TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[G.R. No. 148825. December 27, 2002]
PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN
CANTON, appellant.
FACTS: Appellant Susan Canton (hereafter SUSAN) was
charged before the Regional Trial Court of Pasay City with the
violation of Section 16 of Article III of the Dangerous Drugs Act
of 1972 (Republic Act No. 6425), as amended, under an
Information[1] whose accusatory portion reads as follows:
That on February 12, 1998 at the Ninoy Aquino International
Airport, and within the jurisdiction of this Honorable Court, the
above named accused did then and there willfully, unlawfully
and feloniously has in her possession NINE HUNDRED
NINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE
(998.2809) GRAMS of methamphetamine hydrochloride, a
regulated drug, without the corresponding prescription or
license.
CONTRARY TO LAW.
The case was docketed as Criminal Case No. 98-0189 and
raffled to Branch 110 of said court.
SUSAN entered a plea of not guilty upon her arraignment.
At the trial, the prosecution presented as witnesses Forensic
Chemist Julieta Flores, lady frisker Mylene Cabunoc, and
SPO4 Victorio de los Reyes.
For its part, the defense presented SPO2 Jerome Cause as its
witness and had prosecution witness Mylene Cabunoc recalled
to be presented as hostile witness. It opted not to let SUSAN
take the witness stand.
The evidence for the prosecution established that on 12
February 1998, at about 1:30 p.m., SUSAN was at the Ninoy
Aquino International Airport (NAIA), being a departing
passenger bound for Saigon, Vietnam.[2] When she passed
through the metal detector booth, a beeping sound was
emitted. Consequently, Mylene Cabunoc, a civilian employee
of the National Action Committee on Hijacking and Terrorism
(NACHT) and the frisker on duty at that time, called her
attention, saying Excuse me maam, can I search you?[3] Upon
frisking SUSAN, Mylene felt something bulging at her
abdominal area. Mylene inserted her hand under the skirt of
SUSAN, pinched the package several times and noticed that
the package contained what felt like rice granules.[4] When
Mylene passed her hand, she felt similar packages in front of
SUSANs genital area and thighs. She asked SUSAN to bring
out the packages, but the latter refused and said: Money,
money only. Mylene forthwith reported the matter to SPO4
Victorio de los Reyes, her supervisor on duty.[5]
SPO4 De los Reyes instructed Mylene to call Customs
Examiner Lorna Jalac and bring SUSAN to a comfort room for
a thorough physical examination. Upon further frisking in the
ladies room, Mylene touched something in front of SUSANs
sex organ. She directed SUSAN to remove her skirt, girdles
and panty. SUSAN obliged. Mylene and Lorna discovered
three packages individually wrapped and sealed in gray
colored packing tape, which SUSAN voluntarily handed to
them.[6] The first was taken from SUSANs abdominal area; the
second, from in front of her genital area; and the third, from her
right thigh.[7] Mylene turned over the packages to SPO4 De
los Reyes.[8] The latter forthwith informed his superior officer
Police Superintendent Daniel Santos about the incident.
Together with SUSAN, they brought the gray plastic packs to
the customs examination table, opened the same and found
that they contained white crystalline substances[9] which,
when submitted for laboratory examination, yielded positive
results for methamphetamine hydrochloride or shabu, a
regulated drug.[10]
For the defense, SPO2 Jerome Cause, an investigator of the
First Regional Aviation Office, testified that no investigation
was ever conducted on SUSAN.[11] However, SUSAN signed
a receipt of the following articles seized from her: (1) three
bags of methamphetamine hydrochloride or shabu
approximately 1,100 grams; (2) one American passport bearing
Number 700389994; (3) one Continental Micronesia plane
ticket with stock control number 0414381077; and (4) two
panty girdles.[12] He said that he informed SUSAN of her
constitutional rights but admitted that she did not have a
counsel when she signed the receipt.[13] Yet he told her that
she had the option to sign or not to sign the receipt.[14]
1
DEFENDANTS CONTENTION:
For assigned errors nos. 1 and 2, SUSAN asserts that the strip
search conducted on her in the ladies room was
constitutionally infirmed because it was not incidental to an
arrest. The arrest could not be said to have been made before
the search because at the time of the strip search, the
arresting officers could not have known what was inside the
plastic containers hidden on her body, which were wrapped
and sealed with gray tape. At that point then, they could not
have determined whether SUSAN was actually committing a
crime. The strip search was therefore nothing but a fishing
expedition. Verily, it is erroneous to say that she was caught
flagrante delicto and that the warrantless search was incidental
to a lawful arrest.
For assigned error no. 3, SUSAN maintains that, following the
doctrine enunciated in Terry v. Ohio,[21] such stop and frisk
search should have been limited to the patting of her outer
garments in order to determine whether she was armed or
dangerous and therefore a threat to the security of the aircraft.
