamental philosophy highlighting the finality of an
acquittal by the trial court cuts deep into the "humanity of the
laws and in jealous watchfulness over the rights of the
citizens, when brought in unequal contest with the State xxx.
Thus Green expressed the concern that "(t)he underlying idea,
one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense thereby subjecting
him to embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and insecurity, as

well as enhancing the possibility that even though innocent, he
may be found guilty."
It is axiomatic that on the basis of humanity, fairness and
justice, an acquitted defendant is entitled to the right of repose
as a direct consequence of the finality of his acquittal. The
philosophy underlying this rule establishing the absolute
nature of acquittals is "part of the paramount importance
criminal justice system attaches to the protection of the
innocent against wrongful conviction." The interest in the
finality-of-acquittal rule, confined exclusively to verdicts of
not guilty, is easy to understand: it is a need for "repose", a
desire to know the exact extent of ones liability. With this
right of repose, the criminal justice system has built in a
protection to insure that the innocent, even those whose
innocence rests upon a jurys leniency, will not be found guilty
in a subsequent proceeding.
Given the far-reaching scope of an accuseds right against
double jeopardy, even an appeal based on an alleged
misappreciation of evidence will not lie. The only instance
when double jeopardy will not attach is when the trial court
acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution was
denied the opportunity to present its case or where the trial
was a sham. However, while certiorari may be availed of to
correct an erroneous acquittal, the petitioner in such an
extraordinary proceeding must clearly demonstrate that the
trial court blatantly abused its authority to a point so grave as
to deprive it of its very power to dispense justice. (Emphasis
supplied.)
By this time, it is settled that the appellate court may review
dismissal orders of trial courts granting an accuseds demurrer
to evidence. This may be done via the special civil action of
certiorari under Rule 65 based on the ground of grave abuse of
discretion, amounting to lack or excess of jurisdiction. Such
dismissal order, being considered void judgment, does not
result in jeopardy. Thus, when the order of dismissal is
annulled or set aside by an appellate court in an original
special civil action via certiorari, the right of the accused
against double jeopardy is not violated.
Unfortunately, what petitioner People of the Philippines,
through then Secretary of Justice Teofisto T. Guingona, Jr. and
then Solicitor General Silvestre H. Bello, III, filed with the
Court in the present case is an appeal by way of a petition for
review on certiorari under Rule 45 raising a pure question of
law, which is different from a petition for certiorari under Rule
65.
In Madrigal Transport Inc. v. Lapanday Holdings
Corporation,25 we have enumerated the distinction between the
two remedies/actions, to wit:

Appeal and Certiorari Distinguished

Between an appeal and a petition for certiorari, there are
substantial distinctions which shall be explained below.
As to the Purpose. Certiorari is a remedy designed for the
correction of errors of jurisdiction, not errors of judgment. In
Pure Foods Corporation v. NLRC, we explained the simple
reason for the rule in this light:
"When a court exercises its jurisdiction, an error committed
while so engaged does not deprive it of the jurisdiction being
exercised when the error is committed. If it did, every error
committed by a court would deprive it of its jurisdiction and
every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not
survive such a rule. Consequently, an error of judgment that
the court may commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari."
The supervisory jurisdiction of a court over the issuance of a
writ of certiorari cannot be exercised for the purpose of
reviewing the intrinsic correctness of a judgment of the lower
court -- on the basis either of the law or the facts of the case,
or of the wisdom or legal soundness of the decision. Even if
the findings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond
the 6province of certiorari. Where the error is not one of
jurisdiction, but of an error of law or fact -- a mistake of
judgment -- appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises
its appellate jurisdiction and power of review. Over a
certiorari, the higher court uses its original jurisdiction in
accordance with its power of control and supervision over the
proceedings of lower courts. An appeal is thus a continuation
of the original suit, while a petition for certiorari is an original
and independent action that was not part of the trial that had
resulted in the rendition of the judgment or order complained
of. The parties to an appeal are the original parties to the
action. In contrast, the parties to a petition for certiorari are the
aggrieved party (who thereby becomes the petitioner) against
the lower court or quasi-judicial agency, and the prevailing
parties (the public and the private respondents, respectively).
As to the Subject Matter. Only judgments or final orders and
those that the Rules of Court so declared are appealable. Since
the issue is jurisdiction, an original action for certiorari may be
directed against an interlocutory order of the lower court prior
to an appeal from the judgment; or where there is no appeal or
any plain, speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed
within fifteen days from the notice of judgment or final order
appealed from. Where a record on appeal is required, the
appellant must file a notice of appeal and a record on appeal

within thirty days from the said notice of judgment or final

order. A petition for review should be filed and served within
fifteen days from the notice of denial of the decision, or of the
petitioners timely filed motion for new trial or motion for
reconsideration. In an appeal by certiorari, the petition should
be filed also within fifteen days from the notice of judgment or
final order, or of the denial of the petitioners motion for new
trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not
later than sixty days from the notice of judgment, order, or
resolution. If a motion for new trial or motion for
reconsideration was timely filed, the period shall be counted
from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for
reconsideration is generally required prior to the filing of a
petition for certiorari, in order to afford the tribunal an
opportunity to correct the alleged errors. Note also that this
motion is a plain and adequate remedy expressly available
under the law. Such motion is not required before appealing a
judgment or final order.
Also in Madrigal, we stressed that the special civil action of
certiorari and appeal are two different remedies mutually
exclusive; they are neither alternative nor successive. Where
appeal is available, certiorari will not prosper. In the dismissal
of a criminal case upon demurrer to evidence, appeal is not
available as such an appeal will put the accused in double
jeopardy. Certiorari, however, is allowed.
For being the wrong remedy taken by petitioner People of the
Philippines in this case, this petition is outrightly dismissible.
The Court cannot reverse the assailed dismissal order of the
trial court by appeal without violating private respondents
right against double jeopardy.
Even assuming that the Court may treat an "appeal" as a
special civil action of certiorari, which definitely this Court
has the power to do, when there is a clear showing of grave
abuse of discretion committed by the lower court, the instant
petition will nevertheless fail on the merits as the succeeding
discussion will show.
There are actually two (2) acts involved in this case, namely,
the warrantless arrest and the warrantless search. There is no
question that warrantless search may be conducted as an
incident to a valid warrantless arrest. The law requires that
there be first a lawful arrest before a search can be made; the
process cannot be reversed.26 However, if there are valid
reasons to conduct lawful search and seizure which thereafter
shows that the accused is currently committing a crime, the
accused may be lawfully arrested in flagrante delicto 27 without
need for a warrant of arrest.

Finding that the warrantless arrest preceded the warrantless

search in the case at bar, the trial court granted private
respondent's demurrer to evidence and acquitted him of all the
three charges for lack of evidence, because the unlawful arrest
resulted in the inadmissibility of the evidence gathered from
an invalid warrantless search. The trial courts ratiocination is
quoted as follows:
The threshold issue raised by the accused in his Demurrer to
Evidence is whether his warrantless arrest and search were
lawful as argued by the prosecution, or unlawful as asserted by
the defense.
Under Section 5, Rule 113 of the New Rules of Court, a peace
officer may arrest a person without a warrant: (a) when in his
presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) when
an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested
has committed it, and (c) when the person to be arrested is a
prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined
while being transferred from one confinement to another.
None of these circumstances were present when the accused
was arrested. The accused was merely walking from the Maria
Orosa Apartment and was about to enter the parked BMW car
when the police officers arrested and frisked him and searched
his car. The accused was not committing any visible offense at
7
the time of his arrest. Neither was there an indication that he
was about to commit a crime or that he had just committed an
offense. The unlicensed AMT Cal.380 9mm Automatic Backup Pistol that the accused had in his possession was concealed
inside the right front pocket of his pants. And the handgun was
bantam and slim in size that it would not give an outward
indication of a concealed gun if placed inside the pant's side
pocket as was done by the accused. The arresting officers had
no information and knowledge that the accused was carrying
an unlicensed handgun, nor did they see him in possession
thereof immediately prior to his arrest.
Ditto on the 32 bags of shabu and the other unlicensed
Daewoo Cal. 9mm Pistol with magazine that were found and
seized from the car. The contraband items in the car were not
in plain view. The 32 bags of shabu were in the trunk
compartment, and the Daewoo handgun was underneath the
drivers seat of the car. The police officers had no information,
or knowledge that the banned articles were inside the car, or
that the accused had placed them there. The police officers
searched the car on mere suspicion that there was shabu
therein.

"PROSECUTOR TO WITNESS: Direct-Examination

Q. Mr. Witness, what was your role or participation in this
case?
A. I am one of those responsible for the arrest of the accused.
xxx xxx xxx
Q. Where did you make that arrest, Mr. Witness?
A. The apprehension was made in front of an apartment along
Maria Orosa Street, Ermita, Manila.
Q. What date was that when you arrested the accused?
A. It was on May 17, 1996, at about 2:10 a.m.
xxx xxx xxx
Q. What was the reason why you together with other
policemen effected the arrest of the accused?
A. We arrested him because of the information relayed to us
by one of those whom we have previously apprehended in
connection with the delivery of shabu somewhere also in
Ermita, Manila.
xxx xxx xxx
Q. When you established that he was somewhere at Maria
Orosa, what did you do?
A. We waited for him.
xxx xxx xxx
Q. You yourself, Mr. Witness, where did you position yourself
during that time?
A. I was inside a vehicle waiting for the accused to appear.
Q. What about your other companions where were they?
A. They were position in strategic places within the area.
Q. What happened when you and your companions were
positioned in that place?

