PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
REYNALDO BELOCURA y PEREZ, Accused-Appellant.

The credibility of the evidence of the corpus delicti in a prosecution for illegal
possession of marijuana under Republic Act No. 6425, as amended, depends on
the integrity of the chain of custody of the marijuana from the time of its seizure
until the time of its presentation as evidence in court. Short of that, the accused is
entitled to an acquittal because the State fails to establish the guilt of the
accused beyond reasonable doubt.

The Case

Reynaldo Belocura y Perez, a police officer charged with illegal possession of

1,789.823 grams of marijuana in violation of Republic Act No. 6425 (Dangerous
Drugs Act of 1972), as amended by Republic Act No. 7659, was found guilty of
the crime charged on April 22, 2003 by the Regional Trial Court (RTC) in Manila,
and sentenced to suffer reclusion perpetua and to pay a fine of P 500,000.00.

On appeal, the Court of Appeals (CA) affirmed the conviction on January 23,
2006.2 Hence, this final appeal for his acquittal.

Antecedents

Belocura was charged on April 13, 1999 by the Office of the City Prosecutor of
Manila with a violation of Section 8 of Republic Act No. 6425, as amended by
Republic Act No. 7659, in the Manila RTC through the information:

That on or about March 22, 1999, 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) plastic bag colored red
and white, with label "SHIN TON YON", containing the following:

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting
tops weighing 830.532 grams;

One (1) newspaper leaf used to wrap one (1) brick of dried marijuana fruiting
tops weighing 959.291 grams.

With a total weight of 1,789.823 grams, a prohibited drug.

Contrary to law.

After Belocura pleaded not guilty, the State presented three witnesses, namely:
Insp. Arlene Valdez Coronel, Chief Insp. Ferdinand Ortales Divina, and SPO1
Gregorio P. Rojas. On the other hand, the Defense presented Belocura as its
sole witness.

I
The States Evidence

On March 22, 1999, at 11 oclock in the morning, Chief Insp. Divina was in his
office in the headquarters of the Western Police District (WPD) on United Nations
Avenue in Manila when he received a call from a male person who refused to
identify himself for fear of reprisal. The caller tipped him off about a robbery to be
staged along Lopez Street, Tondo, Manila. After relaying the tip to his superior
officer, he was immediately ordered to form a team composed of operatives of
the District Intelligence Group and to coordinate with the Special Weapons and
Attack Team (SWAT) and the Mobile Patrol of the WPD.

After a briefing, Chief Insp. Divina and the other operatives proceeded to Lopez
Street, reaching the site before 1:00 pm. Chief Insp. Divina and PO2 Eraldo
Santos positioned themselves along Vitas Street. At around 2:00 pm, Chief Insp.
Divina spotted an owner-type jeep bearing a spurious government plate (SBM510) cruising along Vitas Street and told the rest of the team about it. The
numbers of the car plate were painted white. The driver was later identified as
Belocura. Chief Insp. Divina signaled for Belocura to stop for verification but the
latter ignored the signal and sped off towards Balut, Tondo. The team pursued
Belocuras jeep until they blocked its path with their Tamaraw FX vehicle, forcing
Belocura to stop. At this point, Chief Insp. Divina and the rest of the team
approached the jeep and introduced themselves to Belocura as policemen. Chief
Insp. Divina queried Belocura on the government plate. SPO1 Rojas confiscated
Belocuras Berreta mm. pistol (Serial Number M13086Z) that was tucked in his
waist and its fully loaded magazine when he could not produce the appropriate
documents for the pistol and the government plate. They arrested him.

PO2 Santos searched Belocuras jeep, and recovered a red plastic bag under the
drivers seat. Chief Insp. Divina directed PO2 Santos to inspect the contents of
the red plastic bag, which turned out to be two bricks of marijuana wrapped in
newspaper.

Afterwards, the team returned with Belocura to the WPD Headquarters on board
the Tamaraw FX. The team turned over the jeep and the red plastic bag with its
contents to the General Assignment Section for proper disposition.

Chief Insp. Divina said that the caller did not mention anything about any vehicle;
that he and his men were in civilian clothes at the time; that it was PO2 Santos
who recovered the red plastic bag containing the marijuana bricks; and that
SPO1 Rojas examined the contents of the bag in his presence.

SPO1 Rojas confirmed his part in the operation.He conceded that he was not
present when the red plastic bag containing the bricks of marijuana was seized,
and saw the marijuana bricks for the first time only at the police station.

Forensic Chemist Insp. Coronel attested that her office received from the
General Assignment Section of the WPD one red plastic bag labeled "SHIN TON
YON" containing two bricks of dried suspected marijuana fruiting tops individually
wrapped in newspaper at about 12:30 pm of March

23, 1999. The first brick bore the marking "RB-1" and weighed 830.532 grams
while the other bore the marking "RB-2" and weighed 959.291 grams, for a total
weight of 1,789.823 grams. She conducted a chemical examination of the
marijuana bricks pursuant to the request for laboratory examination from Chief
Insp. Nelson Yabut of the WPD; and concluded as the result of three qualitative
examinations that the submitted specimen tested positive for marijuana, a
prohibited drug.9

II
Evidence of the Defense

Belocura denied the charge. His version, which differed from that of the
Prosecution, was as follows.

On March 22, 1999, Belocura was a police officer assigned in Police Station 6 of
the WPD with a tour of duty from 3:00 pm to 11:00 pm. At 2:00 pm of that day, he
was on his way to work on board his owner-type jeep when about thirty police
officers blocked his path. He introduced himself to them as a police officer, but
they ignored him. Instead, they disarmed and handcuffed him, and confiscated
the memorandum receipt covering his firearm, his money and his police ID card.
He recognized some of his arrestors as former members of the CIS. They forced
him into their jeep, and brought him to the WPD headquarters, where they locked
him up in a room that looked like a bodega. They subjected him to interrogation
on his alleged involvement in a robbery hold-up. They informed him of the drugrelated charge to be filed against him only three days later.

Belocura denied owning or possessing the bricks of marijuana, saying that he

saw the bricks of marijuana for the first time only in court. He insisted that it was
physically impossible for the bricks of marijuana to be found under the drivers

seat of his jeep on account of the clearance from the flooring being only about
three inches. At the time of his arrest, he was in Type-B uniform (i.e., blue pants
with white side piping and blue T-shirt) because he was reporting to work that
afternoon. Belocura said that his arrest was effected possibly because he had
incurred the ire of a superior; that it was not unusual for a policeman like him to
incur the ire of a superior officer or a fellow policeman; that he had arrested a
suspect for drug pushing and had detained him in Police Precinct 2, but the
suspect turned out to be the nephew of Captain Sukila of Precinct 2 who
admitted to him that Captain Sukila owned the drugs; that on the day following
the arrest of the suspect, Captain Sukila called Belocura to request the release of
the suspect (ina-arbor ang huli ko); that he told Captain Sukila that they should
meet the next day so that he could turn over the suspect; and that on the next
day, he was surprised to learn that the suspect had already been released.

Belocura did not personally know Chief Insp. Divina prior to his arrest, or the
other arresting policemen. He mentioned that his owner-type jeep had been
assembled in 1995, and that he had attached the plate number assigned to his
old vehicle pending the registration of the jeep despite knowing that doing so was
a violation of law; and that the incident involving the arrest of the nephew of
Captain Sukila was the only reason he could think of why charges were filed
against him.

On re-direct examination, Belocura replied that he did not see the bricks of
marijuana whether at the time of his arrest, or at the police precinct, or during the
inquest proceedings. On re-cross, he clarified that while the drivers seat were
fixed to the jeep, the bricks of marijuana could nevertheless be placed under the
drivers seat only if pressed hard enough, but in that case the wrappings would
get torn because the wirings of the car underneath the seat were exposed. He
recalled that the wrappings of the bricks of marijuana were intact.13

On April 22, 2003, the RTC convicted Belocura of the crime charged and
sentenced him to suffer reclusion perpetua and to pay the fine of P 500,000.00.

As already stated, the CA affirmed the conviction.

Issues

Belocura now submits that:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED NOTWITHSTANDING THE
PHYSICIAL IMPOSSIBILITY FOR THE DRIED BRICKS OF MARIJUANA
PLACED UNDER THE DRIVERS SEAT (sic).

II.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF

THE CRIME CHARGED BASED ON THE INCONSISTENT AND
CONTRADICTORY STATEMENTS OF THE PROSECUTION WITNESS.

III.

THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE MARIJUANA

DESPITE THE ILLEGALITY OF ITS SEIZURE DUE TO THE ABSENSE (sic) OF
A VALID SEARCH WARRANT.

IV.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF

THE CRIME CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

Petitioner's Contention
Belocura argues that the Prosecution did not establish his guilt for the crime
charged beyond reasonable doubt; that his warrantless arrest was unlawful
considering that his only violation was only a breach of traffic rules and
regulations involving the illegal use of a government plate on his newlyassembled jeep; that the warrantless search of his jeep was contrary to law for
violating his right against illegal search and seizure protected under Section 17,
Article III (Bill of Rights) of the 1987 Constitution; and that the bricks of marijuana
supposedly seized from him, being the fruit of a poisonous tree, were
inadmissible against him.

The Office of the Solicitor General (OSG) counters that Belocuras arrest and the
ensuing search of the jeep were valid, the search being incidental to a valid,
albeit warrantless, arrest; that the arresting policemen had a reasonable ground
to effect his warrantless arrest; that it became their duty following the lawful
arrest to conduct the warrantless search not only of the person of Belocura as
the arrestee but also of the areas within his reach, which then resulted in the
recovery of the dried bricks of marijuana from under the drivers seat; and that
any irregularity attendant to the arrest was cured by Belocuras failure to object to
the validity of his arrest before entering his plea and by his submission to the
jurisdiction of the RTC when he entered his plea and participated in the trial.

ISSUE: WHETHER OR NOT THERE IS A VALID SEARCH,

AND ARREST
YES

Court's Ruling
After a meticulous examination of the records, the Court concludes that a
reversal of the conviction is justified and called for.

No arrest, search and seizure can be made without a valid warrant issued by a
competent judicial authority. So sacred are the right of personal security and
privacy and the right from unreasonable searches and seizures that no less than
the Constitution ordains in Section 2 of its Article III, viz:

Section 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and
for any purpose, shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the
persons or things to be seized.

The consequence of a violation of the guarantees against a violation of personal

security and privacy and against unreasonable searches and seizures is the
exclusion of the evidence thereby obtained. This rule of exclusion is set down in
Section 3(2), Article III of the Constitution, to wit:

Section 3. xxx

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

Even so, the right against warrantless arrest, and the right against warrantless
search and seizure are not absolute. There are circumstances in which the
arrest, or search and seizure, although warrantless, are nonetheless valid or
reasonable. Among the circumstances are those mentioned in Section 5, Rule
113 of the Rules of Court, which lists down when a warrantless arrest may be
lawfully made by a peace officer or a private person, namely:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

On the other hand, the constitutional proscription against warrantless searches

and seizures admits of the following exceptions, namely: (a) warrantless search
incidental to a lawful arrest recognized under Section 13, Rule 126 of the Rules
of Court;19 (b) seizure of evidence under plain view; (c) search of a moving
vehicle; (d) consented warrantless search; (e) customs search; (f) stop-and-frisk
situations (Terry search); and (g) exigent and emergency circumstances. In these
exceptional situations, the necessity for a search warrant is dispensed with.

Belocura argues that his arrest and the ensuing search of his vehicle and
recovery of the incriminating bricks of marijuana were in violation of his
aforementioned rights under the Constitution because he was then violating only
a simple traffic rule on the illegal use of a government plate. He claims that the
arresting policemen had no probable cause to search his vehicle for anything.

The argument of Belocura does not persuade.

Belocura was caught in flagrante delicto violating Section 31 of Republic Act No.
4139 (The Land Transportation and Traffic Code).21 In flagrante delicto means in
the very act of committing the crime. To be caught in flagrante delicto necessarily
implies the positive identification of the culprit by an eyewitness or eyewitnesses.
Such identification is a direct evidence of culpability, because it "proves the fact
in dispute without the aid of any inference or presumption." Even by his own
admission, he was actually committing a crime in the presence or within the view
of the arresting policemen. Such manner by which Belocura was apprehended
fell under the first category in Section 5, Rule 113 of the Rules of Court. The

arrest was valid, therefore, and the arresting policemen thereby became cloaked
with the authority to validly search his person and effects for weapons or any
other article he might use in the commission of the crime or was the fruit of the
crime or might be used as evidence in the trial of the case, and to seize from him
and the area within his reach or under his control, like the jeep, such weapon or
other article. The evident purpose of the incidental search was to protect the
arresting policemen from being harmed by him with the use of a concealed
weapon. Accordingly, the warrantless character of the arrest could not by itself be
the basis of his acquittal.

Second Issue: Whether or not Belocura should be convicted due

to possession of marijuana bricks
NO

In convicting Belocura as charged, the RTC relied on the testimonies of Chief

Insp. Divina and SPO1 Rojas to establish the fact of possession of the marijuana
bricks. An evaluation of the totality of the evidence on record indicates, however,
that the corpus delicti of the crime charged was not established beyond
reasonable doubt.

The elements of illegal possession of marijuana under Republic Act No. 6425, as
amended, are that: (a) the accused is in possession of an item or object that is
identified to be marijuana, a prohibited drug; (b) such possession is not
authorized by law; and (c) the accused freely and consciously possessed the
said drug.24 What must be proved beyond reasonable doubt is the fact of
possession of the prohibited drug itself. This may be done by presenting the
police officer who actually recovered the prohibited drugs as a witness, being the
person who has the direct knowledge of the possession.

Chief Insp. Divina who headed the team of policemen disclosed that it was PO2
Santos, a member of the team, who had discovered and had actually recovered
the red plastic bag containing the bricks of marijuana from the jeep. Excerpts of
Chief Insp. Divinas relevant declarations follow:

ATTY LEE:

q Mr. Witness, it was SPO1 Rojas who examined the contents of the plastic bag.
That is correct?

a I had testified that it was SPO1 Rojas who examined the contents.

q Okay, it was Mr. Rojas who retrieved the plastic bag? Is that correct?

a No sir, It was not SPO1 Rojas.

q It was not you who retrieved that plastic bag from the jeep?

a No, Sir. I was not the one.

q It was Dela Cruz?

a No, Sir.

q Who retrieved the plastic bag from the jeep?

WITNESS:

A It was PO2 Reynaldo Santos, Sir.

ATTY LEE :

q It was Santos who brought the plastic bag to the headquarters. Is that correct?

A Yes, Sir.

q And you never had a chance to examine that plastic bag, the contents of that
plastic bag is that correct?

a I had a chance to see it at the place where we had flagged down a vehicle.

q You saw only the plastic bag. Is that correct?

a No, Sir. When the bag was recovered from under the drivers seat and when it
was opened, I had the chance to see it.

THE COURT:

q Including the contents?

WITNESS:

a Yes, your Honor.

ATTY LEE:

q It was not you who bring that bag to xxx

THE COURT:

Already answered.

ATTY LEE:

q And after that, you never had the chance to see that bag again. Is that correct?

a Not anymore Sir.25

The Prosecution also presented SPO1 Rojas, another member of the team, but
he provided no direct evidence about the possession by Belocura of the
confiscated marijuana bricks, and actually stated that he did not witness the
recovery of the marijuana bricks from Belocura, viz:

PUB. PROS. TAN, JR:

q While you were taking the gun of this accused what were your other companion
specifically Major Divina doing?

WITNESS:

a Since I was the first one who approached Reynaldo Belocura I was the one
who took the gun from his waistline and I informed Major Divina that I already
took the gun and place it inside the Tamaraw FX and when I left the members of
the SWAT arrive at the scene and I dont know what transpired.

PUB. PROS. TAN, JR:

q And where was Major Divina then?

a Beside the owner type jeep, sir.

q You are referring to the owner type jeep of the accused?

a Yes, sir.

q Did you go back to the said jeep?

a I did not return there anymore sir because the members of the other group
surrounded the place, sir.

q Since you were then at that scene did you come to know if there is any other
thing that was retrieved from the herein accused in the said vehicle?26

xxx

WITNESS:

a Yes. When I was there according to them marijuana was taken from the owner
type jeep.

PUB. PROS. TAN, JR:

q Who said that?27

xxx

WITNESS:

a The member of the SWAT and other team, sir were there.

q And then what else happen after such recovery?

a Actually sir at the scene I did not see anything recovered but it was only in the
office that I heard their conversation about it.

q What did you see or observe while in your office?

a He was investigated.

q Investigated for what?

a According to them the recovery of the plate number and the expired MR of the
gun and the marijuana recovered.

PUB. PROS. TAN, JR:

q Before whom was he investigated?

WITNESS:

a General Assignment Section, sir.28

xxx

On further examination, SPO1 Rojas reiterated that he did not actually witness
the seizure of the marijuana bricks from Belocuras possession, to wit:

ATTY LEE:

q Mr. Witness, so you did not see the actual the alleged recovery of marijuana, is
that correct?

WITNESS:

a Yes sir.

ATTY LEE:

q And you have never that marijuana?

WITNESS:

a Yes sir. But only in the office.

q What do you only took from the accused is a gun, is that correct?

a Yes sir.

q So you cannot say positively that there was a marijuana recovered from the
accused because you did not see?

a I just got the information from my co-police officer, sir.29

xxx

PUB. PROS TAN, JR:

q Were you able to see the marijuana in the police station?

WITNESS:

a Yes sir.

q You mean to say that was the first time that you saw the marijuana?

a Yes, sir.30

The Prosecution presented no other witnesses to establish the seizure of the

marijuana bricks from Belocura.

Based on the foregoing, Chief Insp. Divina and SPO1 Rojas declarations were
insufficient to incriminate Belocura, much less to convict him. If neither of them
was personally competent to be an eyewitness regarding the seizure of the
marijuana bricks from Belocura, their testimonies could not be accorded
probative value, considering that the Rules of Court requires that a witness could
testify only to facts that he knew of his own knowledge, that is, only to those facts
derived from his own perception.

Indeed, only PO2 Santos could reliably establish Belocuras illegal possession of
the marijuana bricks, if Chief Insp. Divinas account was to be believed.
Surprisingly, the RTC did not give due and proper significance to the failure to
present PO2 Santos as a witness against Belocura.

Nonetheless, the OSG contends that the State had no need to present PO2
Santos because his testimony would only be corroborative; and that the
testimonies of Chief Insp. Divina and SPO1 Rojas sufficed to establish Belocuras
guilt beyond reasonable doubt.

The OSGs contention is grossly erroneous.

As the arresting officer who alone actually seized the marijuana bricks from
Belocuras vehicle beyond the viewing distance of his fellow arresting officers,
PO2 Santos was the Prosecutions only witness who could have reliably
established the recovery from Belocura of the marijuana bricks contained in the
red plastic bag labeled as "SHIN TON YON." Without PO2 Santos testimony,
Chief Insp. Divinas declaration of seeing PO2 Santos recover the red plastic bag
from under the drivers seat of Belocuras jeep was worthless. The explanation
why none of the other police officers could credibly attest to Belocuras
possession of the marijuana bricks was that they were at the time supposedly
performing different tasks during the operation. Under the circumstances, only
PO2 Santos was competent to prove Belocuras possession.

Worse, the Prosecution failed to establish the identity of the prohibited drug that
constituted the corpus delicti itself. The omission naturally raises grave doubt
about any search being actually conducted and warrants the suspicion that the
prohibited drugs were planted evidence.

In every criminal prosecution for possession of illegal drugs, the Prosecution

must account for the custody of the incriminating evidence from the moment of
seizure and confiscation until the moment it is offered in evidence. That account
goes to the weight of evidence.32 It is not enough that the evidence offered has
probative value on the issues, for the evidence must also be sufficiently
connected to and tied with the facts in issue. The evidence is not relevant merely
because it is available but that it has an actual connection with the transaction
involved and with the parties thereto. This is the reason why authentication and
laying a foundation for the introduction of evidence are important.33

Yet, no such accounting was made herein, as the following excerpts from the
testimony of Chief Insp. Divina bear out, to wit:

PUB. PROS TAN, JR:

q How about the plastic bag containing the suspected stuff, what did you do with
the same? You did not know?

WITNESS:

a I think it was turned over to the investigator of the General Assignment Section
who made the proper disposition.

q Who is the investigator again, Mr. witness?

a I remember SPO4 Boy Guzman

q Did you know what SPO4 Boy Guzman did with the accused as well as the
confiscated stuff?

xxx

WITNESS:

a The items upon turn over to the investigator on case were handed to the
custodian with proper receipt and after those disposition, there were case filed
against the subject.

PUB. PROS. TAN, JR:

q Were you able to know what did they do with the accused as well as the
confiscated stuff if you know?

a I remember appearing in the MTC court Br, 20, I saw the exhibits, firearm and
plate number, two blocks of marijuana. I dont have any idea where did the
investigator brought them or have done.34

xxx

q You never had a knowledge of what happened to that bag and the contents
thereof?

a I learned later that the items that were confiscated were turned over to the
General Assignment Section which held the investigation.

q So, it was not your group who conducted the examination and the alleged
things that were recovered from the alleged accused?35

xxx

a No, Sir.

q How about the things that were allegedly recovered from the accused?

a I just said that it was the General Assignment Section who handled the
investigation.36

The Prosecution thereby failed to establish the linkage between the bricks of
marijuana supposedly seized by PO2 Santos from Belocuras jeep following his
arrest and the bricks of marijuana that the Prosecution later presented as
evidence in court. That linkage was not dispensable, because the failure to prove
that the specimens of marijuana submitted to the forensic chemist for
examination were the same marijuana allegedly seized from Belocura irreparably
broke the chain of custody that linked the confiscated marijuana to the marijuana
ultimately presented as evidence against Belocura during the trial. Proof beyond
reasonable doubt demanded that unwavering exactitude must be observed in
establishing the corpus delicti the body of the crime whose core was the
confiscated prohibited substances. Thus, every fact necessary to constitute the
crime must be established.

The chain-of-custody requirement ensures that all doubts concerning the identity
of the evidence are removed.38The requirement has come to be associated with
prosecutions for violations of Republic Act No. 9165 (Comprehensive Drugs Act
of 2002),39 by reason of Section 2140 of Republic Act No. 9165 expressly

regulating the actual custody and disposition of confiscated and surrendered

dangerous drugs, controlled precursors, essential chemicals, instruments,
paraphernalia, and laboratory equipment. Section 21(a) of the Implementing
Rules and Regulations of Republic Act No. 9165 issued by the Dangerous Drugs
Board pursuant to its mandate under Section 94 of Republic Act No. 9165
reiterates the requirement, stating:

xxx

(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel,
a representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served;
or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items.

xxx

That this case was a prosecution brought under Republic Act No. 6425
(Dangerous Drugs Act of 1972), as amended by Republic Act No. 7659, did not
matter. The chain-of-custody requirement applied under both laws by virtue of the
universal need to competently and sufficiently establish the corpus delicti. It is
basic under the Rules of Court, indeed, that evidence, to be relevant, must throw
light upon, or have a logical relation to, the facts in issue to be established by one
party or disproved by the other.41 The test of relevancy is whether an item of
evidence will have any value, as determined by logic and experience, in proving
the proposition for which it is offered, or whether it would reasonably and actually

tend to prove or disprove any matter of fact in issue, or corroborate other relevant
evidence. The test is satisfied if there is some logical connection either directly or
by inference between the fact offered and the fact to be proved.42

The chain of custody is essential in establishing the link between the article
confiscated from the accused to the evidence that is ultimately presented to the
court for its appreciation. As the Court said in Mallillin v. People:43

As a method of authenticating evidence, the chain of custody rule requires that

the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness possession, the
condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and
no opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain, an unbroken chain of custody becomes
indispensable and essential when the item of real evidence is not distinctive and
is not readily identifiable, or when its condition at the time of testing or trial is
critical, or when a witness has failed to observe its uniqueness. The same
standard likewise obtains in case the evidence is susceptible to alteration,
tampering, contamination and even substitution and exchange. In other words,
the exhibits level of susceptibility to fungibility, alteration or tamperingwithout
regard to whether the same is advertent or otherwise notdictates the level of
strictness in the application of the chain of custody rule.44

The first link in the chain of custody started with the seizure from the jeep of
Belocura of the red plastic bag said to contain the marijuana bricks. The first link
was immediately missing because the Prosecution did not present PO2 Santos,
the only person with direct knowledge of the seizure and confiscation of the

marijuana bricks. Without his testimony, proof that the marijuana bricks were
really taken from the jeep of Belocura did not exist. The second link was the
turnover of the marijuana bricks by PO2 Santos to another officer back at the
WPD Headquarters. As to this, Chief Insp. Divina stated that he learned following
the seizure by PO2 Santos that the marijuana bricks were turned over to the
General Assignment Section for investigation. That was all. On the other hand,
SPO1 Rojas testimony contributed nothing to the establishment of the second
link because he had immediately left after seizing the gun from Belocura. As for
the subsequent links, the records45 showed that the marijuana bricks were
forwarded to the General Assignment Section on March 22, 1999, but the
Prosecution did not prove the identities of the officer from the General
Assignment Section who received the red plastic bag containing the marijuana
bricks, and the officer from whom the receiving officer received the marijuana
bricks. Although Chief Insp. Nelson Yabut prepared the request for laboratory
examination of the marijuana bricks,46 which were thereafter examined by
Forensic Chemist Valdez, the records did not show if Chief Insp. Yabut was the
officer who had received the marijuana bricks from the arresting team. The
request for laboratory examination was dated March 23, 1999, or the day
following Belocuras arrest and the seizure of the marijuana bricks from his jeep;
however, the Prosecution did not identify the person from whom Chief Insp.
Yabut had received the marijuana bricks.

Sadly, the Prosecution did not establish the links in the chain of custody. This
meant that the corpus delicti was not credibly proved. This further meant that the
seizure and confiscation of the marijuana bricks might easily be open to doubt
and suspicion, and thus the incriminatory evidence would not stand judicial
scrutiny.

Thirdly, Belocuras denial assumed strength in the face of the Prosecutions weak
incriminating evidence. In that regard, Belocura denied possession of the
marijuana bricks and knowledge of them as well, to wit:

q Were you able to view the alleged marijuana that were confiscated from you?

a: I saw it for the first time when it was presented in Court, Sir.

q: Now, according to Inspector Divina, it was police officer Santos who was able
to recover from your vehicle these two bricks of marijuana. What can you say
about this?

a: At first, I did not see this marijuana, Sir, that they are saying because they
immediately handcuffed me and disarmed me even before I could board my
owner type jeepney.

The Court holds that the guilt of Belocura for the crime charged was not proved
beyond reasonable doubt. Mere suspicion of his guilt, no matter how strong,
should not sway judgment against him. Every evidence favoring him must be
duly considered. Indeed, the presumption of innocence in his favor was not
overcome. Hence, his acquittal should follow, for, as the Court fittingly said in
Patula v. People:

xxx in all criminal prosecutions, the Prosecution bears the burden to establish the
guilt of the accused beyond reasonable doubt. In discharging this burden, the
Prosecutions duty is to prove each and every element of the crime charged in
the information to warrant a finding of guilt for that crime or for any other crime
necessarily included therein. The Prosecution must further prove the participation
of the accused in the commission of the offense. In doing all these, the
Prosecution must rely on the strength of its own evidence, and not anchor its
success upon the weakness of the evidence of the accused. The burden of proof
placed on the Prosecution arises from the presumption of innocence in favor of
the accused that no less than the Constitution has guaranteed. Conversely, as to
his innocence, the accused has no burden of proof, that he must then be
acquitted and set free should the Prosecution not overcome the presumption of
innocence in his favor. In other words, the weakness of the defense put up by the
accused is inconsequential in the proceedings for as long as the Prosecution has
not discharged its burden of proof in establishing the commission of the crime
charged and in identifying the accused as the malefactor responsible for it.

WHEREFORE, we REVERSE and SET ASIDE the decision promulgated on

January 23, 2006; ACQUIT accused REYNALDO BELOCURA y PEREZ for

failure of the Prosecution to prove his guilt beyond reasonable doubt; DIRECT
the immediate release from detention of REYNALDO BELOCURA y PEREZ,
unless he is also detained for some other lawful cause; and ORDER the Director
of the Bureau of Corrections to forthwith implement this decision upon receipt
and to report his action hereon to this Court within 10 days from receipt. No
pronouncement on costs of suit.
SO ORDERED.

RODOLFO ABENES y GACUTAN, Petitioner,

vs.
HE HON. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.

For review before the Court is the Decision dated November 29, 2002 of the
Court of Appeals (CA) which affirmed the Joint Decision of the Regional Trial
Court (RTC) of Pagadian City, Branch 19, dated June 5, 2000, finding Rodolfo
Abenes y Gacutan (petitioner) guilty beyond reasonable doubt of Illegal
Possession of High Powered Firearm and Ammunition under Presidential Decree
No. 1866 (P.D. No. 1866) in Criminal Case No. 4559-98, and of violating Section
261(q) of Batas Pambansa Blg. 881 (B.P. Blg. 881), otherwise known as the
Omnibus Election Code, vis--vis COMELEC Resolution No. 2958 (Gun Ban) in
Criminal Case No. 4563-98.

Petitioner was charged under the following Informations:

In Criminal Case No. 4559-98

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES

Y GACUTAN of the offense of ILLEGAL POSSESSION OF HIGH POWERED
FIREARM & ITS AMMUNITIONS (Violation of P.D. No. 1866, as amended by

R.A. No. 8294), committed as follows:

On May 8, 1998, at about 10:30 a.m., in Danlugan, Pagadian City, Philippines,

within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y
GACUTAN did, then and there, willfully, unlawfully, and without any prior
authority, license or permit to possess or carry the firearm hereunder described,
have in his possession and control the following firearm classified as high
powered, with its corresponding ammunitions and accessory, viz:

- one (1) cal. 45 pistol (NORINCO) bearing SN 906347;

- one (1) magazine for pistol cal. 45

- seven (7) rounds live ammunitions for cal. 45,

in gross violation of P.D. No. 1866 as amended by R.A. No. 8294.

CONTRARY TO LAW.

In Criminal Case No. 4563-98

The undersigned Assistant City Prosecutor hereby accuses RODOLFO ABENES

Y GACUTAN of Election Offense in violation of Sec. 261 (9)3 , BP 881
(OMNIBUS ELECTION CODE), vis--vis COMELEC RESOLUTION # 1958
(GUN BAN), committed as follows:

On May 8, 1998, at about 10:30 a.m. within the Election period which is from
January 11, 1998 to June 30, 1998, in Danlugan, Pagadian City, Philippines,
within the jurisdiction of this Honorable Court, said RODOLFO ABENES Y

GACUTAN did, then and there, willfully, and unlawfully, carry in his person a cal. .
45 (NORINCO) pistol, bearing serial number 906347, and loaded with seven (7)
rounds of live ammunitions, without any prior authority from the COMELEC in
gross violation of Sec. 261 (9) of BP 881 (OMNIBUS ELECTION CODE) in
relation to COMELEC RESOLUTION No. 2958 (GUN BAN).

CONTRARY TO LAW.
Upon arraignment, the petitioner pleaded not guilty. Trial ensued.

The facts, as found by the RTC and summarized by the CA, are as follows:
The prosecution showed that three days prior to the May 11, 1998 national and
local elections, the Philippine National Police (PNP) of Pagadian City, through its
Company Commander Major Pedronisto Quano, created a team composed of
seven policemen with a directive to establish and man a checkpoint in
Barangay Danlugan at said city, for the purpose of enforcing the Gun Ban
which was then being implemented by the COMELEC. SPO3 Cipriano Q.
Pascua was the designated team leader.

The team proceeded to Barangay Danlugan, arriving thereat at 8:15 in the

morning of May 8, 1998. Team leader SPO3 Pascua coordinated with the
Barangay Chairman of Danlugan, and the team put up a road block with the
marking "COMELEC GUN BAN". Vehicles passing through the road block were
required by the team to stop and their occupants were then politely requested to
alight in order to allow routine inspection and checking of their vehicles. Motorists
who refused the request were not forced to do so.

At about 10:30 in the morning of the same day, a red Tamaraw FX trying to pass
through the check point was stopped by the team and directed to park at the side
of the road. As the occupants within the vehicle could not be seen through its
tinted windows, SPO1 Eliezer Requejo, a member of the team, knocked on the
vehicles window and requested the occupants to step down for a routine
inspection. The eight occupants, which included the accused-appellant Rodolfo

Abenes who is the Barangay Chairman of Tawagan Norte, Labangan,

Zamboanga Del Sur, alighted from the vehicle. At this juncture, SPO1 Requejo
and SPO3 Pascua noticed that a holstered firearm was tucked at the right
waist of Abenes. The firearm was readily visible to the policemen; it was
not covered by the shirt worn by Abenes. Abenes was then asked by SPO3
Pascua whether he had a license and authority to carry the firearm, and whether
his possession was exempted from the Gun Ban being enforced by the
COMELEC. Accused answered in the affirmative. The policemen then demanded
for the pertinent documents to be shown to support Abenes claim. He could not
show any. Hence, SPO1 Requejo confiscated Abenes firearm, which was later
identified as a Norinco .45 caliber pistol bearing Serial No. 906347, including its
magazine containing seven live ammunitions.

Subsequently SPO3 Pascua, using his privately owned jeep, brought Abenes to
the PNP Headquarters at Camp Abelon in Pagadian City. Upon reaching the
Headquarters, SPO3 Pascua indorsed Abenes to Major Quano who in turn
referred Abenes to a certain SPO2 Benvienido Albon for further investigation
(TSN, August 24, 1998 [SPO3 Cipriano Q. Pascua] pp. 5-27, [SPO1 Eliezer
Requejo] pp. 29-50).

A certification dated May 18, 1998 from the Firearms and Explosives License
Processing Section of the PNP, Pagadian City disclosed that Abenes is not a
registered nor a licensed firearm holder (Record of Criminal Case No. 4559-98,
p. 56).

After the prosecution presented its evidence, [the] accused filed a Demurrer to
Evidence with Motion to Dismiss (supra, pp. 72-79), which was denied by the trial
court in a Resolution dated March 5, 1999 (supra, pp. 80-82).

Defendant's Defense
In his defense, accused-appellant tried to establish that the firearm did not
belong to and was not recovered from him; that the firearm was recovered by the
policemen from the floor of the vehicle inside a clutch bag which was allegedly
left by an unidentified person who hitched a ride somewhere along the national
highway of Tawagan Norte Zamboanga Del Sur and alighted near the Mabuhay

Bazaar in Pagadian City (TSN, July 12, 1999 [Noel Rivera], pp. 7-13; September
15, 1999 [Rodolfo Abenes], pp. 11-15; September 27, 1999 [Manuel Sabado
Gengania], pp. 9-16).5

On June 5, 2000, the RTC rendered its Joint Decision convicting the petitioner on
both charges, the dispositive portion of which states:

WHEREFORE, in view of all the foregoing discussion, this Court hereby finds
accused Rodolfo Abenes y Gacutan GUILTY beyond reasonable doubt for
Violation of P.D. No. 1866, as amended by Republic Act No. 8294, having been
found in possession without license/permit of a Norinco .45 caliber pistol bearing
Serial No. 906347 and 7 rounds of ammunitions and sentences him to
imprisonment ranging from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of PRISION CORRECCIONAL in its MEDIUM PERIOD, as MINIMUM, to
EIGHT (8) YEARS of PRISION MAYOR in its MINIMUM, as MAXIMUM and a
FINE of THIRTY THOUSAND PESOS (P30,000.00), Philippine currency. Insofar
as Criminal Case No. 4559-98 is concerned. The .45 Caliber Pistol
aforementioned and the seven (7) rounds of ammunitions are hereby forfeited in
favor of the government the same being effects of the Violation of P.D. 1866,
amended.

As regards Criminal Case No. 4563-98, this Court also finds herein accused
Rodolfo Abenes y Gacutan GUILTY of Violation of Section 264, in relation to
Section 261, paragraphs (p) and (q) of Batas Pambansa Blg. 881, otherwise
known as the Omnibus Election Code and sentences him to imprisonment for a
period of ONE (1) YEAR, and in addition thereto, herein accused is disqualified
to hold any public office and deprived [of] the right of suffrage. It shall be
understood that the sentence herein imposed shall be served simultaneously
with the sentence imposed in Criminal Case No. 4559-98.

SO ORDERED.

The RTC found that, as between the positive and categorical assertions of facts
by the two policemen the witnesses for the prosecution and the mere denial

of the accused and his witnesses, the former must prevail over the latter; that the
prosecution successfully proved that the petitioner had no license or permit to
carry the firearm through the officer-in-charge of the firearms and explosives
office who testified that, based on his records, the petitioner had not been issued
a license, and whose testimony had not been impugned by the defense; and that
the testimonies of the accused and his two witnesses to the effect that while
aboard their private vehicle and on their way to attend an election campaign
meeting, they simply stopped and allowed a complete stranger to hitch a ride
who was carrying a clutch bag, left the same in the vehicle when he alighted, and
which later turned out to contain the subject firearm, were flimsy and
unbelievable. The RTC ruled that the defense of alibi or denial cannot prevail
over the positive identification by eyewitnesses who have no improper motive to
falsely testify against the petitioner, especially where the policemen and the
petitioner do not know each other; and, that the petitioner failed to show any
license or any other document to justify his lawful possession of the firearm.

(Petitioner's further defense in relation to the checkpoint and

violation of his constitutional right)

The petitioner appealed to the CA claiming that the checkpoint was not shown to
have been legally set up, and/or that the frisking of the petitioner who was
ordered to alight from the Tamaraw FX, along with his companions in the vehicle,
violated his constitutional right against unlawful search and seizure; and, that the
trial court erred in believing the version of the incident as testified to by the
policemen instead of the version presented by the defenses witness which is
more consistent with truth and human experience.

On November 29, 2002, the CA rendered its Decision, the dispositive portion of
which reads:

WHEREFORE, premises considered, the Joint Decision appealed from is

AFFIRMED with the MODIFICATION that with respect to Criminal Case No.
4559-98, accused-appellant is sentenced to an indeterminate penalty of 4 years,
2 months and 1 day of prision correccional as minimum to 7 years and 4 months
of prision mayor as maximum.

SO ORDERED.

With respect to the validity of the checkpoint, the CA found that not only do the
police officers have in their favor the presumption that official duties have been
regularly performed, but also that the proximity of the day the checkpoint had
been set up, to the day of the May 11, 1998 elections, specifically for the purpose
of enforcing the COMELEC gun ban, gives a strong badge of the legitimacy of
the checkpoint; that after a review of the records, the evidence adduced by the
prosecution prevails over the self-serving and uncorroborated claim of the
petitioner that he had been "framed"; and, that with respect to the admissibility of
the firearm as evidence, the prosecution witnesses convincingly established that
the .45 caliber pistol, tucked into the right waist of the petitioner when he alighted
from the vehicle, was readily visible, and, therefore, could be seized without a
search warrant under the "plain view" doctrine.

The petitioner is now before this Court, raising the following issues:

I.

Given the circumstances, and the evidence adduced, was the check-point validly
established?

II.

Given the circumstances, and the evidence adduced, was the petitioners
constitutional right against unlawful search and seizure violated?

III.

Given the circumstances, and the evidence adduced, did not the honorable court
of appeals commit a grave abuse of discretion for adopting the trial courts
unsubstantiated findings of fact?

IV.

Given the circumstances, and the evidence adduced, is not the petitioner entitled
to an acquittal, if not on the ground that the prosecution failed to prove guilt
beyond reasonable doubt, on the ground of reasonable doubt itself . . . as to
where the gun was taken: from the floor of the vehicle or from the waist of
petitioner?

The appeal is partly meritorious. The Court reverses the CAs finding of his
conviction in Criminal Case No. 4559-98.

ISSUE: Whether or not there is a valid search, and seizure ?

YES
Whether the checkpoint is valid ?
Yes

After a thorough review of the records, this Court is of the view that the courts a
quo except for a notable exception with respect to the negative allegation in the
Information are correct in their findings of fact. Indeed, the version of the
defense, as found by the lower courts, is implausible and belies the common
experience of mankind. Evidence to be believed must not only proceed from the
mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances.In addition, the question of credibility of witnesses is primarily for
the trial court to determine. For this reason, its observations and conclusions are
accorded great respect on appeal.

The trial court's assessment of the credibility of a witness is entitled to great

weight. It is conclusive and binding unless shown to be tainted with arbitrariness
or unless, through oversight, some fact or circumstance of weight and influence
has not been considered. Absent any showing that the trial judge overlooked,
misunderstood, or misapplied some facts or circumstances of weight which
would affect the result of the case, or that the judge acted arbitrarily, his
assessment of the credibility of witnesses deserves high respect by appellate
courts.14 Thus, the Court finds no cogent reason to disturb the findings of the
lower courts that the police found in plain view a gun tucked into the waist of the
petitioner during the Gun Ban period enforced by the COMELEC.

So too must this Court uphold the validity of the checkpoint. The petitioner insists
that the prosecution should have produced the mission order constituting the
checkpoint, and invokes Aniag, Jr. v. Comelec,, where the Court purportedly held
that firearms seized from a motor vehicle without a warrant are inadmissible
because there was no indication that would trigger any suspicion from the
policemen nor any other circumstance showing probable cause.

On both points the petitioner is wrong. In the present case, the production of the
mission order is not necessary in view of the fact that the checkpoint was
established three days before the May 11, 1998 elections; and, the
circumstances under which the policemen found the gun warranted its seizure
without a warrant.

In People v. Escao,16 the Court, through the ponencia of Chief Justice Hilario
G. Davide, Jr., held:

Accused-appellants assail the manner by which the checkpoint in question was

conducted. They contend that the checkpoint manned by elements of the Makati
Police should have been announced. They also complain of its having been
conducted in an arbitrary and discriminatory manner.

We take judicial notice of the existence of the COMELEC resolution imposing a

gun ban during the election period issued pursuant to Section 52(c) in relation to
Section 26(q) of the Omnibus Election Code (Batas Pambansa Blg. 881). The
national and local elections in 1995 were held on 8 May, the second Monday of
the month. The incident, which happened on 5 April 1995, was well within the
election period.

This Court has ruled that not all checkpoints are illegal. Those which are
warranted by the exigencies of public order and are conducted in a way least
intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude,
to a certain extent, on motorists right to "free passage without interruption," but it
cannot be denied that, as a rule, it involves only a brief detention of travelers
during which the vehicles occupants are required to answer a brief question or
two. For as long as the vehicle is neither searched nor its occupants subjected to
a body search, and the inspection of the vehicle is limited to a visual search, said
routine checks cannot be regarded as violative of an individuals right against
unreasonable search. In fact, these routine checks, when conducted in a fixed
area, are even less intrusive.

The checkpoint herein conducted was in pursuance of the gun ban enforced by
the COMELEC. The COMELEC would be hard put to implement the ban if its
deputized agents were limited to a visual search of pedestrians. It would also
defeat the purpose for which such ban was instituted. Those who intend to bring
a gun during said period would know that they only need a car to be able to
easily perpetrate their malicious designs.

The facts adduced do not constitute a ground for a violation of the constitutional
rights of the accused against illegal search and seizure. PO3 Suba admitted that
they were merely stopping cars they deemed suspicious, such as those whose
windows are heavily tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights inside the cars they would
stop, without opening the cars doors or subjecting its passengers to a body
search. There is nothing discriminatory in this as this is what the situation
demands.

Thus, the Court agrees with the Solicitor General that petitioners reliance on
Aniag is misplaced.

In Aniag, the police officers manning the checkpoint near the Batasang
Pambansa complex stopped the vehicle driven by the driver of Congressman
Aniag. After stopping the vehicle, the police opened a package inside the car
which contained a firearm purportedly belonging to Congressman Aniag. In
declaring the search illegal, the Supreme Court stated that the law enforcers who
conducted the search had no probable cause to check the content of the
package because the driver did not behave suspiciously nor was there any
previous information that a vehicle hiding a firearm would pass by the checkpoint.

In the instant case, the firearm was seized from the petitioner when in plain view,
the policemen saw it tucked into his waist uncovered by his shirt.

Under the plain view doctrine, objects falling in the "plain view" of an officer who
has a right to be in the position to have that view are subject to seizure and may
be presented as evidence. The "plain view" doctrine applies when the following
requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; and
(c) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure.

All the foregoing requirements are present in the instant case. The law
enforcement officers lawfully made an initial intrusion because of the
enforcement of the Gun Ban and were properly in a position from which they
particularly viewed the area. In the course of such lawful intrusion, the policemen
came inadvertently across a piece of evidence incriminating the petitioner where
they saw the gun tucked into his waist. The gun was in plain view and discovered
inadvertently when the petitioner alighted from the vehicle.

As accurately found by the CA:

xxx It must be emphasized that the policemen discovered the firearm [on] the
person of the [petitioner] shortly after he alighted from the vehicle and before he
was frisked. SPO3 Pascuas testimony[,] corroborated by that of SPO1
Requejo[,] convincingly established that the holstered .45 caliber pistol tucked at
the right waist of the [petitioner] was readily visible to the policemen (TSN,
August 24, 1998, pp. 18, 37). Thus, notwithstanding the absence of a Search
Warrant, the policemen may validly seize the firearm and the same is admissible
in evidence against the [petitioner] pursuant to the "plain view doctrine" xxx.

Nor can the Court believe petitioners claim that he could not have freely refused
the "police orders" issued by the police team who were "armed to the teeth" and
"in the face of such show of force." The courts a quo consistently found that the
police team manning the checkpoint politely requested the passengers to alight
from their vehicles, and the motorists who refused this request were not forced to
do so. These findings of fact are fully supported by the evidence in the record.

However, the Court must underscore that the prosecution failed to satisfactorily
prove the negative allegation in the Information that the petitioner possessed no
license or permit to bear the subject firearm.

It is a well-entrenched rule "that in crimes involving illegal possession of firearm,

the prosecution has the burden of proving the elements thereof, viz: the
existence of the subject firearm, and the fact that the accused who owned or
possessed the firearm does not have the corresponding license or permit to
possess the same."