For assigned error no. 4, SUSAN alleges that from the moment
frisker Mylene felt a package at her abdominal area, started
inquiring about the contents thereof, detained her, and decided
to submit her to a strip search in the ladies room, she was
under custodial investigation without counsel, which was
violative of Section 12, Article III of the Constitution.
For assigned errors nos. 5 and 6, SUSAN assails the propriety
of the admission of the medical report executed by Dr. Ma.
Bernadette Arcena on the ground that it was neither testified on
nor offered in evidence.
Lastly, SUSAN questions the application of People v.
Johnson[22] because of its sweeping statement allowing
searches and seizures of departing passengers in airports in
view of the gravity of the safety interests involved. She
stresses that the pertinent case should have been Katz v.
United States,[23] which upholds the Fourth Amendment of the
United States of America that protects people and not places.
ISSUE:
WON the search and seizures of the packages
violates the constitutional right of the accused
WON the arrest without warrant of the accused is
valid
HELD:
a) NO. The Terry search or the stop and frisk situation
refers to a case where a police officer approaches a person
who is acting suspiciously, for purposes of investigating
possibly criminal behavior in line with the general interest of
effective crime prevention and detection. To assure himself that
the person with whom he is dealing is not armed with a
weapon that could unexpectedly and fatally be used against
him, he could validly conduct a carefully limited search of the
outer clothing of such person to discover weapons which might
be used to assault him.[27]
In the present case, the search was made pursuant to routine
airport security procedure, which is allowed under Section 9 of
Republic Act No. 6235 reading as follows:
SEC. 9. Every ticket issued to a passenger by the airline or air
carrier concerned shall contain among others the following
condition printed thereon: Holder hereof and his hand-carried
luggage(s) are subject to search for , and seizure of, prohibited
materials or substances. Holder refusing to be searched shall
not be allowed to board the aircraft, which shall constitute a
part of the contract between the passenger and the air carrier.
This constitutes another exception to the proscription against
warrantless searches and seizures. As admitted by SUSAN
and shown in Annex D of her Brief, the afore-quoted provision
is stated in the Notice to All Passengers located at the final
security checkpoint at the departure lounge. From the said
provision, it is clear that the search, unlike in the Terry search,
is not limited to weapons.Passengers are also subject to
search for prohibited materials or substances.
In this case, after the metal detector alarmed SUSAN
consented to be frisked, which resulted in the discovery of
packages on her body. It was too late in the day for her to
refuse to be further searched because the discovery of the
packages whose contents felt like rice granules, coupled by
her apprehensiveness and her obviously false statement that
the packages contained only money, aroused the suspicion of
the frisker that SUSAN was hiding something illegal. It must be
repeated that R.A. No. 6235 authorizes search for prohibited
materials or substances. To limit the action of the airport
security personnel to simply refusing her entry into the aircraft
and sending her home (as suggested by appellant), and
thereby depriving them of the ability and facility to act
accordingly, including to further search without warrant, in light
of such circumstances, would be to sanction impotence and
ineffectivity in law enforcement, to the detriment of society.[28]
Thus, the strip search in the ladies room was justified under
the circumstances.
The case of People v. Johnson, which involves similar facts
and issues, finds application to the present case. That case
involves accused-appellant Leila Johnson, who was also a
departing passenger bound for the United States via
Continental Airlines CS-912. Olivia Ramirez was then the
frisker on duty, whose task was to frisk departing passengers,
employees and crew to check for weapons, bombs, prohibited
drugs, contraband goods and explosives. When Olivia frisked
Leila, the former felt something hard on the latters abdominal
area. Upon inquiry, Leila explained that she needed to wear
two panty girdles, as she had just undergone an operation as a
result of an ectopic pregnancy. Not satisfied with the
explanation, Olivia reported the matter to her superior, who
then directed her to take Leila to the nearest womens room for
inspection. In the comfort room, Leila was asked to bring out
the thing under her girdle. She acceded and brought out three
plastic packs which contained a total of 580.2 grams of
methamphetamine hydrochloride or shabu. This Court ruled
that the packs of methamphetamine hydrochloride seized
during the routine frisk at the airport was acquired legitimately
pursuant to airport security procedures and are therefore
admissible in evidence against Leila. Corollarily, her
subsequent arrest, although likewise without warrant, was
justified, since it was effected upon the discovery and recovery
of shabu in her person flagrante delicto. The Court held in this
wise:
Persons may lose the protection of the search and seizure
clause by exposure of their persons or property to the public in
a manner reflecting a lack of subjective expectation of privacy,
which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking
and terrorism has come increased security at the nations
airports. Passengers attempting to board an aircraft routinely
pass through metal detectors; their carry-on baggage as well
as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what
the objects are. There is little question that such searches are
reasonable, given their minimal intrusiveness, the gravity of the
safety interests involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are often
notified through airport public address systems, signs, and
notices in their airline tickets that they are subject to search
and, if any prohibited materials or substances are found, such
would be subject to seizure. These announcements place
passengers on notice that ordinary constitutional protections
against warrantless searches and seizures do not apply to
routine airport procedures.
b) YES. The appellant, having been caught flagrante
delicto, was lawfully arrested without a warrant.