On this matter, pertinent portions of the testimonies of Police

Inspector Cielito Coronel and SP03 Reynaldo are hereunder
quoted:

A. That was when the accused arrived.

POLICE INSPECTOR CIELITO CORONELS TESTIMONY

A. Inspector Margallo, myself and two other operatives.

Q. How many of your approached him.

Q. What happened when you approached the accused, Mr.

Witness?

.Q. The Glenmore Modeling Agency is owned by Lawrence

Wang, is it not?

A. We introduced ourselves as police officers and we frisked

him and we asked him to open the back compartment of his
car.

A. I supposed, Sir.

Q. You said you frisked him, what was the result of that?
A. He was found in possession of one back-up pistol with one
loaded magazine and likewise when the compartment was
opened several plastic bags containing white crystalline
substance suspected to be shabu (were found).
Q. What did you do when you found out Mr. Witness?

Q. And that is why immediately after Redentor Teck told you

that he is an employee of the Glenmore Modeling Agency
owned by Lawrence Wang, naturally, you and your
companions look for Lawrence Wang to shed light on the
transporting of shabu by Redentor Teck and Joseph Junio, is it
not?
A. Yes, Sir.
Q. Thereafter, you spotted a person previously described by
Redentor Teck as Lawrence Wang, is it not?

A. When the car was further search we later found another

firearm, a Daewoo Pistol at the place under the seat of the
driver.

A. Yes, Sir.

Q. Then what happened?

Q. While you were arresting Lawrence Wang, your

companions at the same time searched the BMW car described
in your affidavit of arrest, is it not?

A. He was brought to our headquarters at Mandaluyong for

further investigation.
Q. What about the suspected shabu that you recovered, what
did you do with that?

A. The suspected shabu that we recovered were forwarded to

the NBI for laboratory examination.

A. Yes, Sir.
xxx xxx xxx
Q. Lawrence Wang was not inside the BMW car while the
same was searched, is it not?
A. He was outside, Sir.

Q. Did you come to know the results?

A. It was found positive for methamphetamine hydrochloride.
(TSN, pp. 3-8, November 15, 1996).

Q. The driver of the car was inside the car when the arrest and
search were made, is it not?
A. He was likewise outside, Sir.

ATTY. LOZANO TO WITNESS: CROSS

Q. Lawrence Wang did resist arrest and search is it not?
Q. You arrested Joseph Junio and Redentor Teck for alleged
transporting of shabu on May 16, 1996, at 11:00 p.m., is it
not?

A. Yes, Sir.

A. Yes, Sir.

Q. When you effected the arrest, there was no warrant of

arrest, is it not?

Q. You asked Redentor Teck where he is employed, is it not?

A. Yes, Sir.

A. Yes, Sir.

Q. When the search was made on the BMW car, there was no
search warrant, is it not?

xxx xxx xxx

A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)
Q. Redentor Teck told you that he is a talent manager at the
Glenmore Modeling Agency, is it not?

SPO3 REYNALDO CRISTOBALS TESTIMONY

A. Yes, Sir.

PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. What is you role or participation in this case?

COURT: Whose name did they mention:

A. I was one of the arresting officers and investigator, Sir.

A. One Alias Frank, who turned out to be Redentor Teck and

Joseph Junio. We let them call Redentor Teck and Joseph
Junio thru the cellphone and pretend and to order another
supply of shabu.

xxx xxx xxx

Q. What kind of specific offense did the accused allegedly do
so that you arrested him, Mr. Witness?
A. He was arrested on the basis of the recovered drugs in his
possession placed inside his car.

COURT: So there was an entrapment?

A. Yes, Your Honor.
COURT: So, these two (2) were arrested?

xxx xxx xxx

Q. Mr. witness, you said that you recovered drug from the car
of the accused, please tell us the antecedent circumstances
which led you to recover or confiscate these items?

A. While they were about to hand over another bag of shabu to

Noble and company.
COURT: And these two reveals (revealed) some information
to you as to the source of the shabu?

A. Earlier in the evening about 11:00 p.m. of May 16, we

arrested one Redentor Teck and Joseph Junio.

A. Yes, Your Honor.

COURT: Where did you arrest these people?

COURT: What was the information?

A They were arrested in Metro Manila also.

A. Teck told us that he is an employee of Lawrence Wang.

COURT: The same date?

COURT: What did you do when you were told about that?

A. May 16, about 11:00 p.m. They were arrested and when
they were investigated, Teck mentioned the name of Lawrence
Wang as his employer.

A. They also told us that there was an ongoing delivery of

shabu on that morning.
COURT: When?

COURT: Why were these people, arrested?

A. Of that date early morning of May 17, 1996.
A. For violation of R.A. 6425.
COURT: At what place?
COURT: How were they arrested?
A. They were arrested while in the act of transporting shabu or
handling shabu to another previously arrested person. It was a
series of arrest.

A. We asked them where we could find Lawrence Wang and

Teck lead us to Maria Orosa Apartment where we conducted a
stake out which lasted up to 2:00 a.m.
xxx xxx xxx

COURT: So, this involved a series of operation?

COURT: What happened during the stake out?
A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested
three (3) persons, SPO2 Vergel de Dios, a certain Arellano and
a certain Rogelio Noble. When they were arrested they
divulged the name of the source.
COURT: They were arrested for what, for possession?
A. Yes, Your Honor. For unlawful possession of shabu . Then
they divulged to us the name of the person from whom they
get shabu.

A. When the person of the accused was identified to us, we

saw him opening his car together with his driver.
COURT: So, he was about to leave when you saw him?
A. Probably, Sir.
COURT: What did you do?

A. We saw him opened his car and we have a suspicion that

there was a shabu inside the compartment of the car.

Q: These two men, Redentor Teck and Joseph Junio they were
also investigated by your team?

xxx xxx xxx

A: Yes, Sir.

COURT: All right, when you saw the accused opened his car,
what did you do?

Q: You were present while they were investigated?

A: I was the one whom investigated them.

A. We approached him.
xxx xxx xxx
COURT: What happened when you approached him?
A. We suspected the shabu inside the compartment of his car.

Q: Did you ask Redentor and Joseph the source of shabu that
you confiscated from them at the time of the (their) arrest?

COURT: And this shabu that you saw inside the compartment
of the car, what did you do with that?

A: Yes, Sir. They refuse to say the source, however, they told
me that they were working for the accused.

A. Well, he was first arrested by Captain Margallo and Lt.

Coronel while I was the one who inspected and opened the
compartment of the car and saw the shabu. (TSN, pp. 15-24,
December 16, 1996).

Q: You also testified that Redentor informed you that there

was another delivery of shabu scheduled that morning of
(stop) was it May 16 or 17? The other delivery that is
scheduled on?

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL

BY THE COURT

A: On the 17th.
xxx xxx xxx

COURT: From your testimony and that of Police Inspector

Cielito Coronel, this Court has gathered that prior to the arrest
of 10
the accused there were three (3) men that your team
arrested. One of whom is a police officer.

Q: Did he tell you who was to make the delivery?

A: Yes, Sir.

xxx xxx xxx

xxx xxx xxx

Q: At that time when you decided to look for the accused to

ask him to shed light on the matter concerning the arrest of
these two employees in possession of shabu. Did you and did
your team suspect the accused as being involved in the
transaction that lead (led) to the arrest of Redentor and
Joseph?

COURT: And on the occasion of the arrest of these three men

shabu were confiscated from them?
A: Yes, Sir.
Q: And in the course of the investigation of these three men,
you were able to discover that Redentor Teck and Joseph Junio
were the source of the regulated drug that were confiscated
from the three men that you have arrested?
A: Yes, Sir.

A: No, Sir.

A: Yes, Sir. We suspected that he was the source of the shabu.

xxx xxx xxx
Q: When you saw the accused walking towards his car, did
you know whether he was carrying a gun?

Q: Now, thru entrapment base[d] on your testimony you were

able to apprehend also these two men, Redentor Teck and
Joseph Junio?

A: No, Sir. It cannot be seen.

A: Yes, Sir.

A: Yes, Sir.

xxx xxx xxx

Q: So, the only time that you and your team learned that he
was in possession of the gun is when he was bodily search?

Q: It was concealed?