Undoubtedly, it is the constitutional presumption of innocence that lays such

burden upon the prosecution. The absence of such license and legal authority
constitutes an essential ingredient of the offense of illegal possession of firearm,
and every ingredient or essential element of an offense must be shown by the
prosecution by proof beyond reasonable doubt.22

Witness for the prosecution SPO4 Gilbert C. Senados admitted that his records

were outdated, i.e., that his Master List of holders of firearms only covered
licenses up to 1994; that it was possible for the petitioner to acquire a license
after 1994; and that he issued the Certification, dated May 18, 1998, stating that
the petitioner carried no license or permit to possess the guns because he was
ordered to do so by his superiors.23

There is no evidence that between 1994 and May 8, 1998, the date the crime
was allegedly committed, no license was issued to petitioner.

While the prosecution was able to establish the fact that the subject firearm was
seized by the police from the possession of the petitioner, without the latter being
able to present any license or permit to possess the same, such fact alone is not
conclusive proof that he was not lawfully authorized to carry such firearm. In
other words, such fact does not relieve the prosecution from its duty to establish
the lack of a license or permit to carry the firearm by clear and convincing
evidence, like a certification from the government agency concerned.

Thus, for failure of the prosecution to prove beyond reasonable doubt that
petitioner was carrying a firearm without prior authority, license or permit, the
latter must be exculpated from criminal liability under P.D. No. 1866, as
amended.

With respect to the charge of violating Section 261(q) of B.P. Blg. 881, as
amended, otherwise known as the Omnibus Election Code, the Court is
constrained to affirm the conviction of the petitioner, since the prosecution
successfully discharged its burden of proof.

Section 261 of B.P. Blg. 881 (Omnibus Election Code), as originally worded,
provides:

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

(q) Carrying firearms outside residence or place of business. Any person who,
although possessing a permit to carry firearms, carries any firearms outside his
residence or place of business during the election period, unless authorized in
writing by the Commission: Provided, That a motor vehicle, water or air craft shall
not be considered a residence or place of business or extension hereof.

Section 32 of Republic Act No. 7166 (R.A. No. 7166), amending Section 261 of
the Omnibus Election Code, provides:

SEC. 32. Who May Bear Firearms. During the election period, no person shall
bear, carry or transport firearms or other deadly weapons in public places,
including any building, street, park, private vehicle or public conveyance, even if
licensed to possess or carry the same, unless authorized in writing by the
Commission. The issuance of firearm licenses shall be suspended during the
election period. (Emphasis supplied)

In view of the foregoing provisions, while it is well-settled that under P.D. No.
1866, as amended, the burden to prove the negative allegation that the accused
has no license or permit to carry a firearm lies with the prosecution; under the
Omnibus Election Code, however, the burden to adduce evidence that accused
is exempt from the COMELEC Gun Ban, lies with the accused.

Section 32 of R.A. No. 7166 is clear and unequivocal that the prohibited act to
which this provision refers is made up of the following elements: 1) the person is
bearing, carrying, or transporting firearms or other deadly weapons; 2) such
possession occurs during the election period; and, 3) the weapon is carried in a
public place. Under said provision, it is explicit that even if the accused can prove
that he is holding a valid license to possess such firearm, this circumstance by
itself cannot exculpate him from criminal liability. The burden is on the accused to
show that he has a written authority to possess such firearm issued by no less
than the COMELEC.

On this point, the petitioner failed to present any form of such authority, and,
therefore, his conviction must be affirmed.

Section 264 of the Omnibus Election Code provides:

Sec. 264. Penalties. Any person found guilty of any election offense under this
Code shall be punished with imprisonment of not less than one year but not more
than six years and shall not be subject to probation. In addition, the guilty party
shall be sentenced to suffer disqualification to hold public office and deprivation
of the right of suffrage. If he is a foreigner, he shall be sentenced to deportation
which shall be enforced after the prison term has been served.

The CA affirmed the penalty imposed by the RTC. However, the RTC failed to
apply Section 1 of the Indeterminate Sentence Law26 which provides:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by

the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same.

Thus, the penalty that should be meted out to petitioner should have a minimum
and a maximum period. The Court deems it reasonable that petitioner should
suffer imprisonment for a period of one (1) year as the minimum and two (2)
years, as the maximum.

Furthermore, under Section 34 of R.A. No. 7166, the subject firearm shall be
disposed of according to existing laws, which, in this case, must be read in light
of Article 45 of the Revised Penal Code, to wit:

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
Every penalty imposed for the commission of a felony shall carry with it the
forefeiture of the proceeds of the crime and the instruments or tools with which it
was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in

favor of the Government, unless they be the property of a third person not liable
for the offense, but those articles which are not subject of lawful commerce shall
be destroyed.

WHEREFORE, the petition is partly GRANTED. The Decision dated November

29, 2002 of the Court of Appeals is REVERSED and SET ASIDE insofar as
Criminal Case No. 4559-98 is concerned. Petitioner Rodolfo Abenes Y Gacutan
is ACQUITTED from the charge of illegal possession of firearm under P.D. No.
1866, as amended, for failure of the prosecution to prove his guilt beyond
unreasonable doubt.

SUSAN ESQUILLO Y ROMINES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Via petition erroneously captioned as one for Certiorari, Susan Esquillo y

Romines (petitioner) challenges the November 27, 2007 Decision of the Court of
Appeals in CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of
Branch 116 of the Regional Trial Court (RTC) of Pasay City in Criminal Case No.
02-2297 convicting Susan Esquillo y Romines (petitioner) for violating Section 11,
Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs
Act of 2002) possession of methamphetamine hydrochloride or shabu.

The accusatory portion of the Information dated December 12, 2002 indicting
petitioner reads:

That on or about the 10th day of December, 2002 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without authority of law, did then and there willfully, unlawfully and
feloniously have in her possession, custody and control 0.1224 gram of
Methylamphetamine Hydrochloride (shabu).

At the trial, petitioner admitted the genuineness and due execution of the
documentary evidence of the prosecution, particularly the Dangerous Drugs and
Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic
Chemist Antonino de Belen (de Belen),subject to her defenses, to thus dispense
with the testimony of de Belen.

De Belen recorded the results of the laboratory examination of the contents of

the sachet in Dangerous Drugs Report No. DD-02-613,4 viz:

xxxx

SPECIMEN:

White crystalline substance contained in a heat-sealed transparent plastic sachet

marked "SRE" and further placed in bigger marked transparent plastic sachet.

xxxx

F I N D I N G S:

Net Weight of specimen = 0.1224 gram

Examinations conducted on the above-mentioned specimen gave POSITIVE

RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug. x x
x

x x x x (emphasis and underscoring supplied)

With respect to the examination of the urine of petitioner, de Belen recorded the
results thereof in Toxicology Report No. TDD-02-41285 reading:

xxxx

SPECIMEN:

Urine of one SUSAN ESQUILLO Y ROMINES. 37 y/o, married, jobless, of no.

1159 Bo. Bayanihan, Maricaban, Pasay City.

xxxx

F I N D I N G S:

Volume of urine = 60 mL.

pH of urine = 5.0

Appearance = yellow orange, turbid

Examinations conducted on the above-mentioned specimen gave POSITIVE

RESULTS for the presence of METHAMPHETAMINE HYDROCHLORIDE, and

its metabolite AMPHETAMINE. x x x

(Facts of the prosecution)

Based on its documentary evidence and the testimony of PO1 Alvin Cruzin (PO1
Cruzin),a member of the Pasay City Police Station Special Operations Group
(SOG), the prosecution established its version as follows:

On the basis of an informants tip, PO1 Cruzin, together with PO2 Angel Aguas
(PO2 Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to
Bayanihan St., Malibay, Pasay City to conduct surveillance on the activities of an
alleged notorious snatcher operating in the area known only as "Ryan."

As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas
to the target area, he glanced in the direction of petitioner who was standing
three meters away and seen placing inside a yellow cigarette case what
appeared to be a small heat-sealed transparent plastic sachet containing white
substance. While PO1 Cruz was not sure what the plastic sachet contained, he
(PO1 Cruz) became suspicious when petitioner started acting strangely as he
began to approach her. He then introduced himself as a police officer to
petitioner and inquired about the plastic sachet she was placing inside her
cigarette case. Instead of replying, however, petitioner attempted to flee to her
house nearby but was timely restrained by PO1 Cruzin who then requested her
to take out the transparent plastic sachet from the cigarette case.

After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the
plastic sachet on which he marked her initials "SRE." With the seized item,
petitioner was brought for investigation to a Pasay City Police Station where
P/Insp. Aquilino E. Almanza, Chief of the Drug Enforcement Unit, prepared a
memorandum dated December 10, 2002 addressed to the Chief Forensic
Chemist of the NBI in Manila requesting for: 1) a laboratory examination of the
substance contained in the plastic sachet to determine the presence of shabu,
and 2) the conduct of a drug test on the person of petitioner. PO1 Cruzin and
PO2 Aguas soon executed a Joint Affidavit of Apprehension recounting the
details of their intended surveillance and the circumstances leading to petitioners

arrest.

(Petitioner's Version of Facts)

Repudiating the charges, petitioner gave the following tale:

At around 1:00 to 2:00 p.m. of the date in question, while she was sick and
resting at home, several policemen in civilian garb with guns tucked in their
waists barged in and asked her whether she knew one named "Ryan" who they
claimed was a notorious snatcher operating in the area, to which she replied in
the negative. The police officers then forced her to go with them to the Pasay City
Police Station-SOG office where she was detained.

While she was under detention, the police officers were toying with a wallet which
they claimed contained shabu and recovered from her.

In fine, petitioner claimed that the evidence against her was "planted," stemming
from an all too obvious attempt by the police officers to extort money from her
and her family.

Two other witnesses for the defense, petitioners daughter Josan Lee and family
friend Ma. Stella Tolentino, corroborated petitioners account. They went on to
relate that the police officers never informed them of the reason why they were
taking custody of petitioner.

By Decision of July 28, 2003, the trial court found petitioner guilty of illegal
possession of Methylamphetamine Hydrochloride or shabu, disposing as follows:

WHEREFORE, in light of the foregoing premises and considerations, this Court

hereby renders judgment finding the accused Susan Esquillo y Romines GUILTY

beyond reasonable doubt of the crime of Violation of par. 3 of Section 11, Article
II of R. A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002, and absent any modifying circumstance to either aggravate or mitigate the
criminal liability of the same accused, and furthermore, applying the provisions of
the Indeterminate Sentence Law, the same accused is hereby sentenced to
suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day,
as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as
maximum, and to pay a fine of P350,000.00, Philippine Currency, plus costs.

The 0.1224 gram of Methylamphetamine Hydrochloride or "Shabu" involved in

this case is declared forfeited in favor of the Government and ordered to be
turned over to the Philippine Drug Enforcement Agency (PDEA) for proper and
appropriate disposition in accordance with the provisions of the law.

Before the Court of Appeals, appellant questioned as illegal her arrest without
warrant to thus render any evidence obtained on the occasion thereof
inadmissible.

In its challenged Decision affirming petitioners conviction, the appellate court,

citing People v. Chua, held that the police officers had probable cause to search
petitioner under the "stop-and-frisk" concept, a recognized exception to the
general rule prohibiting warrantless searches.

Brushing aside petitioners defense of frame-up, the appellate court noted that
petitioner failed to adduce evidence that the arresting officers were impelled by
any evil motive to falsely charge her, and that she was even found positive for
substance abuse.

In her present petition, petitioner assails the appellate courts application of the
"stop-and-frisk" principle in light of PO1 Cruzins failure to justify his suspicion
that a crime was being committed, he having merely noticed her placing
something inside a cigarette case which could hardly be deemed suspicious. To
petitioner, such legal principle could only be invoked if there were overt acts
constituting unusual conduct that would arouse the suspicion.

Respondent, through the Office of the Solicitor General, prays for the affirmance
of the appealed decision but seeks a modification of the penalty to conform to the
pertinent provisions of R.A. No. 9165.

Issue: Whether or not there is a valid search, arrest and seizure?

YES

Appellants conviction stands.

Petitioner did not question early on her warrantless arrest before her
arraignment. Neither did she take steps to quash the Information on such ground.
Verily, she raised the issue of warrantless arrest as well as the inadmissibility of
evidence acquired on the occasion thereof for the first time only on appeal
before the appellate court. By such omissions, she is deemed to have waived
any objections on the legality of her arrest.

Be that as it may, the circumstances under which petitioner was arrested indeed
engender the belief that a search on her was warranted. Recall that the police
officers were on a surveillance operation as part of their law enforcement efforts.
When PO1 Cruzin saw petitioner placing a plastic sachet containing white
crystalline substance into her cigarette case, it was in his plain view. Given his
training as a law enforcement officer, it was instinctive on his part to be drawn to
curiosity and to approach her. That petitioner reacted by attempting to flee after
he introduced himself as a police officer and inquired about the contents of the
plastic sachet all the more pricked his curiosity.

That a search may be conducted by law enforcers only on the strength of a valid
search warrant is settled. The same, however, admits of exceptions, viz:

(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of

vessels and aircraft for violation of immigration, customs, and drug laws; (4)
searches of moving vehicles; (5) searches of automobiles at borders or
constructive borders; (6) where the prohibited articles are in "plain view;" (7)
searches of buildings and premises to enforce fire, sanitary, and building
regulations; and (8) "stop and frisk" operations. (emphasis underscoring
supplied)

In the instances where a warrant is not necessary to effect a valid search or

seizure, the determination of what constitutes a reasonable or unreasonable
search or seizure is purely a judicial question, taking into account, among other
things, the uniqueness of the circumstances involved including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched, and the
character of the articles procured.

Standard or rules in conducting stop and frisk operation

Elucidating on what includes "stop-and-frisk" operation and how it is to be carried
out, the Court in People v. Chua held:

. . . the act of a police officer to stop a citizen on the street, interrogate him, and
pat him for weapon(s) 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 for
possibly concealed weapons. 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. It should therefore be
emphasized that a search and seizure should precede the arrest for this principle
to apply.

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v.

Court of Appeals. 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, 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 w[h]ere roaming the
vicinity.

What is, therefore, essential is that a genuine reason must exist, in light of the
police officers experience and surrounding conditions, to warrant the belief that
the person who manifests unusual suspicious conduct has weapons or
contraband concealed about him. Such a "stop-and-frisk" practice serves a dual
purpose: (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.

From these standards, the Court finds that the questioned act of the police
officers constituted a valid "stop-and-frisk" operation. The search/seizure of the
suspected shabu initially noticed in petitioners possession - later voluntarily
exhibited to the police operative - was undertaken after she was interrogated on
what she placed inside a cigarette case, and after PO1 Cruzin introduced himself
to petitioner as a police officer. And, at the time of her arrest, petitioner was
exhibiting suspicious behavior and in fact attempted to flee after the police officer
had identified himself.

It bears recalling that petitioner admitted the genuineness and due execution of
the Dangerous Drugs and Toxicology Reports, subject, however, to whatever
available defenses she would raise. While such admissions do not necessarily
control in determining the validity of a warrantless search or seizure, they
nevertheless provide a reasonable gauge by which petitioners credibility as a
witness can be measured, or her defense tested.

It has not escaped the Courts attention that petitioner seeks exculpation by
adopting two completely inconsistent or incompatible lines of defense. On one
hand, she argues that the "stop-and-frisk" search upon her person and personal
effects was unjustified as it constituted a warrantless search in violation of the
Constitution. In the same breadth, however, she denies culpability by holding fast
to her version that she was at home resting on the date in question and had been
forcibly dragged out of the house by the police operatives and brought to the
police station, for no apparent reason than to try and extort money from her. That
her two witnesses a daughter and a friend who were allegedly present at the
time of her arrest did not do anything to report it despite their claim that they were
not informed why she was being arrested, should dent the credibility of their
testimony.

Courts have tended to look with disfavor on claims of accused, such as those of
petitioners, that they are victims of a frame-up. The defense of frame-up, like
alibi, has been held as a shop-worn defense of the accused in drug-related
cases, the allegation being easily concocted or contrived. For this claim to
prosper, the defense must adduce clear and convincing evidence to overcome
the presumption of regularity of official acts of government officials. This it failed
to do.

Absent any proof of motive to falsely accuse petitioner of such a grave offense,
the presumption of regularity in the performance of official duty and the findings
of the trial court with respect to the credibility of witnesses prevail over that of
petitioner.

A word on the penalty.

While the appellate court affirmed the trial courts decision, it overlooked the error
in the penalty imposed by the trial court. The trial court, applying the provisions of
the Indeterminate Sentence Law, sentenced petitioner to "suffer the penalty of
imprisonment ranging from Eight (8) years and One (1) day, as minimum, to
Fourteen (14) years, Eight (8) months and One (1) day, as maximum."

Article II, Section 11 of R.A. No. 9165 provides, however:

Section 11. Possession of Dangerous Drugs.

xxxx

Otherwise, if the quantity involved is less than the foregoing quantities, the
penalties shall be graduated as follows:

xxxx

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000) to Four hundred
thousand pesos (P400,000), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, metamphetamine hydrochloride or "shabu"
or other dangerous drugs such as, but not limited to MDMA or "ecstacy," PMA,
TMA, LSD, GHB and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity
possesses is far behind therapeutic requirements; or less than three hundred
(300) grams of marijuana. (emphasis and underscoring supplied)

Section 1 of the Indeterminate Sentence Law provides that when the offense is
punished by a law other than the Revised Penal Code, "the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by law and the minimum shall not be less than the
minimum term prescribed by the same."

The prayer of the Office of the Solicitor General for a modification of the penalty
is thus in order.

The Court, therefore, imposes on petitioner the penalty of imprisonment of twelve

(12) years and one (1) day, as minimum, to fourteen (14) years, as maximum.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED, with

the MODIFICATION that the penalty of imprisonment shall be twelve (12) years
and one (1) day, as minimum, to fourteen (14) years, as maximum. In all other
respects, the decision of the RTC in Criminal Case No. 02-2297 is AFFIRMED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
- versus ARNOLD MARTINEZ Y
ANGELES, EDGAR DIZON
Y FERRER, REZIN MARTINEZ
Y CAROLINO, and RAFAEL
GONZALES Y CUNANAN,
Accused-Appellants.
G.R. No. 191366

This is an appeal from the August 7, 2009 Decision[1] of the Court of Appeals
(CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13, 2008
Decision[2] of the Regional Trial Court, Branch 41, Dagupan City (RTC), in
Criminal Case No. 2006-0525-D, finding the accused guilty of violating Section
13, in relation to Section 11, Article II of Republic Act No. 9165 for Possession of
Dangerous Drugs During Parties, Social Gatherings or Meetings.

The Facts

The Information indicting the accused reads:

That on or about the 2nd day of September 2006, in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y FERRER, REZIN
MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and RAFAEL GONZALES y
CUNANAN, without authority of law, confederating together, acting jointly and
helping one another, did then and there wilfully, unlawfully and criminally, sniff
and possess dangerous drugs (shabu residues) contained in empty plastic
sachets and rolled aluminum foil, during a party, or at a social gathering or
meeting, or in the proximate company of at least two (2) person[s].

Contrary to Section 13, Article II, R.A. 9165.[3]

Version of the Prosecution

As culled from the testimonies of prosecution witnesses, Police Officer 1 Bernard

Azardon (PO1 Azardon), one of the apprehending officers, and Police Inspector
Lady Ellen Maranion (P/Insp. Maranion), the forensic chemical officer, it appears
that on September 2, 2006, at around 12:45 oclock in the afternoon, PO1
Azardon was on duty at the Police Community Precinct II along Arellano Street,
Dagupan City, when a concerned citizen entered the precinct and reported that a
pot session was going on in the house of accused Rafael Gonzales (Gonzales) in
Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1 Azardon,
PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the Special
Weapons and Tactics (SWAT) team hied to Trinidad Subdivision, Dagupan City.
Upon inquiry from people in the area, the house of Gonzales was located.

As the police officers entered the gate of the house, they saw accused Orlando
Doria (Doria) coming out of the side door and immediately arrested him. Inside
the house, they saw accused Gonzales, Arnold Martinez (A. Martinez), Edgar

Dizon (Dizon), and Rezin Martinez (R. Martinez) in a room. The four were
surprised by the presence of the police. In front of them were open plastic
sachets (containing shabu residue), pieces of rolled used aluminum foil and
pieces of used aluminum foil.

The accused were arrested and brought to the police precinct. The items found in
the room were seized and turned over to the Pangasinan Provincial Police Crime
Laboratory Officer, P/Insp. Maranion. The latter conducted a laboratory
examination on the seized items and all 115 plastic sachets, 11 pieces of rolled
used aluminum foil, and 27 of the 49 pieces of used aluminum foil tested positive
for methamphetamine hydrochloride. The accused were subjected to a drug test
and, except for Doria, they were found to be positive for methamphetamine
hydrochloride.

Version of the Defense

The defense, through its witnesses, accused A. Martinez, Dizon, and R.

Martinez, claimed that in the morning of September 2, 2006, the three of them
were along Arellano Street in Trinidad Subdivision, Dagupan City, to meet with a
certain Apper who bumped the passenger jeep of R. Martinez and who was to
give the materials for the painting of said jeep. As they were going around the
subdivision looking for Apper, they saw Gonzales in front of his house and asked
him if he noticed a person pass by. While they were talking, Doria arrived. It was
then that five to seven policemen emerged and apprehended them. They were
handcuffed and brought to the police station in Perez, Dagupan City, where they
were incarcerated and charged with sniffing shabu.

The Ruling of the RTC

The case against Doria was dismissed on a demurrer to evidence.

On February 13, 2008, the RTC rendered its decision, the dispositve portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered finding

accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN
MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond
reasonable doubt of the crime of Possession of Dangerous Drugs During Parties,
Social Gatherings or Meetings defined and penalized under Section 13 in relation
to Section 11, Article II of Republic Act 9165, and each of them is sentenced to
suffer the penalty of life imprisonment and to pay the fine in the amount of
P500,000.00, and to pay the cost of suit.

The subject items are hereby forfeited in favor of the government and to be
disposed of in accordance with the law.

SO ORDERED.[4]

The RTC was of the view that the positive testimony of prosecution witness PO1
Azardon, without any showing of ill-motive on his part, prevailed over the
defenses of denial and alibi put up by the accused. The accused were held to
have been in constructive possession of the subject items. A conspiracy was also
found present as there was a common purpose to possess the dangerous drug.

The Ruling of the CA

The CA ruled that there was sufficient evidence to support the findings of the
RTC as to the constructive possession of the dangerous drugs by the accused. It
further held that although the procedure regarding the custody and disposition of
evidence prescribed by Section 21 of R.A. No. 9165 was not strictly complied
with, the integrity and evidentiary value of the evidence were nonetheless
safeguarded. The CA was of the view that the presumption of regularity in the
performance of official duty was not sufficiently controverted by the accused.

Not in conformity, the accused now interposes this appeal before this Court
praying for the reversal of the subject decision, presenting the following

Assignment of Errors

For accused Arnold Martinez, Edgar Dizon and Rezin Martinez

1.

The lower court erred in finding the accused-appellants

to be having a pot session at the time of their arrest;

2.
The lower court erred in not seeing through the antics of the police to plant
the shabu paraphernalia to justify the arrest of the accused-appellants without
warrant;

3.
The lower court erred in not finding that the corpus delicti has not been
sufficiently established;

4.
The lower court erred in not finding the uncorroborated testimony of PO1
Azardon insufficient to convict the accused-appellants of the crime charged;

5.

The lower court erred in not acquitting the accused-appellants.

For accused Rafael Gonzales

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE PROSECUTIONS FAILURE TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH THE
CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.

After an assiduous assessment of the evidentiary records, the Court finds that
the prosecution failed to prove the guilt of the accused. The principal reasons are
1] that the evidence against the accused are inadmissible; and 2] that granting
the same to be admissible, the chain of custody has not been duly established.

Illegal Arrest, Search and Seizure

Indeed, the accused is estopped from assailing the legality of his arrest if he fails
to raise such issue before arraignment.[5] However, this waiver is limited only to
the arrest. The legality of an arrest affects only the jurisdiction of the court over
the person of the accused. A waiver of an illegal warrantless arrest does not carry
with it a waiver of the inadmissibility of evidence seized during the illegal
warrantless arrest.[6]

Although the admissibility of the evidence was not raised as in issue by the
accused, it has been held that this Court has the power to correct any error, even
if unassigned, if such is necessary in arriving at a just decision,[7] especially
when the transcendental matter of life and liberty is at stake.[8] While it is true
that rules of procedure are intended to promote rather than frustrate the ends of
justice, they nevertheless must not be met at the expense of substantial justice.
Time and again, this Court has reiterated the doctrine that the rules of procedure

are mere tools intended to facilitate the attainment of justice, rather than frustrate
it. Technicalities should never be used to defeat substantive rights.[9] Thus,
despite the procedural lapses of the accused, this Court shall rule on the
admissibility of the evidence in the case at bench. The clear infringement of the
accuseds right to be protected against unreasonable searches and seizures
cannot be ignored.

The State cannot, in a manner contrary to its constitutional guarantee, intrude

into the persons of its citizens as well as into their houses, papers and effects.
[10] Sec. 2, Art. III, of the 1987 Constitution provides:

Section 2. - The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

This constitutional guarantee, however, is not a blanket prohibition against all

searches and seizures without warrant. Arrests and seizures in the following
instances are allowed even in the absence of a warrant (i) warrantless search
incidental to a lawful arrest;[11] (ii) search of evidence in "plain view;" (iii) search
of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi)
stop and frisk; and (vii) exigent and emergency circumstances.[12]

This case would appear to fall under either a warrantless search incidental to a
lawful arrest or a plain view search, both of which require a lawful arrest in order
to be considered valid exceptions to the constitutional guarantee. Rule 113 of the
Revised Rules of Criminal Procedure provides for the circumstances under which
a warrantless arrest is lawful. Thus:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail and shall
be proceeded against in accordance with section 7 of Rule 112.

A review of the facts reveal that the arrest of the accused was illegal and the
subject items were confiscated as an incident thereof. According to the testimony
of PO1 Azardon and his Joint Affidavit[13] with PO1 Dela Cruz, they proceeded
to, and entered, the house of accused Gonzales based solely on the report of a
concerned citizen that a pot session was going on in said house, to wit:

Q: I go back to the information referred to you by the informant, did he not tell
you how many persons were actually conducting the pot session?
A: Yes, sir.

Q: When you went to the place of Rafael Gonzales, of course you were not
armed with a search warrant, correct?
A: None, sir.

Q: Before the information was given to you by your alleged informant, you did not
know personally Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.

Q: When this informant told you that he was told that there was [an] ongoing pot
session in the house of Rafael Gonzales, was this report to you placed in the
police blotter before you proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.

Q: In other words, you did not even bother to get the personal data or identity of
the person who told you that he was allegedly informed that there was an
ongoing pot session in the house of Rafael Gonzales?
A: What I know is that he is a jeepney driver of a downtown jeepney but he does
not want to be identified because he was afraid, sir.

Q: And likewise, he did not inform you who told him that there was an ongoing
pot session in the house of Rafael Gonzales?
A: No more, sir.

Q: But upon receiving such report from that jeepney driver you immediately
formed a group and went to the place of Rafael Gonzales?
A: Yes, sir.

xxx

Q: When you were at the open gate of the premises of Rafael Gonzales, you
could not see what is happening inside the house of Rafael Gonzales?
A: Yes, sir.

Q: You did not also see the alleged paraphernalia as well as the plastic sachet of
shabu on the table while you were outside the premises of the property of Rafael
Gonzales?

xxx

Q: Before they entered the premises they could not see the paraphernalia?

COURT: Answer.

A: Of course because they were inside the room, how could we see them, sir.

Q: But still you entered the premises, only because a certain person who told you
that he was informed by another person that there was an ongoing pot session
going on inside the house of Rafael Gonzales?
A: Yes, sir.

Q: And that is the only reason why you barged in inside the house of Rafael
Gonzales and you arrested the persons you saw?
A: Yes, sir.[14]

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

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

In People v. Bolasa, an anonymous caller tipped off the police that a man and a
woman were repacking prohibited drugs at a certain house. The police
immediately proceeded to the house of the suspects. They walked towards the
house accompanied by their informer. When they reached the house, they
peeped inside through a small window and saw a man and woman repacking
marijuana. They then entered the house, introduced themselves as police
officers, confiscated the drug paraphernalia, and arrested the suspects. This
Court ruled:

The manner by which accused-appellants were apprehended does not fall under
any of the above-enumerated categories. Perforce, their arrest is illegal. First, the
arresting officers had no personal knowledge that at the time of their arrest,
accused-appellants had just committed, were committing, or were about to
commit a crime. Second, the arresting officers had no personal knowledge that a
crime was committed nor did they have any reasonable ground to believe that
accused-appellants committed it. Third, accused-appellants were not prisoners
who have escaped from a penal establishment.
Neither can it be said that the objects were seized in plain view. First, there was
no valid intrusion. As already discussed, accused-appellants were illegally
arrested. Second, the evidence, i.e., the tea bags later on found to contain
marijuana, was not inadvertently discovered. The police officers intentionally
peeped first through the window before they saw and ascertained the activities of
accused-appellants inside the room. In like manner, the search cannot be
categorized as a search of a moving vehicle, a consented warrantless search, a
customs search, or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of any such
showing.

On the contrary, it indicates that the apprehending officers should have

conducted first a surveillance considering that the identities and address of the
suspected culprits were already ascertained. After conducting the surveillance
and determining the existence of probable cause for arresting accusedappellants, they should have secured a search warrant prior to effecting a valid
arrest and seizure. The arrest being illegal ab initio, the accompanying search
was likewise illegal. Every evidence thus obtained during the illegal search
cannot be used against accused-appellants; hence, their acquittal must follow in
faithful obeisance to the fundamental law.[19]

It has been held that personal knowledge of facts in arrests without warrant must
be based upon probable cause, which means an actual belief or reasonable
grounds of suspicion. The grounds of suspicion are reasonable when the
suspicion, that the person to be arrested is probably guilty of committing an
offense, is based on actual facts, that is, supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be
arrested. [20]

As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no

personal knowledge that at the time of the arrest, accused had just committed,
were committing, or were about to commit a crime, as they had no probable
cause to enter the house of accused Rafael Gonzales in order to arrest them. As
to paragraph (b), the arresting officers had no personal knowledge of facts and
circumstances that would lead them to believe that the accused had just
committed an offense. As admitted in the testimony of PO1 Azardon, the tip
originated from a concerned citizen who himself had no personal knowledge of
the information that was reported to the police:

Q: Mr. Witness, you claimed that the reason for apprehending all the accused
was based on a tip-off by an informant?
A: Yes, sir.

Q: What exactly [did] that informant tell you?

A: He told us that somebody told him that there was an ongoing pot session in
the house of one of the accused Rafael Gonzales, sir.

Q: You mean to say that it was not the informant himself to whom the information
originated but from somebody else?
A: That was what he told me, sir.

Q: Because of that you proceeded to where the alleged pot session was going
on? [No Answer]

Q: Did you[r] informant particularly pinpointed [sic] to where the alleged pot
session was going on?
A: No more because he did not go with us, sir.

Q: So you merely relied on what he said that something or a pot session was
going on somewhere in Arellano but you dont know the exact place where the pot
session was going on?
A: Yes, sir.

Q: And your informant has no personal knowledge as to the veracity of the

alleged pot session because he claimed that he derived that information from
somebody else?
A: This is what he told us that somebody told him that there was an ongoing pot
session, sir.

Q: Despite of [sic] that information you proceeded to where?

A: Trinidad Subdivision, sir.

xxx

Q: Mr. Witness, did your informant named [sic] those included in the alleged pot
session?
A: No, sir.

Q: That was, because your informant dont [sic] know physically what was really
happening there?
A: He was told by another person that there was an ongoing pot session there,
sir.[21] [Emphasis supplied]

Neither can it be said that the subject items were seized in plain view. The
elements of plainview are: (a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered by the police who
have the right to be where they are; (c) the evidence must be immediately
apparent; and, (d) "plain view" justified mere seizure of evidence without further
search.[22]

The evidence was not inadvertently discovered as the police officers intentionally
entered the house with no prior surveillance or investigation before they
discovered the accused with the subject items. If the prior peeking of the police
officers in Bolasa was held to be insufficient to constitute plain view, then more so
should the warrantless search in this case be struck down. Neither can the
search be considered as a search of a moving vehicle, a consented warrantless
search, a customs search, a stop and frisk, or one under exigent and emergency
circumstances.

The apprehending officers should have first conducted a surveillance considering

that the identity and address of one of the accused were already ascertained.
After conducting the surveillance and determining the existence of probable
cause, then a search warrant should have been secured prior to effecting arrest
and seizure. The arrest being illegal, the ensuing search as a result thereof is

likewise illegal. Evidence procured on the occasion of an unreasonable search

and seizure is deemed tainted for being the proverbial fruit of a poisonous tree
and should be excluded.[23] The subject items seized during the illegal arrest are
thus inadmissible. The drug, being the very corpus delicti of the crime of illegal
possession of dangerous drugs, its inadmissibility thus precludes conviction, and
calls for the acquittal of the accused.

As has been noted previously by this Court, some lawmen, prosecutors and
judges have glossed over illegal searches and seizures in cases where law
enforcers are able to present the alleged evidence of the crime, regardless of the
methods by which they were obtained. This attitude tramples on constitutionallyguaranteed rights in the name of law enforcement. It is ironic that such
enforcement of the law fosters the breakdown of our system of justice and the
eventual denigration of society. While this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to preserve the peace and security
of society, we nevertheless admonish them to act with deliberate care and within
the parameters set by the Constitution and the law.[24]

Chain of Custody

Even granting that the seized items are admissible as evidence, the acquittal of
the accused would still be in order for failure of the apprehending officers to
comply with the chain of custody requirement in dangerous drugs cases.

The accused contend that the identity of the seized drug was not established with
moral certainty as the chain of custody appears to be questionable, the
authorities having failed to comply with Sections 21 and 86 of R.A. No. 9165, and
Dangerous Drug Board (DDB) Resolution No. 03, Series of 1979, as amended by
Board Regulation No. 2, Series of 1990. They argue that there was no prior
coordination with the Philippine Drug Enforcement Agency (PDEA), no inventory
of the confiscated items conducted at the crime scene, no photograph of the
items taken, no compliance with the rule requiring the accused to sign the
inventory and to give them copies thereof, and no showing of how the items were
handled from the time of confiscation up to the time of submission to the crime

laboratory for testing. Therefore, the corpus delicti was not proven, thereby
producing reasonable doubt as to their guilt. Thus, they assert that the
presumption of innocence in their favor was not overcome by the presumption of
regularity in the performance of official duty.

The essential requisites to establish illegal possession of dangerous drugs are:

(i) the accused was in possession of the dangerous drug, (ii) such possession is
not authorized by law, and (iii) the accused freely and consciously possessed the
dangerous drug.[25] Additionally, this being a case for violation of Section 13 of
R.A. No. 9165, an additional element of the crime is (iv) the possession of the
dangerous drug must have occurred during a party, or at a social gathering or
meeting, or in the proximate company of at least two (2) persons.

The existence of the drug is the very corpus delicti of the crime of illegal
possession of dangerous drugs and, thus, a condition sine qua non for
conviction. In order to establish the existence of the drug, its chain of custody
must be sufficiently established. The chain of custody requirement is essential to
ensure that doubts regarding the identity of the evidence are removed through
the monitoring and tracking of the movements of the seized drugs from the
accused, to the police, to the forensic chemist, and finally to the court.[26] Malillin
v. People was the first in a growing number of cases to explain the importance of
chain of custody in dangerous drugs cases, to wit:

As a method of authenticating evidence, the chain of custody rule requires that

the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would
include testimony about every link in the chain, from the moment the item was
picked up to the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was received,
where it was and what happened to it while in the witness' possession, the
condition in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the precautions
taken to ensure that there had been no change in the condition of the item and
no opportunity for someone not in the chain to have possession of the same.[27]

Section 1(b) of DDB Regulation No. 1, Series of 2002,[28] defines chain of

custody as follows:

b. Chain of Custody means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of
custody were made in the course of safekeeping and used in court as evidence,
and the final disposition;

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for safeguards for
the protection of the identity and integrity of dangerous drugs seized, to wit:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. The PDEA shall take charge and have custody of all dangerous
drugs, plant sources of dangerous drugs controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following
manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof.

People v. Habana thoroughly discusses the proper procedure for the custody of
seized or confiscated items in dangerous drugs cases in order to ensure their
identity and integrity, as follows:

Usually, the police officer who seizes the suspected substance turns it over to a
supervising officer, who would then send it by courier to the police crime
laboratory for testing. Since it is unavoidable that possession of the substance
changes hand a number of times, it is imperative for the officer who seized the
substance from the suspect to place his marking on its plastic container and seal
the same, preferably with adhesive tape that cannot be removed without leaving
a tear on the plastic container. At the trial, the officer can then identify the seized
substance and the procedure he observed to preserve its integrity until it reaches
the crime laboratory.

If the substance is not in a plastic container, the officer should put it in one and
seal the same. In this way the substance would assuredly reach the laboratory in
the same condition it was seized from the accused. Further, after the laboratory
technician tests and verifies the nature of the substance in the container, he
should put his own mark on the plastic container and seal it again with a new
seal since the police officers seal has been broken. At the trial, the technician can
then describe the sealed condition of the plastic container when it was handed to
him and testify on the procedure he took afterwards to preserve its integrity.

If the sealing of the seized substance has not been made, the prosecution would
have to present every police officer, messenger, laboratory technician, and
storage personnel, the entire chain of custody, no matter how briefly ones
possession has been. Each of them has to testify that the substance, although
unsealed, has not been tampered with or substituted while in his care.[29]

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165
further elaborates, and provides for, the possibility of non-compliance with the
prescribed procedure:

(a) The apprehending officer/team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her representative or counsel,
a representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served;
or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further that non-compliance with these requirements under justifiable grounds, as
long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items. [Emphasis supplied]

Accordingly, non-compliance with the prescribed procedural requirements will not

necessarily render the seizure and custody of the items void and invalid,
provided that (i) there is a justifiable ground for such non-compliance, and (ii) the
integrity and evidentiary value of the seized items are properly preserved. In this
case, however, no justifiable ground is found availing, and it is apparent that
there was a failure to properly preserve the integrity and evidentiary value of the
seized items to ensure the identity of the corpus delicti from the time of seizure to
the time of presentation in court. A review of the testimonies of the prosecution
witnesses and the documentary records of the case reveals irreparably broken
links in the chain of custody.

According to the apprehending police officers in their Joint Affidavit, the following
were confiscated from the accused, to wit:

a) Several pcs of used empty plastic sachets containing suspected shabu

residues.

b) Eight used (8) disposable lighters ( two (2) pcs colored orange, two (2) pcs
colored yellow, one (1) pc colored green & one (1) pc colored white ).

c)
Several pcs of used rolled aluminum foil containing suspected shabu
residues.

d)

Several pcs of used cut aluminum foil containing suspected shabu residues.

e)

One (1) pc glass tube containing suspected shabu residues.[30]

[Emphases supplied]

At the police station, the case, the accused, and the above-mentioned items
were indorsed to Duty Investigator Senior Police Officer 1 Pedro Urbano, Jr.
(SPO1 Urbano) for proper disposition.[31] A letter-request for laboratory
examination was prepared by Police Superintendent Edgar Orduna Basbag for
the following items:

a)
Pieces of used empty small plastic sachets with suspected shabu residues
marked DC&A-1.

b)
Pieces of used rolled and cut aluminum foil with suspected shabu residues
marked DC&A-2.

c)
Pieces of used cut aluminum foil with suspected shabu residues marked
DC&A-3.[32]
[Emphases supplied]

The letter-request and above-mentioned items were submitted to P/Insp.

Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final Chemistry Report No.
D-042-06L listed the specimens which were submitted for testing, to wit:

SPECIMENS SUBMITTED:

A A1 to A115 One Hundred fifteen (115) open transparent plastic sachet with tag
each containing suspected shabu residue without markings.

B B1 to B11 Eleven (11) rolled used aluminum foil with tag each containing
suspected shabu residue without markings.

C C1 to C49 Forty-nine (49) used aluminum foil with tag each containing
suspected shabu residue without markings.[33]
[Emphases supplied]

Three days after the subject items were seized, or on September 5, 2006, a
Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz, which
reads:

DCPS AID SOTG 05 September 2006

CONFISCATION RECEIPT

TO WHOM IT MAY CONCERN:

THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006, we

together with our precinct supervisor, SPO4 Pedro Belen Jr., and SWAT
members composed of SPO1 Marlon Decano, PO3 Manuel Garcia, PO2 Adriano
Cepiroto and PO1 Aldrin Guarin apprehended the following names of persons of
ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married, jobless, a resident of
Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs old, single, tricycle

driver, a resident of 471 Lucao Dist., this city. REZIN MARTINEZ Y CAROLINO,
44 yrs old, married, jitney driver, a resident of Lucao Disttrict this city; ROLAND
DORIA Y DIAZ, 39 yrs old, married, businessman, resident of Cabeldatan,
Malasiqui, Pangasinan and RAFAEL GONZALES Y CUNANAN, 49 yrs old,
separated, jobless and a resident of Trinidad Subd., Arellano-Bani this city.

Suspects were duly informed of their constitutional rights and were brought to
Dagupan City Police Station, Perez Market Site Dagupan City and indorsed to
Duty Desk Officer to record the incident and the sachet of suspected Shabu
Paraphernalias were brought to PNP Crime Laboratory, Lingayen, Pangasinan
for Laboratory Examination.

Seizing Officer:

(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant

Remarks:

Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed[34]
[Emphases supplied]

The 115 open transparent plastic sachets, 11 pieces of rolled used aluminum foil,
and 27 (of the 49) pieces of used aluminum foil, all containing shabu residue, as

identified in the Final Chemistry Report, were presented in court and marked as
Exhibits H and series, I and series, and J and series, respectively. Said items
were identified by PO1 Azardon and P/Insp. Maranion at the witness stand.[35]

The CA ruled that the integrity and evidentiary value of the subject items were
properly preserved as there was sufficient evidence to prove that the items
seized from the accused were the same ones forwarded to the crime laboratory
for examination, as shown in the Confiscation Receipt and the letter-request for
laboratory examination.

A review of the chain of custody indicates, however, that the CA is mistaken.

First, the apprehending team failed to comply with Section 21 of R.A. No. 9165.
After seizure and confiscation of the subject items, no physical inventory was
conducted in the presence of the accused, or their representative or counsel, a
representative from the media and the DOJ, and any elected public official. Thus,
no inventory was prepared, signed, and provided to the accused in the manner
required by law. PO1 Azardon, in his testimony,[36] admitted that no photographs
were taken. The only discernable reason proffered by him for the failure to
comply with the prescribed procedure was that the situation happened so
suddenly. Thus:

Q: But upon receiving such report from that jeepney driver you immediately
formed a group and went to the place of Rafael Gonzales?
A: Yes, sir.

Q: Such that you did not even inform the PDEA before you barged in that place
of Rafael Gonzales?
A: It was so suddenly, [sic] sir.

Q: And that explains the reason why you were not able to have pictures taken, is
that correct?

A: Yes, sir.[37]
[Emphasis supplied]

The Court does not find such to be a justifiable ground to excuse noncompliance. The suddenness of the situation cannot justify non-compliance with
the requirements. The police officers were not prevented from preparing an
inventory and taking photographs. In fact, Section 21(a) of the IRR of R.A. No.
9165 provides specifically that in case of warrantless seizures, the inventory and
photographs shall be done at the nearest police station or at the nearest office of
the apprehending officer/team. Whatever effect the suddenness of the situation
may have had should have dissipated by the time they reached the police
station, as the suspects had already been arrested and the items seized.
Moreover, it has been held that in case of warrantless seizures nothing prevents
the apprehending officer from immediately conducting the physical inventory and
photography of the items at their place of seizure, as it is more in keeping with
the laws intent to preserve their integrity and evidentiary value.[38]
This Court has repeatedly reversed conviction in drug cases for failure to comply
with Section 21 of R.A. No. 9165, resulting in the failure to properly preserve the
integrity and evidentiary value of the seized items. Some cases are People v.
Garcia,[39] People v. Dela Cruz,[40] People v. Dela Cruz,[41] People v. Santos,
Jr.,[42] People v. Nazareno,[43] People v. Orteza,[44] Zarraga v. People,[45] and
People v. Kimura.[46]

Second, the subject items were not properly marked. The case of People v.
Sanchez is instructive on the requirement of marking, to wit:

What Section 21 of R.A. No. 9165 and its implementing rule do not expressly
specify is the matter of "marking" of the seized items in warrantless seizures to
ensure that the evidence seized upon apprehension is the same evidence
subjected to inventory and photography when these activities are undertaken at
the police station rather than at the place of arrest. Consistency with the "chain of
custody" rule requires that the "marking" of the seized items - to truly ensure that
they are the same items that enter the chain and are eventually the ones offered
in evidence - should be done (1) in the presence of the apprehended violator (2)
immediately upon confiscation. This step initiates the process of protecting

innocent persons from dubious and concocted searches, and of protecting as

well the apprehending officers from harassment suits based on planting of
evidence under Section 29 and on allegations of robbery or theft.

For greater specificity, "marking" means the placing by the apprehending officer
or the poseur-buyer of his/her initials and signature on the item/s seized. x x x
Thereafter, the seized items shall be placed in an envelope or an evidence bag
unless the type and quantity of the seized items require a different type of
handling and/or container. The evidence bag or container shall accordingly be
signed by the handling officer and turned over to the next officer in the chain of
custody.[47] [Emphasis in the original]

Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with PO1 Dela
Cruz does it appear that the subject items were at all marked. It was only in the
letter-request for laboratory examination that the subject items were indicated to
have been marked with DC&A-1, DC&A-2 and DC&A-3. There is no showing,
however, as to who made those markings and when they were made. Moreover,
those purported markings were never mentioned when the subject items were
identified by the prosecution witnesses when they took the stand.