Section 5, Rule 113 of the Rules of Court, as amended,
provides: (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.
2
The present case falls under paragraph (a) of the afore-quoted
Section. The search conducted on SUSAN resulted in the
discovery and recovery of three packages containing white
crystalline substances, which upon examination yielded
positive results for methamphetamine hydrochloride or shabu.
As discussed earlier, such warrantless search and seizure
were legal. Armed with the knowledge that SUSAN was
committing a crime, the airport security personnel and police
authorities were duty-bound to arrest her. As held in People v.
Johnson, her subsequent arrest without a warrant was justified,
since it was effected upon the discovery and recovery of shabu
in her person flagrante delicto.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[G.R. No. 99050. September 2, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v.
CONWAY B. OMAWENG, Accused-Appellant.
FACTS: Accused Conway B. Omaweng was originally indicted
for the violation of Section 4, Article II of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended, in a criminal complaint filed with the Municipal
Trial Court of Bontoc, Mountain Province on 12 September
1988. 1 Upon his failure to submit counter-affidavits despite the
granting of an extension of time to do so, the court declared
that he had waived his right to a preliminary investigation and,
finding probable cause against the accused, ordered the
elevation of the case to the proper court. 2
"In the morning of September 12, 1988, Joseph Layong, a PC
constable with the Mt. Province PC Command at Bontoc, Mt.
Province proceeded with other PC soldiers to Barrio Dantay,
Bontoc and, per instruction of their officer, Capt. Eugene
Martin, put up a checkpoint at the junction of the roads, one
going to Sagada and the other to Bontoc (TSN, November 9,
1989, pp. 3-4). They stopped and checked all vehicles that
went through the checkpoint (TSN, April 5, 1990, p. 12).
At about 9:15 A.M., Layong and his teammate, Constable
David Osborne Famocod (sic), saw and flagged down a
cream-colored Ford Fiera bearing Plate No. ABT-634 coming
from the Bontoc Poblacion and headed towards Baguio (TSN,
November 9, 1989, pp. 4-5, 8). The vehicle was driven by
appellant and had no passengers (TSN, November 9, 1989,
pp. 4-5).
Layong and his companions asked permission to inspect the
vehicle and appellant acceded to the request. (TSN, November
9, 1989, pp. 4-5). When they peered into the rear of the
vehicle, they saw a travelling bag which was partially covered
by the rim of a spare tire under the passenger seat on the right
side of the vehicle (TSN, November 9, 1989, pp. 6, 10, 11)
Layong and his companions asked permission to see the
contents of the bag (TSN, November 9, 1989, p. 6). Appellant
consented to the request but told them that it only contained
some clothes (TSN, November 9, 1989, p. 6). When Layong
opened the bag, he found that it contained forty-one (41)
plastic packets of different sizes containing pulverized
substances (TSN, November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David
Osborne Fomocod, who, after sniffing the stuff concluded that
it was marijuana (TSN, November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the
latters Ford Fiera and proceeded to the Bontoc poblacion to
report the incident to the PC Headquarters (TSN, November 9,
1989, pp. 7-8) The prohibited drugs were surrendered to the
evidence custodian, Sgt. Angel Pokling (TSN, November 9,
1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp
Dangwa, La Trinidad, Benguet, who has conducted more than
2500 professional examinations of marijuana, shabu and
cocaine samples, conducted two chemistry examinations of the
substance contained in the plastic packets taken from
appellant and found them to be positive for hashish or
marijuana (TSN, October 24, 1990, pp. 3, 5-81)."
ISSUE:
1) WON the conviction of the accused beyond
reasonable doubt is correct despite the fact that it was not
proven that the accused is the owner of marijuana
2) WON the contraband subject of the instant case is
inadmissible in evidence for having been obtained in violation
of the constitutional right of the accused against unreasonable
search and seizures
HELD:
1) YES. Anent the first assigned error, the accused
contends that the prosecution failed to prove that he is the
owner of the marijuana found inside the travelling bag which he
had in his vehicle, a Ford Fiera Proof of ownership is
immaterial. Accused was prosecuted for the dispatching in
transit or transporting of prohibited drugs pursuant to Section
4, Article II of R.A. No. 6425, as amended. This section does
not require that for one to be liable for participating in any of
the proscribed transactions enumerated therein, he must be
the owner of the prohibited drug. It simply reads:
"SEC. 4. Sale, Administration, Delivery, Distribution and
Transportation of Prohibited Drugs. The penalty of life
imprisonment to death and a fine ranging from twenty
thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of
such transactions. If the victim of the offense is a minor, or
should a prohibited drug involved in any offense under this
Section be the proximate cause of the death of a victim
thereof, the maximum penalty herein provided shall be
imposed."