A: Yes, Sir. That is the only time that I came to know about
when Capt. Margallo handed to me the gun.
Q: Other than walking towards his car, the accused was not
doing anything else?
A: None, Sir.
Q: That would invite your suspicion or give indication that he
was intending to do something unlawful or illegal?
A: No, Sir.
Q: When you searched the car, did the accused protest or try to
prevent your team from searching his car?
A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997)
Clearly therefore, the warrantless arrest of the accused and the
search of his person and the car were without probable cause
and could not be licit. The arrest of the accused did not fall
under any of the exception to the requirements of warrantless
arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore,
unlawful and derogatory of his constitutional right of liberty. x
xx

where the factual findings of the trial court are binding upon
the Court. Since a dismissal order consequent to a demurrer to
evidence is not subject to appeal and reviewable only by
certiorari, the factual finding that the arrest preceded the
search is conclusive upon this Court. The only legal basis for
this Court to possibly reverse and set aside the dismissal order
of the trial court upon demurrer to evidence would be if the
trial court committed grave abuse of discretion in excess of
jurisdiction when it ruled that there was no legal basis to
lawfully effect a warrantless arrest.
The pertinent provisions of Rule 113 of the Rules on Criminal
Procedure on warrantless arrest provide:
Sec. 5. Arrest without warrant; when lawful. - A peace officer
or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
b) When an offense has just been committed, and he
has probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and

The trial court resolved the case on the basis of its findings
that11
the arrest preceded the search, and finding no basis to rule
in favor of a lawful arrest, it ruled that the incidental search is
likewise unlawful. Any and all pieces of evidence acquired as
a consequence thereof are inadmissible in evidence. Thus, the
trial court dismissed the case for lack of evidence.

c) When the person to be arrested is a prisoner who

has escaped from a penal establishment or place
where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.

Contrary to its position at the trial court, the People, however,

now posits that "inasmuch as it has been shown in the present
case that the seizure without warrant of the regulated drugs
and unlicensed firearms in the accuseds possession had been
validly made upon probable cause and under exigent
circumstances, then the warrantless arrest of the accused must
necessarily have to be regarded as having been made on the
occasion of the commission of the crime in flagrante delicto,
and therefore constitutionally and statutorily permissible and
lawful."28 In effect, the People now contends that the
warrantless search preceded the warrantless arrest. Since the
case falls under an exception to the general rule requiring
search warrant prior to a valid search and seizure, the police
officers were justified in requiring the private respondent to
open his BMW cars trunk to see if he was carrying illegal
drugs.

Section 5, above, provides three (3) instances when

warrantless arrest may be lawfully effected: (a) arrest of a
suspect in flagrante delicto; (b) arrest of a suspect where,
based on personal knowledge of the arresting officer, there is
probable cause that said suspect was the author of a crime
which had just been committed; (c) arrest of a prisoner who
has escaped from custody serving final judgment or
temporarily confined while his case is pending.

The conflicting versions as to whether the arrest preceded the

search or vice versa, is a matter of credibility of evidence. It
entails appreciation of evidence, which may be done in an
appeal of a criminal case because the entire case is thrown
open for review, but not in the case of a petition for certiorari

The facts and circumstances surrounding the present case did

not manifest any suspicious behavior on the part of private
respondent Lawrence Wang that would reasonably invite the
attention of the police. He was merely walking from the Maria
Orosa Apartment and was about to enter the parked BMW car
when the police operatives arrested him, frisked and searched

For a warrantless arrest of an accused caught in flagrante

delicto under paragraph (a) of Section 5 to be valid, two
requisites must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of
the arresting officer.291awphi1.nt

his person and commanded him to open the compartment of

the car, which was later on found to be owned by his friend,
David Lee. He was not committing any visible offense then.
Therefore, there can be no valid warrantless arrest in flagrante
delicto under paragraph (a) of Section 5. It is settled that
"reliable information" alone, absent any overt act indicative of
a felonious enterprise in the presence and within the view of
the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.30
Neither may the warrantless arrest be justified under
paragraph (b) of Section 5. What is clearly established from
the testimonies of the arresting officers is that Wang was
arrested mainly on the information that he was the employer
of Redentor Teck and Joseph Junio who were previously
arrested and charged for illegal transport of shabu. Teck and
Junio did not even categorically identify Wang to be their
source of the shabu they were caught with in flagrante delicto.
Upon the duos declaration that there will be a delivery of
shabu on the early morning of the following day, May 17,
which is only a few hours thereafter, and that Wang may be
found in Maria Orosa Apartment along Maria Orosa Street, the
arresting officers conducted "surveillance" operation in front
of said apartment, hoping to find a person which will match
the description of one Lawrence Wang, the employer of Teck
and Junio. These circumstances do not sufficiently establish
the existence of probable cause based on personal knowledge
as required in paragraph (b) of Section 5.

12

And doubtless, the warrantless arrest does not fall under

paragraph (c) of Section 5.
The inevitable conclusion, as correctly made by the trial court,
is that the warrantless arrest was illegal. Ipso jure, the
warrantless search incidental to the illegal arrest is likewise
unlawful.
In People v. Aminnudin,31 the Court declared as inadmissible
in evidence the marijuana found in appellants possession
during a search without a warrant, because it had been
illegally seized, in disregard of the Bill of Rights:
In the case at bar, the accused-appellant was not, at the
moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so. What he
was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest.
To all appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he
suddenly became a suspect and so subject to apprehension. It
was the fugitive finger that triggered his arrest. The
identification of the informer was the probable cause as
determined by the officer (and not a judge) that authorized
them to pounce upon Aminnudin and immediately arrest him.

The Peoples contention that Wang waived his right against

unreasonable search and seizure has no factual basis. While
we agree in principle that consent will validate an otherwise
illegal search, however, based on the evidence on record,
Wang resisted his arrest and the search on his person and
belongings.32 The implied acquiescence to the search, if there
was any, could not have been more than mere passive
conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within
the purview of the constitutional guarantee.33 Moreover, the
continuing objection to the validity of the warrantless arrest
made of record during the arraignment bolsters Wangs claim
that he resisted the warrantless arrest and search.
We cannot close this ponencia without a word of caution:
those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order.
Order is too high a price for the loss of liberty. As Justice
Holmes once said, "I think it is less evil that some criminals
should 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.34
WHEREFORE, the instant petition is DENIED.
SO ORDERED.

13

G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and
WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional
Trial Court of Quezon City; HON. ANTONIO P. SANTOS,
Presiding Judge, Branch XLII, Metropolitan Trial Court
of Quezon City: HON. SERGIO F. APOSTOL, City Fiscal,
Quezon City; HON. JUAN PONCE ENRILE, LT. GEN.
FIDEL RAMOS and COL. JESUS ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan
Malabonga and Cesar Maravilla for petitioners.

MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and
mandamus proceedings will be briefly stated. The three
petitioners will be referred to through their surnames of
NOLASCO, AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to
without the year), AGUILAR-ROQUE was one of the accused
of
Rebellion
in
Criminal
Case
No.
MC-25-113 of Military Commission No. 25, both cases being
14
entitled "People of the Philippines vs. Jose Ma. Sison, et al."
She was then still at large.
2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and
NOLASCO were arrested by a Constabulary Security Group
(CSG) at the intersection of Mayon Street and P. Margall
Street, Quezon City. The stated time is an allegation of
petitioners, not denied by respondents. The record does not
disclose that a warrant of arrest had previously beeen issued
against NOLASCO.
3. At 12:00 N. on August 6th, elements of the CSG searched
the premises at 239-B Mayon Street, Quezon City. The stated
time is an allegation of petitioners, not specifically denied by
respondents. In their COMMENT, however, respondents have
alleged that the search was conducted "late on the same day";
that is late on august 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G.
Saldajeno of the CSG, applied for a Search Warrant from
respondent Hon. Ernani Cruz Pao, Executive Judge of the
Regional Trial Court in Quezon City, to be served at No. 239B Mayon Street, Quezon City, determined tyo be the leased
residence of AGUILAR-ROQUE, after almost a month of
"round the clock surveillance" of the premises as a "suspected
underground house of the CPP/NPA." AGUILAR-ROQUE has
been long wanted by the military for being a high ranking
officer of the Communist Party of the Philippines, particularly
connected with the MV Karagatan/Doa Andrea cases.

In connection with the Search Warrant issued, the following

may be stated:
(a) The Search Warrant was issued in proceedings entitled
"People of the Philippines vs. Mila Aguilar-Roque, Accused,
Search Warrant No. 80- 84 for rebellion" (the SEARCH
WARRANT CASE). Judge Panos Court was Branch 88.
(b) It does not appear from the records before us that an
application in writing was submitted by Lt. Col. Saldajeno to
Judge Pao.
(c) According to the record, Lt. Col. Saldajeno and his witness
S/A Dionicio A. Lapus, were examined under oath by Judge
Pao but only the deposition of S/A Lapus has been submitted
to us. The latter deposed that to his personal knowledge, there
were kept in the premises to be searched records, documents
and other papers of the CPP/NPA and the National Democratic
Front, including support money from foreign and local sources
intended to be used for rebellion. 1
5. In connection with the search made at 12:00 N. of August
6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises.
He was arrested by the searching party presumably without a
warrant of arrest.
(b) The searching party seized 428 documents and written
materials, 2 and additionally a portable typewriter, and 2
wooden boxes, making 431 items in all. 3
(c) According to the Return, submitted in the SEARCH
WARRANT CASE on August 10th, 4 the search was made in
the presence of Dra. Marciana Galang, owner of the premises,
and of two (2) Barangay Tanods. No mention was made that
TOLENTINO was present. The list of the 428 articles and
documents attached to the Return was signed by the two
Barangay Tanods, but not by Dra. Galang.
6. (a) On August 10th, the three petitioners, AGUILARROQUE, NOLASCO and TOLENTINO, were charged before
the Quezon City Fiscal's Office (the CITY FISCAL, for short)
upon complaint filed by the CSG against petitioners for
"Subversion/Rebellion and/or Conspiracy to Commit
Rebellion/Subversion."
(b) On August 13th, the CITY FISCAL filed an Information
for Violation of Presidential Decree No. 33 (Illegal Possession
of Subversive Documents) against petitioners before Branch
42 of the Metropolitan Trial Court of Quezon City (the
SUBVERSIVE DOCUMENTS CASE), respondent Judge
Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration
with the CITY FISCAL, praying that AGUILAR-ROQUE and
NOLASCO be charged with Subversion. The Motion was
denied on November 16th.