The markings appear to pertain to a group of items, that is, empty plastic
sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not
specifically pertain to any individual item in each group. Furthermore, it was only
in the Chemistry Report[48] that the precise number of each type of item was
indicated and enumerated. The Court notes that in all documents prior to said
report, the subject items were never accurately quantified but only described as
pieces,[49] several pcs,[50] and shabu paraphernallas.[51] Strangely, the
Chemistry Report indicates that all the subject items had no markings, although
each item was reported to have been marked by P/Insp. Maranion in the course
of processing the subject items during laboratory examination and testing.[52]
Doubt, therefore, arises as to the identity of the subject items. It cannot be
determined with moral certainty that the subject items seized from the accused
were the same ones subjected to the laboratory examination and presented in
court.

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

Third, the Confiscation Receipt relied upon by the prosecution and the courts
below gives rise to more uncertainty. Instead of being prepared on the day of the
seizure of the items, it was prepared only three days after. More important, the
receipt did not even indicate exactly what items were confiscated and their
quantity. These are basic information that a confiscation receipt should provide.
The only information contained in the Confiscation Receipt was the fact of arrest
of the accused and the general description of the subject items as the sachet of
suspected Shabu paraphernallas were brought to the PNP Crime Laboratory.
The receipt is made even more dubious by PO1 Azardons admission in his
testimony[56] that he did not personally prepare the Confiscation Receipt and he
did not know exactly who did so.

Fourth, according to the Certification[57] issued by the Dagupan Police Station,

the subject items were indorsed by PO1 Dela Cruz to Duty Investigator SPO1
Urbano for proper disposition. These were later turned over by SPO3 Esteban to
P/Insp. Maranion. There is, however, no showing of how and when the subject
items were transferred from SPO1 Urbano to SPO3 Esteban.

Fifth, P/Insp. Maranion appears to be the last person in the chain of custody. No
witness testified on how the subject items were kept after they were tested prior
to their presentation in court. This Court has highlighted similar shortcomings in
People v. Cervantes,[58] People v. Garcia,[59] People v. Sanchez,[60] and
Malillin v. People.[61]

More irregularities further darken the cloud as to the guilt of the accused.
Contrary to PO1 Azardons testimony[62] that they were tipped off by a concerned
citizen while at the police station, the Letter[63] to the Executive Director of the
DDB states that the apprehending officers were tipped off while conducting
monitoring/surveillance. Said letter also indicates, as does the Confiscation
Receipt, that the arrest and seizure occurred on September 4, 2006, and not
September 2, 2006, as alleged in the Information. It was also mentioned in the

aforementioned Certification of the Dagupan Police and Joint Affidavit of the

police officers that a glass tube suspected to contain shabu residue was also
confiscated from the accused. Interestingly, no glass tube was submitted for
laboratory examination.

In sum, numerous lapses and irregularities in the chain of custody belie the
prosecutions position that the integrity and evidentiary value of the subject items
were properly preserved. The two documents specifically relied on by the CA, the
Confiscation Receipt and the letter-request for laboratory examination, have
been shown to be grossly insufficient in proving the identity of the corpus delicti.
The corpus delicti in dangerous drugs cases constitutes the drug itself. This
means that proof beyond reasonable doubt of the identity of the prohibited drug
is essential before the accused can be found guilty.[64]

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

Let it be stressed that non-compliance with Section 21 of R.A. No. 9165 does not
affect the admissibility of the evidence but only its weight.[66] Thus, had the
subject items in this case been admissible, their evidentiary merit and probative
value would be insufficient to warrant conviction.

It may be true that where no ill motive can be attributed to the police officers, the
presumption of regularity in the performance of official duty should prevail.
However, such presumption obtains only when there is no deviation from the
regular performance of duty.[67] Where the official act in question is irregular on
its face, the presumption of regularity cannot stand.

In this case, the official acts of the law enforcers were clearly shown and proven
to be irregular. When challenged by the evidence of a flawed chain of custody,
the presumption of regularity cannot prevail over the presumption of innocence of
the accused.[68]

This Court once again takes note of the growing number of acquittals for
dangerous drugs cases due to the failure of law enforcers to observe the proper
arrest, search and seizure procedure under the law.[69] Some bona fide arrests
and seizures in dangerous drugs cases result in the acquittal of the accused
because drug enforcement operatives compromise the integrity and evidentiary
worth of the seized items. It behooves this Court to remind law enforcement
agencies to exert greater effort to apply the rules and procedures governing the
custody, control, and handling of seized drugs.

It is recognized that strict compliance with the legal prescriptions of R.A. No.
9165 may not always be possible. Thus, as earlier stated, non-compliance
therewith is not necessarily fatal. However, the lapses in procedure must be
recognized, addressed and explained in terms of their justifiable grounds, and
the integrity and evidentiary value of the evidence seized must be shown to have
been preserved.[70]

On a final note, this Court takes the opportunity to be instructive on Sec. 11[71]
(Possession of Dangerous Drugs) and Sec. 15[72] (Use of Dangerous Drugs) of
R.A. No. 9165, with regard to the charges that are filed by law enforcers. This

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

In order to effectively fulfill the intent of the law to rehabilitate drug users, this
Court thus calls on law enforcers and prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges when the presence of dangerous
drugs is only and solely in the form of residue and the confirmatory test required
under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the
accused a chance to be rehabilitated, the filing of charges for or involving
possession of dangerous drugs should only be done when another separate
quantity of dangerous drugs, other than mere residue, is found in the possession
of the accused as provided for in Sec. 15.

WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-G.R.

HC-NO. 03269 is REVERSED and SET ASIDE and another judgment entered
ACQUITTING the accused and ordering their immediate release from detention,
unless they are confined for any other lawful cause.

ROMEO POSADAS y ZAMORA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES, respondents.
(STOP AND FRISK DOCTRINE)

The validity of a warrantless search on the person of petitioner is put into issue in
this case.

FACTS:

On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police (INP) of
the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.

They approached the petitioner and identified themselves as members of the

INP. Petitioner attempted to flee but his attempt to get away was thwarted by the
two notwithstanding his resistance.

They then checked the "buri" bag of the petitioner where they found one (1)

caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of
live ammunition for a .38 caliber gun 2 a smoke (tear gas) grenade, 3 and two (2)
live ammunitions for a .22 caliber gun. They brought the petitioner to the police
station for further investigation. In the course of the same, the petitioner was
asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to
the Davao Metrodiscom office and the prohibited articles recovered from him
were indorsed to M/Sgt. Didoy the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of
Davao City wherein after a plea of not guilty and trial on the merits a decision
was rendered on October 8, 1987 finding petitioner guilty of the offense charged
as follows:

WHEREFORE, in view of all the foregoing, this Court , finds the accused guilty
beyond reasonable doubt of the offense charged.

It appearing that the accused was below eighteen (18) years old at the time of
the commission of the offense (Art. 68, par. 2), he is hereby sentenced to an
indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY of prision
mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11) days of
Reclusion Temporal, and to pay the costs.

The firearm, ammunitions and smoke grenade are forfeited in favor of the
government and the Branch Clerk of Court is hereby directed to turn over said
items to the Chief, Davao Metrodiscom, Davao City.

Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals
wherein in due course a decision was rendered on February 23, 1989 affirming in
toto the appealed decision with costs against the petitioner.

Hence, the herein petition for review, the main thrust of which is that there being
no lawful arrest or search and seizure, the items which were confiscated from the
possession of the petitioner are inadmissible in evidence against him.

ISSUE: WHETHER OR NOR THERE IS A LAWFUL

SEARCH, ARREST AND SEIZURE OF THE ITEMS?

The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 136 of the Rules of
Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant. It
is further alleged that the arrest without a warrant of the petitioner was lawful
under the circumstances.

Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as

follows:

SEC. 5. Arrest without warrant; when lawful A peace officer or a private person
may, without a warrant, arrest a person:

(a)
When in his presence, the person to be arrested has committed is actually
committing, or is attempting to commit an offense;

(b)
When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c)
When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail, and he

shall be proceeded against in accordance with Rule 112, Section 7. (6a, 17a)

From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.

The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of illegal
possession of firearms and ammunitions in the presence of the police officers
and consequently the search and seizure of the contraband was incidental to the
lawful arrest in accordance with Section 12, Rule 126 of the 1985 Rules on
Criminal Procedure. We disagree.

At the time the peace officers in this case identified themselves and apprehended
the petitioner as he attempted to flee they did not know that he had committed, or
was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag.
They did now know what its contents were. The said circumstances did not justify
an arrest without a warrant.

However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop
and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte vs.
de Villa, 7 as follows:

Petitioner Valmonte's general allegation to the effect that he had been stopped
and searched without a search warrant by the military manning the checkpoints,
without more, i.e., without stating the details of the incidents which amount to a
violation of his light against unlawful search and seizure, is not sufficient to
enable the Court to determine whether there was a violation of Valmonte's right

against unlawful search and seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not forbidden. A reasonable search is
not to be determined by any fixed formula but is to be resolved according to the
facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds, or simply looks into a vehicle
or flashes a light therein, these do not constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in

other areas) may be considered as a security measure to enable the NCRDC to
pursue its mission of establishing effective territorial defense and maintaining
peace and order for the benefit of the public. Checkpoints may also be regarded
as measures to thwart plots to destabilize the government in the interest of public
security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the
increased killings in cities of police and military men by NPA "sparrow units," not
to mention the abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which are reported in
media, most likely brought about by deteriorating economic conditions which
all sum up to what one can rightly consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence and promote public
welfare and an individual's right against a warrantless search which is however
reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the

men in uniform in the same manner that all governmental power is susceptible of
abuse. But, at the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay for an orderly
society and a peaceful community. (Emphasis supplied).

Thus, as between a warrantless search and seizure conducted at military or

police checkpoints and the search thereat in the case at bar, there is no question
that, indeed, the latter is more reasonable considering that unlike in the former, it

was effected on the basis of a probable cause. The probable cause is that when
the petitioner acted suspiciously and attempted to flee with the buri bag there
was a probable cause that he was concealing something illegal in the bag and it
was the right and duty of the police officers to inspect the same.

It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant
for the purpose. Such an exercise may prove to be useless, futile and much too
late.

In People vs. CFI of Rizal, 8 this Court held as follows:

. . . In the ordinary cases where warrant is indispensably necessary, the

mechanics prescribed by the Constitution and reiterated in the Rules of Court
must be followed and satisfied. But We need not argue that there are exceptions.
Thus in the extraordinary events where warrant is not necessary to effect a valid
search or seizure, or when the latter cannot be performed except without
warrant, what constitutes a reasonable or unreasonable search or seizure
becomes purely a judicial question, determinable from the uniqueness of the
circumstances involved, including the purpose of the search or seizure, the
presence or absence of probable cause, the manner in which the search and
seizure was made, the place or thing searched and the character of the articles
procured.

The Court reproduces with approval the following disquisition of the Solicitor
General:

The assailed search and seizure may still be justified as akin to a "stop and frisk"
situation whose object is either to determine the identity of a suspicious individual
or to maintain the status quo momentarily while the police officer seeks to obtain
more information. This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1
(1968). In this case, two men repeatedly walked past a store window and
returned to a spot where they apparently conferred with a third man. This
aroused the suspicion of a police officer. To the experienced officer, the

behaviour of the men indicated that they were sizing up the store for an armed
robbery. When the police officer approached the men and asked them for their
names, they mumbled a reply. Whereupon, the officer grabbed one of them, spun
him around and frisked him. Finding a concealed weapon in one, he did the
same to the other two and found another weapon. In the prosecution for the
offense of carrying a concealed weapon, the defense of illegal search and
seizure was put up. The United States Supreme Court held that "a police officer
may in appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behaviour even though
there is no probable cause to make an arrest." In such a situation, it is
reasonable for an officer rather than simply to shrug his shoulder and allow a
crime to occur, to stop a suspicious individual briefly in order to determine his
identity or maintain the status quo while obtaining more information. . . .

Clearly, the search in the case at bar can be sustained under the exceptions
heretofore discussed, and hence, the constitutional guarantee against
unreasonable searches and seizures has not been violated.

WHEREFORE, the petition is DENIED with costs against petitioner.

SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.
FACTS:
Accused-appellant Rogelio Mengote was convicted of illegal possession of
firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was
not admissible as evidence against him because it had been illegally seized and

was therefore the fruit of the poisonous tree. The Government disagrees. It
insists that the revolver was validly received in evidence by the trial judge
because its seizure was incidental to an arrest that was doubtless lawful even if
admittedly without warrant.

The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando
Mercado and Alberto Juan, they there saw two men "looking from side to side,"
one of whom was holding his abdomen. They approached these persons and
identified themselves as policemen, whereupon the two tried to run away but
were unable to escape because the other lawmen had surrounded them. The
suspects were then searched. One of them, who turned out to be the accusedappellant, was found with a .38 caliber Smith and Wesson revolver with six live
bullets in the chamber. His companion, later identified as Nicanor Morellos, had a
fan knife secreted in his front right pants pocket. The weapons were taken from
them. Mengote and Morellos were then turned over to police headquarters for
investigation by the Intelligence Division.

On August 11, 1987, the following information was filed against the accusedappellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of

Presidential Decree No. 1866, committed as follows:

That on or about August 8, 1987, in the City of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and knowingly have in his
possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearing

Serial No. 8720-T

without first having secured the necessary license or permit therefor from the
proper authorities.

Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to
the police, indicating the articles stolen from him, including the revolver. For his
part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "Planted"
on him at the time of his arrest.

The gun, together with the live bullets and its holster, were offered as Exhibits A,
B, and C and admitted over the objection of the defense. As previously stated,
the weapon was the principal evidence that led to Mengote's conviction for
violation of P.D. 1866. He was sentenced to reclusion perpetua.

It is submitted in the Appellant's Brief that the revolver should not have been
admitted in evidence because of its illegal seizure. no warrant therefor having
been previously obtained. Neither could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was itself unlawful, having been also
effected without a warrant. The defense also contends that the testimony
regarding the alleged robbery in Danganan's house was irrelevant and should
also have been disregarded by the trial court.

The following are the pertinent provision of the Bill of Rights:

Sec. 2.
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched

and the persons or things to be seized.

Sec. 3 (1). The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.

(2)
Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or

seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows that
it cannot profit by their wrong will the wrong be repressed." The Solicitor General,
while conceding the rule, maintains that it is not applicable in the case at bar. His
reason is that the arrest and search of Mengote and the seizure of the revolver
from him were lawful under Creading as follows:

Sec. 5.
Arrest without warrant when lawful. A peace officer or private
person may, without a warrant, arrest a person;

(a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

(b)
When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it; and

(c)
When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.

In cases failing under paragraphs (a) and (b) hereof, the person arrested without
a warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.

ISSUE: WHETHER OR NOT THERE IS A VALID SEARCH,

ARREST AND SEIZURE
NO
We have carefully examined the wording of this Rule and cannot see how we can
agree with the prosecution.

Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee

from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.

Par. (a) requires that the person be arrested (1) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer.

Arrest without warrant when lawful under Section 5 of the Rules of Court is not
applicable in this case. These requirements have not been established in the
case at bar. At the time of the arrest in question, the accused-appellant was
merely "looking from side to side" and "holding his abdomen," according to the
arresting officers themselves. There was apparently no offense that had just
been committed or was being actually committed or at least being attempted by
Mengote in their presence.

The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part

of the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?

These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote bad been apprehended at an
ungodly hour and in a place where he had no reason to be, like a darkened alley
at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with I his companion.
He was not skulking in the shadows but walking in the clear light of day. There
was nothing clandestine about his being on that street at that busy hour in the
blaze of the noonday sun.

On the other hand, there could have been a number of reasons, all of them
innocent, why his eyes were darting from side to side and be was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion
was all about. In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from the informer that
there were "suspicious-looking" persons in that vicinity who were about to commit
a robbery at North Bay Boulevard. The caller did not explain why he thought the
men looked suspicious nor did he elaborate on the impending crime.

In the recent case of People v. Malmstedt, the Court sustained the warrantless
arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, the accused boarded a bus and placed
the buri bag she was carrying behind the seat of the arresting officer while she
herself sat in the seat before him. His suspicion aroused, be surreptitiously
examined the bag, which he found to contain marijuana. He then and there made
the warrantless arrest and seizure that we subsequently upheld on the ground
that probable cause had been sufficiently established.

The case before us is different because there was nothing to support the
arresting officers' suspicion other than Mengote's darting eyes and his hand on
his abdomen. By no stretch of the imagination could it have been inferred from
these acts that an offense had just been committed, or was actually being
committed, or was at least being attempted in their presence.

This case is similar to People v. Aminnudin, where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while
be was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was be actually committing
or attempting to commit an offense in the presence of the arresting officers. He
was not even acting suspiciously. In short, there was no probable cause that, as
the prosecution incorrectly suggested, dispensed with the constitutional
requirement of a warrant.

Par. (b) is no less applicable because its no less stringent requirements have
also not been satisfied. The prosecution has not shown that at the time of
Mengote's arrest an offense had in fact just been committed and that the
arresting officers had personal knowledge of facts indicating that Mengote had
committed it. All they had was hearsay information from the telephone caller, and
about a crime that had yet to be committed.

The truth is that they did not know then what offense, if at all, had been
committed and neither were they aware of the participation therein of the
accused-appellant. It was only later, after Danganan had appeared at the Police
headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. As for the illegal possession of the firearm found
on Mengote's person, the policemen discovered this only after he had been
searched and the investigation conducted later revealed that he was not its
owners nor was he licensed to possess it.

Before these events, the Peace officers had no knowledge even of Mengote'
identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm
or that he was involved in the robbery of Danganan's house.

In the landmark case of People v. Burgos, 9 this Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of the fact. The offense must also be committed in his presence or
within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied)

xxx

xxx

xxx

In arrests without a warrant under Section 6(b), however, it is not enough that
there is reasonable ground to believe that the person to be arrested has
committed a crime. A crime must in fact or actually have been committed first.
That a crime has actually been committed is an essential precondition. It is not
enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground
applies only to the identity of the perpetrator.

This doctrine was affirmed in Alih v. Castro, 10 thus:

If the arrest was made under Rule 113, Section 5, of the Rules of Court in
connection with a crime about to be committed, being committed, or just
committed, what was that crime? There is no allegation in the record of such a
falsification. Parenthetically, it may be observed that under the Revised Rule 113,
Section 5(b), the officer making the arrest must have personal knowledge of the
ground therefor as stressed in the recent case of People v. Burgos.

It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because
of a stomach-ache, or if a peace officer could clamp handcuffs on any person
with a shifty look on suspicion that he may have committed a criminal act or is
actually committing or attempting it. This simply cannot be done in a free society.
This is not a police state where order is exalted over liberty or, worse, personal
malice on the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as

the ruling we here make is sufficient to sustain his exoneration. Without the
evidence of the firearm taken from him at the time of his illegal arrest, the
prosecution has lost its most important exhibit and must therefore fail. The
testimonial evidence against Mengote (which is based on the said firearm) is not
sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did
not have to file but did so just the same to stress the constitutional rights of her
client. The fact that she was acting only as a counsel de oficio with no
expectation of material reward makes her representation even more
commendable.

The Court feels that if the peace officers had been more mindful of the provisions
of the Bill of Rights, the prosecution of the accused-appellant might have
succeeded. As it happened, they allowed their over-zealousness to get the better
of them, resulting in their disregard of the requirements of a valid search and
seizure that rendered inadmissible the vital evidence they had invalidly seized.

This should be a lesson to other peace officers. Their impulsiveness may be the
very cause of the acquittal of persons who deserve to be convicted, escaping the
clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.

WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The

accused-appellant is ACQUITTED and ordered released immediately unless he
is validly detained for other offenses. No costs.

SO ORDERED.

ALAIN MANALILI y DIZON, petitioner, vs. COURT OF

APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search
warrant, policemen should employ limited, flexible responses -- like stop-and-frisk
-- which are graduated in relation to the amount of information they possess, the
lawmen being ever vigilant to respect and not to violate or to treat cavalierly the
citizens constitutional rights against unreasonable arrest, search and seizure.

The Case

This rule is reiterated as we resolve this petition for review on certiorari under
Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of
Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA
G.R. CR No. 07266, entitled People of the Philippines vs. Alain Manalili y Dizon.

In an Information dated April 11, 1988, Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of
Section 8, Article II of Republic Act No. 6425(Illegal Possession of Marijuana
residue), , allegedly committed as follows:

That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without
any authority of law, did then and there wilfully, unlawfully and feloniously have in
his custody, possession and control crushed marijuana residue, which is a
prohibited drug and knowing the same to be such.

Contrary to Law.

Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the
charge.With the agreement of the public prosecutor, appellant was released after
filing a P10,000.00 bail bond. After trial in due course, the Regional Trial Court of
Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May
19, 1989 a decision convicting appellant of illegal possession of marijuana
residue. The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8,
Article II, of Republic Act No. 6425, as amended (Illegal Possession of Marijuana
residue), and hereby snetences (sic) said accused to suffer imprisonment of SIX
(6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the
costs.

xxx xxx xxx.

Appellant remained on provisional liberty. Atty. Benjamin Razon, counsel for the
defense, filed a Notice of Appeal dated May 31, 1989. On April 19, 1993,
Respondent Court promulgated its assailed Decision, denying the appeal and
affirming the trial court:

ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant.

Respondent Court denied reconsideration via its assailed Resolution dated

January 20, 1994, disposing:

ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby

DENIED.

The Facts Version of the Prosecution

The facts, as found by the trial court, are as follows:[12]

At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the AntiNarcotics Unit of the Kalookan City Police Station were conducting a surveillance
along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The
policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver
named Arnold Enriquez was driving a Tamaraw vehicle which was the official car
of the Police Station of Kalookan City. The surveillance was being made because
of information that drug addicts were roaming the area in front of the Kalookan
City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their
vehicle. They then chanced upon a male person in front of the cemetery who
appeared high on drugs. The male person was observed to have reddish eyes
and to be walking in a swaying manner. When this male (Alain DIzon) person
tried to avoid the policemen, the latter approached him and introduced
themselves as police officers. The policemen then asked the male person what
he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu
asked the male person if he could see what said male person had in his hands.
The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the
same. Pat. Espiritu took the wallet and examined it. He found suspected crushed
marijuana residue inside. He kept the wallet and its marijuana contents.

The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated
wallet and its suspected marijuana contents. The man turned out to be the
accused ALAIN MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu,
Cpl. Tamondong wrapped the same with a white sheet of paper on which he
wrote Evidence A 4/11/88 Alain Manalili. The white sheet of paper was marked as

Exhibit E-3. The residue was originally wrapped in a smaller sheet of folded
paper. (Exhibit E-4).

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana
residue (Exhibit D). Cpl. Tamondong thereafter prepared a Joint Affidavit of the
apprehending policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral
slip (Exhibit D) to the National Bureau of Investigation (NBI), including the subject
marijuana residue for chemical analysis. The signature of Pat. Lumabas appears
on the left bottom corner of Exhibit D.

The Forensic Chemistry Section of the NBI received the aforesaid referral slip
and the subject marijuana residue at 7:40 oclock in the evening of April 11, 1988
as shown on the stamped portion of Exhibit D.

It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identified. (Exhibit E)[13] Mrs. Pascual
referred to the subject specimen as crushed marijuana leaves in her Certification
dated April 11, 1988 (Exhibit F).[14] These crushed marijuana leaves gave
positive results for marijuana, according to the Certificate.

Mrs. Pascual also conducted a chromatographic examination of the specimen. In

this examination, she also found that the crushed marijuana leaves gave positive
results for marijuana. She then prepared a Final Report of her examinations
(Exhibit G).

After conducting the examinations, Ms. Pascual placed the specimen in a white
letter-envelope and sealed it. (Exhibit E). She then wrote identification notes on
this letter-envelope. (Exhibit E-1).

Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong
prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit C)

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended.

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as follows:

At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN
MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City
Cemetery on the way to his boarding house. Three policemen ordered the driver
of the tricycle to stop because the tricycle driver and his lone passenger were
under the influence of marijuana. The policemen brought the accused and the
tricycle driver inside the Ford Fiera which the policemen were riding in. The
policemen then bodily searched the accused and the tricycle driver. At this point,
the accused asked the policemen why he was being searched and the policemen
replied that he (accused) was carrying marijuana. However, nothing was found
on the persons of the accused and the driver. The policemen allowed the tricycle
driver to go while they brought the accused to the police headquarters at
Kalookan City where they said they would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and signaled
the latter to follow him. The neighbor thus followed the accused to the Kalookan
City Police Headquarters. Upon arrival thereat, the accused was asked to
remove his pants in the presence of said neighbor and another companion. The
policemen turned over the pants of the accused over a piece of bond paper trying
to look for marijuana. However, nothing was found, except for some dirt and dust.
This prompted the companion of the neighbor of the accused to tell the
policemen to release the accused. The accused was led to a cell. The policemen
later told the accused that they found marijuana inside the pockets of his pants.

At about 5:00 oclock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the
policemen to call his parents in order to settle the case. The policemen who led

the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl.
Tamondong. Pat. Lumabas was the policeman who told the accused to call his
parents. The accused did not call his parents and he told the policemen that his
parents did not have any telephone.

At about 5:30 oclock in the afternoon of the same day, the accused was brought
in the office of an inquest Fiscal. There, the accused told the Fiscal that no
marijuana was found on his person but the Fiscal told the accused not to say
anything. The accused was then brought back to the Kalookan City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the accused when he
and the accused were stopped by policemen and then bodily searched on April
11, 1988, testified. He said that the policemen found nothing either on his person
or on the person of the accused when both were searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed the accused
at the Kalookan City Police Headquarters on April 11, 1988. He said that the
police searched the accused who was made to take off his pants at the police
headquarters but no marijuana was found on the body of the accused.

Appellant, who was recalled to the stand as sur-rebuttal witness, presented

several pictures showing that tricycles were allowed to ply in front of the
Caloocan Cemetery.

The Rulings of the Trial and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue

largely on the strength of the arresting officers testimony. Patrolmen Espiritu and
Lumabas were neutral and disinterested witnesses, testifying only on what
transpired during the performance of their duties. Substantially, they asserted
that the appellant was found to be in possession of a substance which was later
identified as crushed marijuana residue.

The trial court disbelieved appellants defense that this charge was merely
trumped up, because the appellant neither took any legal action against the
allegedly erring policemen nor moved for a reinvestigation before the city fiscal of
Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court
was based on speculations, surmises or conjectures. On the alleged serious
discrepancies in the testimonies of the arresting officers, the appellate court ruled
that the said inconsistencies were insubstantial to impair the essential veracity of
the narration. It further found petitioners contention -- that he could not be
convicted of illegal possession of marijuana residue -- to be without merit,
because the forensic chemist reported that what she examined were marijuana
leaves.

Issues

Petitioner assigns the following errors on the part of Respondent Court:

The Court of Appeals erred in upholding the findings of fact of the trial court.

II

The Court of Appeals erred in upholding the conviction of (the) accused (and) in
ruling that the guilt of the accused had been proved (beyond) reasonable doubt.

III

The Court of Appeals erred in not ruling that the inconsistencies in the
testimonies of the prosecution witnesses were material and substantial and not
minor.

IV

The Court of Appeals erred in not appreciating the evidence that the accused
was framed for the purpose of extorting money.

The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.

VI

The Court of Appeals erred in admitting the evidence of the prosecution which
are inadmissible in evidence.

Restated more concisely, petitioner questions (1) the admissibility of the

evidence against him, (2) the credibility of prosecution witnesses and the
rejection by the trial and the appellate courts of the defense of extortion, and (3)
the sufficiency of the prosecution evidence to sustain his conviction.

ISSUE: WHETHER OR NOT THE SEARCH, ARREST AND

SEIZURE ARE VALID
(STOP AND FRISK DOCTRINE)

The Courts Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his

possession, contending that they were products of an illegal search. The Solicitor
General, in his Comment, dated July 5, 1994, which was adopted as
memorandum for respondent, counters that the inadmissibility of the marijuana
leaves was waived because petitioner never raised this issue in the proceedings
below nor did he object to their admissibility in evidence. He adds that, even
assuming arguendo that there was no waiver, the search was legal because it
was incidental to a warrantless arrest under Section 5 (a), Rule 113 of the Rules
of Court.

We disagree with petitioner and hold that the search was valid, being akin to a
stop-and-frisk. In the landmark case of Terry vs. Ohio,[18] a stop-and-frisk was
defined as the vernacular designation of the right of a police officer to stop a
citizen on the street, interrogate him, and pat him for weapon(s):
Definition:
x x x (W)here a police officer observes an unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he identified
himself as a policeman and makes reasonable inquiries, and where nothing in
the initial stages of the encounter serves to dispel his reasonable fear for his own
or others safety, he is entitled for the protection of himself and others in the area
to conduct a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him. Such a search
is a reasonable search under the Fourth Amendment, and any weapon seized
may properly be introduced in evidence against the person from whom they were
taken.

In allowing such a search, the United States Supreme Court held that the interest
of effective crime prevention and detection allows a police officer to approach a
person, in appropriate circumstances and manner, for purposes of investigating
possible criminal behavior even though there is insufficient probable cause to
make an actual arrest. This was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached petitioner and his
companion whom he observed to have hovered alternately about a street corner
for an extended period of time, while not waiting for anyone; paused to stare in
the same store window roughly times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years experience to have failed
to investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US

Supreme Court held that what justified the limited search was the more
immediate interest of the police officer in taking steps to assure himself that the
person with whom he was dealing was not armed with a weapon that could
unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and
seizure is unconstitutional and subject to challenge. Section 2, Article III of the
1987 Constitution, gives this guarantee:

SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

Any evidence obtained in violation of the mentioned provision is legally

inadmissible in evidence as a fruit of the poisonous tree, falling under the
exclusionary rule:

SEC. 3. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be

inadmissible for any purpose in any proceeding.

This right, however, is not absolute.[21] The recent case of People vs. Lacerna
enumerated five recognized exceptions to the rule against warrantless search
and seizure, viz.: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure.[22]
In People vs. Encinada,[23] the Court further explained that [i]n these cases, the
search and seizure may be made only with probable cause as the essential
requirement. Although the term eludes exact definition, probable cause for a
search is, at best, defined as a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the
belief that the person accused is guilty of the offense with which he is charged; or
the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that
the item(s), article(s) or object(s) sought in connection with said offense or
subject to seizure and destruction by law is in the place to be searched.

Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the
Court held that there are many instances where a search and seizure can be
effected without necessarily being preceded by an arrest, one of which is stopand-frisk. In said case, members of the Integrated National Police of Davao
stopped petitioner, who was carrying a buri bag and acting suspiciously. They
found inside petitioners bag one .38-cal. revolver with two rounds of live
ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In
upholding the legality of the search, the Court said that to require the police
officers to search the bag only after they had obtained a search warrant might

prove to be useless, futile and much too late under the circumstances. In such a
situation, it was reasonable for a police officer to stop a suspicious individual
briefly in order to determine his identity or to maintain the status quo while
obtaining more information, rather than to simply shrug his shoulders and allow a
crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during
their surveillance that appellant had red eyes and was wobbling like a drunk
along the Caloocan City Cemetery, which according to police information was a
popular hangout of drug addicts. From his experience as a member of the AntiNarcotics Unit of the Caloocan City Police, such suspicious behavior was
characteristic of drug addicts who were high. The policemen therefore had
sufficient reason to stop petitioner to investigate if he was actually high on drugs.
During such investigation, they found marijuana in petitioners possession:[2

FISCAL RALAR:

Q And why were you conducting surveillance in front of the Caloocan Cemetery,
Sangandaan, Caloocan City?

A Because there were some informations that some drug dependents were
roaming around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan
City.

xxx xxx xxx

Q While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?

A We chanced upon one male person there in front of the Caloocan Cemetery
then when we called his attention, he tried to avoid us, then prompting us to
approach him and introduce ourselves as police officers in a polite manner.

xxx xxx xxx

Q Could you describe to us the appearance of that person when you chanced
upon him?

A That person seems like he is high on drug.

Q How were you able to say Mr. Witness that that person that you chanced upon
was high on drug?

A Because his eyes were red and he was walking on a swaying manner.

Q What was he doing in particular when you chanced upon him?

A He was roaming around, sir.

Q You said that he avoided you, what did you do when he avoided you?

A We approached him and introduced ourselves as police officers in a polite

manner, sir.

Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?

A We asked him what he was holding in his hands, sir.

Q And what was the reaction of the person when you asked him what he was
holding in his hands?

A He tried to resist, sir.

Q When he tried to resist, what did you do?

A I requested him if I can see what was he was(sic) holding in his hands.

Q What was the answer of the person upon your request?

A He allowed me to examine that something in his hands, sir.

xxx xxx xxx

Q What was he holding?

A He was holding his wallet and when we opened it, there was a marijuana (sic)
crushed residue.

Furthermore, we concur with the Solicitor Generals contention that petitioner

effectively waived the inadmissibility of any evidence illegally obtained when he
failed to raise this issue or to object thereto during the trial. A valid waiver of a

right, more particularly of the constitutional right against unreasonable search,

requires the concurrence of the following requirements: (1) the right to be waived
existed; (2) the person waiving it had knowledge, actual or constructive, thereof;
and (3) he or she had an actual intention to relinquish the right. Otherwise, the
Courts will indulge every reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have
waived such right for his failure to raise its violation before the trial court. In
petitions under Rule 45, as distinguished from an ordinary appeal of criminal
cases where the whole case is opened for review, the appeal is generally limited
to the errors assigned by petitioner. Issues not raised below cannot be pleaded
for the first time on appeal.

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers testimony contained
polluted, irreconcilable and unexplained contradictions which did not support
petitioners conviction.

We disagree. Time and again, this Court has ruled that the trial courts
assessment of the credibility of witnesses, particularly when affirmed by the
Court of Appeals as in this case, is accorded great weight and respect, since it
had the opportunity to observe their demeanor and deportment as they testified
before it. Unless substantial facts and circumstances have been overlooked or
misappreciated by the trial court which, if considered, would materially affect the
result of the case, we will not countenance a departure from this rule.

We concur with Respondent Courts ruling:

(e)ven assuming as contended by appellant that there had been some

inconsistencies in the prosecution witnesses testimonies, We do not find them
substantial enough to impair the essential veracity of their narration. In People
vs. Avila, it was held that As long as the witnesses concur on the material points,
slight differences in their remembrance of the details, do not reflect on the

essential veracity of their statements.

However, we find that, aside from the presumption of regularity in the

performance of duty, the bestowal of full credence on Pat. Espiritus testimony is
justified by tangible evidence on record. Despite Pat. Lumabas contradictory
testimony, that of Espiritu is supported by the Joint Affidavit signed by both
arresting policemen. The question of whether the marijuana was found inside
petitioners wallet or inside a plastic bag is immaterial, considering that petitioner
did not deny possession of said substance. Failure to present the wallet in
evidence did not negate that marijuana was found in petitioners possession. This
shows that such contradiction is minor, and does not destroy Espiritus credibility.

Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in

possession of an item or object which is identified to be a prohibited drug; (b)
such possession is not authorized by law; and (c) the accused freely and
consciously possessed the said drug.[31]

The substance found in petitioners possession was identified by NBI Forensic

Chemist Aida Pascual to be crushed marijuana leaves. Petitioners lack of
authority to possess these leaves was established. His awareness thereof was
undeniable, considering that petitioner was high on drugs when stopped by the
policemen and that he resisted when asked to show and identify the thing he was
holding. Such behavior clearly shows that petitioner knew that he was holding
marijuana and that it was prohibited by law.

Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did not file
any administrative or criminal case against the arresting officers or present any
evidence, other than his bare claim. His argument that he feared for his life was
lame and unbelievable, considering that he was released on bail and continued
to be on bail as early as April 26, 1988.[32] Since then, he could have made the
charge in relative safety, as he was no longer in the custody of the police. His

defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is
easy to concoct and fabricate.[33]

The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law
(Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six
years and one day of imprisonment, aside from the imposed fine of six thousand
pesos. This Act requires the imposition of an indeterminate penalty:

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by

the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same. (As amended by Act No. 4225.)

SEC. 2. This Act shall not apply to persons convicted of offenses punished with
death penalty or life-imprisonment; to those convicted of treason; to those
convicted of misprision of treason, rebellion, sedition or espionage; to those
convicted of piracy; to those who are habitual delinquents; to those who shall
have escaped from confinement or evaded sentence; to those who having been
granted conditional pardon by the Chief Executive shall have violated the terms
thereof; to those whose maximum term of imprisonment does not exceed one
year, not to those already sentenced by final judgment at the time of approval of
this Act, except as provided in Section 5 hereof. (Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:

Sec. 8. x x x x

The penalty of imprisonment ranging from six years and one day to twelve years
and a fine ranging from six thousand to twelve thousand pesos shall be imposed
upon any person who, unless authorized by law, shall possess or use Indian
hemp.

Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to
twelve years.[34]

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6)
YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE
of SIX THOUSAND PESOS. Costs against petitioner.

SO ORDERED.

SUSAN ESQUILLO Y ROMINES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

Via petition erroneously captioned as one for Certiorari, Susan Esquillo y

Romines (petitioner) challenges the November 27, 2007 Decision of the Court of
Appeals in CA-G.R. CR No. 27894 which affirmed the July 28, 2003 Decision of
Branch 116 of the Regional Trial Court (RTC) of Pasay City in Criminal Case No.
02-2297 convicting Susan Esquillo y Romines (petitioner) for violating Section 11,
Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs
Act of 2002) possession of methamphetamine hydrochloride or shabu.

The accusatory portion of the Information dated December 12, 2002 indicting
petitioner reads:

That on or about the 10th day of December, 2002 in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, without authority of law, did then and there willfully, unlawfully and
feloniously have in her possession, custody and control 0.1224 gram of
Methylamphetamine Hydrochloride (shabu).

At the trial, petitioner admitted the genuineness and due execution of the
documentary evidence of the prosecution, particularly the Dangerous Drugs and
Toxicology Reports issued by National Bureau of Investigation (NBI) Forensic
Chemist Antonino de Belen (de Belen), subject to her defenses, to thus dispense
with the testimony of de Belen.

De Belen recorded the results of the laboratory examination of the contents of

the sachet in Dangerous Drugs Report No. DD-02-613,4 viz:

xxxx

SPECIMEN:

White crystalline substance contained in a heat-sealed transparent plastic sachet

marked "SRE" and further placed in bigger marked transparent plastic sachet.

xxxx

F I N D I N G S:

Net Weight of specimen = 0.1224 gram

Examinations conducted on the above-mentioned specimen gave POSITIVE

RESULTS for METHAMPHETAMINE HYDROCHLORIDE, a dangerous drug. x x
x

x x x x (emphasis and underscoring supplied)

With respect to the examination of the urine of petitioner, de Belen recorded the
results thereof in Toxicology Report No. TDD-02-41285 reading:

xxxx

SPECIMEN:

Urine of one SUSAN ESQUILLO Y ROMINES. 37 y/o, married, jobless, of no.

1159 Bo. Bayanihan, Maricaban, Pasay City.

xxxx

F I N D I N G S:

Volume of urine = 60 mL.

pH of urine = 5.0

Appearance = yellow orange, turbid

Examinations conducted on the above-mentioned specimen gave POSITIVE

RESULTS for the presence of METHAMPHETAMINE HYDROCHLORIDE, and
its metabolite AMPHETAMINE. x x x

PROSECUTION'S VERSION OF FACTS

Based on its documentary evidence and the testimony of PO1 Alvin Cruzin (PO1
Cruzin),6 a member of the Pasay City Police Station Special Operations Group
(SOG), the prosecution established its version as follows:

On the basis of an informants tip, PO1 Cruzin, together with PO2 Angel Aguas
(PO2 Aguas), proceeded at around 4:00 p.m. on December 10, 2002 to
Bayanihan St., Malibay, Pasay City to conduct surveillance on the activities of an
alleged notorious snatcher operating in the area known only as "Ryan."

As PO1 Cruzin alighted from the private vehicle that brought him and PO2 Aguas
to the target area, he glanced in the direction of petitioner who was standing
three meters away and seen placing inside a yellow cigarette case what
appeared to be a small heat-sealed transparent plastic sachet containing white
substance. While PO1 Cruz was not sure what the plastic sachet contained, he
became suspicious when petitioner started acting strangely as he began to
approach her. He then introduced himself as a police officer to petitioner and
inquired about the plastic sachet she was placing inside her cigarette case.
Instead of replying, however, petitioner attempted to flee to her house nearby but
was timely restrained by PO1 Cruzin who then requested her to take out the
transparent plastic sachet from the cigarette case.

After apprising petitioner of her constitutional rights, PO1 Cruzin confiscated the
plastic sachet on which he marked her initials "SRE." With the seized item,
petitioner was brought for investigation to a Pasay City Police Station where
P/Insp. Aquilino E. Almanza, Chief of the Drug Enforcement Unit, prepared a
memorandum8 dated December 10, 2002 addressed to the Chief Forensic
Chemist of the NBI in Manila requesting for: 1) a laboratory examination of the
substance contained in the plastic sachet to determine the presence of shabu,

and 2) the conduct of a drug test on the person of petitioner. PO1 Cruzin and
PO2 Aguas soon executed a Joint Affidavit of Apprehension recounting the
details of their intended surveillance and the circumstances leading to petitioners
arrest.

Repudiating the charges, petitioner gave the following tale:

At around 1:00 to 2:00 p.m. of the date in question, while she was sick and
resting at home, several policemen in civilian garb with guns tucked in their
waists barged in and asked her whether she knew one named "Ryan" who they
claimed was a notorious snatcher operating in the area, to which she replied in
the negative. The police officers then forced her to go with them to the Pasay City
Police Station-SOG office where she was detained.

While she was under detention, the police officers were toying with a wallet which
they claimed contained shabu and recovered from her.

In fine, petitioner claimed that the evidence against her was "planted," stemming
from an all too obvious attempt by the police officers to extort money from her
and her family.

Two other witnesses for the defense, petitioners daughter Josan Lee and family
friend Ma. Stella Tolentino,corroborated petitioners account. They went on to
relate that the police officers never informed them of the reason why they were
taking custody of petitioner.

By Decision13 of July 28, 2003, the trial court found petitioner guilty of illegal
possession of Methylamphetamine Hydrochloride or shabu, disposing as follows:

WHEREFORE, in light of the foregoing premises and considerations, this Court

hereby renders judgment finding the accused Susan Esquillo y Romines GUILTY
beyond reasonable doubt of the crime of Violation of par. 3 of Section 11, Article

II of R. A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of

2002, and absent any modifying circumstance to either aggravate or mitigate the
criminal liability of the same accused, and furthermore, applying the provisions of
the Indeterminate Sentence Law, the same accused is hereby sentenced to
suffer the penalty of imprisonment ranging from Eight (8) years and One (1) day,
as minimum, to Fourteen (14) years, Eight (8) months and One (1) day, as
maximum, and to pay a fine of P350,000.00, Philippine Currency, plus costs.

The 0.1224 gram of Methylamphetamine Hydrochloride or "Shabu" involved in

this case is declared forfeited in favor of the Government and ordered to be
turned over to the Philippine Drug Enforcement Agency (PDEA) for proper and
appropriate disposition in accordance with the provisions of the law.14
(underscoring supplied)

Before the Court of Appeals, appellant questioned as illegal her arrest without
warrant to thus render any evidence obtained on the occasion thereof
inadmissible.

In its challenged Decision affirming petitioners conviction, the appellate court,

citing People v. Chua,15 held that the police officers had probable cause to
search petitioner under the "stop-and-frisk" concept, a recognized exception to
the general rule prohibiting warrantless searches.

Brushing aside petitioners defense of frame-up, the appellate court noted that
petitioner failed to adduce evidence that the arresting officers were impelled by
any evil motive to falsely charge her, and that she was even found positive for
substance abuse.

In her present petition, petitioner assails the appellate courts application of the
"stop-and-frisk" principle in light of PO1 Cruzins failure to justify his suspicion
that a crime was being committed, he having merely noticed her placing
something inside a cigarette case which could hardly be deemed suspicious. To
petitioner, such legal principle could only be invoked if there were overt acts
constituting unusual conduct that would arouse the suspicion.

Respondent, through the Office of the Solicitor General, prays for the affirmance
of the appealed decision but seeks a modification of the penalty to conform to the
pertinent provisions of R.A. No. 9165.

Appellants conviction stands.

Petitioner did not question early on her warrantless arrest before her
arraignment. Neither did she take steps to quash the Information on such ground.
Verily, she raised the issue of warrantless arrest as well as the inadmissibility of
evidence acquired on the occasion thereof for the first time only on appeal
before the appellate court. By such omissions, she is deemed to have waived
any objections on the legality of her arrest.
!!!
Be that as it may, the circumstances under which petitioner was arrested indeed
engender the belief that a search on her was warranted. Recall that the police
officers were on a surveillance operation as part of their law enforcement efforts.
When PO1 Cruzin saw petitioner placing a plastic sachet containing white
crystalline substance into her cigarette case, it was in his plain view. Given his
training as a law enforcement officer, it was instinctive on his part to be drawn to
curiosity and to approach her. That petitioner reacted by attempting to flee after
he introduced himself as a police officer and inquired about the contents of the
plastic sachet all the more pricked his curiosity.

That a search may be conducted by law enforcers only on the strength of a valid
search warrant is settled. The same, however, admits of exceptions, viz:

(1) consented searches; (2) as an incident to a lawful arrest; (3) searches of

vessels and aircraft for violation of immigration, customs, and drug laws; (4)
searches of moving vehicles; (5) searches of automobiles at borders or
constructive borders; (6) where the prohibited articles are in "plain view;" (7)
searches of buildings and premises to enforce fire, sanitary, and building
regulations; and (8) "stop and frisk" operations.20 (emphasis underscoring
supplied)

In the instances where a warrant is not necessary to effect a valid search or

seizure, the determination of what constitutes a reasonable or unreasonable
search or seizure is purely a judicial question, taking into account, among other
things, the uniqueness of the circumstances involved including the purpose of the
search or seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched, and the
character of the articles procured.

Elucidating on what includes "stop-and-frisk" operation and how it

is to be carried out, the Court in People v. Chua held:

. . . the act of a police officer to stop a citizen on the street, interrogate him, and
pat him for weapon(s) 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 for
possibly concealed weapons. 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. It should therefore be
emphasized that a search and seizure should precede the arrest for this principle
to apply.

This principle of "stop-and-frisk" search was invoked by the Court in Manalili v.