The facts, as proven by the prosecution, establish beyond cavil
that the accused was caught in the act of transporting the
prohibited drug or, in other words, in flagrante delicto. That he
knew fully well what he was doing is shown beyond moral
certainty by the following circumstances: (a) the prohibited
drug was found in a travelling bag, (b) he is the owner of the
said bag, (c) he concealed the bag behind a spare tire, (d) he
was travelling alone, and (e) the Ford Fiera in which he loaded
the bag was under his absolute control, pursuant to Section 4,
Rule 133 of the Rules of Court (on circumstantial evidence),
the combination of all these circumstances is such as to
produce a conviction beyond reasonable doubt. Such
circumstances, unrebutted by strong and convincing evidence
by the accused, even gave rise to the presumption that he is
the owner of the prohibited drug.
2) NO.
The third assignment of error hardly deserves any
consideration Accused was not subjected to any search which
may be stigmatized as a violation of his Constitutional right
against unreasonable searches and seizures. 14 If one had
been made, this Court would be the first to condemn it "as the
protection of the citizen and the maintenance of his
constitutional rights is one of the highest duties and privileges
of the Court." 15 He willingly gave prior consent to the search
and voluntarily agreed to have it conducted on his vehicle and
travelling bag. Prosecution witness Joseph Layong testified
thus:
"PROSECUTOR AYOCHOK:
Q When you and David Fomocod saw the travelling bag, what
did you do?
A When we saw that travelling bag, we asked the driver if we
could see the contents.
3
Q And what did or what was the reply of the driver, if there was
any?
A He said you can see the contents but those are only
clothings (sic).
Q When he said that, what did you do?
A We asked him if we could open and see it.
Q When you said that, what did he tell you?
A He said you can see it.
Thus, the accused waived his right against unreasonable
searches and seizures As this Court stated in People v.
Malasugui: 17
". . . When one voluntarily submits to a search or consents to
have it made of (sic) his person or premises, he is precluded
from later complaining thereof (Cooley, Constitutional
Limitations, 8th ed., vol. I, page 631.) The right to be secure
from unreasonable search may, like every right, be waived and
such waiver may be made either expressly or impliedly."
Since in the course of the valid search forty-one (41) packages
of drugs were found, it behooved the officers to seize the
same; no warrant was necessary for such seizure. Besides,
when said packages were identified by the prosecution
witnesses and later on formally offered in evidence, the
accused did not raise any objection whatsoever.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
[Lumagpas ako ng 3 pages dito sa digest na to sobrag daming
diniscuss ni SC dito sa case na to.]
[G.R. Nos. 136066-67. February 4, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BINAD
SY CHUA, accused-appellant.
FACTS:Accused-appellant Binad Sy Chua was charged with
violation of Section 16, Article III of R.A. 6425, as amended by
R.A. 7659, and for Illegal Possession of ammunitions in two
separate Informations which read as follows:
Criminal Case No. 96-507[1]
That on or about the 21st day of September 1996, in the City of
Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his possession
and under his control two (2) plastic bags containing
Methamphetamine Hydrochloride (SHABU) weighing more or
less two (2) kilos and one (1) small plastic bag containing
Methamphetamine Hydrocloride weighing more or less fifteen
(15) grams, which is a regulated drug, without any authority
whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21st day of September 1996, in the City of
Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his possession
and under his control twenty (20) pieces of live .22 cal.
ammunitions, without first having obtained a license or permit
to possess or carry the same.
Accused-appellant pleaded not guilty on arraignment. The two
cases were then jointly tried.
The prosecution presented three (3) witnesses, all members of
the police force of Angeles City. Their testimonies can be
synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2
Mario Nulud and PO2 Emmeraldo Nunag received a report
from their confidential informant that accused-appellant was
about to deliver drugs that night at the Thunder Inn Hotel in
Balibago, Angeles City. The informer further reported that
accused-appellant distributes illegal drugs in different karaoke
bars in Angeles City. On the basis of this lead, the PNP Chief
of Angeles City, Col. Neopito Gutierrez, immediately formed a
team of operatives composed of Major Bernardino, Insp.
Tullao, Insp. Emmanuel Nunag, P02 Emmeraldo Nunag, SP01
Fernando Go, and some civilian assets, with SPO2 Mario
Nulud, as team investigator. The group of SPO2 Nulud, PO2
Nunag and the civilian informer positioned themselves across
McArthur Highway near Bali Hai Restaurant, fronting Thunder
Inn Hotel. The other group acted as their back up.
At around 11:45 in the evening, their informer pointed to a car
driven by accused-appellant which just arrived and parked
near the entrance of the Thunder Inn Hotel. After accused-
appellant alighted from the car carrying a sealed Zest-O juice
box, SPO2 Nulud and PO2 Nunag hurriedly accosted him and
introduced themselves as police officers. As accused-appellant
pulled out his wallet, a small transparent plastic bag with a
crystalline substance protruded from his right back pocket.