7. (a) On September 10th, the CSG submitted an Amended

Return in the SEARCH WARRANT CASE praying, inter alia,
that the CSG be allowed to retain the seized 431 documents
and articles, in connection with cases that are presently
pending against Mila Aguilar Roque before the Quezon City
Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge
Pano to comment on the Amended Return, which AGUILARROQUE did on October 18th, raising the issue of the
inadmissibility of any evidence obtained pursuant to the
Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended
Return and ruled that the seized documents "shall be subject to
disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to
Suppress in the SUBVERSIVE DOCUMENTS CASE,
praying that such of the 431 items belonging to them be
returned to them. It was claimed that the proceedings under
the Search Warrant were unlawful. Judge Santos denied the
Motion on January 7, 1985 on the ground that the validity of
the Search Warrant has to be litigated in the SEARCH
WARRANT CASE. He was apparently not aware of the Order
of Judge Pao of December 13th issued in the SEARCH
WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and mandamus
to 15
annul and set aside the (1) Search Warrant issued by
respondent RTC Judge Pao; (2) his Order admitting the
Amended Return and granting the Motion to Retain Seized
Items; and (3) Order of respondent MTC Judge Santos
denying petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary
Restraining Order enjoining the respondents or their duly
authorized representatives from introducing evidence obtained
under the Search Warrant.
The PETITIONERS principally assert that the Search Warrant
is void because it is a general warrant since it does not
sufficiently describe with particularity the things subject of the
search and seizure, and that probable cause has not been
properly established for lack of searching questions
propounded to the applicant's witness. The respondents,
represented by the Solicitor General, contend otherwise,
adding that the questions raised cannot be entertained in this
present petition without petitioners first moving for the
quashal of the disputed Search Warrant with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that
no Search Warrant 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 things to be seized.
The disputed Search Warrant (No. 80-84) describes the
personalities to be seized as follows:
Documents, papers and other records of the
Communist Party of the Phihppines/New
Peoples Army and/or the National
Democratic Front, such as Minutes of the
Party Meetings, Plans of these groups,
Programs, List of possible supporters,
subversive books and instructions, manuals
not otherwise available to the public, and
support money from foreign or local
sources.
It is at once evident that the foregoing Search Warrant
authorizes the seizure of personal properties vaguely described
and not particularized. It is an all- embracing description
which includes everything conceivable regarding the
Communist Party of the Philippines and the National
Democratic Front. It does not specify what the subversive
books and instructions are; what the manuals not otherwise
available to the public contain to make them subversive or to
enable them to be used for the crime of rebellion. There is
absent a definite guideline to the searching team as to what
items might be lawfully seized thus giving the officers of the
law discretion regarding what articles they should seize as, in
fact, taken also were a portable typewriter and 2 wooden
boxes. It is thus in the nature of a general warrant and
infringes on the constitutional mandate requiring particular
description of the things to be seized. In the recent rulings of
this Court, search warrants of similar description were
considered null and void for being too general. Thus:
Subversive documents, pamphlets, leaflets,
books, and other publications to promote the
objectives and purposes of the subversive
organizations known as Movement for Free
Philippines. Light-a-Fire Movement and
April 6 Movement. 6
The things to be seized under the warrant
issued by respondent judge were described
as 'subversive documents, propaganda
materials, FAs, printing paraphernalia and
all other subversive materials Such
description hardly provided a definite
guideline to the search team as to what
articles might be lawfully seized thereunder.
Said description is no different from if not
worse than, the description found in the
search warrants in "Burgos, et al. v. the
Chief of Staff"which this Court declared null
and void for being too general. 7

In the case at bar, the search warrant issued

by respondent judge allowed the seizure of
printed copies of the Philippine Times,
manuscripts/drafts
of
articles
for
publication, newspaper dummies subversive
documents, articles, etc., and even
typewriters,
duplicating
machines,
mimeographing
and
tape
recording
machines. Thus, the language used is so all
embracing as to include all conceivable
records and equipment of petitioner
regardless of whether they are legal or
illegal. The search warrant under
consideration was in the nature of a general
warrant
which
is
constitutionally
objectionable. 8
The lack of particularization is also evident in the examination
of the witness presented by the applicant for Search Warrant.
Q Mr. Dionicio Lapus, there is an application for search
warrant filed by Lt. Col. Virgilio Saldajeno and the Court
would like to know if you affirm the truth of your answer in
this deposition?
(The deposition instead)
A Yes, sir,

16 long did it take you for the surveillance?

Q How
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites of the
application for search warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila AguilarRoque?
A Because of our day and night surveillance, Your Honor,
there were so many suspicious persons with documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of Philippines
and New People's Army.
Q What else?
A Conferences of the top ranking officials from the National
Democratic Front, Organization of the Communist Party of the
Philippines ...

Q And may include what else?

A Other papers and documents like Minutes of the Party
Meetings, Plans of these groups, Programs, List of possible
supporters, subversive books and instructions, manuals not
otherwise available to the public and support money from
foreign and local sources. 9
The foregoing questions propounded by respondent Executive
Judge to the applicant's witness are not sufficiently searching
to establish probable cause. The "probable cause" required to
justify the issuance of a search warrant comprehends such
facts and circumstances as will induce a cautious man to rely
upon them and act in pursuant thereof. 10 Of the 8 questions
asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th
are leading not searching questions. The 6th, 7th and 8th refer
to the description of the personalities to be seized, which is
Identical to that in the Search Warrant and suffers from the
same lack of particularity. The examination conducted was
general in nature and merely repetitious of the deposition of
said witness. Mere generalization will not suffice and does not
satisfy the requirements of probable cause upon which a
warrant may issue. 11
Respondents claim, however, that the proper forum for
questioning the illegality of a Search Warrant is with the Court
that issued it instead of this original, independent action to
quash. The records show, however, that petitioners did raise
that issue in the SEARCH WARRANT CASE in their
Comment, dated October 18, 1984. In fact, they already
questioned the admissibility of the evidence obtained under
the Search Warrant, even during the inquest investigation on
August 10, 1984. And in the SUBVERSIVE DOCUMENTS
CASE, they filed a Motion to Suppress on December 12, 1984
claiming that the proceedings under the Search Warrant were
unlawful. Substantially, therefore, while not denominated as a
motion to quash, petitioners had questioned the legality of the
Search Warrant.
Parenthetically, it strikes the Court that the pendency of the
SEARCH WARRANT CASE and of the SUBVERSIVE
DOCUMENTS CASE before two different Courts is not
conducive to an orderly administration of justice. It should be
advisable that, whenever a Search Warrant has been issued by
one Court, or Branch, and a criminal prosecution is initiated in
another Court, or Branch, as a result of the service of the
Search Warrant, the SEARCH WARRANT CASE should be
consolidated with the criminal case for orderly procedure. The
later criminal case is more substantial than the Search Warrant
proceeding, and the Presiding Judge in the criminal case
should have the right to act on petitions to exclude evidence
unlawfully obtained.
Notwithstanding the irregular issuance of the Search Warrant
and although, ordinarily, the articles seized under an invalid
search warrant should be returned, they cannot be ordered
returned in the case at bar to AGUILAR-ROQUE. Some
searches may be made without a warrant. Thus, Section 12,
Rule 126, Rules of Court, explicitly provides:

Section 12. Search without warrant of

person arrested.A person charged with an
offense may be searched for dangerous
weapons or anything which may be used as
proof of the commission of the offense.
The provision is declaratory in the sense that it is confined to
the search, without a search warrant, of a person who had been
arrested. It is also a general rule that, as an incident of an
arrest, the place or premises where the arrest was made can
also be search without a search warrant. In this latter case, "the
extent and reasonableness of the search must be decided on its
own facts and circumstances, and it has been stated that, in the
application of general rules, there is some confusion in the
decisions as to what constitutes the extent of the place or
premises which may be searched. 12 "What must be considered
is the balancing of the individual's right to privacy and the
public's interest in the prevention of crime and the
apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with
Rebellion, which is a crime against public order; that the
warrant for her arrest has not been served for a considerable
period of time; that she was arrested within the general
vicinity of her dwelling; and that the search of her dwelling
was made within a half hour of her arrest, we are of the
opinion that in her respect, the search at No. 239-B Mayon
Street, Quezon City, did not need a search warrant; this, for
possible effective results in the interest of public order.