Court of Appeals. 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, 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 w[h]ere roaming the
vicinity. (emphasis and underscoring supplied; citations omitted)1wphi1

What is, therefore, essential is that a genuine reason must exist, in light of the

police officers experience and surrounding conditions, to warrant the belief that
the person who manifests unusual suspicious conduct has weapons or
contraband concealed about him. Such a "stop-and-frisk" practice serves a dual
purpose: (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.

From these standards, the Court finds that the questioned act of the police
officers constituted a valid "stop-and-frisk" operation. The search/seizure of the
suspected shabu initially noticed in petitioners possession - later voluntarily
exhibited to the police operative - was undertaken after she was interrogated on
what she placed inside a cigarette case, and after PO1 Cruzin introduced himself
to petitioner as a police officer. And, at the time of her arrest, petitioner was
exhibiting suspicious behavior and in fact attempted to flee after the police officer
had identified himself.

It bears recalling that petitioner admitted the genuineness and due execution of
the Dangerous Drugs and Toxicology Reports, subject, however, to whatever
available defenses she would raise. While such admissions do not necessarily
control in determining the validity of a warrantless search or seizure, they
nevertheless provide a reasonable gauge by which petitioners credibility as a
witness can be measured, or her defense tested.

It has not escaped the Courts attention that petitioner seeks exculpation by
adopting two completely inconsistent or incompatible lines of defense. On one
hand, she argues that the "stop-and-frisk" search upon her person and personal
effects was unjustified as it constituted a warrantless search in violation of the
Constitution. In the same breadth, however, she denies culpability by holding fast
to her version that she was at home resting on the date in question and had been
forcibly dragged out of the house by the police operatives and brought to the
police station, for no apparent reason than to try and extort money from her. That
her two witnesses a daughter and a friend who were allegedly present at the

time of her arrest did not do anything to report it despite their claim that they were
not informed why she was being arrested, should dent the credibility of their
testimony.

Courts have tended to look with disfavor on claims of accused, such as those of
petitioners, that they are victims of a frame-up. The defense of frame-up, like
alibi, has been held as a shop-worn defense of the accused in drug-related
cases, the allegation being easily concocted or contrived. For this claim to
prosper, the defense must adduce clear and convincing evidence to overcome
the presumption of regularity of official acts of government officials. This it failed
to do.

Absent any proof of motive to falsely accuse petitioner of such a grave offense,
the presumption of regularity in the performance of official duty and the findings
of the trial court with respect to the credibility of witnesses prevail over that of
petitioner.

A word on the penalty.

While the appellate court affirmed the trial courts decision, it overlooked the error
in the penalty imposed by the trial court. The trial court, applying the provisions of
the Indeterminate Sentence Law, sentenced petitioner to "suffer the penalty of
imprisonment ranging from Eight (8) years and One (1) day, as minimum, to
Fourteen (14) years, Eight (8) months and One (1) day, as maximum."

Article II, Section 11 of R.A. No. 9165 provides, however:

Section 11. Possession of Dangerous Drugs.

xxxx

Otherwise, if the quantity involved is less than the foregoing quantities, the
penalties shall be graduated as follows:

xxxx

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000) to Four hundred
thousand pesos (P400,000), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, metamphetamine hydrochloride or "shabu"
or other dangerous drugs such as, but not limited to MDMA or "ecstacy," PMA,
TMA, LSD, GHB and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity
possesses is far behind therapeutic requirements; or less than three hundred
(300) grams of marijuana. (emphasis and underscoring supplied)

Section 1 of the Indeterminate Sentence Law provides that when the offense is
punished by a law other than the Revised Penal Code, "the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by law and the minimum shall not be less than the
minimum term prescribed by the same."

The prayer of the Office of the Solicitor General for a modification of the penalty
is thus in order.

The Court, therefore, imposes on petitioner the penalty of imprisonment of twelve

(12) years and one (1) day, as minimum, to fourteen (14) years, as maximum.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED, with

the MODIFICATION that the penalty of imprisonment shall be twelve (12) years
and one (1) day, as minimum, to fourteen (14) years, as maximum. In all other
respects, the decision of the RTC in Criminal Case No. 02-2297 is AFFIRMED.

SO ORDERED.

EXPRESS WAIVER

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,

vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV,
Regional Trial Court at Davao City; and BRIG. GEN. PANTALEON
DUMLAO, Commanding General, PC-Criminal Investigation
Service, respondents.

This was originally a petition for certiorari, mandamus and prohibition under Rule
65 of the Rules of Court: certiorari, to review the Order of the respondent Judge
dated October 2, 1990 denying herein petitioner's Motion for Hospital
Confinement; mandamus, to compel respondent Judge to resolve petitioners'
long pending motion for bail; and prohibition, to enjoin further proceedings on the
ground that the legal basis therefore is unconstitutional for being violative of the
due process and equal protection clauses of the Constitution.

The facts of this case are as follows:

Petitioners are husband and wife who owned and formerly resided at No. 13
Isidro St., Skyline Village. Catalunan Grande, Davao City. When petitioner
Leopoldo Veroy was promoted to the position of Assistant Administrator of the
Social Security System sometime in June, 1988, he and his family transferred to
130 K-8th St., East Kamias, Quezon City, where they are presently residing. The
care and upkeep of their residence in Davao City was left to two (2) houseboys,
Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the
premises. The Veroys would occasionally send money to Edna Soguilon for the

salary of the said houseboys and other expenses for the upkeep of their house.
While the Veroys had the keys to the interior of the house, only the key to the
kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon
to give her access in case of an emergency. Hence, since 1988, the key to the
master's bedroom as well as the keys to the children's rooms were retained by
herein Petitioners so that neither Edna Soguilon nor the caretakers could enter
the house.

On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP,
acting upon a directive issued by Metrodiscom Commander Col. Franco Calida,
raided the house of herein petitioners in Davao City on information that the said
residence was being used as a safehouse of rebel soldiers. They were able to
enter the yard with the help of the caretakers but did not enter the house since
the owner was not present and they did not have a search warrant. Petitioner
Ma. Luisa was contacted by telephone in her Quezon City residence by Capt.
Obrero to ask permission to search the house in Davao City as it was reportedly
being used as a hideout and recruitment center of rebel soldiers. Petitioner Ma.
Luisa Veroy responded that she is flying to Davao City to witness the search but
relented if the search would not be conducted in the presence of Major Ernesto
Macasaet, an officer of the PC/INP, Davao City and a long time family friend of
the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero
to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by
telephone on the matter and that the permission was given on the condition that
the search be conducted in his presence.

The following day, Capt. Obrero and Major Macasaet met at the house of herein
petitioners in Skyline Village to conduct the search pursuant to the authority
granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into
the yard, and using the key entrusted to Edna Soguilon, they were able to gain
entrance into the kitchen. However, a locksmith by the name of George Badiang
had to be employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the children's room and
conducted the search. Capt. Obrero recovered a .45 cal. handgun with a
magazine containing seven (7) live bullets in a black clutch bag inside an
unlocked drawer. Three (3) half-full jute sacks containing printed materials of
RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the
petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the
children's recreation and study area revealed a big travelling bag containing

assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve
striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A.,
one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic
Revolution Future Path of the Nation", a road map of the Philippines, a telescope,
a plastic bag containing assorted medicines and religious pamphlets was found
in the master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to
make an inventory and receipt of the articles seized, in the house (Annex "F" of
the Petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the
caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero
turned over the articles to Sgt. Rodolfo Urbano at the police station.

The case was referred for preliminary investigation to Quezon City Assistant
Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor
for Davao City by the Department of Justice through Department Order No. 88
dated May 16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada
recommended the filing of an information against herein petitioners for Violation
of Presidential Decree No. 1866 (Illegal Possession of Firearms and
Ammunitions in Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p.
71). Hence, on August 8, 1990. an Information for the said offense was filed by
the Office of the City Prosecutor of Davao City before the Regional Trial Court,
11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and
entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa
Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the
prosecution.

The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was

received by the petitioners on August 13, 1990. On the same day, the latter filed
a Motion for Bail before herein respondent Judge Layague which was denied on
August 17, 1990 for being premature since at that time, petitioners had not yet
been arrested. Despite the fact that the warrants for their arrest have not yet
been served on them, herein petitioners voluntarily surrendered themselves to
Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated
the complaint. However, the latter refused to receive them on the ground that his
office has not yet received copies of their warrants of arrest.

In the meantime, on August 15, 1990, herein petitioners were admitted to the St.
Luke's Hospital for various ailments brought about or aggravated by the stress

and anxiety caused by the filing of the criminal complaint. On August 17, 1990,
Brig. Gen. Dumlao granted their request that they be allowed to be confined at
the hospital and placed under guard thereat.

In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los
Santos, made its return to the trial court informing the latter of the voluntary
surrender of herein petitioners and the fact that they were under hospital
confinement. Herein Petitioner reiterated their Motion for Bail. In an Order dated
August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the
Motion for Bail was set for August 31, 1990 to enable the prosecution to present
evidence it opposition to said motion. The prosecution filed its written opposition
(Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the
evidence of petitioners' guilt was strong and thereafter presented its evidence.

On September 21, 1990, respondent Judge required the CIS to produce the
bodies of herein petitioners on October 1, 1990 for arraignment (Annex "O" of the
Petition, Rollo, p. 76). Upon their arraignment, herein Petitioners entered a plea
of not guilty and filed an "Urgent Motion for Hospital Confinement" (Annex "OO"
of the Petition Rollo, p. 77) which was denied by the court in its Order dated
October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered their
commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending
trial on the merits. Herein petitioners argued orally a motion for reconsideration
which was opposed by the prosecution. At the conclusion thereof, the court a quo
issued a second order annex "Q" of the Petition, Rollo, p. 83) denying then
motion for reconsideration and as to the alternative prayer to reopen the motion
for hospital confinement, set the continuance thereof to October 17, 1990. It was
further ordered that the petitioners shall remain under the custody of the PC-CIS
pending resolution of the case.

Meanwhile, petitioners were returned to the St. Luke's Hospital where their
physical condition remained erratic. On or about October 18, 1990, herein
petitioners were informed that Brig. Gen. Dumlao had issued a directive for their
transfer from the St. Luke's Hospital to Camp Crame on the basis of the October
2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made
representations that the tenor of the court order warranted maintenance of the
status quo, i.e., they were to continue their hospital confinement. However, Brig,
Gen. Dumlao informed them that unless otherwise restrained by the court, they

would proceed with their transfer pursuant to the order of the trial court.

Hence, this petition on October 25, 1990 this Court issued a Temporary
Restraining Order, effective immediately and continuing until further orders from
this Court, ordering: (a) respondent Hon. William L. Layague to refrain from
further proceeding with petitioners' "Motion for Hospital Confinement" in Criminal
Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma.
Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from
transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners'

Motion for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133).
Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105)
and a Second Supplemental Petition on November 16, 1990 (Rollo, p. 120)
which sought to review the order of the trial court dated November 2, 1990
denying their petition for bail.

Acting on the Supplemental Petition filed by Petitioners and taking into

consideration several factors such as: a) that the possibility that they will flee or
evade the processes of the court is fairly remote; b) their poor medical condition;
and c) the matters in their Second Supplemental Petition especially since the
prosecution's evidence refers to constructive possession of the disputed firearms
in Davao City through the two (2) caretakers while petitioners lived in Manila
since 1988, this Court, on November 20, 1990, granted petitioners' provisional
liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners
posted a cash bond in the said amount on November 23, 1990 (Rollo, pp. 143145).

The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents
adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their
Memorandum while, petitioners filed their Memorandum on September 9, 1991
(Rollo, pp. 218-269).

As submitted by the respondents, and accepted by petitioners, the petition for

mandamus to compel respondent Judge to resolve petitioners' Motion for Bail,

and the petition for certiorari to review the order of respondent judge initially
denying their Motion for Hospital Confinement, were rendered moot and
academic by the resolutions of this Court dated November 20, 1990 and October
25, 1990, respectively. What remains to be resolved is the petition for prohibition
where petitioners raised the following issues:

1.
Presidential Decree No. 1866, or at least the third paragraph of Section 1
thereof, is unconstitutional for being violative of the due process and equal
protection clauses of the Constitution;

2.
Presidential Decree No. 1866 has been repealed by Republic Act No.
6968;

3.
Assuming the validity of Presidential Decree No. 1866 the respondent
judge gravely abused his discretion in admitting in evidence certain articles which
were clearly inadmissible for being violative of the prohibition against
unreasonable searches and seizures.

The issue of constitutionality of Presidential Decree No. 1866 has been laid to
rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181
SCRA 648), where this Court held that the declaration of unconstitutionality of the
third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal
basis since it is neither a bill of attainder nor does it provide a possibility of a
double jeopardy.

Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential
Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction
that where the words and phrases of a statute are not obscure or ambiguous. its
meaning and the intention of the legislature must be determined from the
language employed, and where there is no ambiguity in the words, there is no
room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI,
Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the
aforementioned laws would reveal that the legislature provided for two (2) distinct

offenses: (1) illegal possession of firearms under Presidential Decree No. 1866;
and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968;
evidently involving different subjects which were not clearly shown to have
eliminated the others.

But petitioners contend that Section 1 of Presidential Decree No. 1866 is

couched in general or vague terms. The terms "deal in", "acquire", "dispose" or
"possess" are capable of various interpretations such that there is no
definiteness as to whether or not the definition includes "constructive possession"
or how the concept of constructive possession should be applied. Petitioners
were not found in actual possession of the firearm and ammunitions. They were
in Quezon City while the prohibited articles were found in Davao City. Yet they
were being charged under Presidential Decree No. 1866 upon the sole
circumstance that the house wherein the items were found belongs to them
(Memorandum for Petitioners, Rollo, pp. 242-244).

Otherwise stated, other than their ownership of the house in Skyline Village,
there was no other evidence whatsoever that herein petitioners possessed or
had in their control the items seized (Ibid., pp. 248-250). Neither was it shown
that they had the intention to possess the Firearms or to further rebellion (Ibid., P.
252).

In a similar case, the revolver in question was found in appellant's store and the
question arouse whether he had possession or custody of it within the meaning
of the law.

This Court held that:

The animus possidendi must be proved in opium cases where the prohibited
drug was found on the premises of the accused and the same rule is applicable
to the possession of firearms. The appellant denied all knowledge of the
existence of the revolver, and the Government's principal witness stated that
there were a number of employees in the store. The only testimony which tends
to show that the appellant had the possession or custody of this revolver is the

inference drawn from the fact that it was found in his store, but we think that this
inference is overcome by the positive testimony of the appellant, when
considered with the fact that there were a number of employees in the store,
who, of course, could have placed the revolver in the secret place where it was
found without the knowledge of the appellant. At least there is a very serious
doubt whether he knew of the existence of this revolver. In such case the doubt
must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724
[1916])

ISSUE: WHETHER OR NOT THERE IS A VALID SEARCH

NO
WHETHER OR NOT THE EVIDENCE IS ADMISSIBLE
NO
But more importantly, petitioners question the admissibility in evidence of the
articles seized in violation of their constitutional right against unreasonable
search and seizure.

Petitioner's Defense
Petitioners aver that while they concede that Capt. Obrero had permission from
Ma. Luisa Veroy to break open the door of their residence, it was merely for the
purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The
permission did not include any authority to conduct a room to room search once
inside the house. The items taken were, therefore, products of an illegal search,
violative of their constitutional rights As such, they are inadmissible in evidence
against them.

The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures (Article
III, Section 2 of the 1987 Constitution). However, the rule that searches and
seizures must be supported by a valid warrant is not an absolute one. Among the
recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a
search of a moving vehicle; and (3) seizure of evidence in plain view (People v.
Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).

None of these exceptions pertains to the case at bar. The reason for searching
the house of herein petitioners is that it was reportedly being used as a hideout
and recruitment center for rebel soldiers. While Capt. Obrero was able to enter
the compound, he did not enter the house because he did not have a search
warrant and the owners were not present. This shows that he himself recognized
the need for a search warrant, hence, he did not persist in entering the house but
rather contacted the Veroys to seek permission to enter the same. Permission
was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain
the presence of rebel soldiers. Under the circumstances it is undeniable that the
police officers had ample time to procure a search warrant but did not.

In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People

v. Aminnudin, G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro,
G.R. No. L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were
declared illegal because the officials conducting the search had every opportunity
to secure a search Warrant. The objects seized, being products of illegal
searches, were inadmissible in evidence in the criminal actions subsequently
instituted against the accused-appellants (People v. Cendana, G.R. No. 84715,
October 17, 1990 [190 SCRA 538]).

Undeniably, the offense of illegal possession of firearms is malum prohibitum but

it does not follow that the subject thereof is necessarily illegal per se. Motive is
immaterial in mala prohibita but the subjects of this kind of offense may not be
summarily seized simply because they are prohibited. A search warrant is still
necessary. Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are therefore
protected by the exclusionary principle. They cannot be used as evidence
against the petitioners in the criminal action against them for illegal possession of
firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that
there was indeed a search warrant, still in mala prohibita, while there is no need
of criminal intent, there must be knowledge that the same existed. Without the
knowledge or voluntariness there is no crime.

PREMISES CONSIDERED, the petition as granted and the criminal case against
the petitioners for illegal possession of firearms is DISMISSED.

SO ORDERED.

(Express Waiver)

THE PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JESUS NUEVAS y GARCIA, REYNALDO DIN y
GONZAGA, and FERNANDO INOCENCIO y ABADEOS,
Appellants.

Jesus Nuevas y Garcia (Nuevas) was charged before the Regional Trial Court
(RTC) of Olongapo City, Branch 75, with illegal possession of marijuana in
violation of Section 8, Article II of Republic Act No. 64252 as amended.

Reynaldo Din y Gonzaga (Din) and Fernando Inocencio y Abadeos (Inocencio)

were likewise charged with the same crime, before the same court.

Upon arraignment, Nuevas, Din and Inocencio pleaded not guilty to the
charges.As the evidence in the cases was common and the prosecution would
utilize the same witnesses, the cases were consolidated. After a joint trial on the
merits, the RTC rendered a Decision5 dated 4 April 2002, disposing as follows:

WHEREFORE, finding all accused in the above-entitled cases guilty beyond

reasonable doubt, this Court hereby sentences them to suffer the penalty of
Reclusion Perpetua and each to pay [a] fine of P500,000.00 without subsidiary
imprisonment in case of insolvency and to pay the costs.

The bricks of marijuana are hereby confiscated and disposed in accordance with
existing regulations.

SO ORDERED.

To put in appropriate context the operative facts on which adjudication of this

case hinges, there is need to recall the factual assertions of the witnesses for
both the prosecution and the defense.

FACTS:
PO3 Teofilo B. Fami (Fami) testified that in the morning of 27 September 1997,
he and SPO3 Cesar B. Cabling (Cabling) conducted a stationary surveillance
and monitoring of illegal drug trafficking along Perimeter Street, Barangay Pagasa, Olongapo City. They had received information that a certain male person,
more or less 54" in height, 25 to 30 years old, with a tattoo mark on the upper
right hand, and usually wearing a sando and maong pants, would make a
delivery of marijuana dried leaves. While stationed thereat, they saw a male
person who fit the description, carrying a plastic bag, later identified as Jesus
Nuevas (Nuevas), alight from a motor vehicle. They accosted Nuevas and
informed him that they are police officers. Fami asked Nuevas where he was
going. Nuevas answered arrogantly but afterwards, calmed down. Nuevas and
Fami conversed in the Waray dialect. Nuevas informed him that there were other
stuff in the possession of a certain Vangie, an associate, and two other male
persons. Later on, Nuevas voluntarily pointed to the police officers a plastic bag
which, when opened, contained marijuana dried leaves and bricks wrapped in a
blue cloth. Shortly, in his bid to escape charges, Nuevas disclosed where the two
(2) other male persons would make the delivery of marijuana weighing more or
less five (5) kilos.

Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old
Cabalan, Olongapo City, which according to Nuevas was where his two (2)
companions, Din and Inocencio, could be located. From there, they saw and
approached two (2) persons along the National Highway, introducing themselves

as police officers. Din was carrying a light blue plastic bag. When asked, Din
disclosed that the bag belonged to Nuevas. Fami then took the bag and upon
inspection found inside it "marijuana packed in newspaper and wrapped therein."
After confiscating the items, Fami and Cabling brought Nuevas, Din and
Inocencio to the police office at Purok III for proper documentation. Fami further
testified that a receipt for the property seized was issued by Cabling and that a
field test was duly conducted on the confiscated items. All three accused were
likewise physically examined on the basis of which corresponding medical
certificates were issued. The corresponding booking sheets and arrest report
were also accomplished. Fami stated that he and Cabling executed a joint
affidavit in connection with the arrest of all the accused and the confiscation of
the items.

On cross-examination, Fami revealed that when the receipt of evidence seized

was prepared, all three (3) accused were not represented by counsel. He
likewise disclosed that he was the one who escorted all the accused during their
physical examination. He also escorted all three to the Fiscals office where the
latter were informed of the charges against them.

Cabling corroborated Famis testimony. He, however, testified that after he and
Fami had introduced themselves as police officers, Din and Inocencio voluntarily
handed to Fami the marijuana dried leaves.

On cross-examination, Cabling testified that the arrest of Nuevas was the result
of a tip from Famis informant, conceding though that the name of Nuevas was
not included in the list of persons under surveillance. Fami then relayed the tip to
Cabling. Cabling restated that Nuevas had voluntarily submitted the plastic bag
he was holding and that after Nuevas had been informed of the violation of law
attributed to him, he admitted his willingness to cooperate and point to his other
cohorts. When Fami and Cabling proceeded to the identified location of Nuevass
cohorts, they chanced upon Din and Inocencio along the road. Din was holding a
bag while Inocencio was looking into its contents. Cabling averred that Din
voluntarily handed the plastic bag he was holding to the police officers.

(Defendant's Defense)

For his defense, Nuevas testified that in the morning of 27 September 1997, he
was walking along Perimeter Street, on his way home from the Barangay Hall,
when Fami called him. Nuevas approached Fami, who was then in front of his
house, and asked why Fami had called him. Fami poked his gun at Nuevas and
asked him to go inside the room where Fami handcuffed Nuevass hands, got
Nuevass wallet, took out P1,500.00 and put it in his (Famis) wallet. Fami then
confronted Nuevas with shabu use but the latter denied the charge. Before
leaving the house with Nuevas, Fami brought out a plastic bag and told Nuevas
to carry it. Subsequently, they boarded a red ownertype jeep and proceeded to
Station B where Nuevas was put in jail. Nuevas further stated that he did not
know Din or Inocencio.

Din, on the other hand, stated that at about 10 oclock in the morning of 27
September 1997, while his compare Inocencio was visiting, two (2) men entered
his house looking for a woman. The two (2) introduced themselves as police
officers. Then, Din and Inocencio were immediately handcuffed. They were not
informed of the reason for their arrest and were told that the reason will be
explained to them in court. Next, they were brought to the Cabalan precinct
where the investigator asked for their names, and subsequently to Station B
where they were ordered to stand up and be photographed with Nuevas, who Din
first met in jail. Inside the room where they had their fingerprints taken, he saw
marijuana placed on top of the table.

Inocencio testified that he went to his compadre Dins house in the morning of
27 September 1997 to sell his fighting cocks as he needed money to redeem his
drivers license. While there, he and Din were arrested by two persons, one of
whom pointed a gun at them while the other searched the house for a lady
named Vangie. Afterwards, he and Din were brought to the Cabalan Police
Precinct and then to Station B where he first came to know Nuevas. He denied
that a plastic bag containing marijuana was recovered from them and claimed
that he only saw such evidence on the day he gave his testimony. He also stated
that when a photograph was taken of the three of them, he and Din were ordered
to point to a "wrapped thing." When the photograph was taken, they were not
assisted by counsel. He also does not recall having signed a receipt of property
seized. Afterwards, they were brought to a detention cell. And when they asked
the police what they did wrong, the police replied that they will just explain it in
court.

All three were found guilty as charged and the judgment of conviction was
elevated to the Court for automatic review. However, on 14 July 2003, Nuevas
filed a manifestation and motion to withdraw appeal.The Court granted Nuevass
withdrawal of appeal and considered the case closed and terminated as to him,
in a Resolution21 dated 25 August 2003.

In a Resolution22 dated 22 September 2004 of the Court in G.R. Nos. 15364142,23 the cases were transferred to the Court of Appeals pursuant to the Courts
ruling in People v. Efren Mateo.24

Before the Court of Appeals, Din and Inocencio (appellants) argued that the trial
court erred: (1) in finding them guilty of the crime charged on the basis of the
testimonies of the arresting officers; and (2) n not finding that their constitutional
rights have been violated.

The Court of Appeals in a Decision26 dated 27 May 2005, in CA-G.R. CR No.

00341, affirmed the decision of the trial court. The dispositive portion of the
decision reads:

WHEREFORE, all the foregoing considered, the instant appeal is DENIED. The
Decision of the Regional Trial Court of Olongapo City, Branch 75, in Criminal
Case No. 459-97, is AFFIRMED.

SO ORDERED.27

The Court of Appeals restated the rule that when the issue involves the credibility
of a witness, the trial courts assessment is entitled to great weight, even finality,
unless it is shown that it was tainted with arbitrariness or there was an oversight
of some fact or circumstance of weight or influence. The appellate court found
Fami and Cablings version of how appellants were apprehended to be
categorical and clear. Din, at the time of his apprehension, was seen holding a

plastic bag containing marijuana leaves. On the other hand, Inocencios

possession of the marijuana leaves was established by the fact that he was seen
in the act of looking into the plastic bag carried by Din.

With respect to appellants claim that their constitutional rights have been
violated, the appellate court stated that the search in the instant case is
exempted from the requirement of a judicial warrant as appellants themselves
waived their right against unreasonable searches and seizures. According to the
appellate court, both Cabling and Fami testified that Din voluntarily surrendered
the bag. Appellants never presented evidence to rebut the same. Thus, in the
instant case, the exclusionary rule does not apply.

Din and Inocencio are now before the Court submitting for resolution the same
matters argued before the Court of Appeals. Through their Manifestation (In Lieu
of Supplementary Brief)30 dated 22 March 2006, appellants stated that all the
arguments necessary to support their acquittal have already been discussed in
the brief they had submitted before the appellate court; thus, the filing of a
supplemental brief would be a mere reiteration of the arguments discussed in
said brief. The Office of the Solicitor General manifested that it is no longer filing
a supplemental brief.

The conviction or acquittal of appellants rests on the validity of the warrantless

searches and seizure made by the police officers and the admissibility of the
evidence obtained by virture thereof.

In holding that the warrantless searches and seizure are valid, the trial court
ruled as follows:

While the confiscation of the bricks of marijuana from the accused Jesus Nuevas
was without a search warrant, it was not bereft of a probable cause. The police
team received informations [sic] from an asset that on that day, a male person
whom he sufficiently described will deliver marijuana at the vicinity of Perimeter
and Bonifacio S[t]., Pag-asa, Olongapo City, a known drop point of illegal drugs.
They went to the said area upon that information. Their waiting was fruitful

because not long afterwards they saw the accused Jesus Nuevas alighting from
a tricycle carrying a bag and after confronting him, he voluntarily gave the bag
containing bricks of dried marijuana leaves. With respect to the confiscation of 2
kilos of marijuana and the apprehension of accused Reynaldo Din and
Fernando Inocencio, it was a result of a continued operation by the team which
this time was led by accused Nuevas to get some concession from the team for
his own earlier apprehension. As the apprehension of Nuevas was upon a
probable cause, in the same vein was the apprehension of Reynaldo Din and
Fernando Inocencio and the recovery from them [of] 2 kilos of dried marijuana
leaves. The propriety of this conclusion is necessity [sic] because of the
impossibility of getting first a warrant in so short a time with such cumbersome
requirements before one can be issued. Before getting a warrant, the culprits
shall have already gone into hiding. These situations are not distant to the case
of People v[.] Jean Balingan (G.R. No. 105834, 13 Feb. 1995) where we learned
that expediency and practicality are some of the justification[s] in the warrantless
arrest.

Appellants maintain that there was no basis for their questioning and the
subsequent inspection of the plastic bags of Nuevas and Din, as they were not
doing anything illegal at the time.

Our Constitution states that a search and seizure must be carried through or with
a judicial warrant; otherwise, such search and seizure becomes "unreasonable"
and any evidence obtained therefrom is inadmissible for any purpose in any
proceeding. The constitutional proscription, however, is not absolute but admits
of exceptions, namely:

1. Warrantless search incidental to a lawful arrest. (Sec. 12, Rule 126 of the
Rules of Court and prevailing jurisprudence);

2. Search of evidence in "plain view." The elements are: (a) a prior valid intrusion
based on the valid warrantless arrest in which the police are legally present in the
pursuit of their official duties; (b) the evidence was inadvertently discovered by
the police who have the right to be where they are; (c) the evidence must be
immediately apparent; (d) "plain view" justified mere seizure of evidence without

further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicles

inherent mobility reduces expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.

In the instances where a warrant is not necessary to effect a valid search or

seizure, or when the latter cannot be performed except without a warrant, what
constitutes a reasonable or unreasonable search or seizure is purely a judicial
question, determinable from the uniqueness of the circumstances involved,
including the purpose of the search or seizure, the presence or absence of
probable cause, the manner in which the search and seizure was made, the
place or thing searched and the character of the articles procured.

The courts below anchor appellants conviction on the ground that the searches
and seizure conducted in the instant case based on a tip from an informant fall
under one of the exceptions as Nuevas, Din and Inocencio all allegedly
voluntarily surrendered the plastic bags containing marijuana to the police
officers.

Issue: Whether or not there is a valid search, arrest and seizure

Nuevas-

YES - There was express waiver

Din

NO - No express waiver

Inocencio - NO

We differ.

First, the Court holds that the searches and seizures conducted do not fall under
the first exception, warrantless searches incidental to lawful arrests.

A search incidental to a lawful arrest is sanctioned by the Rules of Court. Recent

jurisprudence holds that the arrest must precede the search; the process cannot
be reversed as in this case where the search preceded the arrest. Nevertheless,
a search substantially contemporaneous with an arrest can precede the arrest if
the police have probable cause to make the arrest at the outset of the search.

In this case, Nuevas, Din and Inocencio were not committing a crime in the
presence of the police officers. Moreover, police officers Fami and Cabling did
not have personal knowledge of the facts indicating that the persons to be
arrested had committed an offense. The searches conducted on the plastic bag
then cannot be said to be merely incidental to a lawful arrest. Reliable
information alone is not sufficient to justify a warrantless arrest under Section
5(a), Rule 113. The rule requires, in addition, that the accused perform some
overt act that would indicate that he "has committed, is actually committing, or is
attempting to commit an offense."

Secondly, neither could the searches be justified under the plain view doctrine.

An object is in plain view if it is plainly exposed to sight. Where the object seized
was inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view and may
be seized. In other words, if the package is such that an experienced observer
could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view. It must be immediately apparent to the police that
the items that they observe may be evidence of a crime, contraband or otherwise
subject to seizure.

Records show that the dried marijuana leaves were inside the plastic bags that
Nuevas and Din were carrying and were not readily apparent or transparent to
the police officers. In Nuevass case, the dried marijuana leaves found inside the
plastic bag were wrapped inside a blue cloth. In Dins case, the marijuana found
upon inspection of the plastic bag was "packed in newspaper and wrapped
therein." It cannot be therefore said the items were in plain view which could
have justified mere seizure of the articles without further search.

On the other hand, the Court finds that the search conducted in Nuevass case
was made with his consent. In Dins case, there was none.

Indeed, the constitutional immunity against unreasonable searches and seizures

is a personal right which may be waived. However, it must be seen that the
consent to the search was voluntary in order to validate an otherwise illegal
detention and search, i.e., the consent was unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion. The consent to a search is not
to be lightly inferred, but must be shown by clear and convincing evidence. The
question whether a consent to a search was in fact voluntary is a question of fact
to be determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent and
the environment in which consent is given: (1) the age of the defendant; (2)
whether he was in a public or secluded location; (3) whether he objected to the
search or passively looked on; (4) the education and intelligence of the
defendant; (5) the presence of coercive police procedures; (6) the defendant's
belief that no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting. It is the State
which has the burden of proving, by clear and positive testimony, that the
necessary consent was obtained and that it was freely and voluntarily given.

In Nuevass case, the Court is convinced that he indeed voluntarily surrendered

the incriminating bag to the police officers. Fami testified in this wise:

FISCAL BELTRAN:

Q Now, when you saw this accused carrying this Exhibit "D,"47 for your part,
what did you do?

A I just talked to him and asked him where he was going and according to him,
he acted arrogantly, sir.

Q This arrogant action of the accused Jesus Nuevas, when you confronted him
did he resist?

A How did he show his elements, [sic] he said, "So what if you are policeman[?]"

Q And being confronted with that arrogance, what did you do next?

A Later on he kept calm by saying [sic] in Waray dialect, sir.

xxxx

Q What, exactly, did he tell you in Waray dialect?

A "Sir Famir[sic], dont charge me, sir[.] I am planning to go home to Leyte. I was
just earning enough money for my fare, sir."

xxxx

Q So when the accused speak [sic] to you in Waray, what else did you do if you
did anything?

A I pretended that I agree in his [sic] offer but I also asked him where are the
other staffs[sic] sir. 48

xxxx

Q With respect to the bag that you confiscated from him, what did you do?

A He voluntarily pointed it to me and I checked it, the bag, for verification, sir.49

Cabling likewise testified as follows:

Q When Fami got this from the accused, he opened this thing that he got?

A The subject voluntarily submitted the same, sir.

Q Upon the order of Fami to open it?

A Nobody ordered it, sir.50

There is reason to believe that Nuevas indeed willingly submitted the plastic bag
with the incriminating contents to the police officers. It can be seen that in his
desperate attempt to exculpate himself from any criminal liability, Nuevas
cooperated with the police, gave them the plastic bag and even revealed his
associates, offering himself as an informant. His actuations were consistent with
the lamentable human inclination to find excuses, blame others and save oneself
even at the cost of others lives. Thus, the Court would have affirmed Nuevass
conviction had he not withdrawn his appeal.

However, with respect to the search conducted in the case of Din, the Court finds
that no such consent had actually been given. Fami testified as follows:

FISCAL BELTRAN

Q Now, what did you do when you saw Din with that Exhibit "C," the plastic bag?

A Din said that "Oo, Sir, that is owned by Nuevas" [sic] and I took the said plastic
bag.

Q When you took this plastic bag from Din.

Was the accused Jesus Nueva [sic] present when Din told you that?

A Yes, sir. Nuevas alighted also [from] the vehicle with Cabling.

Q And what was the reaction of Nuevas when Din told you that the bag belongs
to him?

A I did not react, sir.

Q After getting that plastic bag from Reynaldo Din, what did you do with it?

A I inspected the bag and I found out that there is still marijuana packed in
newspaper and wrapped therein, sir.51 [Emphasis supplied.]

Cabling, however, gave a different testimony, viz.:

FISCAL BELTRAN

Q And upon siting [sic] the two subject persons you have just indicated in your
earlier testimony, what did you do?

A We approached them and introduced ourselves as police officers, and

pinpointed by Nuevas as the ones who kept suspected prohibited drugs, sir.

Q After you approached these two people, what happened?

A These two people, upon introducing ourselves, [sic] voluntarily surrendered to

Fami those marijuana dry leaves, sir.52

The police officers gave inconsistent, dissimilar testimonies regarding the

manner by which they got hold of the bag. This already raises serious doubts on
the voluntariness of Dins submission of the plastic bag. Jurisprudence requires
that in case of consented searches or waiver of the constitutional guarantee
against obtrusive searches, it is fundamental that to constitute a waiver, it must
first appear that (1) the right exists; (2) the person involved had knowledge, either
actual or constructive, of the existence of such right; and (3) the said person had
an actual intention to relinquish the right.

The prosecution failed to clearly show that Din intentionally surrendered his right
against unreasonable searches. While it may not be contrary to human nature for
one to be jolted into surrendering something incriminating to authorities, Famis
and Cablings testimonies do not show that Din was in such a state of mind or
condition. Fami and Cabling did not testify on Dins composurewhether he felt
surprised or frightened at the timewhich fact we find necessary to provide basis
for the surrender of the bag. There was no mention of any permission made by
the police officers to get or search the bag or of any consent given by Din for the

officers to search it. It is worthy to note that in cases where the Court upheld the
validity of consented search, the police authorities expressly asked, in no
uncertain terms, for the consent of the accused to be searched. And the consent
of the accused was established by clear and positive proof.

Neither can Dins silence at the time be construed as an implied acquiescence to

the warrantless search. In People v. Burgos,54 the Court aptly ruled:

x x x As the constitutional guaranty is not dependent upon any affirmative act of

the citizen, the courts do not place the citizen in the position of either contesting
an officers authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of
the law.

Without the dried marijuana leaves as evidence, Dins conviction cannot be

sustained based on the remaining evidence. The Court has repeatedly declared
that the conviction of the accused must rest not on the weakness of the defense
but on the strength of the prosecution.As such, Din deserves an acquittal.

In this case, an acquittal is warranted despite the prosecutions insistence that

the appellants have effectively waived any defect in their arrest by entering their
plea and by their active participation in the trial of the case. Be it stressed that the
legality of an arrest affects only the jurisdiction of the court over the person of the
accused. Inspite of any alleged waiver, the dried marijuana leaves cannot be
admitted in evidence against the appellants, Din more specifically, as they were
seized during a warrantless search which was not lawful. A waiver of an illegal
warrantless arrest does not also mean a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest.

Turning to Inocencios case, the Court likewise finds that he was wrongly
convicted of the crime charged. Inocencios supposed possession of the dried
marijuana leaves was sought to be shown through his act of looking into the
plastic bag that Din was carrying.Taking a look at an object, more so in this case

peeping into a bag while held by another, is not the same as taking possession
thereof. To behold is not to hold. Indeed, the act attributed to Inocencio is
insufficient to establish illegal possession of the drugs or even conspiracy to
illegally possess the same. The prosecution failed to show by convincing proof
that Inocencio knew of the contents of the bag and that he conspired with Din to
possess the illegal items. Inocencio was firm and unshakeable in his testimony
that he had no part in any delivery of marijuana dried leaves.

Finally, the law enforcers should be reminded of the Courts dated but
nevertheless current exhortation:

x x x In the final analysis, we in the administration of justice would have no right

to expect ordinary people to be law-abiding if we do not insist on the full
protection of their rights. Some lawmen, prosecutors and judges may still tend to
gloss over an illegal search and seizure as long as the law enforcers show the
alleged evidence of the crime regardless of the methods by which they were
obtained. This kind of attitude condones law-breaking in the name of law
enforcement. Ironically, it only fosters the more rapid breakdown of our system of
justice, and the eventual denigration of society. While this Court appreciates and
encourages the efforts of law enforcers to uphold the law and to preserve the
peace and security of society, we nevertheless admonish them to act with
deliberate care and within the parameters set by the Constitution and the law.
Truly, the end never justifies the means.

WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of
Olongapo City, Branch 75, in Criminal Case No. 458-97 and No. 459-97 is
reversed and modified. Appellants Reynaldo Din y Gonzaga and Fernando
Inocencio y Abadeos are hereby ACQUITTED. The Director of the Bureau of
Prisons is ordered to cause the immediate release of appellants from
confinement, unless they are being held for some other lawful cause, and to
report to this Court compliance herewith within five (5) days from receipt hereof.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
- versus NELIDA DEQUINA Y DIMAPANAN, JOSELITO JUNDOC Y JAPITANA &
NORA JINGABO Y CRUZ,
Accused-Appellants.

Accused-appellants Nelida D. Dequina (Dequina), Joselito J. Jundoc (Jundoc),

and Nora C. Jingabo (Jingabo) were charged before the Regional Trial Court
(RTC) of Manila, Branch 27, with Violations of Section 4, in relation to Section 21,
paragraphs (e-l), (f), (m), and (o) of Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. The
accusatory portion of the Amended Information reads:

That on or about September 29, 1999, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping one another, not
being authorized by law to sell, deliver, transport or give away to another any
prohibited drug, did and there willfully, unlawfully and knowingly sell, or offer for
sale, deliver or transport marijuana dried flowering tops with total weight of thirty
two thousand nine hundred ninety five (32,995) grams which is a prohibited drug.

The case was docketed as Criminal Case No. 99-177383. Upon arraignment, all
accused-appellants entered a plea of not guilty.

The prosecution presented four witnesses: Police Officer (PO) 3 Wilfredo

Masanggue (Masanggue), Senior Police Officer (SPO) 1 Anthony Blanco
(Blanco), PO3 Eduardo Pama (Pama), and Forensic Chemist George de Lara
(De Lara). The RTC summarized the testimonies of the prosecution witnesses as
follows:

FACTS:
Police Officer III Wilfredo Masanggue testified that at about 6:00 a.m., of
September 29, 1999, he and SPO1 Anthony Blanco were instructed by their
superior, Chief Inspector Romulo Sapitula to proceed at the corner of Juan Luna
and Raxabago Sts., Tondo, Manila, where, according to the report given by the
informant, three persons a male and two female[s] would be coming from Baguio
City to deliver unknown quantity of marijuana. In no time, they arrived at the
designated place and parked their mobile patrol car along Juan Luna Street,
facing the northern direction just near the corner of Raxabago Street.

At around 9:00 a.m., they noticed a taxi cab coming from Yuseco St. heading
towards the direction of the pier. At a certain point along Raxabago Street, about
a hundred meters away from the position of their patrol car the taxi stopped.
From it emerged three passengers a man and two women each one of them
carrying a black travelling bag. As the trio fitted the descriptions given to them by
Inspector Sapitula, they intently watched and monitored their movements.

About one or two minutes later, as the trio started walking towards the western
portion of Raxabago St., they drove and trailed them. As the patrol car got closer
behind them, [Dequina] noticed its presence. She started walking in a more
hurried pace (parang walkathon) as if she wanted to run away (parang patakbo).
SPO1 Blanco alighted from the car and chased [Dequina] while PO3
Masanggue, who was behind the wheels also alighted and restrained [Jundoc]
and [Jingabo]. While thus trying to get away, [Dequina] dropped the bag she was
carrying. As a result, the zipper of the bag gave way. Bundles of dried leaves
wrapped in transparent plastic bags case into view. Suspecting the stuffs to be
marijuana, they further inspected the other two bags in the possession of
[Jingabo] and [Jundoc] and found out that they had the same contents. They
boarded the three accused, along with their bags in their patrol car and
proceeded to the hospital for physical examination before bringing them to their
headquarters. While in transit, [Dequina] pleaded to them to allow her to make a
call but they did not heed the request as the car was still in motion.

At the western Police District Headquarters at United Nations Avenue, they

turned over the three accused together with the bags to PO3 Eduardo Pama, a
police investigator of the district Anti-Narcotics Unit for investigation. During the

investigation, it was discovered that each of the three black travelling bags
confiscated from the three accused contained eleven bricks of marijuana. In
connection with the incident, he and SPO1 Blanco executed the Joint Affidavit of
Apprehension dated September 30, 1999 (Exhs, A and submarkings).

SPO1 Anthony Blanco testified that in the early morning of September 29, 1999,
together with PO3 Wilfredo Masanggue, he was dispatched by their superior to
the corner of Juan Luna and Raxabago Sts., Tondo, Manila, where it was
reported that shipment of marijuana would take place. They were further
informed that the drug couriers were composed of a man and two women and
that each of them were carrying a travelling bag.

After they arrived at the designated area, they parked their vehicle along Juan
Luna near Raxabago Street. Then they waited. Suddenly, they noticed the arrival
of a taxicab from where three persons a man and two women alighted. Each of
them was carrying a bag. The trio fitted the descriptions given to them. As the
suspects walked away, they drove and trailed them. As they got close behind
them, accused Nelida Dequina noticed the presence of the mobile car. She
dropped the black bag she was carrying and the same was unzipped. The
contents thereof consisting of dried marijuana leaves wrapped in transparent
plastic bags came into view. They arrested the three suspects later identified as
the accused herein and boarded them into their car. While on board the vehicle,
[Dequina] and [Jundoc] confessed that the contents of the other two bags
confiscated from them were also marijuana.

At the WPD Headquarters, United Nations Avenue, Manila, the three accused
were turned over to the Office of the District Anti-Narcotics Unit where they were
investigated by PO3 Wilfredo Pama. It was there where the other two bags
confiscated from [Jingabo] and [Jundoc] were re-opened and confirmed to
contain marijuana.

In the course of his cross-examination, SPO1 Blanco admitted that the three of
them Inspector Sapitula, PO3 Masanggue and himself, along with the three
accused, were photographed, at what appeared to be a sari-sari store as their
background. The same appeared in the clipping of Tonight September 20, 1999

issue.

PO3 Eduardo Pama, an investigator from the District Anti-Narcotics Unit of the
WPD was the one who investigated the case. He placed the corresponding
markings on the packs of marijuana confiscated from the three accused after the
same were turned over to him by SPO1 Blanco and PO3 Masanggue. He
marked the bag recovered from [Dequina] NDD and the contents thereof NDD-1
to NDD-11. He marked the bag taken from [Jundoc] JJJ and the contents thereof
JJJ-1 to JJJ-11. Finally, he marked the bag recovered from [Jingabo] NCJ and
the contents thereof NCJ-1 to NCJ-11. In connection with his investigation, he
prepared the Booking Sheet and Arrest Reports of the three accused (Exhs. F. G
and H) as well as the Referral Letter to the City Prosecutors Office (Exh. I).
Afterwards, he brought the three bags of suspected marijuana together with the
letter-request to the National Bureau of Investigation [(NBI)] Chemistry Division,
for the laboratory examinations. The same were received thereat on September
29, 1999 at 10:12 in the evening. The following day, September 30, 1999, at
10:38 p.m., certifications, corresponding to each and every set of items
recovered from the three accused were released to PO3 Pama.

George De Lara, Forensic Chemist, Forensic Chemistry Division, NBI, Manila

testified that he conducted the laboratory examinations of the subject specimens
based on the letter-request from DANU Police Superintendent Miguel de Mayo
Laurel (Exh. B and submarkings). From the black bag (Exh. K) allegedly
recovered from [Dequina], he counted a total of eleven bricks of dried leaves
suspected to be marijuana which had a total weight of 10,915.0 grams. The
results of the chemical, microscopic and chromatographic examinations he
conducted show that the said specimens were positive for the presence of
chemical found only in marijuana.