Forthwith, SPO2 Nulud subjected him to a body search which
yielded twenty (20) pieces of live .22 caliber firearm bullets
from his left back pocket. When SPO2 Nunag peeked into the
contents of the Zest-O box, he saw that it contained a
crystalline substance. SPO2 Nulud instantly confiscated the
small transparent plastic bag, the Zest-O juice box, the twenty
(20) pieces of .22 caliber firearm bullets and the car used by
accused-appellant. Afterwards, SPO2 Nulud and the other
police operatives who arrived at the scene brought the
confiscated items to the office of Col. Guttierez at the PNP
Headquarters in Camp Pepito, Angeles City.[3]
When Col. Gutierrez opened the sealed Zest-O juice box, he
found 2 big plastic bags containing crystalline substances. The
initial field test conducted by SPO2 Danilo Cruz at the PNP
Headquarters revealed that the siezed items contained shabu.
[4] Thereafter, SPO2 Nulud together with accused-appellant
brought these items for further laboratory examination to the
Crime Laboratory at Camp Olivas, San Fernando, Pampanga.
After due testing, forensic chemist S/Insp. Daisy Babor
concluded that the crystalline substances yielded positive
results for shabu. The small plastic bag weighed 13.815 grams
while the two big plastic bags weighed 1.942 kilograms of
shabu.
Accused-appellant maintains that the warrantless arrest and
search made by the police operatives was unlawful; that in the
light of the testimony of SPO2 Nulud that prior to his arrest he
has been under surveillance for two years, there was therefore
no compelling reason for the haste within which the arresting
officers sought to arrest and search him without a warrant; that
the police officers had sufficient information about him and
could have easily arrested him. Accused-appellant further
argues that since his arrest was null an void, the drugs that
were seized should likewise be inadmissible in evidence since
they were obtained in violation of his constitutional rights
against unreasonable search and seizures and arrest.
ISSUE: WON the arrest of the accused-appellant is lawful
HELD: NO. Although the trial courts evaluation of the credibility
of witnesses and their testimonies is entitled to great respect
and will not be disturbed on appeal, however, this rule is not a
hard and fast one.
It is a time-honored rule that the assessment of the trial court
with regard to the credibility of witnesses deserves the utmost
respect, if not finality, for the reason that the trial judge has the
prerogative, denied to appellate judges, of observing the
demeanor of the declarants in the course of their testimonies.
The only exception is if there is a showing that the trial judge
overlooked, misunderstood, or misapplied some fact or
circumstance of weight and substance that would have
affected the case.[11]
In the case at bar, there appears on record some facts of
weight and substance that have been overlooked,
misapprehended, or misapplied by the trial court which casts
doubt on the guilt of accused-appellant. An appeal in a criminal
case opens the whole case for review and this includes the
review of the penalty and indemnity imposed by the trial court.
[12] We are clothed with ample authority to review matters,
even those not raised on appeal, if we find that their
consideration is necessary in arriving at a just disposition of the
case. Every circumstance in favor of the accused shall be
considered.[13] This is in keeping with the constitutional
mandate that every accused shall be presumed innocent
unless his guilt is proven beyond reasonable doubt.
4
First, with respect to the warrantless arrest and consequent
search and seizure made upon accused-appellant, the court a
quo made the following findings:
Accused was searched and arrested while in possession of
regulated drugs (shabu). A crime was actually being committed
by the accused and he was caught in flagrante delicto. Thus,
the search made upon his personal effects x x x allow a
warrantless search incident to a lawful arrest. x x x x
While it is true that the police officers were not armed with a
search warrant when the search was made over the personal
affects (sic) of the accused, however, under the circumstances
of the case, there was sufficient probable cause for said
officers to believe that accused was then and there committing
a crime.
xxxxxxxxx
In the present case, the police received information that the
accused will distribute illegal drugs that evening at the Thunder
Inn Hotel and its vicinities. The police officer had to act quickly
and there was no more time to secure a search warrant. The
search is valid being akin to a stop and frisk.[14]
A thorough review of the evidence on record belies the findings
and conclusion of the trial court. It confused the two different
concepts of a search incidental to a lawful arrest (in flagrante
delicto) and of a stop-and-frisk.
In Malacat v. Court of Appeals,[15] we distinguished the
concepts of a stop-and-frisk and of a search incidental to a
lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts
of a stop-and-frisk and of a search incidental to a lawful arrest.