17

Such being the case, the personalities seized may be retained.

by CSG, for possible introduction as evidence in the Rebellion
Case, leaving it to AGUILAR-ROQUE to object to their
relevance and to ask Special Military Commission No.1 to
return to her any and all irrelevant documents and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on
August 6, 1984 by respondent Executive Judge Ernani Cruz
Pao is hereby annulled and set aside, and the Temporary
Restraining Order enjoining respondent from introducing
evidence obtained pursuant to the Search Warrant in the
Subversive Documents case hereby made permanent, the,
personalities seized may be retained by the Constabulary
Security Group for possible introduction as evidence in
Criminal Case No. SMC-1-1, pending before Special Military
commission No. 1, without prejudice to petitioner Mila
Aguilar-Roque objecting to their relevance and asking said
Commission to return to her any and all irrelevant documents
and articles.
SO ORDERED.

G.R. No. 133917

February 19, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NASARIO MOLINA y MANAMA @ "BOBONG" and
GREGORIO MULA y MALAGURA @ "BOBOY",
accused-appellants.
YNARES-SANTIAGO, J.:
To sanction disrespect and disregard for the Constitution in the
name of protecting the society from lawbreakers is to make
the government itself lawless and to subvert those values upon
which our ultimate freedom and liberty depend.1
For automatic review is the Decision 2 of the Regional Trial
Court of Davao City, Branch 17, in Criminal Case No. 37,26496, finding accused-appellants Nasario Molina y Manamat
alias "Bobong" and Gregorio Mula y Malagura alias "Boboy,"
guilty beyond reasonable doubt of violation of Section 8, 3 of
the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as
amended by Republic Act No. 7659,4 and sentencing them to
suffer the supreme penalty of death.
The information against accused-appellants reads:
That on or about August 8, 1996, in the City of
Davao, Philippines, and within the jurisdiction of this
18
Honorable Court, the above-named accused, in
conspiracy with each other, did then and there
willfully, unlawfully and feloniously was found in
their possession 946.9 grants of dried marijuana
which are prohibited.
CONTRARY TO LAW.5
Upon arraignment on September 4, 1996, accused-appellants
pleaded not guilty to the accusation against them. 6 Trial
ensued, wherein the prosecution presented Police
Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona,
Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses.

At about 7:30 in the morning of August 8, 1996, SPO1

Paguidopon received an information that the alleged pusher
will be passing at NHA, Ma- a, Davao City any time that
morning.9 Consequently, at around 8:00 A.M. of the same day,
he called for assistance at the PNP, Precinct No. 3, Matina,
Davao City, which immediately dispatched the team of SPO4
Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of
SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed
to the house of SPO1 Marino Paguidopon where they would
wait for the alleged pusher to pass by.10
At around 9:30 in the morning of August 8, 1996, while the
team were positioned in the house of SPO1 Paguidopon, a
"trisikad" carrying the accused-appellants passed by. At that
instance, SPO1 Paguidopon pointed to the accused-appellants
as the pushers. Thereupon, the team boarded their, vehicle and
overtook the "trisikad."11 SPO1 Paguidopon was left in his
house, thirty meters from where the accused-appellants were
accosted.12
The police officers then ordered the "trisikad" to stop. At that
point, accused-appellant Mula who was holding a black bag
handed the same to accused-appellant Molina. Subsequently,
SPO1 Pamplona introduced himself as a police officer and
asked accused-appellant Molina to open the bag. 13 Molina
replied, "Boss, if possible we will settle this." 14 SPO1
Pamplona insisted on opening the bag, which revealed dried
marijuana leaves inside. Thereafter; accused-appellants Mula
and Molina were handcuffed by the police officers.15
On December 6, 1996, accused-appellants, through counsel,
jointly filed a Demurrer to Evidence, contending that the
marijuana allegedly seized from them is inadmissible as
evidence for having been obtained in violation of their
constitutional right against unreasonable searches and
seizures.16 The demurrer was denied by the trial court. 17 A
motion for reconsideration was filed by accused-appellants,
but this was likewise denied. Accused-appellants waived
presentation of evidence and opted to file a joint
memorandum.
On April 25, 1997, the trial court rendered the assailed
decision,18 the decretal portion of which reads:

The antecedent facts are as follows:

Sometime in June 1996, SPO1 Marino Paguidopon, then a
member of the Philippine National Police detailed at Precinct
No. 3, Matina, Davao City, received an information regarding
the presence of an alleged marijuana pusher in Davao City.7
The first time he came to see the said marijuana pusher in
person was during the first week of July 1996. SPO1
Paguidopon was then with his informer when a motorcycle
passed by. His informer pointed to the motorcycle driver,
accused-appellant Mula, as the pusher. As to accused-appellant
Molina, SPO1 Paguidopon had no occasion to see him before
the arrest. Moreover, the names and addresses of the accusedappellants came to the knowledge of SPO1 Paguidopon only
after they were arrested.8

WHEREFORE, finding the evidence of the

prosecution alone without any evidence from both
accused who waived presentation of their own
evidence through their counsels, more than sufficient
to prove the guilt of both accused of the offense
charged beyond reasonable doubt, pursuant to Sec.
20, sub. par. 5 of Republic Act 7659, accused
NASARIO MOLINA and GREGORIO MULA, are
sentenced to suffer a SUPREME PENALTY OF
DEATH through lethal injection under Republic Act
8176, to be effected and implemented as therein
provided for by law, in relation to Sec. 24 of Rep. Act
7659.

The Branch Clerk of Court of this court, is ordered to

immediately elevate the entire records of this case
with the Clerk of Court of the Supreme Court,
Manila, for the automatic review of their case by the
Supreme Court and its appropriate action as the case
may be.
SO ORDERED.19
Pursuant to Article 47 of the Revised penal Code and Rule
122, Section 10 of the Rules of Court, the case was elevated to
this Court on automatic review. Accused-appellants contend:
I.
THAT THE MARIJUANA IS IN ADMISSIBLE IN
EVIDENCE FOR HAVING BEEN SEIZED IN
VIOLATION
OF
APPELLANTS'
CONSTITUTIONAL
RIGHTS
AGAINST
UNREASONABLE, SEARCHES AND SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN
EVIDENCE, THE GOVERNMENT HAS NOT
OTHERWISE PROVED THEIR GUILT BEYOND
REASONABLE DOUBT; AND

19

III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS
BEEN PROVED BEYOND REASONABLE
DOUBT, THE IMPOSABLE PENALTY FOR
VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN
THE ABSENCE OF ANY AGGRAVATING
CIRCUMSTANCE, IS LIFE IMPRISONMENT,
NOT DEATH.20

The Solicitor General filed a Manifestation and MO1ion (In

Lieu of Brief), wherein he prayed for the acquittal of both
accused-appellants.
The fundamental law of the land mandates that searches and
seizures be carried out in a reasonable fashion, that is, by
virtue or on the strength of a search warrant predicated upon
the existence of a probable cause. The pertinent provision of
the Constitution provides:
SEC. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation
of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.21

Complementary to the foregoing provision is the exclusionary

rule enshrined under Article III, Section 3, paragraph 2, which
bolsters and solidifies the protection against unreasonable
searches and seizures.22 Thus:
Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
Without this rule, the right to privacy would be a form of
words, valueless and undeserving of mention in a perpetual
charter of inestimable human liberties; so too, without this
rule, the freedom from state invasions of privacy would be so
ephemeral and so neatly severed from its conceptual nexus
with the freedom from all brutish means of coercing evidence
as not to merit this Court's high regard as a freedom implicit in
the concept of ordered liberty.23
The foregoing constitutional proscription, however, is not
without exceptions. Search and seizure may be made without a
warrant and the evidence obtained therefrom may be
admissible in the following instances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search
in violation of customs laws; (4) seizure of evidence in plain
view; (5) when the accused himself waives his right against
unreasonable searches and seizures;24 and (6) stop and frisk
situations (Terry search).25
The first exception (search incidental to a lawful arrest)
includes a valid warrantless search and seizure pursuant to an
equally valid warrantless arrest which must precede the
search. In this instance, the law requires that there be first a
lawful arrest before a search can be made --- the process
cannot be reversed.26 As a rule, an arrest is considered
legitimate if effected with .a valid warrant of arrest. The Rules
of Court, however, recognizes permissible warrantless arrests.
Thus, a peace officer or a private person may, without warrant,
arrest a person: (a) when, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense (arrest in flagrante delicto);
(b) when an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it (arrest effected in hot pursuit); and (c) when the
person to be arrested is a prisoner who has escaped from a
penal establishment or a place where he is serving final
judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement
to another ( arrest of escaped prisoners ).27
In the case at bar, the court a quo anchored its judgment of
conviction on a finding that the warrantless arrest of accusedappellants, and the subsequent search conducted by the peace
officers, are valid because accused-appellants were caught in
flagrante delicto in possession of prohibited drugs.28 This
brings us to the issue of whether or not the warrantless arrest,
search and seizure in the present case fall within the
recognized exceptions to the warrant requirement.