With regard to the bag allegedly confiscated from [Jundoc] (Exh. O), witness
counted eleven bricks of dried leaves believed to be marijuana. The specimens
had a total weight of 11,010.0 grams. When subjected to be same type of
laboratory examinations, the specimens yielded positive result for marijuana, a
prohibited drug.

Anent the bag (Exh. R) with masking tape having the mark DDM-99-110
allegedly recovered from [Jingabo], witness also found eleven bricks of dried
flowering tops suspected to be marijuana which when weighed yielded a total
weight of 11,070.0 grams. The results of similar types of examinations conducted
confirmed the specimens to be marijuana.

He prepared separate certifications for the results of the examinations he

conducted on the specimens contained in three separate bags allegedly
confiscated from accused Dequina, Jundoc and Jingabo (Exhs. C, D and E,
respectively). He also prepared NBI Forensic Chemistry Division Report No.
DDM-99-108 dated October 1, 1999 (Exh. L and submarkings).[3]

For the defense, only the accused-appellants took the witness stand. The RTC
recapitulated the testimonies of the accused-appellants, thus:

(Accused Defense)
Accused Nelida Dequina testified that she became an orphan at a tender age.
With the help of her aunt, she was able to pursue her studies. She was a
consistent scholar from elementary until college. While in the third year of her
Accountancy course, she encountered severe financial difficulties. She stopped
schooling and worked instead. Soon, she had a relationship with a man with
whom she begot a child. The relationship did not last. Not long after, she had a
relationship with another man. This time she begot her second child named
Samantha.

In May 1999, while the Kilusang Mayo Uno (KMU) members were having a
parade in Iloilo City, she met a certain Salvacion Pearedondo, a member of the
group. She calls her Sally. Sally convinced her to join the movement. Since she
used to watch similar group activities while in college, she manifested her desire
to join the movement by nodding her head. From then on, Sally frequently visited
her at home. For a living, she was engaged in selling ready-to-wear dresses,
frozen meat and relief goods which Sally supplied to her.

On September 27, 1999, Sally told her that the movement had decided to send
her to a mission which would determine if she was really qualified to join the
group. She was advised to bring alone two friends, preferably a woman and a
gay. As at time Sally saw them in her company, she chose Nora Jingabo and
Joselito Jundoc to be her companions. Sally did not elaborate the real nature of
such mission. She did not press to know more about the venture either. Before
they parted that day, Sally instructed her to fetch her two friends and meet her
(Sally) early in the morning of the following day, September 28, 1999 near the
entrance of the Gaisano Mall, the largest department store in Iloilo. She dropped
by the public market and told Nora and Joselito about the plan to meet Sally the
following morning.

As agreed upon, they met Sally at the designated place and time. Sally secretly
told her that the three of them would be going to Manila for a still undisclosed
mission. She was briefed that the three of them will temporarily stay in the house
of her [Dequina] relative in Manila. She was further instructed that they will go to
the Philippine Rabbit Terminal in Avenida where they will be met by members of
their group who will also monitor their movements. Afterwards, they will proceed
to Dau, Mabalacat, Pampanga where they will pick-up some bags. Thereat,
somebody will meet and give them instructions. From Dau, they will return to
Manila. They will alight at the first ShoeMart Department Store which they will
see along the way. A waiting tricycle would bring them to a store where they
could buy carton boxes for their bags. Finally, a taxicab will fetch and bring them
all the way to the pier.

[Dequina] received P3,000.00 from Sally for their expenses and plane tickets for
the three of them from Sally. However, she noticed that instead of their true
names, the tickets were in the names of other persons. Her plane ticket was in
the name of Sarah Ganje. That of [Jundoc] and [Jingabo] were in the names of
Rowenal Palma and Mary Grace Papa, respectively. Nervous, she thought of
backing out at the last minute but Sally assured her that she had nothing to worry
about. Sally culminated by saying that something will happen to her child if ever
she backed out from the plan.

Because of the threat, [Dequina] went on with the plan. Enroute to the Iloilo
airport, [Jundoc] and [Jingabo] expressed their anxieties about the venture but
she calmed them down and assured them that she will take care of everything.

From the Manila Domestic Airport, they proceeded to her aunts place at Pitogo
St., Guadalupe, Makati City where they rested after taking their meal. At around
2:00 p.m., her aunt woke her up and told her that the two vehicles an owner-type
jepney and a passenger jepney with unfamiliar faces on board were lurking in
their vicinity for quite sometime.

At around 5:00 p.m., they left the place on board a taxi to the Philippine Rabbit
Terminal at Avenida, Rizal. While waiting for their schedule, two men approached
and handed to her bus tickets. The same men nosed out to them the vehicle
where they were supposed to board. She was further reminded by the men that
members of the movement will also be on board.

They arrived in Dau, Mabalacat, Pampanga at about 12:30 a.m. of September

29, 1999. While they were having their snacks, a couple went near and instructed
them to cross the road and take the bags from the three men whom they saw for
the first time. The couple also handed over to them bus tickets. They were
instructed to board vehicles bound for Pasay and alight at the first Shoemart
(SM) Department Store that they will see along the way. They took the bags from
the three men without even bothering to know the contents thereof. However, she
noticed that the bags were very heavy.

As they boarded the Pasay bound bus, the conductor took the bags from them
and loaded the same in compartment section of the vehicle. With the assistance
of the bus conductor, they alighted at SM North Edsa. They transferred to a
waiting tricycle, as per instruction given by Sally. The tricycle dropped them at a
sari-sari store where they bought carton boxes where they placed two of the
three bags. From there, the driver lead them to a waiting taxi where they loaded
all their baggages. She and Nora occupied the back seat while Joselito sat
beside the driver. She instructed the driver to take them to the pier for Iloilo
bound ships.

As they entered the pier premises, a mobile patrol car came from nowhere and
blocked their path. Two police officers emerged and ordered them to alight. Then,
upon the policemens order, the driver opened the taxis trunk where the three

bags were loaded. The police officers forcibly opened one of the three bags
where they saw something wrapped in jute bags and plastic bags. It was learned
that the contents of the bags were marijuana.

They were all herded into the mobile car. While on board the mobile car, the
police officers asked them if they had money. When the policemen learned that
they did not have money, they were brought to a sari-sari store where a police
officer named Sapitula was waiting. Sapitula asked them questions. At one point,
Sapitula slapped her. They were made to line up and Sapitula summoned some
press reporters who photographed them

They were brought to the Ospital ng Maynila. While being examined, she
confided to a nurse that she was manhandled by Sapitula. They were brought to
the office of the District Anti-Narcotics Unit where corresponding charges were
filed against them.

She insisted that the incident took place near the pier and not at the corner of
Raxabago and Juan Luna Sts., Tondo, Manila. Were if not for the threat that
something will happen to her daughter, she could not followed (sic) the orders of
Sally.

The combined testimony of accused Nora Jingabo and Joselito Jundoc

established the following facts.

On September 27, 1999, while [Jundoc] and [Jingabo] were tending to their fish
stall in Iloilo Public Market, [Dequina], their friend, came and invited them to meet
her, for a still undisclosed reason, at the ground floor of the Gaisano Mall, early in
the morning of the following day, September 28, 1999. As agreed upon, they met
at the designated place and time. Not long thereafter, Sally joined them. They
knew Sally to be [Dequinas] supplier of RTWs and other merchandise. For a
while, [Dequina] and Sally excused themselves and proceeded to the first floor of
the mall where they talked privately. Soon after Sally left, [Jingabo] and [Jundoc]
asked [Dequina] what they talked about. Instead of answering, [Dequina] asked if
they are willing to go with her to Manila in order to get something. While a little bit

surprised, [Jingabo] and [Jundoc] readily agreed as they had never been in the
city before. [Dequina] handed to them their plane tickets. They were told that the
same were given by Sally. However, they noticed that the plane tickets were not
in their names but in the names of other persons. When they called the attention
of [Dequina] about it, the latter simply replied Anyway that is free. [Jingabo]
noticed anxiety got the better of Nelida at that time. Nevertheless, the three of
them enplaned for Manila at around 7:45 a.m. of September 28, 1999.

From the Ninoy Aquino Domestic Airport, they proceeded to the house of
[Dequinas] aunt in Guadalupe, Makati City. In the afternoon, their host noticed
the presence of unfamiliar vehicles. Some of these vehicles were even parked
right in front of the house. Unmindful about it, they left Guadalupe at around 6:00
p.m. and proceeded to a Philippine Rabbit Bus Terminal. Thereat, two male
persons approached [Dequina] and handed to her bus tickets. They were pointed
to the particular vehicle where they were to board.

They reached Dau, Mabalacat, Pampanga between 12:30 and 1:00 a.m. of
September 29, 1999. While they were having their snacks, a couple approached
[Dequina] and they had a talk. Thereafter, the couple motioned them to three
male persons, each carrying a bag, at the opposite side of the road. Upon
[Dequinas] instruction, they took the bags from the three men. Then, they waited
for their ride back to Manila.

As they boarded the bus, the conductor loaded their bags inside the
compartment. They alighted at SM EDSA at around 6:00 a.m. of September 29,
1999. They boarded a waiting tricycle. When they reached a certain store, the
trike driver bought carton boxes where they loaded two of the three bags.
Thereafter, the tricycle driver pointed [Dequina] to a waiting taxi where they
boarded along with their baggages.

As they entered the pier premises, a police officer on board a mobile patrol car
ordered them to stop. They were ordered to alight and the police officers ordered
the driver to open the taxis compartment. One of the police officers took a knife
from his pocket and slashed one of the bags. Then, the policemen told them that
what they had in their bags were marijuana. The police officers ordered them to

board the mobile car while the bags were loaded inside the compartment of the
same car.

They were brought to a sari-sari store where a certain Chief Sapitula, whom they
later knew to be the police officers superior, was waiting. Sapitula interrogated
[Dequina] and at one point, he slapped her. Sapitula summoned press people
who took their photographs. Thereafter, they were brought to the Hospital ng
Bayan and finally, to the police precinct were they were charged accordingly.[4]

The parties dispensed with the testimony of Prose M. Arreola, a representative of

Air Philippines, since they were willing to stipulate on the existence of the
passenger manifest, on which appeared the accused-appellants assumed
names, as well as the accused-appellants plane tickets for the flight from Iloilo to
Manila on September 28, 1999 at 7:00 a.m.

The RTC, in a Decision dated October 30, 2000, found the accused-appellants
guilty as charged. The dispositive portion of said decision reads:

WHEREFORE, premises considered, the judgment is hereby rendered finding

accused NELIDA DEQUINA y DIMAPANAN, JOSELITO JUNDOC y JAPITANA
and NORA JINGABO y CRUZ guilty beyond reasonable doubt of the crime of
Illegal transport marijuana and sentencing each of them to suffer the penalty of
reclusion perpetua. Each of them is ordered to pay a fine of P500,000.00.[5]

The accused-appellants filed a Motion for Reconsideration of the foregoing

decision, but the RTC denied the same in its Order dated December 27, 2000.

Accused-appellants then filed a notice of appeal on January 25, 2001. Thus, the
records of Criminal Case No. 99-177383 were forwarded to this Court. Pursuant
to our decision in People v. Mateo,[6] however, we referred the case to the Court

of Appeals,[7] where it was docketed as CA-G.R. CR.-H.C. No. 01431.

Accused-appellants made the following assignment of errors in their brief:

THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANTS

GUILTY BEYOND REASONABLE DOUBT FOR ILLEGAL TRANSPORT OF
MARIJUANA.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING IN EVIDENCE THE

SEIZED ITEMS FROM THE ACCUSED-APPELLANTS DESPITE THE FACT
THAT THEY WERE SEIZED IN VIOLATION OF THEIR CONSTITUTIONAL
RIGHTS AGAINST ILLEGAL SEARCH AND SEIZURE.

In its Decision[9] dated August 16, 2006, the appellate court affirmed accusedappellants conviction. It decreed:

WHEREFORE, the instant appeal is DENIED, the Decision of the Regional Trial
Court, Branch 27, in Manila, in Criminal Case No. 99-177393, finding accusedappellants NELIDA DEQUINA y DIMAPANAN, JOSELITO JUNDOC y JAPITANA
and NORA JINGABO y CRUZ guilty beyond reasonable doubt of illegally
transporting 32[,]995 grams of marijuana is hereby AFFIRMED.[10]

ISSUE: WHETHER OR NOT THERE IS A VALID SEARCH,

ARREST AND SEIZURE?

Hence, accused-appellants appealed to this Court.

In our Resolution dated July 4, 2007, we required the parties to file their
respective supplemental briefs, if they so desire, within 30 days from notice. Both
parties manifested that they no longer intend to file any supplemental brief
considering that they have already raised all the issues and arguments in their
original briefs.

We find no merit in the present appeal.

The accused-appellants were charged with and convicted of the offense of illegal
transport of marijuana, defined and penalized under Section 4 of the Dangerous
Drugs Act of 1972, as amended, which provides:

SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of

Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos shall be imposed upon
any person who, unless authorized by law, shall sell, administer, deliver, give
away to another, distribute, dispatch in transit or transport any prohibited drug, or
shall act as a broker in any of such transactions.

(Accused Defense)
Accused-appellants assail their conviction, asserting that their arrests were
illegal. They were not doing anything illegal that would have justified their
warrantless arrest, much less a warrantless search of their persons and
belongings. A search made without a warrant cannot be justified as an incident of
arrest unless the arrest itself was lawful. Accused-appellants insist that the
description of the persons who were transporting marijuana relayed by the Chief
of Police to the apprehending officers, PO3 Masanggue and SPO1 Blanco, was
so general that it could not be sufficient ground for the apprehension of accused-

appellants.

(People's Defense)
The People counters that accused-appellants arrests were lawful as they were
then actually committing a crime. Since accused-appellants were lawfully
arrested, the resulting warrantless search of their persons and belongings was
also valid. In addition, accused-appellants did not refute that they were indeed
transporting prohibited drugs when they were arrested and, instead, alleged as
defenses that Dequina acted under the impulse of uncontrollable fear, and
Jundoc and Jingabo were merely accommodating a trusted childhood friend.

After a thorough review of the records, we find that the judgment of the
RTC, as affirmed by the Court of Appeals, was supported by the evidence
on record. The People was able to discharge the burden of proving the
accused-appellants guilt beyond reasonable doubt.

Well-settled is the rule that the findings of the trial court on the issue of credibility
of witnesses and their testimonies are entitled to great respect and accorded the
highest consideration by the appellate court. Since credibility is a matter that is
peculiarly within the province of the trial judge, who had the first hand opportunity
to watch and observe the demeanor and behavior of witnesses both for the
prosecution and the defense at the time of their testimony, we have no reason to
disregard the findings of the lower court, as affirmed by the Court of Appeals.

In this case, Chief Inspector Sapitula, in the early morning of September 29,
1999, received a tip that a huge amount of marijuana would be transported from
Baguio City to the Manila pier, which will then be loaded on vessels bound for
Iloilo. Acting on the information he received, Chief Inspector Sapitula dispatched
PO3 Masanggue and SPO1 Blanco to the corner of Raxabago and Juan Luna
Streets, where they were supposed to watch out for two females and one male.
PO3 Masanggue and SPO1 Blanco posted their mobile patrol car near said
corner. From where they were at, PO3 Masanggue and SPO1 Blanco spotted
three persons, two females and one male who turned out to be accusedappellants alighting from a taxi at the corner of Raxabago and Juan Luna Streets,
each carrying a traveling bag. PO3 Masanggue and SPO1 Blanco then followed

accused-appellants until one of them, Dequina, dropped her traveling bag. The
traveling bag fell open and inside, PO3 Masanggue and SPO1 Blanco saw dried
leaves in transparent plastic bags. It was only then that the two police officers
apprehended accused-appellants and their persons and belongings searched.

As PO3 Masanggue testified:

Q Now, on September 29, 1999 at around 6:00 oclock in the morning will you
please tell us where you were?
A I reported to Headquarters Office for INSS briefing and information.

Q And while you were there can you recall if there is any unusual incident that
happened?

xxxx

WITNESS:

Yes, your Honor.

PUB. PROS. TAN, JR.:

After the formation what happen?

xxxx
WITNESS

After our formation we are informed by our chief that he received a telephone call
and receive an information that three persons will be arriving and will deliver
marijuana.

Q And what else if any did your chief tell you?

A And we were dispatched by our chief to the place where the marijuana will be
dropped at corner Juan Luna and Raxabago.

Q And did you indeed go there?

A Yes, sir.

Q What district is that, Mr. Witness?

A District II of Manila.

Q And, then what transpired when you went there?

A We saw three persons alighting from a taxi and each of them carrying a black
bag.

Q And what did you do?

A When we saw that the three persons who alighted from the taxi match with the
description of the persons we are looking for we approach them.

Q And what happen when you approach them?

A When we were about to approach them one of them by the name of [Dequina]
tried to run away.

xxxx

Q And then what did you do if any when she try to run away?
A We chase her and told her to stop running and she drop the bag she was
carrying.

Q You state that we, who else are you referring to?
A SPO1 Anthony Blanco.

Q Now, when she drop the bag from her shoulder what did you do if any?
A When the bag fell the zipper open and we saw dry leaves wrapped in a
transparent plastic bag from the inside.

Q And then what did you do if any?

A Because I was convinced that the person is the one match the person we are
looking for and as our SOP we brought them to the Ospital ng Maynila for
medical examination.

Q You stated you brought them or she only you brought her?
A No, sir. Im referring to the three accused in this case.

xxxx

Q And why did you bring the other two persons when you said that it was only
[Dequina] who dropped the bag?
A Because they were together who alighted from the taxi.

xxxx

Q And what transpired in your office?

A We brought them to our chief and also the bag which contained the dried
leaves suspected to be marijuana and the bag was later turn over to the Anti
Narcotic Unit.

xxxx

Q So you mean to say that there were three (3) bags that were recover by you
from the three accused?
A Yes, sir.

Q And, so in your office you stated that you turn over the said three (3) bags to
whom, Mr. Witness?
A To the investigator of DANU.

Q What is DANU?
A District Anti Narcotics Unit.

Q And do you know what they do with the bag if you know to the bag?
A They counted the contains of all the bag sir and found out that each bag
contain eleven (11) blocks of suspected marijuana.[12]

The positive and categorical testimony of PO3 Masanggue, corroborated by

SPO1 Blanco, deserves weight and credence in light of the presumption of
regularity accorded to the performance of their official duties as police officers,
and the lack of motive on their part to falsely testify against accused-appellants.

To discredit PO3 Masanggue and SPO1 Blanco, accused-appellants claimed that

they were blocked by the police officers at the pier and not at the corner of Juan
Luna and Raxabago Streets; and that PO3 Masanggue and SPO1 Blanco did not
mention in their testimonies passing by a sari-sari store to meet up with Chief
Inspector Sapitula and presenting accused-appellants to the media. These
details, however, are immaterial, not really departing significantly from the police
officers version of the events surrounding accused-appellants arrest and search,
which yielded the marijuana they were transporting. At any rate, certain parts of
the testimonies of PO3 Masanggue and SPO1 Blanco were corroborated by the
accused-appellants themselves (i.e., that the police officers, prior to bringing
accused-appellants to the police headquarters, first brought accused-appellants
to the Ospital ng Maynila for medical examination), PO3 Pama (i.e., that each of
the three traveling bags turned over to him by PO3 Masanggue and SPO1
Blanco contained 11 bricks of marijuana), and NBI Forensic Chemist De Lara
(i.e., that the dried leaves marked and turned over to him by PO3 Pama tested
positive for marijuana).

There is no question that the warrantless arrest of accused-appellants and the

warrantless seizure of the marijuana were valid and legal.

Settled is the rule that no arrest, search or seizure can be made without a valid
warrant issued by a competent judicial authority. The Constitution guarantees the
right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures. It further decrees that any
evidence obtained in violation of said right shall be inadmissible for any purpose
in any proceeding.

Nevertheless, the constitutional proscription against warrantless searches and

seizures admits of certain legal and judicial exceptions, as follows: (1)
warrantless search incidental to a lawful arrest recognized under Section 12,
Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of
evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless
search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency
circumstances.[15]

On the other hand, Section 5, Rule 113 of the Rules of Court provides that a
lawful arrest without a warrant may be made by a peace officer or a private
person under the following circumstances:

a)
When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.

Transport as used under the Dangerous Drugs Act is defined to mean to carry or
convey from one place to another. The evidence in this case shows that at the
time of their arrest, accused-appellants were caught in flagrante
carrying/transporting dried marijuana leaves in their traveling bags. PO3
Masanggue and SPO1 Blanco need not even open Dequinas traveling bag to
determine its content because when the latter noticed the police officers
presence, she walked briskly away and in her hurry, accidentally dropped her
traveling bag, causing the zipper to open and exposed the dried marijuana bricks
therein. Since a crime was then actually being committed by the accusedappellants, their warrantless arrest was legally justified, and the following
warrantless search of their traveling bags was allowable as incidental to their
lawful arrest.

2nd Issue: Whether or not there an express waiver

YES

(Waiver of the right of the appellant)

Besides, accused-appellants did not raise any protest when they, together with
their bags containing marijuana, were brought to the police station for
investigation and subsequent prosecution. In People v. Fernandez,[17] we ruled
that:

When one voluntarily submits to a search or consents to have it made of his

person or premises, he is precluded from later complaining thereof. x x x. The
right to be secure from unreasonable search may, like every right, be waived and
such waiver may be made either expressly or impliedly.

In order to exonerate herself from criminal liability, Dequina contends that she
transported the marijuana under the compulsion of an irresistible fear. Jundoc
and Jingabo, on the other hand, claim that they went along to accommodate
Dequina, a trusted childhood friend.

We are unconvinced.

A person who acts under the compulsion of an irresistible force, like one who
acts under the impulse of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act with freedom. Actus me
invito factus non est meus actus. An act done by me against my will is not my
act. The force contemplated must be so formidable as to reduce the actor to a
mere instrument who acts not only without will but against his will. The duress,
force, fear or intimidation must be present, imminent and impending, and of such
nature as to induce a well-grounded apprehension of death or serious bodily
harm if the act be done. A threat of future injury is not enough. The compulsion
must be of such a character as to leave no opportunity for the accused for
escape or self-defense in equal combat. Here, Dequinas version of events that
culminated with her and Jundoc and Jingabos arrests on September 29, 1999 is
implausible. Equally far-fetched is Jundoc and Jingabos assertion of blind trust in
Dequina and total ignorance of the transportation of marijuana. We agree with
the Court of Appeals when it observed that:

While [Dequina] wants us to believe that she acted under compulsion and that a
certain Sally called all the shots, she nevertheless admitted that their
accommodations when they reached Manila was with her aunt in Guadalupe. On
cross examination, she said that it was she who told Sally that they were going to
stay with her aunt. More importantly, the alleged threat on her daughter was
unclear. At one point in her testimony, she claimed that her daughter was to be
under the custody of Sally while she was away. However, during the trial her
lawyer manifested that her daughter was in fact in Manila and in the court room
attending the hearing. Moreover, accused-appellants themselves picture a very
precise and elaborate scheme in the transport of the huge shipment of
marijuana. With this, it is simply contrary to human experience that the people
behind the shipment would entrust the same to an unknowing and uncertain
person such as [Dequina] and her two stooges, unless they themselves were in
on it. Furthermore, the scheme or transport of the marijuana shipment was so
exact that [Jundoc] and [Jingabo] only had enough time to rest in the house of
[Dequinas] aunt in Guadalupe from the time they arrived in Manila in the morning
to the time they had to go to provincial bus station in the afternoon, negating their
purported desire to see Manila. Clearly, the defense story is riddled with holes.

Conspiracy can be inferred from and proven by acts of the accused themselves
when said acts point to a joint purpose and design, concerted action, and
community of interests. Although the same degree of proof required for
establishing the crime is required to support a finding of the presence of
conspiracy, it need not be proven by direct evidence. Conspiracy may be
deduced from the mode and manner in which the offense was perpetrated. Thus,
as found by the RTC, conspiracy by and among accused-appellants was present
in this case, as it may be inferred from the following acts of accused-appellants:

This was shown when by their account, the three accused left Iloilo together,
stayed in Manila for a while, left for Dau, Mabalacat, Pampanga and returned to
Manila thereafter. They were together when the apprehending police officers
pounced on them near the pier premises on their way back to Iloilo, each of them
carrying a travelling bag which contained marijuana. x x x.

With the enactment and effectivity of Republic Act No. 7659, the penalty

imposable upon violators of Section 4 of the Dangerous Drugs Act of 1972, as

amended, is reclusion perpetua to death and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) if the
marijuana involved weighs 750 grams or more. The quantity of marijuana
involved in this case weighs 32,995 grams, hence, the applicable penalty is
reclusion perpetua to death. Since the imposable penalty is composed of two
indivisible penalties, the rules for the application of indivisible penalties under
Article 63[24] of the Revised Penal Code should be applied. As there is neither
mitigating nor aggravating circumstance in the commission of the crime, the RTC
correctly imposed the lesser penalty of reclusion perpetua. Finally, considering
that the penalty imposed is the indivisible penalty of reclusion perpetua, the
Indeterminate Sentence Law could not be applied.

WHEREFORE, the instant appeal is DENIED. The Decision dated August 16,
2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01431, which affirmed the
Decision dated October 30, 2000 of the Regional Trial Court of Manila, Branch
27, in Criminal Case No. 99-177383, finding accused-appellants GUILTY of the
crime of illegal transport of marijuana and sentencing them to reclusion perpetua,
and to pay a fine of P500,000.00 each, is hereby AFFIRMED. Costs against
accused-appellants.
SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee,
-versusERNESTO UYBOCO y RAMOS,

Subject of this appeal is the 27 September 2006 Decision promulgated by the

Court of Appeals, affirming the Regional Trial Courts (RTC) Judgment in Criminal
Case Nos. 93-130980, 93-132606, and 93-132607, finding Ernesto Uyboco y
Ramos (appellant) guilty of three (3) counts of kidnapping for ransom.

Appellant, along with now deceased Colonel Wilfredo Macias (Macias) and
several John Does were charged in three separate Informations, which read as
follow:

In Criminal Case No. 93-130980:

That in the morning of December 20, 1993 and for sometime subsequent thereto
in Manila and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, did then
and there willfully, unlawfully and feloniously kidnap, carry away and detain the
minor, JESON KEVIN DICHAVES, five (5) years old, against his will and consent,
thus depriving him of his liberty, for the purpose of extorting ransom for his
release, which after payment thereof in the amount of P1,320,000.00 in cash and
P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN
14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS
(P1,500,000.00) was divided by said accused between and/or among themselves
to the damage and prejudice of the aforementioned victim/or his parents.

In Criminal Case No. 93-132606:

That in the morning of December 20, 1993 and for sometime subsequent thereto
in Manila and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, did then
and there willfully, unlawfully and feloniously kidnap, carry away and detain the
minor, JESON KIRBY DICHAVES, two (2) years old, against his will and consent,
thus depriving him of his liberty, for the purpose of extorting ransom for his
release, which after payment thereof in the amount of P1,320,000.00 in cash and
P175,000.00 worth of assorted jewelry, including a Colt .45 Caliber Pistol with SN
14836 or a total of ONE MILLION FIVE HUNDRED THOUSAND PESOS
(P1,500,000.00) was divided by said accused between and/or among themselves
to the damage and prejudice of the aforementioned victim/or his parents.

In Criminal Case No. 93-132607:

That in the morning of December 20, 1993 and for sometime subsequent thereto
in Manila and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping one another, did then
and there willfully, unlawfully and feloniously kidnap, carry away and detain
NIMFA CELIZ, against her will and consent, thus depriving her of liberty, for the
purpose of extorting ransom for her release, which after payment thereof in the
amount of P1,320,000.00 in cash and P175,000.00 worth of assorted jewelry,
including a Colt .45 Caliber Pistol with SN 14836 or a total of ONE MILLION FIVE
HUNDRED THOUSAND PESOS (P1,500,000.00) was divided by said accused
between and/or among themselves to the damage and prejudice of the
aforementioned victim.[5]

The arraignment was held in abeyance twice. Finally, the arraignment was set on
22 October 1996. Appellant and Macias, with the assistance of their counsels,
however refused to enter a plea. This prompted the RTC to enter a plea of Not
Guilty for each of them. Trial on the merits ensued.

The prosecution presented the following witnesses: Nimfa Celiz (Nimfa), Jepson
Dichaves (Jepson), Police Superintendent Gilbert Cruz (P/Supt. Cruz), Police
Superintendent Mario Chan (P/Supt. Chan), Police Inspector Cesar Escandor
(P/Insp. Escandor) and Carolina Alejo, whose version of facts are summarized as
follows:

(Prosecution Version of Facts)

At around 10:30 a.m. on 20 December 1993, Nimfa and her wards, siblings
Jeson Kevin and Jeson Kirby Dichaves were riding in the Isuzu car of the
Dichaves family, together with Yusan Dichaves (Yusan). Driver Pepito Acon
(Acon) dropped off Yusan at Metrobank in Claro M. Recto Avenue, Manila. While
waiting for Yusan, Acon drove along Bilibid Viejo, Sampaloc. When the vehicle
passed by in front of San Sebastian Church, a stainless jeep with two men and
one woman described as a tomboy on board, suddenly blocked its way. One of

the men, who was in police uniform accosted Acon and accused him of hitting the
son of a Presidential Security Group (PSG) General apparently with a stone
when the vehicle ran over it. Acon denied the charges but he was transferred to
the stainless jeep while the man in police uniform drove the Isuzu car. The
tomboy sat next to Nimfa who then had Jeson Kirby sit on her lap while Jeson
Kevin was sitting on the tomboys lap. They were brought to a house in Merville
Subdivision, Paranaque.

While still in garage of the house, Nimfa was able to sneak out of the car and
place a call to the secretary of her employer to inform the latter that they were in
Merville Subdivision. She came back to the car undetected and after a while, she
and her wards were asked to alight from the car and they were locked inside the
comfort room.

Jepson was at his office at 10:00 a.m. of 20 December 1993. He received a call
from his wife asking him if Nimfa or Acon called up, as she had been waiting for
them at Metrobank where she was dropped off earlier. After 15 minutes, Yusan
called again and was already hysterical because she could not find the car when
she roamed around the area. Jepson immediately called up his brother Jaime
and some police officers to inform them that his sons were missing. When
Jepson arrived at Metrobank at around 11:30 a.m., he received a call from his
secretary informing him that Nimfa called about their whereabouts. When Jepson
got back to his office, his secretary informed him that an unidentified man called
to inform them that he has custody of the children and demanded P26 Million.

Meanwhile in Merville Subdivision, the man in police uniform introduced himself

to Nimfa as Sarge. He asked Nimfa for information regarding her name and her
employers telephone number. She feigned ignorance of those information. She
even claimed that she was merely a new employee. Sarge informed Nimfa that
they were in Fairview and that she was asked if she knew how to go home.
Nimfa chose to stay with her wards. When the phone rang, Sarge went out of the
house and Nimfa again sneaked a phone call to her employer informing them
that they were being held up in Merville Subdivision.

Jepson, through Jaimes help, went to the house of then Vice-President Joseph

Estrada (Vice-President Estrada) at 8:00 p.m. Thereat, he met General Jewel

Canson (Gen. Canson), General Panfilo Lacson (Gen. Lacson) and Major Ray
Aquino (Major Aquino). Vice-President Estrada ordered the police generals to
rescue Jepsons sons and arrest the kidnappers.

At 6:00 p.m., the kidnappers called Jepson and reduced the ransom to P10
Million.That night, Nimfa was able to speak to Jepson when two men handed the
telephone to her. She recognized one of them as appellant, because she had
seen the latter in her employers office sometime in the first week of December
1993.

On the following noon of 21 December 1993, the kidnappers called up Jepson

numerous times to negotiate for the ransom. In one of those calls, Jepson was
able to recognize the voice of appellant because he had several business
transactions with the latter and they have talked for at least a hundred times
during a span of two to four years.

On 22 December 1993, the parties finally agreed to a ransom of P1.5 Million.

Jepson offered P1.3 Million in cash and the balance to be paid in kind, such as
jewelry and a pistol.Appellant asked Jepson to bring the ransom alone at
Pancake House in Magallanes Commercial Center. Jepson called up Gen.
Canson and Gen. Lacson to inform them of the pay-off.

At around 1:00 p.m. of even date, Nimfa was able to talk to Jepson and the latter
informed her that they would be released that afternoon. At 3:00 p.m., Jepson
drove his white Toyota Corolla car and proceeded to Pancake House in
Magallanes Commercial Center. He placed the money inside a gray bag and put
it on the backseat. Jepson received a call from appellant at 4:00 p.m. who
ordered him to put the bag in the trunk, leave the trunk unlocked, and walk away
for ten (10) minutes without turning back. Later, appellant checked on his trunk
and the bag was already gone. Appellant then apprised him that his sons and
helper were already at the Shell Gasoline Station along South Luzon
Expressway. He immediately went to the place and found his sons and helper
seated at the corner of the gas station.

P/Insp. Escandor was assigned to proceed to Magallanes Commercial Center,

together with two other police officers. They reached the place at 3:30 p.m. and
positioned themselves in front of the Maranao Arcade located at Magallanes
Commercial Center. He brought a camera to cover the supposed pay-off. He took
a total of 24 shots. He identified Macias together with appellant in Magallanes
Commercial Center and the latter as the one who took the ransom.

P/Supt. Chan was one of the team leaders dispatched also at Magallanes
Commercial Center in Makati on 22 December 1993 to take a video coverage on
the supposed pay-off. He witnessed the pay-off and identified appellant as the
one who took the bag containing the ransom money from the car trunk of Jepson.

P/Supt. Cruz is assigned to the now defunct Presidential Anti-Crime Commission

Task Force Habagat and one of the team leaders of Special Project Task Force
organized on 22 December 1993 with the primary task of apprehending the
kidnappers of Dichaves children and helper. His group was assigned at Fort
Bonifacio to await instructions from the overall Field Command Officer Gen.
Lacson. They had been waiting from 4:00 p.m. until 6:00 p.m. when they
received information that the kidnap victims were released unharmed. They were
further asked to maintain their position in Fort Bonifacio. At around 7:45 p.m.,
they heard on their radio that the suspects vehicle, a red Nissan Sentra was
heading in their direction. A few minutes later, they saw the red car and tailed it
until it reached Dasmarias Village in Makati. They continuously followed the car
inside the village. When said car slowed down, they blocked it and immediately
approached the vehicle.

They introduced themselves as police officers and accosted the suspect, who
turned out to be appellant. Appellant suddenly pulled a .38 caliber revolver and a
scuffle took place. They managed to subdue appellant and handcuffed him.
Appellant was requested to open the compartment and a gray bag was found
inside. P/Supt. Cruz saw money, jewelry and a gun inside the bag. Appellant was
then brought to Camp Crame for questioning.

At 8:00 p.m., Jepson received a call from Gen. Lacson asking him to go to Camp
Crame. He and Nimfa went to Camp Crame where he saw appellant alone in the

office of Gen. Canson. He then saw the bag containing the ransom money,
pieces of jewelry and his gun on the table. Photographs were taken and Jepson
was asked to identify them.

A written inventory was prepared on the contents of the bag. It was found out that
a portion of the ransom money was missing. It was then that appellant revealed
that the missing money was in the possession of Macias. Appellant accompanied
P/Supt. Cruz and his team to the residence of Macias in Camp Aguinaldo.
P/Supt. Cruz waited for Macias until 4:00 a.m. on the following day and placed
him under arrest. Macias was asked where the rest of the ransom money was
and Macias went inside the house and retrieved a red bag inside a small cabinet.
P/Supt. Cruz prepared a receipt of the seized property from Macias. Macias
placed his signature on the receipt.

Carolina Alejo was the owner of the house in Merville Subdivision where the
kidnap victims were detained. She stated that she leased the house to appellant.
On 23 December 1993, it came to her knowledge that said house was used in
the kidnapping. She noticed that the lock of the comfort room was reversed so
that it could only be locked from the outside. She considered this unusual
because she personally caused the door knob to be installed.

The defense, on its part, presented appellant, Florinda Sese Barcelona (Ms.
Sese), Dr. Jaime Leal (Dr. Leal), and retired Colonel Ramon Navarro (Col.
Navarro).

Appellant testified that he came to know Jepson when he was introduced to him
by Col. Navarro in 1989 as the importer of police equipment and accessories.
Jepson wanted to buy revolving lights, police sirens and paging system. Through
Navarro, appellant also met Macias who was then selling his security agency in
July 1993. He admitted that Jepson had been lending him money since 1990 and
his total borrowings amounted to P8.5 Million in December 1993. Appellant also
knew Nimfa since 1990 and had met her five (5) times in the office of Jepson
where Nimfa usually served him coffee.

In December 1993, he rented a house in Merville Subdivision for his mother. He

was given the key to the house in 15 December 1993 but he denied going to said
place on 20, 21, 22, 23 of December 1993.

At 3:00 p.m. of 20 December 1993, he received a call from Jepson asking for P1
Million, as partial payment of his loan. Jepson informed appellant that his sons
were kidnapped and he requested appellant to negotiate with the kidnappers for
the release of his children. Out of pity, appellant agreed. He actively participated
in the negotiations between 20 to 22 of December 1993, where he successfully
negotiated a lower ransom of P1.5 Million.

On 11:30 a.m. of 22 December 1993, Jepson again requested appellant to

deliver the ransom money to the kidnappers. Appellant acceded to the request.
He asked Macias, who was in his office that day, to accompany him. The
kidnappers asked appellant to proceed to the Makati area and wait for further
instructions. Appellant called up Jepson who told him that he would deliver the
money to appellant once instructions were given by the kidnappers. The
kidnappers finally called and asked appellant to proceed to Shell Gasoline
Station-Magallanes. He informed Jepson of this fact and the latter asked
appellant to meet him in Magallanes Commercial Center where he would just put
the money inside the car trunk and leave it unlocked. Appellant took the money
from Jepsons car and put it inside his car trunk and proceeded to Shell Gasoline
station.[30] Appellant and Macias did not see the kidnappers and Jepsons
children at the station. He tried calling Jepson but failed to communicate with
him. They then decided to go back to the office in Cubao, Quezon City. At 7:00
p.m., he received a call from the kidnappers who were cursing him because they
apparently went to the Shell Gasoline Station and noticed that there were many
policemen stationed in the area, which prompted them to release the victims.
Appellant left his office at around 7:20 p.m. to go home in Dasmarias Village,
Makati. When he was about ten (10) meters away from the gate of his house, a
car blocked his path. He saw P/Supt. Cruz, a certain Lt. Rodica and two other
men alight from the car and were heavily armed. They pulled him out of the car
and hit him with their firearms.

Ms. Sese was at the office of appellant on 22 December 1993 when she was told
by the secretary, who appeared shaken, that a caller was looking for appellant.
She saw appellant arrive at the office with Macias.

Dr. Leal, the medico-legal officer at Philippine National Police (PNP) Crime
Laboratory, presented the medico-legal certificate of appellant and testified that
the injuries of appellant could have been sustained during the scuffle.

Col. Navarro introduced appellant to Jepson. He was privy to the loan

transactions between appellant and Jepson where the former asked loans from
the latter. He even served as guarantor of some of the obligations of appellant.
When the checks issued by appellant were dishonored by the bank, Jepson filed
a case against Navarro for violation of Batas Pambansa Blg. 22, wherein the
latter was eventually acquitted.

While the criminal cases were undergoing trial, Macias died. Consequently, his
criminal liability is totally extinguished under Article 89, paragraph 1 of the
Revised Penal Code.

On 30 August 2002, the RTC rendered judgment finding appellant guilty beyond
reasonable doubt of the crime of kidnapping for ransom. The dispositive portion
reads:

WHEREFORE, premises considered herein accused Ernesto Ramos Uyboco is

hereby found guilty beyond reasonable doubt of the crime of Kidnapping for
Ransom penalized by Article 267 of the Revised Penal Code, as amended by
R.A. 1084. He is hereby ordered to suffer the prison term of reclusion perpetua
for three (3) counts together with the accessory penalties provided by law. He
should pay private complainant Jepson Dichaves the amount of P150,000.00 as
moral damages.

The above-described .45 Caliber Colt Pistol and 12-gauge Remington shotgun
as well as the Nissan Sentra 4-Door Sedan are hereby confiscated in favor of the
government.

The Warden of Metro Manila Rehabilitation Center, Camp Ricardo R. Papa,

Bicutan, Taguig, Metro Manila is hereby ordered to immediately transfer the said
accused to the Bureau of Corrections, National Bilibid Prison, Muntinlupa City.
The Jail Director of said bureau is ordered to inform this court in writing soonest
as to when the said official took custody of the accused.[36]

The trial court held that the prosecution had established with the required
quantum of evidence that the elements of kidnapping for ransom were present
and that appellant was the author of said crime.

Appellant filed a notice of appeal to the Supreme Court. Conformably to People

v. Mateo,[37] this Court in a Resolution dated 6 September 2004, referred the
case to the Court of Appeals for appropriate action and disposition.

On 27 September 2006, the Court of Appeals affirmed in toto the Decision of the
RTC, the dispositive portion of which reads:

WHEREFORE, the August 30, 2002 Decision of the Regional Trial Court,
national Capital Judicial Region, Br. 18, Manila, in Criminal Cases Nos. 93130980, 93-132606, and 93-132607, in convicting Ernesto Uyboco of three (3)
counts of Kidnapping for Ransom is hereby AFFIRMED in toto. No costs.[39]

A motion for reconsideration was filed by appellant but the same was denied in a
Resolution dated 22 December 2006. Hence, this appeal.

On 3 September 2007, this Court required the parties to file their respective
supplemental briefs. On 25 October 2007, appellants counsel filed a withdrawal
of appearance. Appellee manifested that it is no longer filing a Supplemental
Brief. Meanwhile, this Court appointed the Public Attorneys Office as counsel de
oficio for appellant. Appellee also filed a manifestation that it is merely adopting
all the arguments in the appellants brief submitted before the Court of Appeals.

Appellant prays for a reversal of his conviction on three (3) counts of kidnapping
for ransom based on the following assignment of errors:

I.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT DESPITE THE DISTURBING WHISPERS OF DOUBT REPLETE
IN THE PROSECUTIONS THEORY.

II.
THE TRIAL COURT ERRED IN GIVING CREDENCE TO NIMFA
CELIZ TESTIMONY NOTWITHSTANDING THE INCREDIBILITY OF HER
STORY.

III.
THE TRIAL COURT ERRED IN PRESUMING REGULARITY IN THE
PERFORMANCE OF OFFICIAL FUNCTIONS OVER THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE OF THE ACCUSED UYBOCO.

IV.
THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF
JEPSON DICHAVEZ NOTWITHSTANDING HIS DISPLAYED PROPENSITY
FOR UNTRUTHFULNESS.

V.
THE TRIAL COURT ERRED IN ADMITTING MOST OF THE
OBJECT EVIDENCE PRESENTED AGAINST THE ACCUSED-APPELLANT
SINCE THEY WERE PROCURED IN VIOLATION OF HIS CONSTITUTIONAL
RIGHTS.

VI.
THE TRIAL COURT ERRED IN FINDING OF FACT THAT THE
MERVILLE PROPERTY LEASED BY ACCUSED-APPELLANT FROM MS.
CAROLINA ALEJO WAS THE VERY SAME HOUSE WHERE NIMFA CELIZ AND
HER WARDS WERE ALLEGEDLY DETAINED.

VII.
THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED UYBOCO
AS HAVING PARTICIPATED IN THE ABDUCTION OF JESON KEVIN, JESON
KIRBY, AND NIMFA CELIZ AS NOT A SINGLE EVIDENCE ON RECORD

SUPPORTS THE SAME.

VIII.
THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED
CONSIDERING THAT ABDUCTION, AN IMPORTANT ELEMENT OF THE
CRIME, WAS NEVER ESTABLISHED AGAINST HIM.

IX.
THE TRIAL COURT ERRED IN HOLDING THE ACCUSED GUILTY
OF KIDNAPPING FOR RANSOM WITHOUT DISCUSSING THE
PARTICIPATION OF ACCUSED MACIAS CONSIDERING THAT THE CHARGE
WAS FOR CONSPIRACY.

Issue: Whether or not appellant is guilty beyond reasonable

doubt?
YES

The ultimate issue in every criminal case is whether appellants guilt has been
proven beyond reasonable doubt. Guided by the law and jurisprudential
precepts, this Court is unerringly led to resolve this issue in the affirmative, as we
shall hereinafter discuss.

In order for the accused to be convicted of kidnapping and serious illegal

detention under Article 267 of the Revised Penal Code, the prosecution is
burdened to prove beyond reasonable doubt all the elements of the crime,
namely: (1) the offender is a private individual; (2) he kidnaps or detains another,
or in any manner deprives the latter of his liberty; (3) the act of detention or
kidnapping must be illegal; and (4) in the commission of the offense any of the
following circumstances is present: (a) the kidnapping or detention lasts for more
than three days; (b) it is committed by simulating public authority; (c) serious
physical injuries are inflicted upon the person kidnapped or detained or threats to
kill him are made; or (d) the person kidnapped and kept in detained is a minor,
the duration of his detention is immaterial. Likewise, if the victim is kidnapped
and illegally detained for the purpose of extorting ransom, the duration of his
detention is immaterial.