These two types of warrantless searches differ in terms of the
requisite quantum of proof before they may be validly effected
and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest
determines the validity of the incidental search, the legality of
the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting
a search. In this instance, the law requires that there first be
arrest before a search can be madethe process cannot be
reversed. At bottom, assuming a valid arrest, the arresting
officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence
to destroy, and seize any money or property found which was
used in the commission of the crime, or the fruit of the crime, or
that which may be used as evidence, or which might furnish
the arrestee with the means of escaping or committing
violence.
xxxxxxxxx
We now proceed to the justification for and allowable scope of
a stop-and-frisk as a limited protective search of outer clothing
for weapons, as laid down in Terry, thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth amendment.
Other notable points of Terry are that while probable cause is
not required to conduct a stop-and-frisk, it nevertheless holds
that mere suspicion or a hunch will not validate a stop-and-
frisk. A genuine reason must exist, in light of the police officers
experience and surrounding conditions, to warrant the belief
that the person detained has weapons concealed about him.
Finally, a stop-and-frisk serves a two-fold interest: (1) the
general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may, under
appropriate circumstances and in an appropriate manner,
approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the
person with whom he deals is not armed with a deadly weapon
that could unexpectedly and fatally be used against the police
officer.[16] (Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the stop
and frisk principles is applicable to justify the warrantless arrest
and consequent search and seizure made by the police
operatives on accused-appellant.
In in flagrante delicto arrests, the accused is apprehended at
the very moment he is committing or attempting to commit or
has just committed an offense in the presence of the arresting
officer. Emphasis should be laid on the fact that the law
requires that the search be incidental to a lawful arrest.
Therefore it is beyond cavil that a lawful arrest must precede
the search of a person and his belongings.[17] Accordingly, for
this exception to apply two elements must concur: (1) the
person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting
to commit a crime; and (2) such overt act is done in the
presence or within the view of the arresting officer.[18]
We find the two aforementioned elements lacking in the case
at bar. The record reveals that when accused-appellant arrived
at the vicinity of Thunder Inn Hotel, he merely parked his car
along the McArthur Highway, alighted from it and casually
proceeded towards the entrance of the Hotel clutching a
sealed Zest-O juice box. Accused-appellant did not act in a
suspicious manner. For all intents and purposes, there was no
overt manifestation that accused-appellant has just committed,
is actually committing, or is attempting to commit a crime.
However, notwithstanding the absence of any overt act
strongly manifesting a violation of the law, the group of SPO2
Nulud hurriedly accosted[19] accused-appellant and later on
introduced themselves as police officers.[20] Accused-
appellant was arrested before the alleged drop-off of shabu
was done. Probable cause in this case was more imagined
than real. Thus, there could have been no in flagrante delicto
arrest preceding the search, in light of the lack of an overt
physical act on the part of accused-appellant that he had
committed a crime, was committing a crime or was going to
commit a crime. As applied to in flagrante delicto arrests, it has
been held that reliable information alone, absent any overt act
indicative of a felonious enterprise in the presence and within
the view of the arresting officers, is not sufficient to constitute
probable cause that would justify an in flagrante delicto arrest.
[21] Hence, in People v. Aminudin,[22] we ruled that the
accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do
so or that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9 and there was
no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers
innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he
suddenly became suspect and so subject to apprehension
(Emphasis supplied).
The reliance of the prosecution in People v. Tangliben[23] to
justify the polices actions is misplaced. In the said case, based
on the information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be
engaged in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red
travelling bag who was acting suspiciously. They confronted
him and requested him to open his bag but he refused. He
acceded later on when the policemen identified themselves.
Inside the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities of
Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had
prior knowledge from the very same informant of accused-
appellants activities. No less than SPO2 Mario Nulud, the team
leader of the arresting operatives, admitted that their informant
has been telling them about the activities of accused-appellant
for two years prior to his actual arrest on September 21, 1996.
The police operatives cannot feign ignorance of the alleged
illegal activities of accused-appellant. Considering that the
identity, address and activities of the suspected culprit was
already ascertained two years previous to the actual arrest,
there was indeed no reason why the police officers could not
have obtained a judicial warrant before arresting accused-
appellant and searching his person. Whatever information their
civilian asset relayed to them hours before accused-appellants
5
arrest was not a product of an on-the-spot tip which may
excuse them from obtaining a warrant of arrest. Accordingly,
the arresting teams contention that their arrest of accused-
appellant was a product of an on-the-spot tip is untenable.
In the same vein, there could be no valid stop-and-frisk in this
case. A stop-and-frisk was defined as the act of a police officer
to stop a citizen on the street, interrogate him, and pat him for
weapon(s)[25] or contraband. The police officer should
properly introduce himself and make initial inquiries, approach
and restrain a person who manifests unusual and suspicious
conduct, in order to check the latters outer clothing for possibly
concealed weapons.[26] The apprehending police officer must
have a genuine reason, in accordance with the police officers
experience and the surrounding conditions, to warrant the
belief that the person to be held has weapons (or contraband)
concealed about him.[27] It should therefore be emphasized
that a search and seizure should precede the arrest for this
principle to apply.[28]
This principle of stop-and-frisk search was invoked by the
Court in Manalili v. Court of Appeals.[29] In said case, the
policemen chanced upon the accused who had reddish eyes,
walking in a swaying manner, and who appeared to be high on
drugs. Thus, we upheld the validity of the search as akin to a
stop-and-frisk. In People v. Solayao,[30] we also found
justifiable reason to stop-and-frisk the accused after
considering the following circumstances: the drunken
actuations of the accused and his companions, the fact that his
companions fled when they saw the policemen, and the fact
that the peace officers were precisely on an intelligence
mission to verify reports that armed persons where roaming
the vicinity.