In People v. Chua Ho San,29 the Court held that in cases of in

flagrante delicto arrests, a peace officer or a private person
may, without a warrant, arrest a person when, in his presence,
the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of
such fact or, as recent case law adverts to, personal knowledge
of facts or circumstances convincingly indicative or
constitutive of probable cause. As discussed in People v.
Doria,30 probable cause means an actual belief or reasonable
grounds of suspicion. The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers,
the suspicion that the person to be arrested is probably guilty
of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore must be founded on
probable cause, coupled with good faith on the part of the
peace officers making the arrest.
As applied to in flagrante delicto arrests, it is settled that
"reliable information" alone, absent any overt act indicative of
a felonious enterprise in the presence and within the view of
the arresting officers, are not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest. Thus, in
People v. Aminnudin,31 it was held that "the accused-appellant
was not, at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of
the MN Wilcon 9 and there was no outward indication that
20for his arrest. To all appearances, he was like any of the
called
other passengers innocently disembarking from the vessel. It
was only when the informer pointed to him as the carrier of
the marijuana that he suddenly became suspect and so subject
to apprehension."
Likewise, in People v. Mengote,32 the Court did not consider
"eyes... darting from side to side :.. [while] holding ... [one's]
abdomen", in a crowded street at 11:30 in the morning, as
overt acts and circumstances sufficient to arouse suspicion and
indicative of probable cause. According to the Court, "[b]y no
stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was
actually being committed or was at least being attempted in
[the arresting officers'] presence." So also, in People v.
Encinada,33 the Court ruled that no probable cause is gleanable
from the act of riding a motorela while holding two plastic
baby chairs.1wphi1.nt
Then, too, in Malacat v. Court of Appeals,34 the trial court
concluded that petitioner was attempting to commit a crime as
he was "`standing at the comer of Plaza Miranda and Quezon
Boulevard' with his eyes 'moving very fast' and 'looking at
every person that come (sic) nearer (sic) to them.'" 35 In
declaring the warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante
delicto ... arrest preceding the search in light of the
lack of personal knowledge on the part of V u, the
arresting officer, or an overt physical act, on the part

of petitioner, indicating that a crime had just been

committed, was being committed or was going to be
committed.36
It went on to state that
Second, there was nothing in petitioner's behavior or
conduct which could have reasonably elicited even
mere suspicion other than that his eyes were "moving
very fast" - an observation which leaves us
incredulous since Yu and his teammates were
nowhere near petitioner and it was already 6:30 p.m.,
thus presumably dusk. Petitioner and his companions
were merely standing at the comer and were not
creating any commotion or trouble...
Third, there was at all no ground, probable or
otherwise, to believe that petitioner was armed with a
deadly weapon. None was visible to Yu, for as he
admitted, the alleged grenade was "discovered"
"inside the front waistline" of petitioner, and from all
indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner
was indeed hiding a grenade, could not have been
visible to Yu.37
Clearly, to constitute a valid in flagrante delicto arrest, two
requisites must concur: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is
actually committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of
the arresting officer.38
In the case at bar, accused-appellants manifested no outward
indication that would justify their arrest. In holding a bag on
board a trisikad, accused-appellants could not be said to be
committing, attempting to commit or have committed a crime.
It matters not that accused-appellant Molina responded "Boss,
if possible we will settle this" to the request of SPO1
Pamplona to open the bag. Such response which allegedly
reinforced the "suspicion" of the arresting officers that
accused-appellants were committing a crime, is an equivocal
statement which standing alone will not constitute probable
cause to effect an inflagrante delicto arrest. Note that were it
not for SPO1 Marino Paguidopon (who did not participate in
the arrest but merely pointed accused-appellants to the
arresting officers), accused-appellants could not be the subject
of any suspicion, reasonable or otherwise.
While SPO1 Paguidopon claimed that he and his informer
conducted a surveillance of accused-appellant Mula, SPO1
Paguidopon, however, admitted that he only learned Mula's
name and address after the arrest. What is more, it is doubtful
if SPO1 Paguidopon indeed recognized accused-appellant
Mula. It is worthy to note that, before the arrest, he was able to
see Mula in person only once, pinpointed to him by his
informer while they were on the side of the road. These
circumstances could not have afforded SPO1 Paguidopon a
closer look at accused-appellant Mula, considering that the
latter was then driving a motorcycle when, SPO1 Paguidopon

caught a glimpse of him. With respect to accused-appellant

Molina, SPO1 Paguidopon admitted that he had never seen
him before the arrest.
This belies the claim of SPO1 Pamplona that he knew the
name of accused-appellants even before the arrest, to wit
"QWhen you said that certain Mula handed a
black bag to another person and how did you know
that it was Mula who handed the black bag to another
person?
ABecause I have already information from
Paguidopon, regarding Mula and Molina, when they
pass by through the street near the residence of
Paguidopon. He told that the one who is big one that
is Gregorio Mula and the thin one is Nazario
Molina"39
The aforecited testimony of SPO1 Pamplona, therefore, is
entirely baseless SPO1 Pamplona could not have learned the
name of accused-appellants from SPO1 Paguipodon because
Paguipodon himself, who allegedly conducted the
surveillance, was not even aware of accused-appellants' name
and address prior to the arrest.
Evidently, SPO1 Paguidopon, who acted as informer of the
arresting officers, more so the arresting officers themselves,
could not have been certain of accused-appellants' identity,
and21
were, from all indications, merely fishing for evidence at
the time of the arrest.
Compared to People v. Encinada, the arresting officer in the
said case knew appellant Encinada even before the arrest
because of the latter's illegal gambling activities, thus, lending
at least a semblance of validity on the arrest effected by the
peace officers. Nevertheless, the Court declared in said case
that the warrantless arrest and the consequent search were
illegal, holding that "[t]he prosecution's evidence did not show
any suspicious behavior when the appellant disembarked from
the ship or while he rode the motorela. No act or fact
demonstrating a felonious enterprise could be ascribed to
appellant under such bare circumstances."40
Moreover, it could not be said that accused-appellants waived
their right against unreasonable searches and seizure. Implied
acquiescence to the search, if there was any, could not have
been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered
no consent at all within the purview of the constitutional
guarantee.41
Withal, the Court holds that the arrest of accused-appellants
does not fall under the exceptions allowed by the rules. Hence,
the search conducted on their person was likewise illegal.
Consequently, the marijuana seized by the peace officers could
not be admitted as evidence against accused-appellants, and
the Court is thus, left with no choice but to find in favor of
accused-appellants.

While the Court strongly supports the campaign of the

government against drug addiction and commends the efforts
of our law-enforcement officers towards this drive, all efforts
for the achievement of a drug-free society must not encroach
on the fundamental rights and liberties of individuals as
guaranteed in the Bill of Rights, which protection extends
even to the basest of criminals.
WHEREFORE, the Decision of the Regional Trial Court of
Davao City, Branch 17, in Criminal Case No. 37, 264-96, is
REVERSED and SET ASIDE. For lack of evidence to
establish their guilt beyond reasonable doubt, accusedappellants Nasario Molina y Manamat alias "Bobong" and
Gregorio Mula y Malagura alias "Boboy", are ACQUITTED
and ordered RELEASED from confinement unless they are
validly detained for other offenses. No costs.
SO ORDERED.

G.R. Nos. 136066-67

February 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BINAD SY CHUA, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
Accused-appellant Binad Sy Chua was charged with violation
of Section 16, Article III of R.A. 6425, as amended by R.A.
7659, and for Illegal Possession of ammunitions in two
separate Informations which read as follows:
Criminal Case No. 96-5071
That on or about the 21st day of September 1996, in the City
of Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his
possession and under his control two (2) plastic bags
containing Methamphetamine Hydrochloride (SHABU)
weighing more or less two (2) kilos and one (1) small plastic
bag containing Methamphetamine Hydrocloride weighing
more or less fifteen (15) grams, which is a regulated drug,
without any authority whatsoever.

22
Criminal Case No. 96-5132
That on or about the 21st day of September 1996, in the City
of Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his
possession and under his control twenty (20) pieces of live .22
cal. ammunitions, without first having obtained a license or
permit to possess or carry the same.
Accused-appellant
pleaded
"not
guilty"
on
arraignment.1awphi1.nt The two cases were then jointly
tried.
The prosecution presented three (3) witnesses, all members of
the police force of Angeles City. Their testimonies can be
synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2
Mario Nulud and PO2 Emmeraldo Nunag received a report
from their confidential informant that accused-appellant was
about to deliver drugs that night at the Thunder Inn Hotel in
Balibago, Angeles City. The informer further reported that
accused-appellant distributes illegal drugs in different karaoke
bars in Angeles City. On the basis of this lead, the PNP Chief
of Angeles City, Col. Neopito Gutierrez, immediately formed
a team of operatives composed of Major Bernardino, Insp.