We are in full accord with the findings of the trial court that these elements were
proven by the prosecution, thus:

1)

Accused Uyboco is a private individual;

2)
Accused Uyboco together with the unidentified persons/companions
of accused Uyboco, referred to as John Does, forcibly abducted the two sons of
private complainant Jepson Dichaves, namely: then five-year-old Jeson Kevin
and two-year old Jeson Kirby as well as their maid or yaya Nimfa Celiz. Their
abduction occurred at about 10:30 in the morning of December 20, 1993. The
three victims were on board Jepsons Isuzu pick-up driven by Jepsons driver
Pepito Acon. The moving pick-up was in front of San Sebastian Church, Legarda,
Manila when its path was blocked by a stainless jeep. A man in white t-shirt and
brown vest accosted driver Pepito for having allegedly ran over a stone that hit a
son of a general working at the Presidential Security Group. Pepito was made to
ride in a jeep. The same man drove the pick-up to a house in Merville
Subdivision, Paranaque, Metro Manila, where the victims were illegally detained
from December 20 to 23, 1993.

xxxx

3)
The act of the detention or kidnapping of the three victims was
indubitably illegal. Their detention was not ordered by any competent authority
but by the private individual whose mind and heart were focused to illegally
amassed huge amount of money thru force and coercion for personal gain;

xxxx

5)
Both accused Uyboco and Macias had successfully extorted
ransom by compelling the parents of the minors to give in to their unreasonable
demands to get the huge amount of money, a gun, and pieces of jewelry x x x.
[44]

These facts were based on the narrations of the prosecutions witnesses,

particularly that of Nimfa, the victim herself and Jepson, the father of the two
children abducted and the person from whom ransom was extorted.

Nimfa recounted how she and her wards were abducted in the morning of 20
December 2003 and detained in a house in Merville Subdivision, Paraaque, thus:

A: When we arrived at the office after awhile we boarded the pick-up and then we
left, Sir.
xxxx

A: Those who boarded the pick-up, the driver Pepito Acon, Mrs. Yusan Dichavez,
the two (2) children and myself, Sir.

xxxx

A: We proceeded to Metrobank Recto, Sir.

xxxx

Q: And when you stopped there, what happened?

A: Mrs. Yusan Dichavez alighted in order to cross the street to go to Metrobank,

Sir.

Q: And then what followed next?

A: The driver, Jeson Kirvy, Jeson Kervin and myself made a right turn and we
entered an alley, Sir.

xxxx

Q: Before reaching Legarda, do you know of any untowards incident that

happened?

A: Yes, sir.

ATTY. PAMARAN:

Q: What?

A: When we were already in front of the San Sebastian Church and Sta. Rita
College there was a stainless jeep that block our path, Sir.

Q: How many persons were inside that stainless jeep, if you know?

A: I have not notice, but there were many, Sir.

Q: How did that stainless jeep stop your vehicle?

A: Our driver Pepito Acon was signaled by the persons on the stainless jeep to
stay on the side, sir.

Q: What did your driver Pepito Acon do when the sign was made to him?

A: The driver stopped the pick-up and set on the side, Sir.

Q: And then what followed next after he stopped?

xxxx

A: The man told us that we will be brought to the precinct because when we then
make a turn at Kentucky a stone was ran and hit the son of the General of PSG
from Malacaang, Sir.

xxxx

Q: What did Pepito Acon do? When told to alight?

A: Pepito Acon alighted, Sir.

Q: Then what followed next?

A: After that Pepito alighted and the man who came from the stainless jeep
boarded and he was the one who drove, Sir.

xxxx

A: When that man boarded the pick-up there was a T-bird who also boarded on
the passengers side, Sir.

xxxx

Q: When you entered the gate of Merville Subdivision, where did you proceed?

A: When we entered the gate there was a street which I do not know and when
we went straight as to my estimate we were going back to the main gate, Sir.

xxxx

A: The pick-up stopped in front of a low house near the gate, Sir.

Q: When you stopped in front of the gate, that house which is low, what
happened?

A: The tomboy alighted and opened the gate of that low house, Sir.

Q: What followed next after the tomboy opened the gate?

A: After the tomboy opened the gate, the driver entered the pick-up inside, Sir.

xxxx

Q: And when you entered the house, what happened?

A: When we entered the house we were confined at the comfort room, Sir.[45]

Jepson gave an account how appellant demanded ransom from him and
eventually got hold of the money, thus:

A: Then Macias offered the release of the two (2) boys for 1.5 Million each, Sir.

A: Then I started begging and bargaining with them and then suddenly Uyboco
was again the one continuing the conversation, Sir.

Q: What did you say?

A: After some bargaining and beggings he reduced the demand to 1.7 million,
and he asked for my wife to talk to because according to him I was very hard to
talk too, Sir.

ATTY. PAMARAN:

Q: You said he, to whom are you referring?

A: To Mr. Uyboco, Sir.

Q: What followed?

A: After some more bargaining and begins he further reduced their demand to1.5
million x x x.

xxxx
Q: And after that what followed?

A: I offered them to fill up the different (sic) in kind, Sir.

Q: Why to offer the different (sic) in kind?

A: To fill up the different (sic) between 1.3 million to 1.5 million, Sir.

Q: So in short, how much cash did you offer?

A: I offered it for 1.3 million, Sir.

Q: How about the different (sic), what will it be?

A: At this point, he asked me to include my gun, Sir.

Q: How about the other balance?

A: My jewelry, Sir.[46]

xxxx

Q: And what did you do after you were in possession of the money, the jewelries,
the gun and the bag?

A: I returned to my office and put the cash in the bag.

Q: In short, what were those inside the bag?

A: The P1.325 million money, the gun and the assorted jewelries.

Q: And after placing them inside the bag, what happened?

A: I left my office at 3:00 PM to proceed to the Pancake House at the

Magallanes Commercial Center.

Q: Where did you place that bag?

A: That bag, at that time, was placed at the back seat when I was going to the
Pancake House.

xxxx

Q: What else did he tell you?

A: x x x He told me to put the ransom bag x x x inside my trunk compartment,

leave it and lock the car, and walk away without looking back for ten (10)
minutes.

Q: After that instruction, what happened, or what did you do?

A: After few minutes, he called again. He told me to drive and park the car beside
the car Mitsubishi Colt Mirage with Plate NO. NRZ-863.

Q: Did he tell you where was that Colt Mirage car parked?

A: Yes, in front of the Mercury Drug Store.

Q: And then, what did you do?

A: I followed his instruction.

Q: And what followed next?

A: After few more minutes, he called again and asked if I am in front of the
Mercury Drug Store already.

Q: And what was your answer?

A: I told him yes and he again gave me the final arrangement, but he uttered I
walk back towards the Pancake House without looking back for ten (10) minutes.

Q: And?

A: And informing me the whereabouts of my sons.

ATTY. PAMARAN:

Q: Did you comply with that instruction?

A: Yes, sir.

Q: What did you do?

A: I walked towards the Pancake House without looking back for more than ten
(10) minutes.

Q: That car that you parked near the Mitsubishi Colt, how far was your car the
parked form that Colt Mirage?

A: Beside the Colt Mirage, Sir.

Q: And after you parked the car, what followed?

A: I walked towards the Pancake House without looking back and then I turned to
the back of the supermarket and I checked my trunk and saw that the bag is
gone already.

Q: And what followed thereafter?

A: A few minutes, Uyboco called up and told me that my sons were at the shell
station after the Magallanes Commercial Center inside the Bibingkahan.[47]

Now, appellant seeks to destroy the credibility of these witnesses by imputing

inconsistencies, untruthfulness and incredibility in their testimonies.

Appellant harps on the supposed inconsistencies in the testimony of Nimfa,

namely: First, Nimfa stated that on the day they were to be released, they,

together with Macias, left Merville Subdivision at 4:00 p.m. while appellant stayed
behind. However, P/Insp. Escandor testified that at around 4:00 p.m., he saw
Macias and appellant at Magallanes Commercial Center. Second, Nimfa could
not properly identify the number of kidnappers. Third, Nimfa failed to state in her
affidavit and during the direct examination that Sarge had a gun, but later on
cross-examination, she intimated that Sarge had a gun. Fourth, it was incredible
that Nimfa was able to identify the route taken by the kidnappers to the safe
house because she was not allegedly blindfolded. Fifth, it was strange for Nimfa
to say that two persons, Macias and appellant, were holding the receiver and the
dialing mechanism whenever they hand the phone to her. Sixth, it was impossible
for Nimfa to have access to an operational telephone while in captivity.[48] The
Court of Appeals correctly dismissed these inconsistencies as immaterial, in this
wise:

The purported inconsistencies and discrepancies involve estimations of time or

number; hence, the reference thereto would understandably vary. The rule is that
inconsistencies in the testimonies of prosecution witnesses on minor details and
collateral matters do not affect the substance of their declaration, their veracity or
the weight of their testimonies. The inconsistencies and discrepancies of the
testimonies, in the case at bar, are not of such nature as would warrant the
reversal of the decision appealed from. On the contrary, such trivial
inconsistencies strengthen, rather than diminish, Celiz testimony as they erase
suspicion that the same was rehearsed.

The fact that Uyboco and his companions neither donned masks to hide their
faces nor blindfolded or tied up their victims goes to show their brazenness in
perpetrating the crime. Besides, familiarity with the victims or their families has
never rendered the commission of the crime improbable, but has in fact at times
even facilitated its commission. Moreover, the fact that there was a usable phone
in the house where Celiz and the kids were held captive only proves that, in this
real world, mistakes or blunders are made and there is no such thing as a perfect
crime. On a different view, it may even be posited that the incredible happenings
narrated by Celiz only highlights the brilliance of Uyboco and his companions.
Verily, in committing the crime of kidnapping with ransom, they adopted and
pursued unfamiliar strategies to confuse the police authorities, the victim, and the
family of the victims.

Appellant then zeroes in on Jepson and accuses him of lying under oath when he
claimed that appellant owed him only P2.3 Million when in fact, appellant owed
him P8.5 Million. Appellant charges Jepson of downplaying his closeness to him
when in fact they had several business deals and Jepson would address
appellant as Ernie. Moreover, it was unbelievable for Jepson to be able to identify
with utmost certainty that the kidnapper he was supposedly talking to was
appellant. Finally, appellant claims that Jepsons motive to maliciously impute a
false kidnapping charge against him boils down to money. Among the businesses
that Jepson owns was along the same line of business as that of appellant, which
is the supply of police equipment to the PNP. To eliminate competition and
possibly procure all contracts from the PNP and considering his brothers close
association to then Vice-President Estrada, Jepson crafted and executed a frame
up of appellant.

And the Court of Appeals had this to say:

For one, the strategy used, which is the use of unconventional or not so
commonly used strategy, to apprehend the kidnappers of Celiz and the Dichaves
children is, by reason of their special knowledge and expertise, the police
operatives call or prerogative. Accordingly, in the absence of any evidence that
said agents falsely testified against Uyboco, We shall presume regularity in their
performance of official duties and disregard Uybocos unsubstantiated claim that
he was framed up.

Secondly, matters of presentation of witnesses by the prosecution and the

determination of which evidence to present are not for Uyboco or even the trial
court to decide, but the same rests upon the prosecution. This is so since Section
5, Rule 110 of the Revised Rules of Court expressly vests in the prosecution the
direction and control over the prosecution of a case. As the prosecution had other
witnesses who it believes could sufficiently prove the case against Uyboco, its
non-presentation of other witnesses cannot be taken against the same.

Time and again, this court has invariably viewed the defense of frame-up with
disfavor. Like the defense of alibi, it can be just as easily concocted.

We are inclined to accord due weight and respect to the ruling of the lower courts
in giving credence to the positive testimonies of Nimfa and Jepson, both pointing
to appellant as one of the kidnappers. Both witnesses testified in a clear and
categorical manner, unfazed by efforts of the defense to discredit them. As a rule,
the assessment of the credibility of witnesses and their testimonies is a matter
best undertaken by the trial court, which had a unique opportunity to observe the
witnesses firsthand and to note their demeanor, conduct and attitude. While it is
true that the trial judge who conducted the hearing would be in a better position
to ascertain the truth or falsity of the testimonies of the witnesses, it does not
necessarily follow that a judge who was not present during the trial, as in this
case, cannot render a valid and just decision, since the latter can very well rely
on the transcribed stenographic notes taken during the trial as the basis of his
decision.

Appellant raises questions which purportedly tend to instill doubt on the

prosecutions theory, thus:

If Uyboco is really the mastermind of the kidnapping syndicate, why would he

demand only P1.325M x x x as ransom? Why would he be the one to personally
pick-up the ransom money using his own car registered in his sons name? Why
did he not open the bag containing the ransom to check its contents? Why would
he be the one to personally hand the phone to Nimfa Celiz without any mask
covering his face x x x. Why would he go back to his family residence x x x with
the ransom money still intact in the trunk of his car?

If Nimfa Celiz and her wards were indeed kidnapped, why were they not
blindfolded x x x? Why were they not tied x x x?

xxxx

If it is true that the house at Merville, Paraaque was used by accused-appellant

Uyboco as the place of the alleged detention x x x how come Uyboco signed the
lease contract under his own name? x x x Certainly, any person with the

education attainment of at least high school degree, much more so an

established businessman like accused-appellant would know that the lease
contract and the post-dated checks are incriminating evidence.

x x x (h)ow come no effort was exerted in apprehending Uyboco during day 1 of

the kidnapping? x x x Why is their story focused only on the day of the ransom
payment? Why did they not apply for a warrant of arrest against accusedappellant Uyboco when they supposedly knew that from day 1, he was the
kidnapper?

Why were there no tapes presented in evidence which recorded the

conversations between the kidnappers x x x.

Furthermore, appellant stresses that his financial status as an established and

well-off businessman negates any motive on his part to resort to kidnapping.
If we indulge appellants speculations, we could readily provide for the answers to
all these questions that appellant originally demanded P26 Million but this had
been substantially reduced due to aggressive bargaining and negotiations; that
appellant personally picked up the ransom money because he could not trust
anybody to do the work for him; that appellant did not open the bag containing
the money because he trusted Jepson, who then out of fear, would deliver as
instructed; that appellant did not cover his face in front of Nimfa because he
thought Nimfa would not recognize him; that appellant went back to his family
residence because he never thought that Jepson would recognize him as the
voice behind one of the kidnappers; that the victims were not blindfolded or tied
because Nimfa, who appeared to be ignorant to the kidnappers and the two
children barely 5 years old would be emboldened to escape; that appellant never
thought that the police would discover the place of detention; that the police
employed a different strategy, which is to first secure the victims before they
apprehend the kidnappers; that to secure a warrant would be futile as the police
then did not have sufficient evidence to pin down appellant to the crime of
kidnapping; that there were no actual record of the telephone conversations
between Jepson and the kidnappers.

However, to individually address each and every question would be tantamount

to engaging in a battle of endless speculations, which do not have a place in a

court of law where proof or hard evidence takes precedence. On the other hand,
the prosecution presented testimonies and evidence to prove that kidnapping
occurred and that appellant is the author thereof.

Appellant seeks to pierce the presumption of regularity enjoyed by police officers

to anchor his argument that he has been framed up. He belittles the efforts of the
police officers who participated in the operation. Appellant claims that despite
knowledge of the place of alleged detention, the police did not try to rescue the
kidnap victims. Appellant also notes that while P/Supt. Chan denies installing any
listening device to record the conversations of the kidnappers and Jepson, the
interview made by a reporter for a television network shows that Major Aquino
admitted to taped conversations of appellants alleged negotiations for the
ransom with Jepson. Appellant insists that these taped conversations do exist.

Appellant cannot rely on a vague mention of an interview, if it indeed exists, to

discredit the testimony of P/Supt. Chan. The truth of the matter is appellant failed
to prove the existence of the alleged taped conversations. The matters of failure
of the police officer to properly document the alleged pay-off, the non-production
of the master copy of the video tape, and the chain of custody supposedly broken
are not semblance of neglect so as to debunk the presumption of regularity. In
the absence of proof of motive on the part of the police officers to falsely ascribe
a serious crime against the accused, the presumption of regularity in the
performance of official duty, as well as the trial court's assessment on the
credibility of the apprehending officers, shall prevail over the accused's selfserving and uncorroborated claim of frame-up.
ISSUE #2: WHETHER OR NOT THERE IS A VALID ARREST AND SEARCH
YES
Appellant then questions the validity of his arrest and the search conducted
inside his car in absence of a warrant. The arrest was validly executed pursuant
to Section 5, paragraph (b) of Rule 113 of the Rules of Court, which provides:

SEC. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person: (a) When, in his presence, the person to
be arrested has committed, is actually committing, or is attempting to commit an

offense; (b) When an offense has in fact been committed and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
and, (c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another. (Emphasis supplied)

The second instance of lawful warrantless arrest covered by paragraph (b) cited
above necessitates two stringent requirements before a warrantless arrest can
be effected: (1) an offense has just been committed; and (2) the person making
the arrest has personal knowledge of facts indicating that the person to be
arrested has committed it.

Records show that both requirements are present in the instant case. The police
officers present in Magallanes Commercial Center were able to witness the payoff which effectively consummates the crime of kidnapping. They all saw
appellant take the money from the car trunk of Jepson. Such knowledge was
then relayed to the other police officers stationed in Fort Bonifacio where
appellant was expected to pass by.

Personal knowledge of facts must be based on probable cause, which 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.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require
the arresting officers to personally witness the commission of the offense with
their own eyes.

It is sufficient for the arresting team that they were monitoring the pay-off for a
number of hours long enough for them to be informed that it was indeed
appellant, who was the kidnapper. This is equivalent to personal knowledge

based on probable cause.

ISSUE # 3: Whether or not there is an express waiver

YES

Likewise, the search conducted inside the car of appellant was legal because the
latter consented to such search as testified by P/Supt. Cruz. Even assuming that
appellant did not give his consent for the police to search the car, they can still
validly do so by virtue of a search incident to a lawful arrest under Section 13,
Rule 126 of the Rules of Court which states:

SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be
searched for dangerous weapons or anything which may have been used or
constitute proof in the commission of an offense without a search warrant.

In lawful arrests, it becomes both the duty and the right of the apprehending
officers to conduct a warrantless search not only on the person of the suspect,
but also in the permissible area within the latter's reach. Otherwise stated, a valid
arrest allows the seizure of evidence or dangerous weapons either on the person
of the one arrested or within the area of his immediate control. The phrase "within
the area of his immediate control" means the area from within which he might
gain possession of a weapon or destructible evidence. Therefore, it is only but
expected and legally so for the police to search his car as he was driving it when
he was arrested.

Appellant avers that it was not proven that appellant was present and in fact
participated in the abduction of the victims. Lacking this element, appellant
should have been acquitted. In a related argument, appellant contends that
conspiracy was not proven in the execution of the crime, therefore, appellants
participation was not sufficiently established.

The Court of Appeal effectively addressed these issues, to wit:

The prosecution was able to prove that: 1) At the time of the kidnapping, the
house where Celiz and the Dichaves children were kept was being leased by
Uyboco; 2) Uyboco was present in the said house at the time when Celiz and the
Dichaves children were being kept thereat; 3) there being no evidence to the
contrary, Uybocos presence in the same is voluntary; 4) that Uyboco has in his
possession some of the ransom payment; and, 5) that Uyboco was the one who
told them that the balance of the ransom payment is with Macias. All these
circumstances clearly point out that Uyboco, together with several unidentified
persons, agreed or decided and conspired, to commit kidnapping for ransom.

xxxx

x x x Uybocos claim, that since it was not proven that he was one of the
passengers of the jeep which waylaid the Dichaves vehicle on December 20,
1993, he could not be convicted of kidnapping for ransom considering that his
participation, if any, was merely to provide the house where the victims were
kept, is misplaced.

Moreover, to Our mind, it is inconceivable that members of a kidnapping

syndicate would entrust the performance of an essential and sensitive phase of
their criminal scheme, i.e. possession of the ransom payment, to people not in
cahoots with them, and who had no knowledge whatsoever of the details of their
nefarious plan.

The testimonies of Nimfa and Jepson sufficiently point to the participation of

appellant. While he was not present during the abduction, he was present in the
house where the victims were detained, oftentimes giving the phone to Nimfa to
talk to Jepson. He also actively demanded ransom from Jepson. The conspiracy
was likewise proven by the above testimonies. Appellant conspired with Macias
and other John Does in committing the crime. Therefore, even with the absence
of appellant in the abduction stage, he is still liable for kidnapping for ransom
because in conspiracy, the act of one is the act of all.

Based on the foregoing, we sustain appellants conviction.

WHEREFORE, the Decision dated 30 August 2002 in Criminal Case Nos. 93130980, 93-132606, and 93-132607 RTC, Branch 18, Manila, finding Ernesto
Uyboco y Ramos guilty of kidnapping for ransom, and the Decision dated 27
September 2006 of the Court of Appeals, affirming in toto the Decision of the
RTC, are AFFIRMED.

Search of Warehouse in Violation of Customs and Tariff

Code or to enforce customs laws
THE BUREAU OF CUSTOMS (BOC) and THE ECONOMIC
INTELLIGENCE AND INVESTIGATION BUREAU (EIIB),
petitioners, vs. NELSON OGARIO and MARK MONTELIBANO,

The question for decision in this case is whether the Regional Trial Court has
jurisdiction to enjoin forfeiture proceedings in the Bureau of Customs. In
accordance with what is now settled law, we hold it does not.

The facts are as follows: On December 9, 1998, Felipe A. Bartolome, District

Collector of Customs of Cebu, issued a Warrant of Seizure and Detention[1] of
25,000 bags of rice, bearing the name of "SNOWMAN, Milled in Palawan"
shipped on board the M/V "Alberto," which was then docked at Pier in Cebu City.
The warrant was issued on the basis of the report of the Economic Intelligence
and Investigation Bureau (EIIB), Region VII that the rice had been illegally
imported. The report stated that the rice was landed in Palawan by a foreign
vessel and then placed in sacks marked "SNOWMAN, Milled in Palawan." It was
then shipped to Cebu City on board the vessel M/V "Alberto." Forfeiture
proceedings were started in the customs office in Cebu, docketed as Cebu
Seizure Identification Case No. 17-98.

On December 10, 1998, respondent Mark Montelibano, the consignee of the

sacks of rice, and his buyer, respondent Elson Ogario, filed a complaint for
injunction (Civil Case No. CEB-23077) in the Regional Trial Court of Cebu City,
alleging:

4.) That upon arrival of the herein-mentioned sacks of rice at the PIER of Cebu
City, Philippines on the 7th day of December 1998 all of the defendants rushed to
the port with long arms commanding the plaintiffs laborer[s] to stopped [sic] the
unloading of the same from the vessel named M/V Alberto. The defendants
alleged that the herein-mentioned rice were [sic] smuggled from abroad without
even proof that the same were [sic] purchased from a particular country.

5.) By the mere suspicion of the defendants that the goods were smuggled from
abroad, they immediately put on hold the release of the goods from the ship and
at the same time they jointly barred unloading and loading activities of the
plaintiffs laborers of the herein-mentioned rice.

6.) The plaintiffs then presented all the pertinent and necessary documents to all
of the defendants but the latter refused to believe that the same is from Palawan
because their minds are closed due to some reason or another [while] the
plaintiffs believed that the same is merely an act of harassment. The documents
are as follows:

A.) Certification from the National Food Authority that the same is from Palawan.
This is hereto attached as Annex A.

B.) Bill of Lading issued by ANMA PHILIPPINES Shipping Company. This is

hereto attached as Annex B.

(Plaintiff's Defense in relation to unlawful search and seizure)

7.) The acts of the defendants in stopping the loading and unloading activities of
the plaintiffs laborers [have] no basis in law and in fact; thus, unlawful and illegal.

A mere suspicion which is not coupled with any proof or evidence to that effect is
[a] matter which the law prohibits.

8.) That for more than three days and despite the repeated plea of the plaintiffs
that their goods should be released to them and the defendants should stop from
barring the unloading and loading activities, the latter blindly refused [to] heed the
same.

9.) That the acts of all of the defendants which are greatly unlawful and
erroneous would caused [sic] irreparable damage, injury, and grave injustice to
the plaintiffs.

10.) That by way of example or correction for the public good and to deter the
defendants from doing the same acts to other businessmen, defendants should
be held liable for exemplary damages in the amount of not less than One
Hundred Thousand Pesos (P100,000.00).

11.) That the plaintiffs are entitled to the relief prayed in this complaint and the
whole or part of such reliefs consist in restraining perpetually the defendants from
holding the herein-mentioned twenty-five thousand sacks of rice. That
defendants should be restrained perpetually from barring the unloading and
loading activities of the plaintiffs laborers.

12.) That allowing the defendants to continue their unlawful acts would work
grave injustice to the plaintiffs. Unless a preliminary injunction be granted exparte, grave and irreparable injury and damage would result to the plaintiffs
before the latter can be heard on notice.

13.) That if the defendants be not restrained perpetually from their unlawful acts,
the herein-mentioned rice will deteriorate and turn into dusts [sic] if not properly
disposed.

14.) That a Warrant of Seizure and detention issued by the Collector of

Custom[s] dated December 9, 1998 be quashed because the defendants act of
seizing and detaining the herein-mentioned sacks of rice are illegal. The
continuing act of detaining the herein-mentioned sacks of rice will lead to the
deterioration of the same. That no public auction sale of the same should be
conducted by the Bureau of Custom[s] or any government agenc[y]. lex

15.) That plaintiffs are ready and willing to file a bond executed to the defendants
in an amount to be fixed by this Honorable Court to the effect that plaintiffs will
pay to the defendants all damages which they may sustain by reason of the
injunction if this Honorable Court should finally decide that the plaintiffs are not
entitled thereto.

PRAYER

WHEREFORE, Premised on the foregoing, it is most respectfully prayed before

this Honorable Court that a restraining order or temporary injunction be
immediately issued prohibiting the defendants from holding plaintiffs abovementioned goods. That it is further prayed that a restraining order or temporary
injunction be issued prohibiting the defendants from barring the unloading and
loading activities of the plaintiffs laborers. Further, the plaintiffs prayed that the
warrant of seizure and detention issued by the Collector of Custom[s] dated
December 9, 1998 be quashed and no public auction sale of the same should be
conducted by any government agency or authority.

It is further prayed that after due hearing, judgment be rendered:

1.) Making the restraining order and/or preliminary injunction permanent.

2.) Ordering the defendants jointly to pay exemplary or corrective damages to the
plaintiff[s] in the amount of One Hundred Thousand Pesos (P100,000.00)

Such other relief which are just and demandable under the circumstances are
also prayed for.

In separate motions, petitioners Bureau of Customs (BOC), Port of Cebu and the
EIIB, as well as the Philippine Navy and Coast Guard, sought the dismissal of the
complaint on the ground that the RTC had no jurisdiction, but their motions were
denied. In its resolution, dated January 11, 1999, the RTC said:

The Warrant of Seizure and Detention issued by the Bureau of Customs cannot
divest this court of jurisdiction since its issuance is without legal basis as it was
anchored merely on suspicion that the items in question were imported or
smuggled. It is very clear that the defendants are bereft of any evidence to prove
that the goods were indeed imported or smuggled, that is why the plaintiffs have
very vigorously protested against the seizure of cargoes by the defendants. In
fact, as revealed by defendants counsel, the Warrant of Seizure and Detention
was issued merely to shift the burden of proof to the shippers or owners of the
goods to prove that the bags of rice were not imported or smuggled. However,
the court feels this is unfair because the settled rule is that he who alleges must
prove the same. Besides, at this time when our economy is not good, it would be
a [dis]service to the nation to use the strong arm of the law to make things hard
or difficult for the businessmen.

The 25,000 bags of rice were ordered returned to respondents upon the posting
by them of an P8,000,000.00 bond.

Petitioners BOC and EIIB moved for a reconsideration, but their motion was
denied by the RTC in its order dated January 25, 1999. In the same order, the
RTC also increased the amount of respondents bond to P22,500,000.00. On
certiorari to the Court of Appeals, the resolution and order of the RTC were
sustained.

Accordingly, on April 26, 1999, upon motion of respondents, the RTC ordered the
sheriff to place in respondents possession the 25,000 bags of rice.

Meanwhile, in the forfeiture proceedings before the Collector of Customs of Cebu

(Cebu Seizure Identification Case No. 17-98), a decision was rendered, the
dispositive portion of which reads:

WHEREFORE, by virtue of the authority vested in me by law, it is hereby ordered

and decreed that the vessel M/V "Alberto"; the 25,000 bags of rice brand
"Snowman"; and the two (2) trucks bearing Plate Nos. GCC 844 and GHZ 388
are all FORFEITED in favor of the government to be disposed of in the manner
prescribed by law while the seven (7) trucks bearing Plate Nos. GFX 557; GFX
247; TPV 726; GBY 874; GVE 989; and GDF 548 are RELEASED in favor of
their respective owners upon proper identification and compliance with pertinent
laws, rules and regulations.
Since this decision involves the release of some of the articles subject matter of
herein case which is considered adverse to the government, the same is hereby
elevated to the Commissioner of Customs for automatic review pursuant to
Republic Act 7651.

The District Collector of Customs found "strong reliable, and convincing

evidence" that the 25,000 bags of rice were smuggled. Said evidence consisted
of certifications by the Philippine Coast Guard, the Philippine Ports Authority, and
the Arrastre Stevedoring Office in Palawan that M/V "Alberto" had never docked
in Palawan since November, 1998; a certification by Officer-in-Charge Elenita
Ganelo of the National Food Authority (NFA) Palawan that her signature in NFA
Grains Permit Control No. 00986, attesting that the 25,000 bags of rice originated
from Palawan, was forged; and the result of the laboratory analysis of a sample
of the subject rice by the International Rice Research Institute (IRRI) stating that
the sample "does not compare with any of our IRRI released varieties."

Respondent Montelibano did not take part in the proceedings before the District
Collector of Customs despite due notice sent to his counsel because he refused
to recognize the validity of the forfeiture proceedings.

On April 30, 1999, petitioners filed the present petition for review on certiorari of
the decision of the Court of Appeals, dated April 15, 1999, upholding the
resolution of the RTC denying petitioners motions to dismiss. They contend that:

I. SINCE THE REGIONAL TRIAL COURT OF CEBU CITY DOES NOT HAVE
JURISDICTION OVER THE SUBJECT MATTER OF THE INSTANT
CONTROVERSY, AND THE BUREAU OF CUSTOMS HAD ALREADY
EXERCISED EXCLUSIVE ORIGINAL JURISDICTION OVER THE SAME, THE
COURT OF APPEALS SERIOUSLY ERRED IN SUSTAINING THE EXERCISE
BY THE TRIAL JUDGE OF JURISDICTION OVER THE CASE BELOW AND IN
AFFIRMING THE TRIAL JUDGES RESOLUTION DATED JANUARY 11, 1999
AND ORDER DATED JANUARY 25, 1999 IN CIVIL CASE NO. CEB-23077.

II. SINCE RESPONDENTS HAVE NOT EXHAUSTED ALL THE

ADMINISTRATIVE REMEDIES PROVIDED FOR BY LAW, THE COURT OF
APPEALS SERIOUSLY ERRED IN UPHOLDING THE TRIAL JUDGES DENIALS
OF PETITIONERS SEPARATE MOTIONS TO DISMISS AND MOTIONS FOR
RECONSIDERATION.

ISSUE: Whether or not the RTC has jurisdiction over the

forfeiture or seizure of goods
NO
Whether or not there is a valid search and seizure
YES

In Jao v. Court of Appeals,[10] this Court, reiterating its ruling in a long line of
cases, said:

There is no question that Regional Trial Courts are devoid of any competence to
pass upon the validity or regularity of seizure and forfeiture proceedings
conducted by the Bureau of Customs and to enjoin or otherwise interfere with
these proceedings. The Collector of Customs sitting in seizure and forfeiture
proceedings has exclusive jurisdiction to hear and determine all questions
touching on the seizure and forfeiture of dutiable goods. The Regional Trial
Courts are precluded from assuming cognizance over such matters even through

petitions of certiorari, prohibition or mandamus.

It is likewise well-settled that the provisions of the Tariff and Customs Code and
that of Republic Act No. 1125, as amended, otherwise known as "An Act Creating
the Court of Tax Appeals," specify the proper fora and procedure for the
ventilation of any legal objections or issues raised concerning these proceedings.
Thus, actions of the Collector of Customs are appealable to the Commissioner of
Customs, whose decision, in turn, is subject to the exclusive appellate jurisdiction
of the Court of Tax Appeals and from there to the Court of Appeals.

The rule that Regional Trial Courts have no review powers over such
proceedings is anchored upon the policy of placing no unnecessary hindrance on
the governments drive, not only to prevent smuggling and other frauds upon
Customs, but more importantly, to render effective and efficient the collection of
import and export duties due the State, which enables the government to carry
out the functions it has been instituted to perform.

Even if the seizure by the Collector of Customs were illegal, which has yet to be
proven, we have said that such act does not deprive the Bureau of Customs of
jurisdiction thereon.

Respondents cite the statement of the Court of Appeals that regular courts still
retain jurisdiction "where, as in this case, for lack of probable cause, there is
serious doubt as to the propriety of placing the articles under Customs
jurisdiction through seizure/forfeiture proceedings." They overlook the fact,
however, that under the law, the question of whether probable cause exists for
the seizure of the subject sacks of rice is not for the Regional Trial Court to
determine. The customs authorities do not have to prove to the satisfaction of the
court that the articles on board a vessel were imported from abroad or are
intended to be shipped abroad before they may exercise the power to effect
customs searches, seizures, or arrests provided by law and continue with the
administrative hearings. As the Court held in Ponce Enrile v. Vinuya:

The governmental agency concerned, the Bureau of Customs, is vested with

exclusive authority. Even if it be assumed that in the exercise of such exclusive

competence a taint of illegality may be correctly imputed, the most that can be
said is that under certain circumstances the grave abuse of discretion conferred
may oust it of such jurisdiction. It does not mean however that correspondingly a
court of first instance is vested with competence when clearly in the light of the
above decisions the law has not seen fit to do so. The proceeding before the
Collector of Customs is not final. An appeal lies to the Commissioner of Customs
and thereafter to the Court of Tax Appeals. It may even reach this Court through
the appropriate petition for review. The proper ventilation of the legal issues
raised is thus indicated. Certainly a court of first instance is not therein included.
It is devoid of jurisdiction.

It is noteworthy that because of the indiscriminate issuance of writs of injunction,

the Supreme Court issued on June 25, 1999 Administrative Circular No. 07-99 to
all judges of lower courts entitled re: exercise of utmost caution, prudence, and
judiciousness in issuance of temporary restraining orders and writs of preliminary
injunction. The circular states in part:

Finally, judges should never forget what the Court categorically declared in Mison
v. Natividad (213 SCRA 734, 742 [1992]) that "[b]y express provision of law,
amply supported by well-settled jurisprudence, the Collector of Customs has
exclusive jurisdiction over seizure and forfeiture proceedings, and regular courts
cannot interfere with his exercise thereof or stifle or put it to naught."

The Office of the Court Administrator shall see to it that this circular is
immediately disseminated and shall monitor implementation thereof.

STRICT OBSERVANCE AND COMPLIANCE of this Circular is hereby enjoined.

WHEREFORE, the temporary restraining order issued on May 17, 1999 is

hereby made permanent. The decision, dated April 15, 1999, of the Court of
Appeals is REVERSED and Civil Case No. CEB-23077 in the Regional Trial
Court, Branch 5, Cebu City is DISMISSED.

SO ORDERED.

FELICISIMO RIETA,
- versus - Sandoval-Gutierrez,*
PEOPLE OF THE PHILIPPINES,

Corpus delicti refers to the fact of the commission of the crime. It may be proven
by the credible testimonies of witnesses, not necessarily by physical evidence.
In-court identification of the offender is not essential, as long as the identity of the
accused is determined with certainty by relevant evidence. In the present case,
______________________
* On leave.
there is no doubt that petitioner was the same person apprehended by the
authorities and mentioned in the Information. His possession of the smuggled
cigarettes carried the prima facie presumption that he was engaged in
smuggling. Having failed to rebut this presumption, he may thus be convicted of
the crime charged.

The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to
set aside the December 22, 2000 Decision of the Court of Appeals (CA) in CAGR CR No. 17338. The CA affirmed with modification the February 18, 1994
Consolidated Judgment of the Regional Trial Court (RTC) of Manila (Branch 46)
in Criminal Case Nos. CCC-VI-137(79) and CCC-VI-138(79), finding Felicisimo
Rieta guilty of smuggling. The assailed CA Decision disposed as follows:

WHEREFORE, the assailed Decision is hereby MODIFIED as follows:

(a) The Court AFFIRMS the decision of the trial court finding Felicisimo Rieta,
Arturo Rimorin, Pacifico Teruel and Carmelo Manaois GUILTY BEYOND
REASONABLE DOUBT of the crime charged.

(b) Appellants Ernesto Miaco, Guillermo Ferrer, Fidel Balita, Robartolo Alincastre
and Ernesto de Castro are ACQUITTED as recommended by the Solicitor
General.

Reconsideration was denied in the April 16, 2001 CA Resolution,which petitioner

also assails.
Petitioner and his six co-accused -- Arturo Rimorin, Fidel Balita, Gonzalo Vargas,
Robartolo Alincastre, Guillermo Ferrer and Ernesto Miaco -- were charged in an
Information, which reads:

That on or about October 15, 1979, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and helping one another, with
the evident intent to defraud the government of the Republic of the Philippines of
the legitimate duties accruing to it from merchandise imported into this country,
did then and there [willfully], unlawfully [and] fraudulently import or bring into the
Philippines or assist in so doing contrary to law, three hundred five (305) cases of
assorted brands of blue seal cigarettes which are foreign articles valued at
P513,663.47 including duties and taxes, and/or buy, sell, transport or assist and
facilitate the buying, selling and transporting of the above-named foreign articles
after importation knowing the same to have been imported contrary to law which
was found in the possession of said accused and under their control which
articles said accused fully well knew have not been properly declared and that
the duties and specific taxes thereon have not been paid to the proper authorities
in violation of said Sec. 3601 of the Tariff and Customs Code of the Philippines,
as amended by Presidential Decree No. 34, in relation to Sec. 3602 of said Code
and Sec. 184 of the National Internal Revenue Code.[7]

The Facts
Version of the Prosecution (Respondent)
The Office of the Solicitor General (OSG) presents the prosecutions version of
the facts as follows:
On October 12, 1979, Col. Panfilo Lacson, the Chief of the Police Intelligence

Branch of the Metrocom Intelligence and Security Group (MISG for brevity),
received information that certain syndicated groups were engaged in smuggling
activities somewhere in Port Area, Manila. It was further revealed that the
activities [were being] done at nighttime and the smuggled goods in a delivery
panel and delivery truck [were] being escorted by some police and military
personnel. He fielded three surveillance stake-out teams the following night along
Roxas Boulevard and Bonifacio Drive near Del Pan Bridge, whereby they were to
watch out for a cargo truck with Plate No. T-SY-167 bound for Malabon. Nothing
came out of it. On the basis of his investigation,it was discovered that the truck
was registered in the name of Teresita Estacio of Pasay City.

At around 9:00 oclock in the evening of October 14, 1979, Col. Lacson and his
men returned to the same area, with Col. Lacson posting himself at the
immediate vicinity of the 2nd COSAC Detachment in Port Area, Manila, because
as per information given to him, the said cargo truck will come out from the
premises of the 2nd COSAC Detachment. COSAC stands for Constabulary OffShore Anti-Crime Battalion. The night watch lasted till the wee hours of the
following morning. About 3:00 a.m. an Isuzu panel came out from the place of the
2nd COSAC Detachment. It returned before 4:00 a.m. of [the] same day.

At around 5 minutes before 4:00 oclock that morning, a green cargo truck with
Plate No. T-SY-167 came out from the 2nd COSAC Detachment followed and
escorted closely by a light brown Toyota Corona car with Plate No. GR-433 and
with 4 men on board. At that time, Lt. Col. Panfilo Lacson had no information
whatsoever about the car, so he gave an order by radio to his men to intercept
only the cargo truck. The cargo truck was intercepted. Col. Lacson noticed that
the Toyota car following the cargo truck suddenly made a sharp U-turn towards
the North, unlike the cargo truck [that] was going south. Almost by impulse, Col.
Lacsons car also made a U-turn and gave chase to the speeding Toyota car,
which was running between 100 KPH to 120 KPH. Col. Lacson sounded his
siren. The chase lasted for less than 5 minutes until said car made a stop along
Bonifacio Drive, at the foot of Del Pan Bridge. Col. Lacson and his men searched
the car and they found several firearms, particularly: three (3) .45 cal. Pistols and
one (1) armalite M-16 rifle. He also discovered that T/Sgt. Ernesto Miaco was the
driver of the Toyota car, and his companions inside the car were Sgt. Guillermo
Ferrer, Sgt. Fidel Balita and Sgt. Robartolo Alincastre,all belonging to the 2nd
COSAC Detachment. They were found not to be equipped with mission orders.

When the cargo truck with Plate No. T-SY-167 was searched, 305 cases of blue
seal or untaxed cigarettes were found inside. The cargo truck driver known only
as Boy was able to escape while the other passengers or riders of said truck
were apprehended, namely: Police Sgt. Arturo Rimorin of Pasay City Police
Force, Pat. Felicisimo Rieta of Kawit Police Force, and Gonzalo Vargas, a
civilian.
xxxxxxxxx
Lacsons men hauled the intercepted vehicles, the arrested men and confiscated
goods to Camp Crame, Quezon City. All the 371 cases (305 + 66) of blue seal
cigarettes were turned over to the Bureau of Customs. Sgt. Bienvenido Balaba
executed an Affidavit of Arrest together with Arnel Acuba. The Booking and
Information Sheet of Ernesto de Castro showed that he was arrested by the
MISG after delivering assorted blue seal cigarettes at 185 Sanciangco St.,
Tonsuya, Malabon.

Version of the Defense (Petitioner)

Petitioner, on the other hand, denied any knowledge of the alleged smuggling of
the blue-seal cigarettes. He sets forth his version of the facts as follows:
Petitioner Rieta testified that he was a policeman assigned at Kawit Cavite. In the
early morning of October 15, 1979, he was in Manila together with Boy. He met
Boy in 1978 when the latter figured in a vehicular accident in Kawit, Cavite. After
a week, Boy visited him at the Kawit Police Station and thereafter, met him four
to five times. He learned that Boy was a businessman hauling slippers, fish and
vegetables from Divisoria. For several times, he had accompanied Boy on his
business trips when [the latter] hauled fish, vegetables and slippers from
Divisoria to Cavite. He was requested by Boy to accompany him on his various
trips because there were times when policemen on patrol were demanding
money from the latter. At other times, other policemen accompanied Boy aside
from him, on his trips.

In the early morning of October 15, 1979 he met Boy in front of the Kawit Town
Hall. He learned that Boy will haul household appliances from Divisoria. They
boarded a jeep driven by Boy and they proceeded to Cartimar, Pasay City. At
Cartimar, Boy left him at a gasoline station, and told him to standby because Boy

will get the cargo truck they will use. When Boy returned, he had companions,
who were introduced to him as Gonzalo Vargas and Sgt. Rimorin, the petitioners
co-accused in Criminal Case No. CC-VI-138 (79). From Cartimar, the four (4) of
them proceeded to Divisoria and they passed under the Del Pan Bridge. While
passing therein, he told Boy that he was hungry, so that when they passed by a
small restaurant, he alighted and Sgt. Rimorin followed. Boy told them that he
and Gonzalo will proceed to the Port Area and will be back. After thirty to forty
five minutes, Boy and Gonzalo returned, and he and Sgt. Rimorin boarded the
truck and proceeded to Roxas Boulevard. While they were along Roxas
Boulevard near the Daily Express Building, two (2) vehicles intercepted them and
ordered them to pull-over. The passengers of the said vehicles introduced
themselves as Metrocom soldiers, and ordered them to alight and to raise their
hands while poking guns at them. They were ordered to l[ie down] flat on their
belly on the pavement and were bodily frisked and searched. The Metrocom
soldiers did not find anything from their bodies. Thereafter, they (Rieta, Rimorin
and Gonzalo) were ordered by the Metrocom soldiers to transfer to a jeep. While
they were aboard the jeep, he overheard from the Metrocom soldiers that their
driver was able to escape. Likewise, they were also informed by the Metrocom
soldiers that the cargo truck was loaded with blue seal cigarettes. The cargo
truck was not opened in their presence, nor were the contents thereof shown to
them upon their apprehension. From the time he boarded the cargo truck in
Cartimar until he and Sgt. Rimorin alighted to take their snacks, up to the time
they were apprehended by the Metrocom soldiers, he had not seen a pack of
blue cigarette in the cargo truck. He did not notice whether the Metrocom soldiers
opened the cargo truck. At Camp Crame, he was investigated without the benefit
of counsel, but, nonetheless, he executed and signed a statement because as far
as he was concerned he has done nothing wrong. He was detained at Bicutan for
more than a year.

In the early morning of October 15, 1979 he was not carrying any firearm
because he has no mission order to do so, and besides Manila was not his
jurisdiction. He was suspended from the service, but was reinstated in January
1981. After he was released from Bicutan, he looked for Boy so that he could
clear the matter, but he [did not find] Boy anymore.

In corroboration with the testimony of petitioner Rieta, accused Rimorin, a

policeman assigned at Pasay City, testified that the first time he met Boy was in
1978 in the wake and internment of the Late Police Officer Ricardo Escobal.