The foregoing circumstances do not obtain in the case at bar.
There was no valid stop-and-frisk in the case of accused-
appellant. To reiterate, accused-appellant was first arrested
before the search and seizure of the alleged illegal items found
in his possession. The apprehending police operative failed to
make any initial inquiry into accused-appellants business in the
vicinity or the contents of the Zest-O juice box he was carrying.
The apprehending police officers only introduced themselves
when they already had custody of accused-appellant. Besides,
at the time of his arrest, accused-appellant did not exhibit
manifest unusual and suspicious conduct reasonable enough
to dispense with the procedure outlined by jurisprudence and
the law. There was, therefore, no genuine reasonable ground
for the immediacy of accused-appellants arrest.
Obviously, the acts of the police operatives wholly depended
on the information given to them by their confidential informant.
Accordingly, before and during that time of the arrest, the
arresting officers had no personal knowledge that accused-
appellant had just committed, was committing, or was about to
commit a crime.
At any rate, even if the fact of delivery of the illegal drugs
actually occurred, accused-appellants warrantless arrest and
consequent search would still not be deemed a valid stop-and
frisk. For a valid stop-and-frisk the search and seizure must
precede the arrest, which is not so in this case. Besides, as we
have earlier emphasized, the information about the illegal
activities of accused-appellant was not unknown to the
apprehending officers. Hence, the search and seizure of the
prohibited drugs cannot be deemed as a valid stop-and-frisk.
Neither can there be valid seizure in plain view on the basis of
the seized items found in accused-appellants possession.
First, there was no valid intrusion. Second, the evidence, i.e.,
the plastic bags found in the Zest-O juice box which contained
crystalline substances later on identified as methamphetamine
hydrochloride (shabu) and the 20 rounds of .22 caliber
ammunition, were not inadvertently discovered. The police
officers first arrested accused-appellant and intentionally
searched his person and peeked into the sealed Zest-O juice
box before they were able to see and later on ascertain that
the crystalline substance was shabu. There was no clear
showing that the sealed Zest-O juice box accused-appellant
carried contained prohibited drugs. Neither were the small
plastic bags which allegedly contained crystalline substance
and the 20 rounds of .22 caliber ammunition visible. These
prohibited substances were not in plain view of the arresting
officers; hence, inadmissible for being the fruits of the
poisonous tree.
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto

[G.R. No. 113447. October 9, 1997]
ALAIN MANALILI y DIZON, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
FACTS:At about 2:10 oclock in the afternoon of April 11, 1988,
policemen from the Anti-Narcotics Unit of the Kalookan City
Police Station were conducting a surveillance along A. Mabini
street, Kalookan City, in front of the Kalookan City Cemetery.
The policemen were Pat. Romeo Espiritu and Pat. Anger
Lumabas and a driver named Arnold Enriquez was driving a
Tamaraw vehicle which was the official car of the Police Station
of Kalookan City. The surveillance was being made because of
information that drug addicts were roaming the area in front of
the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen
alighted from their vehicle. They then chanced upon a male
person in front of the cemetery who appeared high on drugs.
The male person was observed to have reddish eyes and to be
walking in a swaying manner. When this male person tried to
avoid the policemen, the latter approached him and introduced
themselves as police officers. The policemen then asked the
male person what he was holding in his hands. The male
person tried to resist. Pat. Romeo Espiritu asked the male
person if he could see what said male person had in his hands.
The latter showed the wallet and allowed Pat. Romeo Espiritu
to examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana residue
inside. He kept the wallet and its marijuana contents.
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.[15]
On appeal, Respondent Court found no proof that the decision
of the trial court was based on speculations, surmises or
6
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.
ISSUE: WON the search and arrest of the accused is valid
HELD: YES. 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):
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.[19]
In allowing such a search, the United States Supreme Court
held that the interest of effective crime prevention and
detection allows a police officer to approach a person, in
appropriate circumstances and manner, for purposes of
investigating possible criminal behavior even though there is
insufficient probable cause to make an actual arrest. This was
the legitimate investigative function which Officer McFadden
discharged in that case, when he approached petitioner and
his companion whom he observed to have hovered alternately
about a street corner for an extended period of time, while not
waiting for anyone; paused to stare in the same store window
roughly 24 times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years
experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-
frisk, the US Supreme Court held that what justified the limited
search was the more immediate interest of the police officer in
taking steps to assure himself that the person with whom he
was dealing was not armed with a weapon that could
unexpectedly and fatally be used against him.