Tullao, Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01

Fernando Go, and some civilian assets, with SPO2 Mario
Nulud, as team investigator. The group of SPO2 Nulud, PO2
Nunag and the civilian informer positioned themselves across
McArthur Highway near Bali Hai Restaurant, fronting
Thunder Inn Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car
driven by accused-appellant which just arrived and parked
near the entrance of the Thunder Inn Hotel. After accusedappellant alighted from the car carrying a sealed Zest-O juice
box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and
introduced themselves as police officers. As accused-appellant
pulled out his wallet, a small transparent plastic bag with a
crystalline substance protruded from his right back pocket.
Forthwith, SPO2 Nulud subjected him to a body search which
yielded twenty (20) pieces of live .22 caliber firearm bullets
from his left back pocket. When SPO2 Nunag peeked into the
contents of the Zest-O box, he saw that it contained a
crystalline substance. SPO2 Nulud instantly confiscated the
small transparent plastic bag, the Zest-O juice box, the twenty
(20) pieces of .22 caliber firearm bullets and the car used by
accused-appellant. Afterwards, SPO2 Nulud and the other
police operatives who arrived at the scene brought the
confiscated items to the office of Col. Guttierez at the PNP
Headquarters in Camp Pepito, Angeles City.3
When Col. Gutierrez opened the sealed Zest-O juice box, he
found 2 big plastic bags containing crystalline substances. The
initial field test conducted by SPO2 Danilo Cruz at the PNP
Headquarters revealed that the siezed items contained shabu. 4
Thereafter, SPO2 Nulud together with accused-appellant
brought these items for further laboratory examination to the
Crime Laboratory at Camp Olivas, San Fernando, Pampanga.
After due testing, forensic chemist S/Insp. Daisy Babor
concluded that the crystalline substances yielded positive
results for shabu. The small plastic bag weighed 13.815 grams
while the two big plastic bags weighed 1.942 kilograms of
shabu.5
Accused-appellant vehemently denied the accusation against
him and narrated a different version of the incident.
Accused-appellant alleged that on the night in question, he
was driving the car of his wife to follow her and his son to
Manila. He felt sleepy, so he decided to take the old route
along McArthur Highway. He stopped in front of a small store
near Thunder Inn Hotel in Balibago, Angeles City to buy
cigarettes and candies. While at the store, he noticed a man
approach and examine the inside of his car. When he called the
attention of the onlooker, the man immediately pulled out a .
45 caliber gun and made him face his car with raised hands.
The man later on identified himself as a policeman. During the
course of the arrest, the policeman took out his wallet and
instructed him to open his car. He refused, so the policeman
took his car keys and proceeded to search his car. At this time,

the police officers companions arrived at the scene in two

cars. PO2 Nulud, who just arrived at the scene, pulled him
away from his car in a nearby bank, while the others searched
his car.1awphi1.nt
Thereafter, he was brought to the Salakot Police Station and
was held inside a bathroom for about fifteen minutes until Col.
Guttierez arrived, who ordered his men to call the media. In
the presence of reporters, Col. Guttierez opened the box and
accused-appellant was made to hold the box while pictures
were being taken.6
Wilfredo Lagman corroborated the story of the accusedappellant in its material points. He testified that he witnessed
the incident while he was conducting a routine security check
around the premises of the Guess Building, near Thunder Inn
Hotel.7

SUFICIENT TO PROVE THE GUILT OF THE

ACCUSED-APPELLANT BEYOND REAONABLE
DOUBT.10
Accused-appellant maintains that the warrantless arrest and
search made by the police operatives was unlawful; that in the
light of the testimony of SPO2 Nulud that prior to his arrest he
has been under surveillance for two years, there was therefore
no compelling reason for the haste within which the arresting
officers sought to arrest and search him without a warrant; that
the police officers had sufficient information about him and
could have easily arrested him. Accused-appellant further
argues that since his arrest was null an void, the drugs that
were seized should likewise be inadmissible in evidence since
they were obtained in violation of his constitutional rights
against unreasonable search and seizures and arrest.
Accused-appellants argument is impressed with merit.

On September 15, 1998 the Regional Trial Court of Angeles

City, Branch 59, rendered a decision,8 the dispositive portion
of which reads:
WHEREFORE, the foregoing considered, judgement is hereby
rendered as follows:
1. In Criminal Case No. 96-513 for Illegal Possession
of Ammunitions, the accused is hereby acquitted of
23 the crime charged for insufficiency of evidence.
2. In Criminal Case No. 96-507 for Illegal Possession
of 1,955.815 grams of shabu, accused Binad Sy Chua
is found GUILTY beyond reasonable doubt of the
crime charge and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay a fine of One
Million (P1,000,000.00) Pesos.
SO ORDERED.9
Hence, the instant appeal where accused-appellant raised the
following errors:
THE TRIAL COURT ERRED
FOLLOWING FINDINGS:

GRAVELY

IN

ITS

A. THE ARREST OF ACCUSED-APPELLANT

BINAD SY CHUA WAS LAWFUL;
B. THE SEARCH OF HIS PERSON AND THE
SUBSEQUENT CONFISCATION OF SHABU
ALLEGEDLY FOUND
ON
HIM
WERE
CONDUCTED IN A LAWFUL AND VALID
MANNER;
C.
THE
SUPPORTING

PROSECUTION
EVIDENCE
THE CRIME CHARGED IS

Although the trial courts evaluation of the credibility of

witnesses and their testimonies is entitled to great respect and
will not be disturbed on appeal, however, this rule is not a hard
and fast one.
It is a time-honored rule that the assessment of the trial court
with regard to the credibility of witnesses deserves the utmost
respect, if not finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the
demeanor of the declarants in the course of their testimonies.
The only exception is if there is a showing that the trial judge
overlooked, misunderstood, or misapplied some fact or
circumstance of weight and substance that would have
affected the case.11
In the case at bar, there appears on record some facts of weight
and substance that have been overlooked, misapprehended, or
misapplied by the trial court which casts doubt on the guilt of
accused-appellant. An appeal in a criminal case opens the
whole case for review and this includes the review of the
penalty and indemnity imposed by the trial court.12 We are
clothed with ample authority to review matters, even those not
raised on appeal, if we find that their consideration is
necessary in arriving at a just disposition of the case. Every
circumstance in favor of the accused shall be considered. 13
This is in keeping with the constitutional mandate that every
accused shall be presumed innocent unless his guilt is proven
beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent
search and seizure made upon accused-appellant, the court a
quo made the following findings:
Accused was searched and arrested while in possession of
regulated drugs (shabu). A crime was actually being
committed by the accused and he was caught in flagrante

delicto. Thus, the search made upon his personal effects x x x

allow a warrantless search incident to a lawful arrest. x x x x
While it is true that the police officers were not armed with a
search warrant when the search was made over the personal
affects (sic) of the 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.
xxxxxxxxx
In the present case, the police received information that the
accused will distribute illegal drugs that evening at the
Thunder Inn Hotel and its vicinities. The police officer had to
act quickly and there was no more time to secure a search
warrant. The search is valid being akin to a "stop and frisk".14
A thorough review of the evidence on record belies the
findings and conclusion of the trial court. It confused the two
different concepts of a search incidental to a lawful arrest (in
flagrante delicto) and of a "stop-and-frisk."
In Malacat v. Court of Appeals,15 we distinguished the
concepts of a "stop-and-frisk" and of a search incidental to a
lawful arrest, to wit:
At 24
the outset, we note that the trial court confused the
concepts of a "stop-and-frisk" and of a search incidental to a
lawful arrest. These two types of warrantless searches differ in
terms of the requisite quantum of proof before they may be
validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of
the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting
a search. In this instance, the law requires that there first be
arrest before a search can be madethe process cannot be
reversed. At bottom, assuming a valid arrest, the arresting
officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence
to destroy, and seize any money or property found which was
used in the commission of the crime, or the fruit of the crime,
or that which may be used as evidence, or which might furnish
the arrestee with the means of escaping or committing
violence.
xxxxxxxxx
We now proceed to the justification for and allowable scope of
a "stop-and-frisk" as a "limited protective search of outer
clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes

unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth amendment.
Other notable points of Terry are that while probable cause is
not required to conduct a "stop-and-frisk," it nevertheless
holds that mere suspicion or a hunch will not validate a "stopand-frisk". A genuine reason must exist, in light of the police
officers experience and surrounding conditions, to warrant the
belief that the person detained has weapons concealed about
him. Finally, a "stop-and-frisk" serves a two-fold interest: (1)
the general interest of effective crime prevention and
detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and
(2) the more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure himself
that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against
the police officer.16 (Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the "stop
and frisk" principles is applicable to justify the warrantless
arrest and consequent search and seizure made by the police
operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at
the very moment he is committing or attempting to commit or
has just committed an offense in the presence of the arresting
officer. Emphasis should be laid on the fact that the law
requires that the search be incidental to a lawful arrest.
Therefore it is beyond cavil that a lawful arrest must precede
the search of a person and his belongings. 17 Accordingly, for
this exception to apply two elements must concur: (1) the
person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting
to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.18
We find the two aforementioned elements lacking in the case
at bar. The record reveals that when accused-appellant arrived
at the vicinity of Thunder Inn Hotel, he merely parked his car
along the McArthur Highway, alighted from it and casually
proceeded towards the entrance of the Hotel clutching a sealed
Zest-O juice box. Accused-appellant did not act in a

suspicious manner. For all intents and purposes, there was no

overt manifestation that accused-appellant has just committed,
is actually committing, or is attempting to commit a crime.

Q. Did the civilian informer of yours mentioned to

you the name of this chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.