Thereafter, Boy dropped by on several occasions at the Pasay Police Station to

request for assistance. Prior to October 15, 1979, Boy again dropped by at the
police station and asked him if he had an appointment on the next day. He told
Boy that he had no appointment, and the latter requested to accompany him to
Sta. Maria, Bulacan to get some rice. Prior thereto, in one of their casual
conversations, he learned that Boy was a businessman engaged in hauling
various merchandise. He agreed to the request of Boy to accompany him to Sta.
Maria, Bulacan. At Sta. Maria, Bulacan, they proceeded to a warehouse
containing bags of rice, and they hauled several bags into a truck, and thereafter,
proceed[ed] to Quezon City. As compensation Boy gave him a sack of rice. The
said transaction was followed by another on October 15, 1979. In the afternoon
of October 14, 1979, Boy again dropped by at the police station and requested
him to accompany him to haul household fixtures. They usually haul vegetables
and rice early in the morning to avoid the traffic and that was the reason why they
met in the early morning of October 15, 1979. He told [Boy] that he will see if he
will have [the] time, but just the same they made arrangements that they will see
each other at Cartimar, Pasay City not later than 2:30 a.m. in the early morning of
October 15, 1979. At the appointed time and place, he met Boy with a
companion, who was introduced to him as Gonzalo Vargas, his co-accused in the
instant case. Thereafter, they proceeded to a gasoline station nearby. At the
gasoline station, at the corner of Taylo and Taft Avenue, near Cartimar, they
picked up another person who was later on introduced to him as Felicisimo Rieta.
Then the four of them (Boy, Gonzalo, Rieta and Rimorin) boarded the cargo truck
and they proceeded to Divisoria. It was Boy who drove the cargo truck, while
petitioner was seated next to Boy while accused Rimorin and Gonzalo to his
right. While enroute to Divisoria, along Roxas Boulevard before reaching Del Pan
Bridge, Boy turned right under the bridge. He commented that it was not the
route to Divisoria, and Boy answered meron lang ikakarga dito. On the other
hand, Rieta told Boy that he was hungry, and thus, Boy pulled-over at a
carinderia at Del Pan Bridge near Delgado Bros. When Rieta alighted he
followed, while Boy and Gonzalo proceeded. After less than an hour, Boy and
Gonzalo returned. They then proceeded towards Roxas Boulevard, Bonifacio
Drive, and Boy drove straight at the corner of Aduana to Roxas Boulevard. When
he noticed that the truck was not bound for Divisoria as earlier informed, he
asked Boy why they were not taking the route going to Divisoria. Boy replied
bukas na lang wala ng espasyo. Immediately, they were intercepted by two
vehicles and one of the occupants thereof ordered the driver to pull over. The
driver pulled over, and they were ordered to raise their hands and to lay flat on
their belly on the pavement right in front of the truck, and they were bodily frisked
but they found nothing. He asked the Metrocom soldiers what was it all about,
but the Metrocom soldiers were shouting asan ang blue seal. Then they were

ordered to board a jeep owned by the Metrocom soldiers, and they were brought
to Camp Crame. Before they left the area, he did not see the Metrocom soldiers
open the cargo truck. He was brought to the MISG at Camp Crame. When they
arrived at Camp Crame, the soldiers thereat were clapping their hands, thus he
asked ano ba talaga ito and he got an answer from Barrameda, yun ang dahilan
kung bakit ka makukulong, pointing to a truck. When he saw the truck, it was not
the same truck they boarded in the early morning of October 15, 1979. The truck
they boarded was galvanized iron pale sheet covered with canvass while the one
at Camp Crame was color red and not covered. He entertained the idea that they
were being framed-up. Two days after, he was interrogated and the alleged blue
seal cigarettes were shown to him, and he was informed by the investigator that
the same blue seal cigarettes were the contents of the cargo truck. When the
alleged blue seal cigarettes were taken out of the cargo truck, he was not asked
to be present. He asked for the whereabouts of Boy, but he was informed that the
latter escaped. The more he believed that there was something fishy or wrong in
their apprehension. It was very [conspicuous] that the driver was able to escape
because at the time they were apprehended they were the only people at
Bonifacio Drive, and thus the possibility of escape was very remote, considering
that they were unarmed and the Metrocom soldiers were all fully armed. In both
cases at bar, there were about three Pasay policemen who were apprehended.
He was detained at Camp Bagong Diwa for more than a year. He knew nothing
about the charge against him. When he was at Camp Crame he tried getting in
touch with a lawyer and his family, but the MISG did not let him use the
telephone.

Ruling of the Court of Appeals

Affirming the RTC, the CA noted that while petitioner and his co-accused had
mainly raised questions of fact, they had nonetheless failed to point out specific
errors committed by the trial court in upholding the credibility of the prosecutions
witnesses. The defense of denial proffered by petitioner was considered weak
and incapable of overturning the overwhelming testimonial and documentary
evidence of respondent. Further, the appellate court ruled that the nonpresentation in court of the seized blue-seal cigarettes was not fatal to
respondents cause, since the crime had sufficiently been established by other
competent evidence.

The CA rejected the belated claim of petitioner that his arrest was irregular. It

ruled that the alleged defect could not be raised for the first time on appeal,
especially in the light of his voluntary submission to and participation in the
proceedings before the trial court.

The appellate court, however, found no sufficient evidence against the other coaccused who, unlike petitioner, had not been found to be in possession of blueseal cigarettes.

Hence, this Petition.

Issues:
In his Memorandum, petitioner submits the following issues for the Courts
consideration:

1. The respondents trial and appellate courts committed grave abuse of

discretion tantamount to lack and/or excess of jurisdiction when [they] convicted
herein petitioner notwithstanding the prosecutions failure to prove the guilt of the
petitioner beyond reasonable doubt.
2. The evidence obtained against the accused is inadmissible in evidence
because petitioner and his co-accused were arrested without a warrant but by
virtue of an arrest and seizure order (ASSO) which was subsequently declared
illegal and invalid by this Honorable Supreme Court.

ISSUE: Whether or not

The Courts Ruling
The Petition has no merit.

First Issue:
Sufficiency of Evidence

Petitioner contends that the existence of the untaxed blue seal cigarettes was not
established, because the prosecution had not presented them as evidence. He
further argues that there was no crime committed, as the corpus delicti was
never proven during the trial.

Corpus Delicti Established by Other Evidence

We do not agree. Corpus delicti refers to the specific injury or loss sustained. It is
the fact of the commission of the crime that may be proved by the testimony of
eyewitnesses. In its legal sense, corpus delicti does not necessarily refer to the
body of the person murdered, to the firearms in the crime of homicide with the
use of unlicensed firearms, to the ransom money in the crime of kidnapping for
ransom, or -- in the present case -- to the seized contraband cigarettes.

In Rimorin v. People,[20] the petitioner therein similarly equated the actual

physical evidence -- 305 cases of blue-seal cigarettes -- with the corpus delicti.
The appellate court allegedly erred in not acquitting him on reasonable doubt
arising from the non-presentation in court of the confiscated contraband
cigarettes. Holding that corpus delicti could be established by circumstantial
evidence, the Court debunked his argument thus:

Since the corpus delicti is the fact of the commission of the crime, this Court has
ruled that even a single witness uncorroborated testimony, if credible, may suffice
to prove it and warrant a conviction therefor. Corpus delicti may even be
established by circumstantial evidence.

Both the RTC and the CA ruled that the corpus delicti had been competently
established by respondents evidence, which consisted of the testimonies of
credible witnesses and the Custody Receipt issued by the Bureau of Customs for
the confiscated goods.

Col. Panfilo Lacsons testimony on the apprehension of petitioner and on the

seizure of the blue seal cigarettes was clear and straightforward. He categorically
testified as follows:

Q Let us go back to the truck after you apprehended the COSAC soldiers on
board the [C]orona car, what did you do thereafter?
A We took them to the place where the cargo truck was intercepted, Sir.

Q What did you notice thereat?

A Inside the truck were hundreds of cases of blue seal cigarettes, and I also
found out that my men were able to apprehend the occupants of the cargo truck
although they reported to me that the driver managed to make good escape, Sir.

Q Now you stated that a search was made on the truck and you found how many
cases of blue seal cigarettes?
A Three hundred five (305) cases, Sir.

Q Blue seal cigarettes?

A Yes, Sir.

Q What do you mean by blue seal cigarettes?

A Blue seal cigarettes are untaxed cigarettes, Sir.

Q Did you find out how many were there on board the truck which was
intercepted by your men per your order?
A Yes, Sir, [there] were three.

Q Who?
A They were P/Sgt. Arturo Rimorin, Sr.

Q P/Sgt. Of what department?

A Of Pasay City Police Force, Sir, and Pat. Felicisimo Rieta.

Q Of that police department?

A Of Kawit, Cavite Police Force, and Gonzalo Vargas, Sir.

Q Who is this Gonzalo Vargas?

A Civilian Sir.

xxxxxxxxx

Fiscal Macaraeg:
I am showing to you a Custody Receipt dated October 15, 1979, which states:
Received from Lt. Col. Rolando N. Abadilla, AC of S, M2/CC, MISG. PC
METROCOM

(Thru S/Sgt. Rodolfo Bucao, PC) THREE HUNDRED SEVENTY ONE (371)
cases of assorted brands of Blue Seal Cigarettes, which were intercepted and
confiscated by elements of the MISG, PC METROCOM on or about 0400 15
October 79 along Bonifacio Drive, Manila, which for [purposes] of identification
we respectfully request that it be marked [on] evidence as Exhibit A.

COURT:
Mark it Exhibit A.

Fiscal Macaraeg:

Q Will you please do examine Exhibit A and tell us whether this is the same
receipt?
A This is the same receipt, Sir.

Q By the way, were photographs taken of the car as well as the vehicle involved
in this case, together with the blue seal cigarettes that were confiscated?
A Yes, Sir.

Q Do you have copies of these photographs?

A The copies are with our evidence custodian, Sir.

Q Can you bring those pictures if required next time?

A Yes, Sir.

So, too, did Gregorio Abrigo customs warehouse storekeeper of the Bureau
categorically testify that the MISG had turned over to him the seized blue seal
cigarettes, for which he issued a Custody Receipt dated October 15, 1979.

We find no reason to depart from the oft repeated doctrine of giving credence to
the narration of prosecution witnesses, especially when they are public officers
who are presumed to have performed their duties in a regular manner.

Petitioner argues that the receipt issued by Abrigo, a customs official, was beset
with doubt because: 1) it did not state specifically that the blue-seal cigarettes
identified therein had been confiscated from petitioner and turned over to Abrigo
by Colonel Lacson and/or his men; and 2) it mentioned 371 (instead of 305)
cases of confiscated blue-seal cigarettes.

We note, however, that Colonel Lacson himself identified the Custody Receipt as
the same one issued for the 305 cases of cigarettes found in the cargo truck, in
which petitioner and his co-accused rode, and from which the 66 cases of
cigarettes -- subject of Criminal Case No. CCC-VI-138(79) -- were confiscated in
Malabon, Metro Manila.This fact (305 plus 66) explains why 371 cases were
indicated therein. At any rate, petitioner argues on minor discrepancies that do
not affect the integrity of the Receipt, issued in due course by a customs official
who was duty-bound to put the seized contraband cigarettes in safekeeping.

The existence of the 305 cases of blue-seal cigarettes found in the possession of
petitioner and his co-accused was duly proven by the testimonies of the
prosecution witnesses -- Lacson and Abrigo. They had testified in compliance
with their duty as enforcers of the law. Their testimonies were rightly entitled to
full faith and credit, especially because there was no showing of any improper
motive on their part to testify falsely against petitioner. Further, the Court accords
great respect to the factual conclusions drawn by the trial court, especially when
affirmed by the appellate court as in this case.

Absurd is the claim of petitioner that, because Colonel Lacson was not the officer
who had actually intercepted the cargo truck in which the former rode, the latters
testimony was therefore hearsay. The testimony of the colonel on his
participation in the apprehension of the truck sufficiently rebutted this contention.

Lacson testified that he had personally received information regarding the

smuggling activities being conducted by a syndicated group in that place. He was
also informed that smuggled items would be transported from the 2nd COSAC
Detachment in the Port Area to Malabon by a cargo truck with Plate No. T-SY167. During the stakeout surveillance on the night of October 14, 1979, he saw -from his post within the vicinity of the 2nd COSAC Detachment -- the identified
cargo truck coming out of the Port Area. While trailing behind, he radioed his men
posted along Roxas Boulevard to stop the truck. Later in court, he described how
his men had actually intercepted it.

Petitioner insists that Colonel Lacson, who had given chase to a Toyota car and
was not among the officers who had intercepted the truck, could not have seen

him as one of the passengers of the latter vehicle. Notably, however, the chase of
the Toyota car had lasted no more than 5 minutes, and the colonels team
immediately returned to the subject truck after the chase. Lacson, however,
categorically said that he had seen 305 cases of blue-seal cigarettes inside the
cargo vehicle, and that petitioner was one of its passengers.

It should be borne in mind that Colonel Lacson -- as head of that particular

surveillance operation -- had full knowledge, control and supervision of the whole
process. He had organized the surveillance teams and given orders to his men
prior to the apprehension of the vehicles suspected of carrying smuggled items.
Furthermore, he was present during the surveillance operations until the
apprehension of the cargo truck. Thus, he was clearly competent to testify on the
matter.

The denial by petitioner that he was among the occupants of the truck is highly
self-serving and riddled with inconsistencies. He had been directly identified as
one of its passengers. Besides, he himself admitted that he had been on board
the vehicle when it was intercepted, and that there were no other person in the
area.

Courtroom Identification Unnecessary

Next, petitioner belabors the failure of the prosecution to ask Colonel Lacson to
identify him in open court. However, the colonels positive and categorical
testimony pointing to him as one of the passengers of the cargo truck, as well as
petitioners own admission of his presence therein, dispelled the need for a
courtroom identification. In People v. Quezada, the Court said:

x x x. While positive identification by a witness is required by the law to convict

an accused, it need not always be by means of a physical courtroom
identification. As the Court held in People v. Paglinawan:

x x x. Although it is routine procedure for witnesses to point out the accused in

open court by way of identification, the fact that the witness x x x did not do so in
this case was because the public prosecutor failed to ask her to point out
appellant, hence such omission does not in any way affect or diminish the truth
or weight of her testimony.

In-court identification of the offender is essential only when there is a question or

doubt on whether the one alleged to have committed the crime is the same
person who is charged in the information and subject of the trial.

In the present case, there is no doubt that petitioner was a passenger of the
truck, that he was apprehended by the authorities, and that he was the same
individual charged under the Information in Criminal Case No. CCC-VI-137(79).

Prima Facie Proof of Nonpayment of Taxes Sufficient

There is no merit, either, in the claim of petitioner that the prosecution failed to
prove the nonpayment of the taxes and duties on the confiscated cigarettes.
There is an exception to the general rule requiring the prosecution to prove a
criminal charge predicated on a negative allegation, or a negative averment
constituting an essential element of a crime. In People v. Julian-Fernandez, we
held:

Where the negative of an issue does not permit of direct proof, or where the facts
are more immediately within the knowledge of the accused, the onus probandi
rests upon him. Stated otherwise, it is not incumbent upon the prosecution to
adduce positive evidence to support a negative averment the truth of which is
fairly indicated by established circumstances and which, if untrue, could readily
be disproved by the production of documents or other evidence within the
defendants knowledge or control. For example, where a charge is made that a
defendant carried on a certain business without a license x x x, the fact that he
has a license is a matter which is peculiar[ly] within his knowledge and he must
establish that fact or suffer conviction.

The truth of the negative averment that the duties and specific taxes on the
cigarettes were not paid to the proper authorities is fairly indicated by the

following circumstances that have been established: (1) the cargo truck, which
carried the contraband cigarettes and some passengers including petitioner,
immediately came from the 2nd COSAC Detachment; (2) the truck was
intercepted at the unholy hour of 4:00 a.m.; (3) it fitted the undisclosed informers
earlier description of it as one that was carrying contraband; and (4) the driver
ran away. Hence, it was up to petitioner to disprove these damning
circumstances, simply by presenting the receipts showing payment of the taxes.
But he did not do so; all that he could offer was his bare and self-serving denial.

Knowledge of the Illegal Nature of Goods

The fact that 305 cases of blue-seal cigarettes were found in the cargo truck, in
which petitioner and his co-accused were riding, was properly established.
Nonetheless, he insists that his presence there was not enough to convict him of
smuggling, because the element of illegal possession had not been duly proved.
He adds that he had no knowledge that untaxed cigarettes were in the truck.

Petitioners contention is untenable. Persons found to be in possession of

smuggled items are presumed to be engaged in smuggling, pursuant to the
last paragraph of Section 3601 of the Tariff and Customs Code.The burden
of proof is thus shifted to them. To rebut this presumption, it is not enough for
petitioner to claim good faith and lack of knowledge of the unlawful source of the
cigarettes. He should have presented evidence to support his claim and to
convince the court of his non-complicity.

In the case adverted to earlier, Rimorin v. People, we held thus:

In his discussion of a similarly worded provision of Republic Act No. 455, a

criminal law authority explained thus:
In order that a person may be deemed guilty of smuggling or illegal importation
under the foregoing statute three requisites must concur: (1) that the
merchandise must have been fraudulently or knowingly imported contrary to law;
(2) that the defendant, if he is not the importer himself, must have received,
concealed, bought, sold or in any manner facilitated the transportation,
concealment or sale of the merchandise; and (3) that the defendant must be

shown to have knowledge that the merchandise had been illegally imported. If
the defendant, however, is shown to have had possession of the illegally
imported merchandise, without satisfactory explanation, such possession shall
be deemed sufficient to authorize conviction.[30] (Emphasis supplied)
In the present case, the explanation given by petitioner was found to be
unacceptable and incredible by both the RTC and the CA, which said:
Now on the explanations of Police Sgt. Rimorin of Pasay City Police Force and
Pat. Rieta of Kawit Police Force, riders in the loaded cargo truck driven by Boy.
Their claim that they did not have any knowledge about the cargo of blue seal
cigarettes is not given credence by the court. They tried to show lack of
knowledge by claiming that along the way, Boy and Gonzalo Vargas left them
behind at a certain point for snacks and picked them up later after the cargo had
been loaded. The Court cannot see its way through how two policemen, joining
Boy in the dead of the night, explicitly to give him and his goods some protection,
which service would be paid, yet would not know what they are out to protect.
And neither could the Court see reason in Boys leaving them behind when he
was going to pick up and load the blue seal cigarettes. Boy knew the risks. He
wanted them for protection, so why will he discard them? How so unnatural and
so contrary to reason.
Being contrary to human experience, his version of the facts is too pat and
stereotyped to be accepted at face value. Evidence, to be believed, not only must
proceed from the mouth of a credible witness; it must also be credible in itself, as
when it conforms to common experience and observation of humankind.

The absence of any suspicious reaction on the part of petitioner was not in
accordance with human nature. The involvement or participation he and his coaccused had in the smuggling of the goods was confirmed by their lack of proper
and reasonable justification for the fact that they had been found inside the cargo
truck, seated in front, when it was intercepted by the authorities. Despite his
protestation, it is obvious that petitioner was aware of the strange nature of the
transaction, and that he was willing to do his part in furtherance thereof. The
evidence presented by the prosecution established his work of guarding and
escorting the contraband to facilitate its transportation from the Port Area to
Malabon, an act punishable under Section 3601 of the Tax Code.

ISSUE: WHETHER OR NOT THE SEARCH AND SEIZURE VALID

YES
Petitioner contends that his arrest by virtue of Arrest Search and Seizure Order
(ASSO) No. 4754 was invalid, as the law upon which it was predicated -- General
Order No. 60, issued by then President Ferdinand E. Marcos -- was
subsequently declared by the Court, in Taada v. Tuvera,[33] to have no force and
effect. Thus, he asserts, any evidence obtained pursuant thereto is inadmissible
in evidence.
We do not agree. In Taada, the Court addressed the possible effects of its
declaration of the invalidity of various presidential issuances. Discussing therein
how such a declaration might affect acts done on a presumption of their validity,
the Court said:

x x x. In similar situations in the past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage District vs. Baxter Bank to
wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence affording no basis for the
challenged decree. x x x It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to [the determination of its
invalidity], is an operative fact and may have consequences which cannot justly
be ignored. The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be considered in
various aspects with respect to particular conduct, private and official. Questions
of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of
the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have
engaged the attention of courts, state and federal, and it is manifest from
numerous decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.

xxxxxxxxx

Similarly, the implementation/enforcement of presidential decrees prior to their

publication in the Official Gazette is an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be erased
by a new judicial declaration x x x that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

The Chicot doctrine cited in Taada advocates that, prior to the nullification of a
statute, there is an imperative necessity of taking into account its actual
existence as an operative fact negating the acceptance of a principle of absolute
retroactive invalidity. Whatever was done while the legislative or the executive act
was in operation should be duly recognized and presumed to be valid in all
respects.[35] The ASSO that was issued in 1979 under General Order No. 60 -long before our Decision in Taada and the arrest of petitioner -- is an operative
fact that can no longer be disturbed or simply ignored.

Furthermore, the search and seizure of goods, suspected to have been

introduced into the country in violation of customs laws, is one of the seven
doctrinally accepted exceptions to the constitutional provision. Such provision
mandates that no search or seizure shall be made except by virtue of a warrant
issued by a judge who has personally determined the existence of probable
cause.

Under the Tariff and Customs Code, a search, seizure and arrest may be made
even without a warrant for purposes of enforcing customs and tariff laws. Without
mention of the need to priorly obtain a judicial warrant, the Code specifically
allows police authorities to enter, pass through or search any land, enclosure,
warehouse, store or building that is not a dwelling house; and also to inspect,
search and examine any vessel or aircraft and any trunk, package, box or
envelope or any person on board; or to stop and search and examine any
vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law.[38]

WHEREFORE, the Petition is DENIED, and the assailed Decision AFFIRMED.

Costs against petitioner.

SO ORDERED.

TOMAS SALVADOR, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
At bar is the petition for review on certiorari filed by Tomas Salvador assailing the
Decision dated August 9, 2000 and Resolution dated January 9, 2001 of the
Court of Appeals in CA-G. R. CR No. 20186.

On the wee hours of June 4, 1994, Aurelio Mandin, Danilo Santos and petitioner
Tomas Salvador, then aircraft mechanics employed by the Philippine Air Lines
(PAL) and assigned at the Ninoy Aquino International Airport (NAIA) and Manila
Domestic Airport, were nabbed by intelligence operatives of the Philippine Air
Force (PAF) for possessing thirteen (13) packets containing assorted smuggled
watches and jewelries valued at more than half a million pesos.

Consequently, they were charged before the Regional Trial Court (RTC), Branch
117, Pasay City with violation of Section 3601 of the Tariff and Customs Code,
docketed as Criminal Case No. 94-5843. The Information reads:

That on or about the 4th day of June 1994 at the NAIA/Domestic Airport vicinity,
Pasay City and within the jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and mutually helping one another, did then
and there, willfully, unlawfully, and felonious assist in the concealment and
unlawful importation of the following items:

198 pieces of means watches P187,110.00

76 pieces of mens diving watches 8,640.00

32 pieces of ladies watches 11,600.00
1600 grams of assorted jewelry. 322,000.00
with a total market value of P537,500.00 FIVE HUNDRED THIRTY-SEVEN
THOUSAND THREEE HUNDRED FIFTY PESOS, more or less, Philippine
Currency, without authority or permit from proper authorities.

CONTRARY TO LAW.

When arraigned, all the accused, duly assisted by counsel, pleaded not guilty to
the charge. Trial on the merits then ensued.

The prosecution established the following facts:

On June 3, 1994, a Special Mission Group from the PAF Special Operations
Squadron, headed by Major Gerardo B. Pagcaliuangan and composed of Sgts.
Rodolfo A. Teves, Geronimo G. Escarola, Virgilio M. Sindac and Edwin B. Ople,
conducted routine surveillance operations at the Manila Domestic Airport to
check on reports of alleged drug trafficking and smuggling being facilitated by
certain PAL personnel.

Major Pagcaliuangan then ordered Sgts. Teves and Ople to keep close watch on
the second airplane parked inside the Domestic Airport terminal. This aircraft is
an Airbus 300 with tail number RPC-3001. It arrived at the NAIA at 10:25 in the
evening of June 3, 1994 from Hong Kong as Flight No. PR-311. After its
passengers disembarked and its cargo unloaded, it was towed by the PAL
ground crew and parked at the ramp area of the Domestic Airport terminal.

At around 11:30 that same evening, Sgt. Teves reported over his radio that three
(3) persons had boarded the Airbus 300. The team did not move, but continued
its surveillance.

At 12:15 a.m. the following day (June 4), Sgt. Teves reported that the three (3)
persons who earlier boarded the Airbus 300 had disembarked with their
abdominal areas bulging. They then boarded an airplane tow truck with its lights
off.

The PAF surveillance team promptly boarded their vehicles and followed the
aircraft tow truck. At the Lima Gate of the Domestic Airport, the team blocked and
stopped the tow truck. Sgt. Teves then got off, identified himself and asked the
four (4) persons on board to alight. They were later identified as Tomas Salvador,
petitioner, Aurelio Mandin, Danilo Santos and Napoleon Clamor, the driver of the
tow truck.

Sgt. Teves approached Aurelio Mandin. He noticed that Mandins uniform was
partly open, showing a girdle. While Sgt. Teves was reaching for the girdle, a
package wrapped in brown packaging tape fell. Suspecting that the package
contained smuggled items, Sgt. Teves yelled to his teammates, Positive!
Thereupon, the rest of the team surrounded petitioner and his two co-accused
who surrendered without a fight. The team searched their bodies and found that
the three were wearing girdles beneath their uniforms, all containing packets
wrapped in packaging tape. Mandin yielded five (5) packets, while petitioner and
Santos had four (4) each. The team confiscated the packets and brought all the
accused to the PAFSECOM Office.

At around 8:00 oclock the following morning, Emilen Balatbat, an examiner of the
Bureau of Customs, arrived at the PAFSECOM Office. She opened one of the
packets and on seeing that it contained dutiable goods, she proceeded to weigh
the thirteen (13) packets seized from the accused. She then prepared an
inventory of the items seized and listed the weight of the packets.Thereafter, she
brought the seized packets to the In-Board Section, Bureau of Customs, Airport
Office where their contents were identified and appraised. The Bureau of
Customs found 248 pieces of assorted watches and fourteen karat (14K) gold
jewelries valued as follows:

QTY.

UNIT
DESCRIPTION
APPRAISED VALUE
10
pcs.
Half-bangles with Charms Tricolors
122.8 gms.
6pcs.
Bracelet with Charms Tricolors
52.4 gms.
8
pcs.
Bracelet (Tricolor)
64.2 gms.
5
pcs.
Bangles (3 pcs./set) Tricolor
155.3 gms.
Babys Bangles with charm
18.2 gms.
L-Bangles with charm
68.5 gms.
L-Bangles
112.3 gms.
L-Creolla Earrings

901.56 gms.
TOTAL GRAMS
1,495 x P200.00/gm.
+P 299,052.00
Assorted Watches
204pcs.
Citizen M watches with black dial with gold metal bracelet (-1) x $25
$2,600.00
24
pcs.
Seiko 5 Ladies watches with blue dial with white metal bracelet (-1) x $25
600.00
16
pcs.
Seiko Divers Watch Mens- Black dial with rubberized bracelet (-1) x $50
800.00
4pcs.
Seiko 5 Ladies watches with yellow dial with gold metal bracelet (1) x $25
100.00
4
pcs.
Citizen L-watches with white dial (4) x $20
80.00
62
pcs.

Seiko 5 Mens watches with yellow dial with gold metal bracelet (1) x $25
1,550.00
34
pcs.
Seiko 5 Mens watches with black dial with gold metal bracelet (1) x $25

850.00
____
248
pcs.
$6,580.00

The Investigating State Prosecutor conducted an inquest and thereafter

recommended that petitioner and his co-accused be charged with violating
Section 3601 of the Tariff and Customs Code. Accordingly, the Information,
mentioned earlier, was filed with the RTC.

After the prosecution rested its case, the accused filed a Joint Demurrer to
Evidence.

In an Order dated October 12, 1995, the trial court denied the demurrer and
directed the accused to present their evidence.

All the accused denied committing the offense charged, claiming they were
framed-up by the military.

Danilo Santos testified that on the night of June 3, 1994, he was assigned to the
Airbus 300 with tail No. RPC-3001, joining three junior mechanics who were then
working on said aircraft. He was conducting a visual check of the plane when a
tow truck arrived on its way to Nichols Airfield. He told one of the junior
mechanics that he would take a break and be back in an hour. He then boarded
the tow truck. When it was near the Lima Gate, a jeep with four (4) men in civilian
attire aboard approached him. The four pointed their firearms at him and, after
searching him for drugs, he was frisked but nothing was found. He was
nonetheless brought by the men to the PAFSECOM Office, then to Villamor
Airbase Hospital for a medical examination and alcohol test. Thereafter, he was
brought back to the PAFSECOM Office. There, another military man arrived and
brought out a box containing packets. Then he and his companions were told to
put on their mechanics uniforms and to wear girdles. The packets were placed on
their bodies, after which they were photographed. He further testified that he was
asked to sign a certain paper but was not allowed to read it thoroughly. During
the investigation, he was not apprised of his rights nor assisted by a counsel.

Petitioner Tomas Salvador likewise denied any knowledge of the questioned

items seized from him. He testified that during the incident in question, he only
boarded the tow truck to take a break at the PAL canteen. He saw a box on the
tow truck but was not aware of its contents. After his arrest, he was made to sign
a document under duress.

Aurelio Mandin also denied committing the offense charged. He declared that
after his arrest, he was made to sign a document by the PAF personnel, the
contents of which he was not able to read. He signed it because he was struck
with a .45 caliber handgun by one of the military men and threatened him with
summary execution if he would not do so. He was not informed of his rights nor
given the services of counsel during the investigation.

After hearing, the trial court rendered its Decision convicting all the accused of
the offense charged, thus:

WHEREFORE, in view of the foregoing, the Court finds the accused Aurelio
Mandin y Liston, Danilo Santos y Antonio and Tomas Salvador y Magno GUILTY

beyond reasonable doubt for violation of Section 3601 of the Tariff and Customs
Code of the Philippines (TCCP). There being no aggravating or mitigating
circumstance and applying the Indeterminate Sentence Law, the court sentences
each of the accused to an indeterminate term of EIGHT (8) YEARS and ONE (1)
DAY of prision mayor, as minimum, to TEN (10) YEARS of prision mayor, as
maximum, and to pay a fine of EIGHT THOUSAND PESOS (P8,000.00), without
subsidiary imprisonment in case of insolvency, and to pay the costs. The court
also orders the forfeiture of the confiscated articles in favor of the Government.
SO ORDERED.
All the accused then seasonably interposed an appeal to the Court of Appeals,
docketed as CA-G.R. CR No. 20186.

On August 9, 2000, the Appellate Court promulgated its Decision affirming the
trial courts Decision, thus:
We cannot see any justification for the setting aside of the contested Decision.
THE FOREGOING CONSIDERED, the appealed Decision is hereby AFFIRMED.
SO ORDERED.
They filed a motion for reconsideration but was denied in a Resolution dated
January 9, 2001.

Only Tomas Salvador opted to elevate his case to this Court by way of the instant
petition for review on certiorari. He submits for our consideration the following
assignments of error:

THE ESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE

INFORMATION LIKE UNLAWFUL IMPORTATION, POSSESSION OF
UNLAWFULLY IMPORTED ARTICLES AND CONSPIRACY IN THE
COMMISSION OF THE SAME, WERE NEVER PROVEN BEYOND
REASONABLE DOUBT.

II

THERE WAS NO PROBABLE CAUSE FOR THE ARREST AND SEARCH OF

THE PERSONS OF THE ACCUSED.

III

THE ACCEPTANCE BY THE TRIAL COURT AND THE AFFIRMANCE BY THE

APPELLATE COURT OF THE TESTIMONIES OF PROSECUTION
WITNESSES, AS WELL AS ALL ITS DOCUMENTARY EXHIBITS, DESPITE THE
FACT THAT THE SAME WERE APPARENTLY OBTAINED IN VIOLATION OF
THE CONSTITUTIONAL RIGHTS OF THE ACCUSED WERE UNLAWFUL.

IV

THE DENIAL BY THE TRIAL COURT AND THE CONCURRENCE BY THE

APPELLATE COURT OF THE DEMURRER TO EVIDENCE WERE ALSO
WITHOUT LEGAL BASIS.[8]

ISSUE: Whether the search and seizure is legal

YES

The above assignments of error boil down to these issues: (1) whether the
seized items are admissible in evidence; and (2) whether the prosecution has
proved the guilt of petitioner beyond reasonable doubt.

Petitioner's Contention

On the first issue, petitioner contends that the warrantless search and seizure
conducted by the PAF operatives is illegal. Citing People v. Burgos,he maintains
that at the time he and his co-accused were stopped by the PAF law enforces,
they were unaware that a crime was being committed. Accordingly, the law
enforcers were actually engaged in a fishing expedition in violation of his
Constitutional right against unlawful search and seizure. Thus, the seized items
should not have been admitted in evidence against him.
ANSWER!
The Office of the Solicitor General (OSG) counters that under the factual
circumstances of the case at bar, there was sufficient probable cause for the PAF
surveillance team to stop and search petitioner and his companions. They
boarded the parked Air Bus 300 PAL plane at the time when there were no other
PAL personnel working therein. They stayed inside the plane for sometime and
surprisingly, came out with bulging waists. They then stopped and looked around
and made apparent signals. All these acts were sufficient to engender a
reasonable suspicion that petitioner and his colleagues were up to something
illegal. Moreover, the search and seizure was conducted in connection with the
enforcement of customs law when the petitioner and his co-accused were riding
a motor vehicle. In addition, the search was conducted at the vicinity of Lima
Gate of the Manila Domestic Airport which, like every gate in the airport
perimeter, has a checkpoint. Finally, the petitioner and his companions agreed to
the search after one of them was caught with a suspicious-looking packet. Under
these circumstances, the search and seizure is legal and the seized items are
admissible in evidence.
We agree with the OSG.
As a rule, the Bill of Rights prohibits intrusions by the law enforcers to a persons
body, personal effects or residence, unless the same are conducted pursuant to
a valid search warrant issued in compliance with the procedure mandated by the
Constitution and the Rules of Court. Thus, Sections 2 and 3(2), Article 3 of the
1987 Constitution provide:

SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the

persons or things to be seized.

SEC. 3.
xxx
(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
x x x.

The above Constitutional provisions do not prohibit searches and seizures, but
only such as are unreasonable. Our jurisprudence provides for privileged areas
where searches and seizures may lawfully be effected sans a search warrant.
These recognized exceptions include: (1) search of moving vehicles; (2) search
in plain view; (3) customs searches; (4) waiver or consented searches; (5) stopand-frisk situations; and (6) search incidental to a lawful arrest.

Here, it should be noted that during the incident in question, the special mission
of the PAF operatives was to conduct a surveillance operation to verify reports of
drug trafficking and smuggling by certain PAL personnel in the vicinity of the
airport. In other words, the search made by the PAF team on petitioner and his
co-accused was in the nature of a customs search. As such, the team properly
effected the search and seizure without a search warrant since it exercised police
authority under the customs law.

In Papa vs. Mago[12] involving a customs search, we held that law enforcers
who are tasked to effect the enforcement of the customs and tariff laws are
authorized to search and seize, without a search warrant, any article, cargo or
other movable property when there is reasonable cause to suspect that the said
items have been introduced into the Philippines in violation of the tariff and
customs law. They may likewise conduct a warrantless search of any vehicle or
person suspected of holding or conveying the said articles, as in the case at bar.

In short, Mago clearly recognizes the power of the State to foil any fraudulent

schemes resorted to by importers who evade payment of customs duties. The

Governments policy to combat the serious malady of smuggling cannot be
reduced to futility and impotence on the ground that dutiable articles on which the
duty has not been paid are entitled to the same Constitutional protection as an
individuals private papers and effects. Here, we see no reason not to apply this
State policy which we have continued to affirm.

Moreover, we recall that at the time of the search, petitioner and his co-accused
were on board a moving PAL aircraft tow truck. As stated earlier, the search of a
moving vehicle is recognized in this jurisdiction as a valid exception to the
requirement for a search warrant. Such exception is easy to understand. A
search warrant may readily be obtained when the search is made in a store,
dwelling house or other immobile structure. But it is impracticable to obtain a
warrant when the search is conducted in a mobile ship, aircraft or other motor
vehicle since they can quickly be moved out of the locality or jurisdiction where
the warrant must be sought.[14] Verily, we rule that the Court of Appeals
committed no reversible error in holding that the articles involved in the instant
controversy were validly seized by the authorities even without a search warrant,
hence, admissible in evidence against petitioner and his co-accused.

On the second issue, petitioner faults the Court of Appeals for readily sustaining
the trial courts finding that the witnesses for the prosecution were credible,
notwithstanding that their testimonies contain glaring inconsistencies which tend
to detract from their veracity. Petitioner submits that these inconsistencies create
serious doubt which should have been resolved in his favor.

We are not persuaded.

After a careful examination of the purported inconsistencies mentioned by

petitioner, we find that they do not relate with the elements of the offense
charged. Rather, they tend to focus on minor and insignificant matters as for
instance: which PAF operative was in possession of the hand-held radio; how the
girdles (garters) were removed; and what time the aircraft in question arrived.

It bears stressing that these inconsistencies detract from the fact that all
members of the special PAF team who conducted the search positively identified
the petitioner and his co-accused as the same persons who boarded the PAL
plane; stayed therein for a significant length of time; disembarked in a manner
which stirred suspicion from the team; and with unusually bulging uniforms, rode
an aircraft tow truck towards Lima Gate where they were caught in flagrante
delicto.

As a rule, inconsistencies in the testimonies of witnesses which refer to trivial and

insignificant details do not destroy their credibility.[15] Moreover, minor
inconsistencies serve to strengthen rather than diminish the prosecutions case
as they tend to erase suspicion that the testimonies have been rehearsed,
thereby negating any misgivings that the same were perjured.[16]

Section 3601 of the Tariff and Customs Code provides in part:

SEC. 3601. Unlawful Importation. Any person who shall fraudulently import or
bring into the Philippines, or assist in so doing, any article contrary to law, or shall
receive, conceal, buy, seal or in any manner facilitate the importation,
concealment or sale of such article after importation, knowing the same to have
been imported contrary to law, shall be guilty of smuggling

xxx

When, upon trial for violation of this section, the defendant is shown to have had
possession of the article in question, possession shall be deemed sufficient
evidence to authorize conviction, unless the defendant shall explain the
possession to the satisfaction of the court: Provided, however, That payment of
the tax due after apprehension shall not constitute a valid defense in any
prosecution under this section.

Smuggling is thus committed by any person who (1) fraudulently imports or

brings into the Philippines or assists in importing or bringing into the Philippines

any article, contrary to law, or (2) receives, conceals, buys, sells or in any
manner facilitates the transportation, concealment, or sale of such article after
importation, knowing the same to have been imported contrary to law.[17]
Importation commences when the carrying vessel or aircraft enters the
jurisdiction of the Philippines with intention to unload and is deemed terminated
upon payment of the duties, taxes and other charges due upon the articles and
the legal permit for withdrawal has been issued, or where the articles are dutyfree, once the articles have left the jurisdiction of the customs.[18]

In the instant case, the prosecution established by positive, strong, and

convincing evidence that petitioner and his co-accused were caught red-handed
by a team from the PAF Special Operations Squadron, while in the possession of
highly dutiable articles inside the premises of the airport. The contraband items
were taken by petitioner and his co-accused from a PAL plane which arrived from
Hong Kong on the night of June 3, 1994. Petitioner and his colleagues then
attempted to bring out these items in the cover of darkness by concealing them
inside their uniforms. When confronted by the PAF team, they were unable to
satisfactorily explain why the questioned articles were in their possession. They
could not present any document to prove lawful importation. Thus, their
conviction must necessarily be upheld. Clearly, the Court of Appeals committed
no reversible error in affirming the trial courts Decision convicting petitioner and
his co-accused.

WHEREFORE, the petition is DENIED. The appealed Decision and Resolution of

the Court of Appeals in CA-G.R. CR No. 20186 are AFFIRMED IN ALL
RESPECTS. Costs against the petitioner.
SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused.
ROLANDO DE GRACIA, accused-appellant.

The incidents involved in this case took place at the height of the coup d' etat

staged in December, 1989 by ultra-rightist elements headed by the Reform the

Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the
Government. At that time, various government establishments and military camps
in Metro Manila were being bombarded by the rightist group with their "tora-tora"
planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the
Philippine Marines occupied Villamor Air Base, while the Scout Rangers took
over the Headquarters of the Philippine Army, the Army Operations Center, and
Channel 4, the government television station. Also, some elements of the
Philippine Army coming from Fort Magsaysay occupied the Greenhills Shopping
Center in San Juan, Metro Manila. 1

Accused-appellant Rolando de Gracia was charged in two separate informations

for illegal possession of ammunition and explosives in furtherance of rebellion,
and for attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and
Q-90-11756, respectively, which were tried jointly by the Regional Trial Court of
Quezon City, Branch 103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several
John Does whose true names and identities have not as yet been ascertained,
were charged with the crime of illegal possession of ammunition and explosives
in furtherance of rebellion, penalized under Section 1, paragraph 3, of
Presidential Decree No. 1866, allegedly committed as follows:

That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO
MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually
helping one another, and without authority of law, did then and there willfully,
unlawfully, feloniously and knowingly have in their possession, custody and
control, the following to wit:

Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to possess the same
from the proper authorities, and armed with said dynamites, ammunition and
explosives and pursuant to their conspiracy heretofore agreed upon by them and
prompted by common designs, come to an agreement and decision to commit
the crime of rebellion, by then and there participating therein and publicly taking
arms against the duly constituted authorities, for the purpose of overthrowing the
Government of the Republic of the Philippines, disrupting and jeopardizing its
activities and removing from its allegiance the territory of the Philippines or parts
thereof.

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto

Bicus, Rodolfo Tor and several John Does were charged with attempted
homicide allegedly committed on December 1, 1989 in Quezon City upon the
person of Crispin Sagario who was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in furtherance of

rebellion, but was acquitted of attempted homicide.

During the arraignment, appellant pleaded not guilty to both charges. However,
he admitted that he is not authorized to possess any firearms, ammunition and/or
explosive. The parties likewise stipulated that there was a rebellion during the
period from November 30 up to December 9, 1989.
FACTS:
The records show that in the early morning of December 1, 1989, Maj. Efren
Soria of the Intelligence Division, National Capital Region Defense Command,
was on board a brown Toyota car conducting a surveillance of the Eurocar Sales
Office located at Epifanio de los Santos Avenue in Quezon City, together with his
team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry
Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually
started on the night of November 30, 1989 at around 10:00 P.M., was conducted
pursuant to an intelligence report received by the division that said establishment
was being occupied by elements of the RAM-SFP as a communication command
post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen
meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry
Aquino had earlier alighted from the car to conduct his surveillance on foot. A
crowd was then gathered near the Eurocar office watching the on-going
bombardment near Camp Aguinaldo. After a while, a group of five men
disengaged themselves from the crowd and walked towards the car of the
surveillance team. At that moment, Maj. Soria, who was then seated in front, saw
the approaching group and immediately ordered Sgt. Sagario to start the car and
leave the area. As they passed by the group, then only six meters away, the latter
pointed to them, drew their guns and fired at the team, which attack resulted in
the wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team
was able to retaliate because they sought cover inside the car and they were
afraid that civilians or bystanders might be caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team

composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion,
Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one
Col. delos Santos raided the Eurocar Sales Office. They were able to find and
confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, Mshells of different calibers, and "molotov" bombs inside one of the rooms
belonging to a certain Col. Matillano which is located at the right portion of the
building. Sgt. Oscar Obenia, the first one to enter the Eurocar building, saw
appellant De Gracia inside the office of Col. Matillano, holding a C-4 and
suspiciously peeping through a door. De Gracia was the only person then
present inside the room. A uniform with the nametag of Col. Matillano was also
found. As a result of the raid, the team arrested appellant, as well as Soprieso
Verbo and Roberto Jimena who were janitors at the Eurocar building. They were
then made to sign an inventory, written in Tagalog, of the explosives and
ammunition confiscated by the raiding team. No search warrant was secured by
the raiding team because, according to them, at that time there was so much
disorder considering that the nearby Camp Aguinaldo was being mopped up by
the rebel forces and there was simultaneous firing within the vicinity of the
Eurocar office, aside from the fact that the courts were consequently closed. The
group was able to confirm later that the owner of Eurocar office is a certain Mr.
Gutierrez and that appellant is supposedly a "boy" therein.

Appellant Rolando de Gracia gave another version of the incident. First, he

claims that on November 30, 1989, he was in Antipolo to help in the birthday

party of Col. Matillano. He denies that he was at the Eurocar Sales Office on
December 1, 1989. Second, he contends that when the raiding team arrived at
the Eurocar Sales Office on December 5, 1989, he was inside his house, a small
nipa hut which is adjacent to the building. According to him, he was tasked to
guard the office of Col. Matillano which is located at the right side of the building.
He denies, however, that he was inside the room of Col. Matillano when the
raiding team barged in and that he had explosives in his possession. He testified
that when the military raided the office, he was ordered to get out of his house
and made to lie on the ground face down, together with "Obet" and "Dong" who
were janitors of the building. He avers that he does not know anything about the
explosives and insists that when they were asked to stand up, the explosives
were already there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the
Philippine Constabulary-Integrated National Police (PC-INP), and that he knew
Matillano was detained because of the latter's involvement in the 1987 coup d'
etat. In July, 1989, appellant again went to see Matillano because he had no job.
Col. Matillano then told him that he could stay in the PC-INP stockade and do the
marketing for them. From that time until his arrest at the Eurocar office, appellant
worked for Matillano.

De Gracia believes that the prosecution witnesses were moved to testify against
him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col.
Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."

On February 22, 1991, the trial court rendered judgment 5 acquitting appellant
Rolando de Gracia of attempted homicide, but found him guilty beyond
reasonable doubt of the offense of illegal possession of firearms in furtherance of
rebellion and sentenced him to serve the penalty of reclusion perpetua.
Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia
appears to be merely executing or obeying orders and pursuant to the spirit
contained in the 2nd paragraph of Art. 135, R. P. C., the court recommends that
Rolando de Gracia be extended executive clemency after serving a jail term of
five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.

Appellant principally contends that he cannot be held guilty of illegal possession

of firearms for the reason that he did not have either physical or constructive
possession thereof considering that he had no intent to possess the same; he is
neither the owner nor a tenant of the building where the ammunition and
explosives were found; he was merely employed by Col. Matillano as an errand
boy; he was guarding the explosives for and in behalf of Col. Matillano; and he
did not have actual possession of the explosives. He claims that intent to
possess, which is necessary before one can be convicted under Presidential
Decree No. 1866, was not present in the case at bar.

Presidential Decree No. 1866 provides as follows:

Sec. 1.
Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms or Ammunition or Instruments Used or intended to be Used in the
Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in
its maximum period to reclusion perpetua shall be imposed upon any person who
shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearms,
part of firearms, ammunition or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the

penalty of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection

with the crimes of rebellion, insurrection or subversion, the penalty of death shall
be imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes

vitally affecting public order and safety due to the proliferation of illegally
possessed and manufactured firearms, ammunition and explosives, and which
criminal acts have resulted in loss of human lives, damage to property and

destruction of valuable resources of the country. The series of coup d' etats
unleashed in the country during the first few years of the transitional government
under then President Corazon P. Aquino attest to the ever-growing importance of
laws such as Presidential Decree No. 1866 which seek to nip in the bud and
preempt the commission of any act or acts which tend to disturb public peace
and order.