However, notwithstanding the absence of any overt act

strongly manifesting a violation of the law, the group of SPO2
Nulud "hurriedly accosted"19 accused-appellant and later on
"introduced themselves as police officers."20 Accusedappellant was arrested before the alleged drop-off of shabu
was done. Probable cause in this case was more imagined than
real. Thus, there could have been no in flagrante delicto arrest
preceding the search, in light of the lack of an overt physical
act on the part of accused-appellant that he had committed a
crime, was committing a crime or was going to commit a
crime. As applied to in flagrante delicto arrests, it has been
held that "reliable information" alone, absent any overt act
indicative of a felonious enterprise in the presence and within
the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto
arrest.21 Hence, in People v. Aminudin,22 we ruled that "the
accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do
so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was
no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he
25 became suspect and so subject to apprehension"
suddenly
(Emphasis supplied).
The reliance of the prosecution in People v. Tangliben 23 to
justify the polices actions is misplaced. In the said case, based
on the information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be
engaged in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red
travelling bag who was acting suspiciously. They confronted
him and requested him to open his bag but he refused. He
acceded later on when the policemen identified themselves.
Inside the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities of
Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had
prior knowledge from the very same informant of accusedappellants activities. No less than SPO2 Mario Nulud, the
team leader of the arresting operatives, admitted that their
informant has been telling them about the activities of
accused-appellant for two years prior to his actual arrest on
September 21, 1996. An excerpt of the testimony of SPO2
Mario Nulud reveals the illegality of the arrest of accusedappellant as follows:

Q. And he had been mentioning these names to you

even before September 21, 1996?
A. Yes, sir.
Q. How long did this civilian informant have been
telling you about the activities of this chinese drug
pusher reckoning in relation to September 21, 1996?
A. That was about two years already.
Q. Nothwithstanding his two years personal
knowledge which you gained from the civilian
informant that this chinese drug pusher have been
engaged pushing drugs here in Angeles City, you did
not think of applying for a search warrant for this
chinese drug pusher?
A. No, sir.
xxxxxxxxx
Q. When you accosted this Binad Chua, he was
casually walking along the road near the Thunder Inn
Hotel, is that right?
A. He was pinpointed by the civilian informer that he
is the chinese drug pusher that will deliver to him
also.
Q. My question Mr. Witness, is this Jojo Chua or
Binad Chua the accused in this case he alighted with
a Corolla car with plate number 999, I think, he just
alighted when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked
towards near the entrance of the Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn
Hotel but he was pinpointed already by the civilian
informer.
Q. But he was just walking towards the entrance of
the Thunder Inn Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.

xxxxxxxxx
Q. While he was walking, then you and PO2 Nunag
pounced on him as you used pounced on him in your
affidavit?
A. Yes, sir.
xxxxxxxxx
Q. And you pounced on Jojo Chua before you saw
that alleged small plastic bag, is that correct?
A. Yes, sir.
Q. And after that you also confiscated this Zesto juice
box?
A. Yes, sir.

for possibly concealed weapons.26 The apprehending police

officer must have a genuine reason, in accordance with the
police officers experience and the surrounding conditions, to
warrant the belief that the person to be held has weapons (or
contraband) concealed about him.27 It should therefore be
emphasized that a search and seizure should precede the arrest
for this principle to apply.28
This principle of "stop-and-frisk" search was invoked by the
Court in Manalili v. Court of Appeals.29 In said case, the
policemen chanced upon the accused who had reddish eyes,
walking in a swaying manner, and who appeared to be high on
drugs. Thus, we upheld the validity of the search as akin to a
"stop-and-frisk." In People v. Solayao, 30 we also found
justifiable reason to "stop-and-frisk" the accused after
considering the following circumstances: the drunken
actuations of the accused and his companions, the fact that his
companions fled when they saw the policemen, and the fact
that the peace officers were precisely on an intelligence
mission to verify reports that armed persons where roaming
the vicinity.

xxxxxxxxx
Q. But would you agree with me that not all
crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we
have been tailing the accused that he is really a drug
26
pusher.
Q. So you have been tailing this accused for quite a
long time that you are very sure that what was
brought by him was shabu?
A. Yes, sir.24
The police operatives cannot feign ignorance of the alleged
illegal activities of accused-appellant. Considering that the
identity, address and activities of the suspected culprit was
already ascertained two years previous to the actual arrest,
there was indeed no reason why the police officers could not
have obtained a judicial warrant before arresting accusedappellant and searching his person. Whatever information their
civilian asset relayed to them hours before accused-appellants
arrest was not a product of an "on-the-spot" tip which may
excuse them from obtaining a warrant of arrest. Accordingly,
the arresting teams contention that their arrest of accusedappellant was a product of an "on-the-spot" tip is untenable.
In the same vein, there could be no valid "stop-and-frisk" in
this case. A stop-and-frisk was defined as the act of a police
officer to stop a citizen on the street, interrogate him, and pat
him for weapon(s)25 or contraband. The police officer should
properly introduce himself and make initial inquiries,
approach and restrain a person who manifests unusual and
suspicious conduct, in order to check the latters outer clothing

The foregoing circumstances do not obtain in the case at bar.

There was no valid "stop-and-frisk" in the case of accusedappellant. To reiterate, accused-appellant was first arrested
before the search and seizure of the alleged illegal items found
in his possession. The apprehending police operative failed to
make any initial inquiry into accused-appellants business in
the vicinity or the contents of the Zest-O juice box he was
carrying. The apprehending police officers only introduced
themselves when they already had custody of accusedappellant. Besides, at the time of his arrest, accused-appellant
did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by
jurisprudence and the law. There was, therefore, no genuine
reasonable ground for the immediacy of accused-appellants
arrest.
Obviously, the acts of the police operatives wholly depended
on the information given to them by their confidential
informant. Accordingly, before and during that time of the
arrest, the arresting officers had no personal knowledge that
accused-appellant had just committed, was committing, or was
about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs
actually occurred, accused-appellants warrantless arrest and
consequent search would still not be deemed a valid "stop-and
frisk". For a valid "stop-and-frisk" the search and seizure must
precede the arrest, which is not so in this case. Besides, as we
have earlier emphasized, the information about the illegal
activities of accused-appellant was not unknown to the
apprehending officers. Hence, the search and seizure of the
prohibited drugs cannot be deemed as a valid "stop-and-frisk".

Neither can there be valid seizure in plain view on the basis of

the seized items found in accused-appellants possession. First,
there was no valid intrusion. Second, the evidence, i.e., the
plastic bags found in the Zest-O juice box which contained
crystalline substances later on identified as methamphetamine
hydrochloride (shabu) and the 20 rounds of .22 caliber
ammunition, were not inadvertently discovered. The police
officers first arrested accused-appellant and intentionally
searched his person and peeked into the sealed Zest-O juice
box before they were able to see and later on ascertain that the
crystalline substance was shabu. There was no clear showing
that the sealed Zest-O juice box accused-appellant carried
contained prohibited drugs. Neither were the small plastic
bags which allegedly contained crystalline substance and the
20 rounds of .22 caliber ammunition visible. These prohibited
substances were not in plain view of the arresting officers;
hence, inadmissible for being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of
a moving vehicle, a consented warrantless search, or a
customs search. It cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of
any such showing.1a\^/phi1.net
All told, the absence of ill-motive on the part of the arresting
team cannot simply validate, much more cure, the illegality of
the arrest and consequent warrantless search of accusedappellant. Neither can the presumption of regularity of
27
performance of function be invoked by an officer in aid of the
process when he undertakes to justify an encroachment of
rights secured by the Constitution.31 In People v. Nubla,32 we
clearly stated that:
The presumption of regularity in the performance of official
duty cannot be used as basis for affirming accused-appellants
conviction because, first, the presumption is precisely just that
a mere presumption. Once challenged by evidence, as in this
case, xxx [it] cannot be regarded as binding truth. Second, the
presumption of regularity in the performance of official
functions cannot preponderate over the presumption of
innocence that prevails if not overthrown by proof beyond
reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly
seized from accused-appellant were the very same items
presented at the trial of this case. The record shows that the
initial field test where the items seized were identified as
shabu, was only conducted at the PNP headquarters of Angeles

City.33 The items were therefore not marked at the place where
they were taken. In People v. Casimiro,34 we struck down with
disbelief the reliability of the identity of the confiscated items
since they were not marked at the place where they were
seized, thus:
The narcotics field test, which initially identified the seized
item as marijuana, was likewise not conducted at the scene of
the crime, but only at the narcotics office. There is thus
reasonable doubt as to whether the item allegedly seized from
accused-appellant is the same brick of marijuana marked by
the policemen in their headquarters and given by them to the
crime laboratory.
The governments drive against illegal drugs needs the support
of every citizen. But it should not undermine the fundamental
rights of every citizen as enshrined in the Constitution. The
constitutional guarantee against warrantless arrests and
unreasonable searches and seizures cannot be so carelessly
disregarded as overzealous police officers are sometimes wont
to do. Fealty to the constitution and the rights it guarantees
should be paramount in their minds, otherwise their good
intentions will remain as such simply because they have
blundered. The criminal goes free, if he must, but it is the law
that sets him free. Nothing can destroy a government more
quickly than its failure to observe its own laws, or worse, its
disregard of the charter of its own existence.35
WHEREFORE, in view of the foregoing, the decision of the
Regional Trial Court of Angeles City, Branch 59, in Criminal
Cases Nos. 96-507 and 96-513, convicting accused-appellant
Binad Sy Chua of violation of Section 16, Article III, Republic
Act No. 6425 and sentencing him to suffer the penalty of
reclusion perpetua and to pay a fine of P1,000,000.00, is
REVERSED and SET ASIDE. Accused-appellant Binad Sy
Chua is ACQUITTED on the ground of reasonable doubt.
Consequently, he is ordered forthwith released from custody,
unless he is being lawfully held for another crime.
SO ORDERED.