I.
The first issue to be resolved is whether or not intent to possess is an
essential element of the offense punishable under Presidential Decree No. 1866
and, if so, whether appellant De Gracia did intend to illegally possess firearms
and ammunition.

The rule is that ownership is not an essential element of illegal possession of

firearms and ammunition. What the law requires is merely possession which
includes not only actual physical possession but also constructive possession or
the subjection of the thing to one's control and management. 6 This has to be so
if the manifest intent of the law is to be effective. The same evils, the same perils
to public security, which the law penalizes exist whether the unlicensed holder of
a prohibited weapon be its owner or a borrower. To accomplish the object of this
law the proprietary concept of the possession can have no bearing whatsoever. 7

But is the mere fact of physical or constructive possession sufficient to convict a

person for unlawful possession of firearms or must there be an intent to possess
to constitute a violation of the law? This query assumes significance since the
offense of illegal possession of firearms is a malum prohibitum punished by a
special law, 8 in which case good faith and absence of criminal intent are not
valid defenses. 9

When the crime is punished by a special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the offender has the intent to perpetrate
the act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime),
there must be criminal intent; in the second (intent to perpetrate the act) it is

enough that the prohibited act is done freely and consciously. 10

In the present case, a distinction should be made between criminal intent and
intent to possess. While mere possession, without criminal intent, is sufficient to
convict a person for illegal possession of a firearm, it must still be shown that
there was animus possidendi or an intent to possess on the part of the accused.
11 Such intent to possess is, however, without regard to any other criminal or
felonious intent which the accused may have harbored in possessing the firearm.
Criminal intent here refers to the intention of the accused to commit an offense
with the use of an unlicensed firearm. This is not important in convicting a person
under Presidential Decree No. 1866. Hence, in order that one may be found
guilty of a violation of the decree, it is sufficient that the accused had no authority
or license to possess a firearm, and that he intended to possess the same, even
if such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control

of a firearm cannot be considered a violation of a statute prohibiting the
possession of this kind of weapon, 12 such as Presidential Decree No. 1866.
Thus, although there is physical or constructive possession, for as long as the
animus possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant
De Gracia is indeed guilty of having intentionally possessed several firearms,
explosives and ammunition without the requisite license or authority therefor.
Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first
one to enter the Eurocar Sales Office when the military operatives raided the
same, and he saw De Gracia standing in the room and holding the several
explosives marked in evidence as Exhibits D to D-4. 13 At first, appellant denied
any knowledge about the explosives. Then, he alternatively contended that his
act of guarding the explosives for and in behalf of Col. Matillano does not
constitute illegal possession thereof because there was no intent on his part to
possess the same, since he was merely employed as an errand boy of Col.
Matillano. His pretension of impersonal or indifferent material possession does
not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to

case basis, taking into consideration the prior and coetaneous acts of the
accused and the surrounding circumstances. What exists in the realm of thought
is often disclosed in the range of action. It is not controverted that appellant De
Gracia is a former soldier, having served with the Philippine Constabulary prior to
his separation from the service for going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is
familiar with and knowledgeable about the dynamites, "molotov" bombs, and
various kinds of ammunition which were confiscated by the military from his
possession. As a former soldier, it would be absurd for him not to know anything
about the dangerous uses and power of these weapons. A fortiori, he cannot
feign ignorance on the import of having in his possession such a large quantity of
explosives and ammunition. Furthermore, the place where the explosives were
found is not a military camp or office, nor one where such items can ordinarily but
lawfully be stored, as in a gun store, an arsenal or armory. Even an ordinarily
prudent man would be put on guard and be suspicious if he finds articles of this
nature in a place intended to carry out the business of selling cars and which has
nothing to do at all, directly or indirectly, with the trade of firearms and
ammunition.

On the basis of the foregoing disquisition, it is apparent, and we so hold, that

appellant De Gracia actually intended to possess the articles confiscated from his
person.

II.
The next question that may be asked is whether or not there was a valid
search and seizure in this case. While the matter has not been squarely put in
issue, we deem it our bounden duty, in light of advertence thereto by the parties,
to delve into the legality of the warrantless search conducted by the raiding team,
considering the gravity of the offense for which herein appellant stands to be
convicted and the penalty sought to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office
were not armed with a search warrant at that time. 15 The raid was actually
precipitated by intelligence reports that said office was being used as
headquarters by the RAM. 16 Prior to the raid, there was a surveillance
conducted on the premises wherein the surveillance team was fired at by a group

of men coming from the Eurocar building. When the military operatives raided the
place, the occupants thereof refused to open the door despite requests for them
to do so, thereby compelling the former to break into the office. 17 The Eurocar
Sales Office is obviously not a gun store and it is definitely not an armory or
arsenal which are the usual depositories for explosives and ammunition. It is
primarily and solely engaged in the sale of automobiles. The presence of an
unusual quantity of high-powered firearms and explosives could not be justifiably
or even colorably explained. In addition, there was general chaos and disorder at
that time because of simultaneous and intense firing within the vicinity of the
office and in the nearby Camp Aguinaldo which was under attack by rebel forces.
18 The courts in the surrounding areas were obviously closed and, for that
matter, the building and houses therein were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant
case falls under one of the exceptions to the prohibition against a warrantless
search. In the first place, the military operatives, taking into account the facts
obtaining in this case, had reasonable ground to believe that a crime was being
committed. There was consequently more than sufficient probable cause to
warrant their action. Furthermore, under the situation then prevailing, the raiding
team had no opportunity to apply for and secure a search warrant from the
courts. The trial judge himself manifested that on December 5, 1989 when the
raid was conducted, his court was closed. 19 Under such urgency and exigency
of the moment, a search warrant could lawfully be dispensed with.

The view that we here take is in consonance with our doctrinal ruling which was
amply explained in People vs. Malmstedt 20 and bears reiteration:

While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under
the circumstances of the case, there was sufficient probable cause for said
officers to believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which would
lead a reasonable, discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the

place sought to be searched. The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by

this Court as valid, because of existence of probable cause, where the smell of
marijuana emanated from a plastic bag owned by the accused, or where the
accused was acting suspiciously, and attempted to flee.

Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension
of herein accused, that a Caucasian travelling from Sagada to Baguio City was
carrying with him prohibited drugs, there was no time to obtain a search warrant.
In the Tangliben case, the police authorities conducted a surveillance at the
Victory Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information
supplied by some informers. Accused Tangliben who was acting suspiciously and
pointed out by an informer was apprehended and searched by the police
authorities. It was held that when faced with on-the-spot information, the police
officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a

routine check of the bus (where accused was riding) and the passengers therein,
and no extensive search was initially made. It was only when one of the officers
noticed a bulge on the waist of accused, during the course of the inspection, that
accused was required to present his passport. The failure of accused to present
his identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities,

to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada

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

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,

et al., 21 applicable, by analogy, to the present case:

The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in
the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest
and the granting of bail if the offense is bailable. Obviously the absence of a
judicial warrant is no legal impediment to arresting or capturing persons
committing overt acts of violence against government forces, or any other milder
acts but really in pursuance of the rebellious movement. The arrest or capture is
thus impelled by the exigencies of the situation that involves the very survival of
society and its government and duly constituted authorities. If killing and other
acts of violence against the rebels find justification in the exigencies of armed

hostilities which (are) of the essence of waging a rebellion or insurrection, most

assuredly so in case of invasion, merely seizing their persons and detaining them
while any of these contingencies continues cannot be less justified.

III.
As earlier stated, it was stipulated and admitted by both parties that from
November 30, 1989 up to and until December 9, 1989, there was a rebellion.
Ergo, our next inquiry is whether or not appellant's possession of the firearms,
explosives and ammunition seized and recovered from him was for the purpose
and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in

furtherance of rebellion pursuant to paragraph 2 of Article 135 of the Revised
Penal Code which states that "any person merely participating or executing the
command of others in a rebellion shall suffer the penalty of prision mayor in its
minimum period." The court below held that appellant De Gracia, who had been
servicing the personal needs of Col. Matillano (whose active armed opposition
against the Government, particularly at the Camelot Hotel, was well known), is
guilty of the act of guarding the explosives and "molotov" bombs for and in behalf
of the latter. We accept this finding of the lower court.

The above provision of the law was, however, erroneously and improperly used
by the court below as a basis in determining the degree of liability of appellant
and the penalty to be imposed on him. It must be made clear that appellant is
charged with the qualified offense of illegal possession of firearms in furtherance
of rebellion under Presidential Decree No. 1866 which, in law, is distinct from the
crime of rebellion punished under Articles 134 and 135 of the Revised Penal
Code. These are two separate statutes penalizing different offenses with discrete
penalties. The Revised Penal Code treats rebellion as a crime apart from murder,
homicide, arson, or other offenses, such as illegal possession of firearms, that
might conceivably be committed in the course of a rebellion. Presidential Decree
No. 1866 defines and punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of a rebellion. 22

As a matter of fact, in one case involving the constitutionality of Section 1 of

Presidential Decree No. 1866, the Court has explained that said provision of the

law will not be invalidated by the mere fact that the same act is penalized under
two different statutes with different penalties, even if considered highly
advantageous to the prosecution and onerous to the accused. 23 It follows that,
subject to the presence of the requisite elements in each case, unlawful
possession of an unlicensed firearm in furtherance of rebellion may give rise to
separate prosecutions for a violation of Section 1 of Presidential Decree No.
1866, and also a violation of Articles 134 and 135 of the Revised Penal Code on
rebellion. Double jeopardy in this case cannot be invoked because the first is an
offense punished by a special law while the second is a felony punished by the
Revised Penal Code, 24 with variant elements.

It was a legal malapropism for the lower court to interject the aforestated
provision of the Revised Penal Code in this prosecution for a crime under a
special law. Consequently, there is no basis for its recommendation for executive
clemency in favor of appellant De Gracia after he shall have served a jail term of
five years with good behavior. In any event, this is a matter within the exclusive
prerogative of the President whose decision thereon should be insulated against
any tenuous importunity.

Withal, we are duly convinced that the firearms, explosives and ammunition
confiscated from appellant De Gracia were illegally possessed by him in
furtherance of the rebellion then admittedly existing at that time. In the words of
the court a quo:

2.
the nature and quantity of the items 5 bundles of C-4 dynamites, 6
cartons of M-16 ammo and 100 bottles of molotov bombs indicate that the
reports received by the military that the Eurocar Sales Building was being used
by the rebels was not without basis. Those items are clearly not for one's
personal defense. They are for offensive operations. De Gracia admitted that per
instruction of Col. Matillano he went down to Eurocar Sales Building from
Antipolo to stay guard there.

His manifestation of innocence of those items and what he has been guarding in
that office is not credible for: (a) he was a former military personnel; (b) at the
birthday party of Col. Matillano on November 30, 1989 many soldiers and ex-

soldiers were present which self-evidently discloses that De Gracia, in the

company of his boss, was still very much at home and constantly in touch with
soldiers and the armed rebellion of November 30, 1989 to December 8 or 9,
1989 was a military coup d' etat; (c) it appears that he is the only person tasked
with caretaking (sic) there in the Matillano office, which shows that he is a highly
trusted right-hand man of Col. Matillano; and (d) as heretofore discussed, De
Gracia was earlier seen with some men who fired upon a car of the AFP
intelligence agents. 25

Presidential Decree No. 1866 imposes the death penalty where the illegal
possession of firearms and ammunition is committed in furtherance of rebellion.
At the time the offense charged in this case was committed under the
governance of that law, the imposition of the death penalty was proscribed by the
Constitution. Consequently, appellant De Gracia could only be sentenced to
serve the penalty of reclusion perpetua which was correctly meted out by the trial
court, albeit with an erroneous recommendation in connection therewith.

WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED,

but its recommendation therein for executive clemency and the supposed basis
thereof are hereby DELETED, with costs against accused-appellant.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 81561

January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of

Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of
violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and
Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as
the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and
Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes (the proprietress and no
relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes
that he was sending the packages to a friend in Zurich, Switzerland. Appellant
filled up the contract necessary for the transaction, writing therein his name,
passport number, the date of shipment and the name and address of the
consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland"
(Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages simply
contained books, cigars, and gloves and were gifts to his friend in Zurich. In view
of appellant's representation, Anita Reyes no longer insisted on inspecting the
packages. The four (4) packages were then placed inside a brown corrugated
box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on
top of the packages before the box was sealed with masking tape, thus making
the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of

Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following
standard operating procedure, opened the boxes for final inspection. When he
opened appellant's box, a peculiar odor emitted therefrom. His curiousity
aroused, he squeezed one of the bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the bundles, he pulled out a cellophane
wrapper protruding from the opening of one of the gloves. He made an opening
on one of the cellophane wrappers and took several grams of the contents
thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics

Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the
afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of
Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was
still in his office. Therefore, Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6,
1987).

Job Reyes brought out the box in which appellant's packages were placed and,
in the presence of the NBI agents, opened the top flaps, removed the styro-foam
and took out the cellophane wrappers from inside the gloves. Dried marijuana
leaves were found to have been contained inside the cellophane wrappers (tsn,

p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job
Reyes. He discovered that the package contained bricks or cake-like dried
marijuana leaves. The package which allegedly contained tabacalera cigars was
also opened. It turned out that dried marijuana leaves were neatly stocked
underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the
contents thereof, after signing a "Receipt" acknowledging custody of the said
effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the
NBI to shed light on the attempted shipment of the seized dried leaves. On the
same day the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out that the
dried leaves were marijuana flowering tops as certified by the forensic chemist.
(Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425,

otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY

SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE

UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE

EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME
INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1.
Appellant contends that the evidence subject of the imputed offense had
been obtained in violation of his constitutional rights against unreasonable search
and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution)
and therefore argues that the same should be held inadmissible in evidence
(Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2.
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the persons or things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable

search and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge
after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the
persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US
Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this
Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any
evidence obtained by virtue of a defective search and seizure warrant,
abandoning in the process the ruling earlier adopted in Moncado v. People's
Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected
by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV)
constitutionalized the Stonehill ruling and is carried over up to the present with
the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable searches and seizures. (Bache &
Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA
299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA
687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14,
1990).

It must be noted, however, that in all those cases adverted to, the evidence so

obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the
evidence sought to be excluded was primarily discovered and obtained by a
private person, acting in a private capacity and without the intervention and
participation of State authorities. Under the circumstances, can
accused/appellant validly claim that his constitutional right against unreasonable
searches and seizure has been violated? Stated otherwise, may an act of a
private individual, allegedly in violation of appellant's constitutional rights, be
invoked against the State?

We hold in the negative. In the absence of governmental interference, the

liberties guaranteed by the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1.
This constitutional right (against unreasonable search and seizure) refers
to the immunity of one's person, whether citizen or alien, from interference by
government, included in which is his residence, his papers, and other
possessions. . . .

. . . There the state, however powerful, does not as such have the access except
under the circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any unwarranted
intrusion by government, which is called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis
supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the
Court there in construing the right against unreasonable searches and seizures
declared that:

(t)he Fourth Amendment gives protection against unlawful searches and

seizures, and as shown in previous cases, its protection applies to governmental
action. Its origin and history clearly show that it was intended as a restraint upon
the activities of sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority it was the purpose
of the Fourth Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property, subject to the right
of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that
the search and seizure clauses are restraints upon the government and its
agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621,
49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v.
Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court
there said:

The search of which appellant complains, however, was made by a private

citizen the owner of a motel in which appellant stayed overnight and in which
he left behind a travel case containing the evidence*** complained of. The search
was made on the motel owner's own initiative. Because of it, he became
suspicious, called the local police, informed them of the bag's contents, and
made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of
evidence obtained through a search by a private citizen. Rather, the amendment

only proscribes governmental action."

The contraband in the case at bar having come into possession of the
Government without the latter transgressing appellant's rights against
unreasonable search and seizure, the Court sees no cogent reason why the
same should not be admitted against him in the prosecution of the offense
charged.

Appellant, however, would like this court to believe that NBI agents made an
illegal search and seizure of the evidence later on used in prosecuting the case
which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days.

In both instances, the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the
proposition that NBI agents conducted an illegal search and seizure of the
prohibited merchandise. Records of the case clearly indicate that it was Mr. Job
Reyes, the proprietor of the forwarding agency, who made search/inspection of
the packages. Said inspection was reasonable and a standard operating
procedure on the part of Mr. Reyes as a precautionary measure before delivery
of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 &
7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place
of business. Thereafter, he opened the parcel containing the rest of the shipment
and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI
agents made no search and seizure, much less an illegal one, contrary to the
postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable
search effected by Reyes into a warrantless search and seizure proscribed by

the Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been
committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without a trespass on the part of the
arresting officer, there is not the search that is prohibited by the constitution (US
v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23,
10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where
the property was taken into custody of the police at the specific request of the
manager and where the search was initially made by the owner there is no
unreasonable search and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental law
of the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the

essence of constitutional democracy. Protection against whom? Protection
against the state. The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights does is
to declare some forbidden zones in the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner Bernas , Record of the
Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore

applies as a restraint directed only against the government and its agencies
tasked with the enforcement of the law. Thus, it could only be invoked against the
State to whom the restraint against arbitrary and unreasonable exercise of power
is imposed.

If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search
is made at the behest or initiative of the proprietor of a private establishment for
its own and private purposes, as in the case at bar, and without the intervention
of police authorities, the right against unreasonable search and seizure cannot
be invoked for only the act of private individual, not the law enforcers, is involved.
In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has
been modified by the present phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in violation of the constitutional
prohibition against illegal search and seizure, it matters not whether the evidence
was procured by police authorities or private individuals (Appellant's Brief, p. 8,
Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that
the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to
the issuance of either a search warrant or warrant of arrest vis-a-vis the
responsibility of the judge in the issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June
30, 1987]. The modifications introduced deviate in no manner as to whom the
restriction or inhibition against unreasonable search and seizure is directed
against. The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only
be invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State
would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected

through private seizure equally applies, in pari passu, to the alleged violation,
non-governmental as it is, of appellant's constitutional rights to privacy and
communication.

2.
In his second assignment of error, appellant contends that the lower court
erred in convicting him despite the undisputed fact that his rights under the
constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of
the case and found nothing to indicate, as an "undisputed fact", that appellant
was not informed of his constitutional rights or that he gave statements without
the assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be
given full faith and credence, there being no evidence to the contrary. What is
clear from the records, on the other hand, is that appellant refused to give any
written statement while under investigation as testified by Atty. Lastimoso of the
NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused
here, did you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by

the defense on cross-examination. As borne out by the records, neither was

there any proof by the defense that appellant gave uncounselled confession
while being investigated. What is more, we have examined the assailed judgment
of the trial court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in the finding of
conviction. Appellant's second assignment of error is therefore misplaced.

3.
Coming now to appellant's third assignment of error, appellant would like
us to believe that he was not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a German national, whom appellant
met in a pub along Ermita, Manila: that in the course of their 30-minute
conversation, Michael requested him to ship the packages and gave him
P2,000.00 for the cost of the shipment since the German national was about to
leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as

incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour could
not have pushed a man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as
the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply
accept such undertaking to take custody of the packages and ship the same from
a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why
he readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary
weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237
[1989]).

Appellant's bare denial is even made more suspect considering that, as per
records of the Interpol, he was previously convicted of possession of hashish by
the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that
the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was

likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66;
Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances
(People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg.
130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castaares v. CA, 92 SCRA 567 [1979]). As records further
show, appellant did not even bother to ask Michael's full name, his complete
address or passport number. Furthermore, if indeed, the German national was
the owner of the merchandise, appellant should have so indicated in the contract
of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed
the contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is
therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering

the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond

reasonable doubt of the crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

FIRST DIVISION
[G.R. No. 113271. October 16, 1997]

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs.

NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA

CATOLICO, respondents.
DECISION
DAVIDE, JR. J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.[1]

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare
private respondent Antonia Melodia Catolico (hereafter Catolico) not a true
Servant, thereby assailing the 30 September 1993 decision[2] and 2 December
1993 Resolution[3] of the National Labor Relations Commission (NLRC) in
NLRC-NCR CA No. 005160-93, which sustained the reinstatement and monetary
awards in favor of private respondent[4] and denied the petitioners motion for
reconsideration.[5]

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation

(hereafter WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum[6] from WATEROUS Vice

President-General Manager Emma R. Co warning her not to dispense medicine
to employees chargeable to the latters accounts because the same was a
prohibited practice. On the same date, Co issued another memorandum[7] to
Catolico warning her not to negotiate with suppliers of medicine without
consulting the Purchasing Department, as this would impair the companys
control of purchases and, besides she was not authorized to deal directly with the
suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but
explained that her act was due to negligence, since fellow employee Irene
Soliven obtained the medicines in bad faith and through misrepresentation when

she claimed that she was given a charge slip by the Admitting Dept. Catolico
then asked the company to look into the fraudulent activities of Soliven.[8]

In a memorandum[9] dated 21 November 1989, WATEROUS Supervisor

Luzviminda E. Bautro warned Catolico against the rush delivery of medicines
without the proper documents.

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co

that he noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals,
Inc. (hereafter YSP), which he described as follows:

A case in point is medicine purchased under our Purchase Order (P.O.) No.
19045 with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles
of Voren tablets at P384.00 per unit. Previous P.O.s issued to YSP, Inc. showed
that the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or
an over price of P64.00 per bottle (or total of P640.00). WDRC paid the amount
of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988.
Verification was made to YSP, Inc. to determine the discrepancy and it was found
that the cost per bottle was indeed overpriced. YSP, Inc. Accounting Department
(Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up
price of ten bottles of Voren tablets per sales invoice no. 266 as per their check
voucher no. 629552 (shown to the undersigned), which was paid to Ms. Catolico
through China Bank check no. 892068 dated November 9, 1989....

The undersigned talked to Ms. Catolico regarding the check but she denied
having received it and that she is unaware of the overprice. However, upon
conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed
that the check amounting to P640.00 was actually received by Ms. Catolico. As a
matter of fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope
containing the check but Ms. Saldana answered her talagang ganyan, bukas. It
appears that the amount in question (P640.00) had been pocketed by Ms.
Catolico.[10]

Forthwith, in her memorandum[11] dated 31 January 1990, Co asked Catolico to

explain, within twenty-four hours, her side of the reported irregularity. Catolico
asked for additional time to give her explanation,[12] and she was granted a 48hour extension from 1 to 3 February 1990. However, on 2 February 1990, she
was informed that effective 6 February 1990 to 7 March 1990, she would be
placed on preventive suspension to protect the interests of the company.[13]

In a letter dated 2 February 1990, Catolico requested access to the file

containing Sales Invoice No. 266 for her to be able to make a satisfactory
explanation. In said letter she protested Saldaas invasion of her privacy when
Saldaa opened an envelope addressed to Catolico.[14]

In a letter[15] to Co dated 10 February 1990, Catolico, through her counsel,

explained that the check she received from YSP was a Christmas gift and not a
refund of overprice. She also averred that the preventive suspension was illmotivated, as it sprang from an earlier incident between her and Cos secretary,
Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a

memorandum[16] notifying Catolico of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990
and Feb. 10, 1990 respectively regarding our imposition of preventive
suspension on you for acts of dishonesty. However, said letters failed to rebut the
evidences [sic] in our possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase Orders at YSP Phils.,
Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of
P320.00/bottle only. A check which you received in the amount of P640.00
actually represents the refund of over price of said medicines and this was
confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the

company. Accordingly, you are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint
for unfair labor practice, illegal dismissal, and illegal suspension.[17]

In his decision[18] of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no
proof of unfair labor practice against petitioners. Nevertheless, he decided in
favor of Catolico because petitioners failed to prove what [they] alleged as
complainants dishonesty, and to show that any investigation was conducted.
Hence, the dismissal was without just cause and due process. He thus declared
the dismissal and suspension illegal but disallowed reinstatement, as it would not
be to the best interest of the parties. Accordingly, he awarded separation pay to
Catolico computed at one-half months pay for every year of service; back wages
for one year; and the additional sum of P2,000.00 for illegal suspension
representing 30 days work. Arbiter Lopez computed the award in favor of
Catolico as follows:

30 days Preventive Suspension P 2,000.00

Backwages 26,858.50

1/12 of P26,858.50 2,238.21

Separation pay (3 years) 4,305.15

TOTAL AWARD: P35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it
aside because the Labor Arbiter erred in finding that Catolico was denied due
process and that there was no just cause to terminate her services.

In its decision[19] of 30 September 1993, the NLRC affirmed the findings of the

Labor Arbiter on the ground that petitioners were not able to prove a just cause
for Catolicos dismissal from her employment. It found that petitioners evidence
consisted only of the check of P640.00 drawn by YSP in favor of complainant,
which her co-employee saw when the latter opened the envelope. But, it
declared that the check was inadmissible in evidence pursuant to Sections 2 and
3(1 and 2) of Article III of the Constitution.[20] It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by

virtue of the constitutional right invoked by complainants, respondents case falls
apart as it is bereft of evidence which cannot be used as a legal basis for
complainants dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the
dispositive portion of the appealed decision by deleting the award for illegal
suspension as the same was already included in the computation of the
aggregate of the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special
civil action for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987
Constitution.

As to the first and second grounds, petitioners insist that Catolico had been
receiving commissions from YSP, or probably from other suppliers, and that the
check issued to her on 9 November 1989 was not the first or the last. They also
maintained that Catolico occupied a confidential position and that Catolicos
receipt of YSPs check, aggravated by her propensity to violate company rules,

constituted breach of confidence. And contrary to the findings of NLRC, Catolico

was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the
People v. Marti,[21] the constitutional protection against unreasonable searches
and seizures refers to the immunity of ones person from interference by
government and cannot be extended to acts committed by private individuals so
as to bring it within the ambit of alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG)
disagreed with the NLRC's decision, as it was of the persuasion that (a) the
conclusions reached by public respondent are inconsistent with its findings of
fact; and (b) the incident involving the opening of envelope addressed to private
respondent does not warrant the application of the constitutional provisions. It
observed that Catolico was given several opportunities to explain her side of the
check controversy, and concluded that the opportunities granted her and her
subsequent explanation satisfy the requirements of just cause and due process.
The OSG was also convinced that Catolicos dismissal was based on just cause
and that Catolicos admission of the existence of the check, as well as her lame
excuse that it was a Christmas gift from YSP, constituted substantial evidence of
dishonesty. Finally, the OSG echoed petitioners argument that there was no
violation of the right of privacy of communication in this case,[22] adding that
petitioner WATEROUS was justified in opening an envelope from one of its
regular suppliers as it could assume that the letter was a business
communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the
OSG, the NLRC contends that petitioners miserably failed to prove their claim
that it committed grave abuse of discretion in its findings of fact. It then prays that
we dismiss this petition.

In her Comment, Catolico asserts that petitioners evidence is too flimsy to justify
her dismissal. The check in issue was given to her, and she had no duty to turn it
over to her employer. Company rules do not prohibit an employee from accepting
gifts from clients, and there is no indication in the contentious check that it was

meant as a refund for overpriced medicines. Besides, the check was discovered
in violation of the constitutional provision on the right to privacy and
communication; hence, as correctly held by the NLRC, it was inadmissible in
evidence.

Catolico likewise disputes petitioners claim that the audit report and her initial
response that she never received a check were sufficient to justify her dismissal.
When she denied having received a check from YSP, she meant that she did not
receive any refund of overprice, consistent with her position that what she
received was a token gift. All that can be gathered from the audit report is that
there was apparently an overcharge, with no basis to conclude that Catolico
pocketed the amount in collusion with YSP. She thus concluded that her
dismissal was based on a mere suspicion.

Finally, Catolico insists that she could not have breached the trust and
confidence of WATEROUS because, being merely a pharmacist, she did not
handle confidential information or sensitive properties. She was doing the task of
a saleslady: selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except
as to the third ground, the instant petition must fail.

Concededly, Catolico was denied due process. Procedural due process requires
that an employee be apprised of the charge against him, given reasonable time
to answer the charge, allowed ample opportunity to be heard and defend himself,
and assisted by a representative if the employee so desires.[23] Ample
opportunity connotes every kind of assistance that management must accord the
employee to enable him to prepare adequately for his defense, including legal
representation.[24]

In the case at bar, although Catolico was given an opportunity to explain her side,
she was dismissed from the service in the memorandum of 5 March 1990 issued
by her Supervisor after receipt of her letter and that of her counsel. No hearing
was ever conducted after the issues were joined through said letters. The

Supervisors memorandum spoke of evidences [sic] in [WATEROUS] possession,

which were not, however, submitted. What the evidences [sic] other than the
sales invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the
employer to prove just and valid cause for dismissing an employee, and its failure
to discharge that burden would result in a finding that the dismissal is unjustified.
[25] Here, WATEROUS proved unequal to the task.

It is evident from the Supervisors memorandum that Catolico was dismissed

because of an alleged anomalous transaction with YSP. Unfortunately for
petitioners, their evidence does not establish that there was an overcharge.
Control Clerk Eugenio C. Valdez, who claims to have discovered Catolicos
inappropriate transaction, stated in his affidavit:[26]

4. My findings revealed that on or before the month of July 31, 1989, Ms.
Catolico in violation of the [company] procedure, made an under the table deal
with YSP Phils. to supply WDRC needed medicines like Voren tablets at a jackup price of P384.00 per bottle of 50 mg. which has a previous price of only
P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out
that the cost per bottle was indeed overpriced. The Accounting Department of
YSP Phils. through Ms. Estelita Reyes confirmed that there was really an
overprice and she said that the difference was refunded through their check
voucher no. 629552 which was shown to me and the payee is Melodia Catolico,
through a China Bank Check No. 892068 dated November 9, 1989.

It clearly appears then that Catolicos dismissal was based on hearsay

information. Estelita Reyes never testified nor executed an affidavit relative to
this case; thus, we have to reject the statements attributed to her by Valdez.
Hearsay evidence carries no probative value.[27]

Besides, it was never shown that petitioners paid for the Voren tablets. While
Valdez informed Co, through the formers memorandum[28] of 29 January 1990,
that WATEROUS paid YSP P3,840.00 thru MBTC Check No. 222832, the said
check was never presented in evidence, nor was any receipt from YSP offered by
petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do
not indicate an overcharge. The purchase order dated 16 August 1989[29] stated
that the Voren tablets cost P320.00 per box, while the purchase order dated 5
October 1989[30] priced the Voren tablets at P384.00 per bottle. The difference
in price may then be attributed to the different packaging used in each purchase
order.

Assuming that there was an overcharge, the two purchase orders for the Voren
tablets were recommended by Director-MMG Mario R. Panuncio, verified by
AVP-MNG Noli M. Lopez and approved by Vice President-General Manager
Emma R. Co. The purchase orders were silent as to Catolicos participation in the
purchase. If the price increase was objectionable to petitioners, they or their
officers should have disapproved the transaction. Consequently, petitioners had
no one to blame for their predicament but themselves. This set of facts
emphasizes the exceedingly incredible situation proposed by petitioners. Despite
the memorandum warning Catolico not to negotiate with suppliers of medicine,
there was no proof that she ever transacted, or that she had the opportunity to
transact, with the said suppliers. Again, as the purchase orders indicate, Catolico
was not at all involved in the sale of the Voren tablets. There was no occasion for
Catolico to initiate, much less benefit from, what Valdez called an under the table
deal with YSP.

Catolicos dismissal then was obviously grounded on mere suspicion, which in no

case can justify an employees dismissal. Suspicion is not among the valid
causes provided by the Labor Code for the termination of employment;[31] and
even the dismissal of an employee for loss of trust and confidence must rest on
substantial grounds and not on the employers arbitrariness, whims, caprices, or
suspicion.[32] Besides, Catolico was not shown to be a managerial employee, to
which class of employees the term trust and confidence is restricted.[33]

As regards the constitutional violation upon which the NLRC anchored its
decision, we find no reason to revise the doctrine laid down in People vs.
Marti[34] that the Bill of Rights does not protect citizens from unreasonable
searches and seizures perpetrated by private individuals. It is not true, as
counsel for Catolico claims, that the citizens have no recourse against such
assaults. On the contrary, and as said counsel admits, such an invasion gives
rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolicos
reinstatement would not be to the best interest of the parties, he correctly
awarded separation pay to Catolico. Separation pay in lieu of reinstatement is
computed at one months salary for every year of service.[35] In this case,
however, Labor Arbiter Lopez computed the separation pay at one-half months
salary for every year of service. Catolico did not oppose or raise an objection. As
such, we will uphold the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged

decision and resolution of the National Labor Relations Commission dated 30
September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No.
005160-93 are AFFIRMED, except as to its reason for upholding the Labor
Arbiters decision, viz., that the evidence against private respondent was
inadmissible for having been obtained in violation of her constitutional rights of
privacy of communication and against unreasonable searches and seizures
which is hereby set aside.

Costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-10016

February 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,

vs.
PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for
appellee.
Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant
and appellant.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant
guilty of bigamy. The facts are not disputed and, as found by the trial court, are
as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima,
contracted marriage with a certain Maria Gorrea in the Philippine Independent
Church in Cebu (Exhibits "1" and "1-A"). While his marriage with Maria Gorrea
was subsisting, the accused under the name of Proceso Aragon, contracted a
canonical marriage with Maria Faicol on August 27, 1934, in the Santa Teresita
Church in Iloilo City.

The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then

an employee of the Office of the Municipal Treasurer of Iloilo, and a certain

Emilio Tomesa, a clerk in the said office (Exhibit "A" and testimonies of Eulogio
Giroy and complainant Maria Faicol). After the said marriage, the accused and
Maria Faicol established residence in Iloilo. As the accused was then a traveling
salesman, he commuted between Iloilo where he maintained Maria Faicol, and
Cebu where he maintained his first wife, Maria Gorrea died in Cebu City on
August 5, 1939 (Exhibit "2"). After Maria Gorrea's death, and seeing that the
coast was dear in Cebu, the accused brought Maria Faicol to Cebu City in 1940,
where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life
in Cebu, for it appears that in 1949 and 1950, Maria Faicol suffered injuries to her
eyes because of physical maltreatment in the hands of the accused. On January
22, 1953, the accused sent Maria Faicol to Iloilo, allegedly for the purpose of
undergoing treatment of her eyesight. During her absence, the accused
contracted a third marriage with a certain Jesusa C. Maglasang on October 3,
1953, in Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin

Sibonga, Cebu, on October 3, 1953, Although the accused made an attempt to
deny his previous marriage with Maria Faicol, the Court, however, believes that
the attempt is futile for the fact of the said second marriage was fully established
not only by the certificate of the said marriage, but also by the testimony of Maria
Faicol and of Eulogio Giroy, one of the sponsors of the wedding, and the
identification of the accused made by Maria Faicol. (See Exhibits "A" and "B";
t.s.n. pp. 32-33, 40, 41, hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express
provision in Act No. 3613 authorizing the filing of an action for judicial declaration
of nullity of a marriage void ab initio, defendant could not legally contract
marriage with Jesusa C. Maglasang without the dissolution of his marriage to
Maria Faicol, either by the death of the latter or by the judicial declaration of the
nullity of such marriage, at the instance of the latter. Authorities given for this
ruling are 5 Viada, 5th edition, 651; 35 American Jurisprudence, Marriage, Sec.
46, p. 212; Bickford vs. Bickford, 74 N. H. 466, 69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845;
50 Off. Gaz., [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly
makes a subsequent marriage contracted by any person during the lifetime of his
first spouse illegal and void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished from mere annullable
marriages. There is here no pretense that appellant's second marriage with Olga
Lema was contracted in the belief that the first spouse, Jovita de Asis, had been
absent for seven consecutive years or generally considered as dead, so as to
render said marriage valid until declared null and void by a subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the
case above-quoted But this weighty reasons notwithstanding, the very
fundamental principle of strict construction of penal laws in favor of the accused,
which principle we may not ignore, seems to justify our stand in the above-cited
case of People vs. Mendoza. Our Revised Penal Code is of recent enactment
and had the rule enunciated in Spain and in America requiring judicial declaration
of nullity of ab initio void marriages been within the contemplation of the
legislature, an express provision to that effect would or should have been
inserted in the law. In its absence, we are bound by said rule of strict
interpretation already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife,
whose marriage with the appellant was not renewed after the death of the first
wife and before the third marriage was entered into. Hence, the last marriage
was a valid one and appellant's prosecution for contracting this marriage can not
prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed
and the defendant-appellant acquitted, with costs de oficio, without prejudice to
his prosecution for having contracted the second bigamous marriage. So
ordered.

THIRD DIVISION
[G.R. No. 143944. July 11, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BASHER

BONGCARAWAN y MACARAMBON, accused-appellant.
DECISION
PUNO, J.:

This is an appeal from the Decision[1] dated December 27, 1999 of the Regional
Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding
accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of
violation of Section 16, Article III of Republic Act No. 6425[2] as amended, and
sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine of
Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in
case of insolvency.

Accused Basher Bongcarawan y Macarambon was charged in an Information

which reads, thus:

That on or about March 13, 1999, in the City of Iligan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, without authority of law, did
then and there wilfully, unlawfully and feloniously have in his possession, custody
and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug
commonly known as Shabu, weighing approximately 400 grams, without the
corresponding license or prescription.

Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known
as the Dangerous Drugs Act of 1972, as amended by RA 7659.[3]

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland
passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about
3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan
City when its security officer, Mark Diesmo, received a complaint from passenger
Lorena Canoy about her missing jewelry. Canoy suspected one of her copassengers at cabin no. 106 as the culprit. Diesmo and four (4) other members
of the vessel security force accompanied Canoy to search for the suspect whom
they later found at the economy section.[4] The suspect was identified as the
accused, Basher Bongcarawan. The accused was informed of the complaint and
was invited to go back to cabin no. 106. With his consent, he was bodily
searched, but no jewelry was found. He was then escorted by two (2) security
agents back to the economy section to get his baggage. The accused took a
Samsonite suitcase and brought this back to the cabin. When requested by the
security, the accused opened the suitcase, revealing a brown bag and small
plastic packs containing white crystalline substance. Suspecting the substance to
be shabu, the security personnel immediately reported the matter to the ship
captain and took pictures of the accused beside the suitcase and its contents.
They also called the Philippine Coast Guard for assistance.[5] At about 6:00 a.m.,
Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3
Merchardo De Guzman of the Philippine Coast Guard arrived and took custody
of the accused and the seized items--the Samsonite suitcase, a brown bag[6]
and eight (8) small plastic packs of white crystalline substance.[7] When asked
about the contraband articles, the accused explained that he was just requested
by a certain Alican Alex Macapudi to bring the suitcase to the latters brother in
Iligan City.[8] The accused and the seized items were later turned over by the
coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF).
Chief Inspector Graciano Mijares and his men brought the accused to the
PAOCTF Headquarters,[9] while the packs of white crystalline substance were
sent to the NBI Regional Office in Cagayan de Oro City for laboratory
examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance
to be methamphetamine hydrochloride, commonly known as shabu, weighing
399.3266 grams.[10]

The accused testified and proffered his own version. On March 11, 1999, at
about 10:00 p.m., he was in Quiapo, Manila where he met Alican Alex Macapudi,
a neighbor who has a store in Marawi City. He was requested by Macapudi to

bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and
to give it to Macapudis brother at the Iligan port. He boarded the M/V Super Ferry
5 on the same night, carrying a big luggage full of clothes, a small luggage or
maleta containing the sunglasses and brushes he bought from Manila, and the
Samsonite suitcase of Macapudi.[11] He stayed at cabin no. 106. At about 4:00
a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he
took his baggage and positioned himself at the economy section to be able to
disembark ahead of the other passengers. There, he met a friend, Ansari Ambor.
While they were conversing, five (5) members of the vessel security force and a
woman whom he recognized as his co-passenger at cabin no. 106 came and told
him that he was suspected of stealing jewelry. He voluntarily went with the group
back to cabin no. 106 where he was frisked. Subsequently, he was asked to get
his baggage, so he went back to the economy section and took the big luggage
and Macapudis Samsonite suitcase. He left the small maleta containing
sunglasses and brushes for fear that they would be confiscated by the security
personnel. When requested, he voluntarily opened the big luggage, but refused
to do the same to the Samsonite suitcase which he claimed was not his and had
a secret combination lock. The security personnel forcibly opened the suitcase
and found packs of white crystalline substance inside which they suspected to be
shabu. They took pictures of him with the merchandise, and asked him to sign a
turn over receipt which was later given to the Philippine Coast Guard, then to the
PAOCTF.[12]

On December 27, 1999, the trial court rendered judgment, the dispositive portion
of which reads:

WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon

GUILTY beyond reasonable doubt as principal of the offense of violation of
Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby
imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE
HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment
in case of insolvency.

Having been under preventive imprisonment since March 13, 1999 until the
present, the period of such preventive detention shall be credited in full in favor of
the accused in the service of his sentence.

The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby

ordered delivered to the National Bureau of Investigation for proper disposition.

SO ORDERED.[13]

Hence, this appeal where the accused raises the following assignment of errors:

I.

THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG

CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE
ACCUSED/APPELLANT.

II.

THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED

THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN
EVIDENCE AGAINST HIM.[14]

On the first assignment of error, the accused-appellant contends that the

Samsonite suitcase containing the methamphetamine hydrochloride or shabu
was forcibly opened and searched without his consent, and hence, in violation of
his constitutional right against unreasonable search and seizure. Any evidence
acquired pursuant to such unlawful search and seizure, he claims, is
inadmissible in evidence against him. He also contends that People v. Marti[15]
is not applicable in this case because a vessel security personnel is deemed to
perform the duties of a policeman.

The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right

protected by the Constitution.[16] Evidence acquired in violation of this right shall
be inadmissible for any purpose in any proceeding.[17] Whenever this right is
challenged, an individual may choose between invoking the constitutional
protection or waiving his right by giving consent to the search and seizure. It
should be stressed, however, that protection is against transgression committed
by the government or its agent. As held by this Court in the case of People v.
Marti,[18] [i]n the absence of governmental interference, liberties guaranteed by
the Constitution cannot be invoked against the State.[19] The constitutional
proscription against unlawful searches and seizures applies as a restraint
directed only against the government and its agencies tasked with the
enforcement of the law. Thus, it could only be invoked against the State to whom
the restraint against arbitrary and unreasonable exercise of power is imposed.
[20]

In the case before us, the baggage of the accused-appellant was searched by
the vessel security personnel. It was only after they found shabu inside the
suitcase that they called the Philippine Coast Guard for assistance. The search
and seizure of the suitcase and the contraband items was therefore carried out
without government intervention, and hence, the constitutional protection against
unreasonable search and seizure does not apply.

There is no merit in the contention of the accused-appellant that the search and
seizure performed by the vessel security personnel should be considered as one
conducted by the police authorities for like the latter, the former are armed and
tasked to maintain peace and order. The vessel security officer in the case at bar
is a private employee and does not discharge any governmental function. In
contrast, police officers are agents of the state tasked with the sovereign function
of enforcement of the law. Historically and until now, it is against them and other
agents of the state that the protection against unreasonable searches and
seizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is

not the owner of the Samsonite suitcase and he had no knowledge that the same
contained shabu. He submits that without knowledge or intent to possess the

dangerous drug, he cannot be convicted of the crime charged.[21]

We are not persuaded.

In a prosecution for illegal possession of dangerous drugs, the following facts

must be proven beyond reasonable doubt, viz: (1) that the accused is in
possession of the object identified as a prohibited or a regulated drug; (2) that
such possession is not authorized by law; and (3) that the accused freely and
consciously possessed the said drug.[22] The first two elements were sufficiently
proven in this case, and were in fact undisputed. We are left with the third.

As early as 1910 in the case of United States v. Tan Misa,[23] this Court has
ruled that to warrant conviction, the possession of dangerous drugs must be with
knowledge of the accused, or that animus possidendi existed together with the
possession or control of such articles.[24] It has been ruled, however, that
possession of dangerous drugs constitutes prima facie evidence of knowledge or
animus possidendi sufficient to convict an accused in the absence of a
satisfactory explanation of such possession.[25] Hence, the burden of evidence
is shifted to the accused to explain the absence of knowledge or animus
possidendi.[26]

In this respect, the accused-appellant has utterly failed. His testimony,

uncorroborated, self-serving and incredulous, was not given credence by the trial
court. We find no reason to disagree. Well-settled is the rule that in the absence
of palpable error or grave abuse of discretion on the part of the trial judge, the
trial courts evaluation of the credibility of witnesses will not be disturbed on
appeal.[27] Moreover, evidence must be credible in itself to deserve credence
and weight in law. In this case, the accused-appellant admits that when he was
asked to get his baggage, he knew it would be inspected.[28] Why he got the
Samsonite suitcase allegedly not owned by him and which had a combination
lock known only to the owner remains unclear. He also claims that he did not
present his small maleta for inspection for fear that its contents consisting of
expensive sunglasses and brushes would be confiscated,[29] but he brought the
Samsonite suitcase which is not his and also contained expensive sunglasses,
and even watches.[30]

The things in possession of a person are presumed by law to be owned by him.

[31] To overcome this presumption, it is necessary to present clear and
convincing evidence to the contrary. In this case, the accused points to a certain
Alican Alex Macapudi as the owner of the contraband, but presented no evidence
to support his claim. As aptly observed by the trial judge:

First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or
simply a figment of the imagination? He says that Alex Macap[u]di is a friend and
a fellow businessman who has a stall selling sunglasses in Marawi City. But no
witnesses were presented to prove that there is such a living, breathing, flesh
and blood person named Alex Macap[u]di who entrusted the Samsonite to the
accused. Surely, if he does exist, he has friends, fellow businessmen and
acquaintances who could testify and support the claim of the accused.[32]

Mere denial of ownership will not suffice especially if, as in the case at bar, it is
the keystone of the defense of the accused-appellant. Stories can easily be
fabricated. It will take more than bare-bone allegations to convince this Court that
a courier of dangerous drugs is not its owner and has no knowledge or intent to
possess the same.

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06,
in Criminal Case No. 06-7542, convicting accused-appellant Basher
Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as
amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to
pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary
imprisonment in case of insolvency, is AFFIRMED.

Costs against the accused-appellant.

SO ORDERED.