It did not, however, abandon the rule that the police must,
whenever practicable, obtain advance judicial approval of
searches and seizures through the warrant procedure,
excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search
and seizure must be validated by a previously secured judicial
warrant; otherwise, such search and seizure is unconstitutional
and subject to challenge.[20] Section 2, Article III of the 1987
Constitution, gives this guarantee:
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 stop-and-frisk. In said case, members of the
Integrated National Police of Davao stopped petitioner, who
was carrying a buri bag and acting suspiciously. They found
inside 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 Anti-Narcotics Unit of the Caloocan City Police, such
suspicious behavior was characteristic of drug addicts who
were high. The policemen therefore had sufficient reason to
stop petitioner to investigate if he was actually high on drugs.
During such investigation, they found marijuana in petitioners
possession:[25]
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.[26] Otherwise,
the Courts will indulge every reasonable presumption against
waiver of fundamental safeguards and will not deduce
acquiescence from the failure to exercise this elementary right.
In the present case, however, petitioner is deemed to have
waived such right for his failure to raise its violation before the
trial court. In petitions under Rule 45, as distinguished from an
ordinary appeal of criminal cases where the whole case is
opened for review, the appeal is generally limited to the errors
assigned by petitioner. Issues not raised below cannot be
pleaded for the first time on appeal.[27]
TOPIC: Warrantless Searches and Seizures Flagrante
Delicto
G.R. No. 91107 June 19, 1991
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
7
MIKAEL MALMSTEDT, *defendant-appellant.
FACTS: In an information dated 15 June 1989, accused-
appellant Mikael Malmstedt (hereinafter referred to as the
accused) was charged before the Regional Trial Court (RTC)
of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-
CR-0663, for violation of Section 4, Art. II of Republic Act 6425,
as amended, otherwise known as the Dangerous Drugs Act of
1972, as amended. The factual background of the case is as
follows:
Accused Mikael Malmstedt, a Swedish national, entered the
Philippines for the third time in December 1988 as a tourist. He
had visited the country sometime in 1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City.
Upon his arrival thereat in the morning of the following day, he
took a bus to Sagada and stayed in that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused
went to the Nangonogan bus stop in Sagada to catch the first
available trip to Baguio City. From Baguio City, accused
planned to take a late afternoon trip to Angeles City, then
proceed to Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused took a
Skyline bus with body number 8005 and Plate number AVC
902.1
At about 8: 00 o'clock in the morning of that same day (11 May
1989), Captain Alen Vasco, the Commanding Officer of the
First Regional Command (NARCOM) stationed at Camp
Dangwa, ordered his men to set up a temporary checkpoint at
Kilometer 14, Acop, Tublay, Mountain Province, for the purpose
of checking all vehicles coming from the Cordillera Region. The
order to establish a checkpoint in the said area was prompted
by persistent reports that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs. Moreover,
information was received by the Commanding Officer of
NARCOM, that same morning, that a Caucasian coming from
Sagada had in his possession prohibited drugs.2
The group composed of seven (7) NARCOM officers, in
coordination with Tublay Police Station, set up a checkpoint at
the designated area at about 10:00 o'clock in the morning and
inspected all vehicles coming from the Cordillera Region.
At about 1:30 o'clock in the afternoon, the bus where accused
was riding was stopped. Sgt. Fider and CIC Galutan boarded
the bus and announced that they were members of the
NARCOM and that they would conduct an inspection. The two
(2) NARCOM officers started their inspection from the front
going towards the rear of the bus. Accused who was the sole
foreigner riding the bus was seated at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on
accused's waist. Suspecting the bulge on accused's waist to
be a gun, the officer asked for accused's passport and other
identification papers. When accused failed to comply, the
officer required him to bring out whatever it was that was
bulging on his waist. The bulging object turned out to be a
pouch bag and when accused opened the same bag, as
ordered, the officer noticed four (4) suspicious-looking objects
wrapped in brown packing tape, prompting the officer to open
one of the wrapped objects. The wrapped objects turned out to
contain hashish, a derivative of marijuana.
Thereafter, accused was invited outside the bus for
questioning. But before he alighted from the bus, accused
stopped to get two (2) travelling bags from the luggage carrier.
Upon stepping out of the bus, the officers got the bags and
opened them. A teddy bear was found in each bag. Feeling the
teddy bears, the officer noticed that there were bulges inside
the same which did not feel like foam stuffing. It was only after
the officers had opened the bags that accused finally
presented his passport.
Accused was then brought to the headquarters of the
NARCOM at Camp Dangwa, La Trinidad, Benguet for further
investigation. At the investigation room, the officers opened the
teddy bears and they were found to also contain hashish.
Representative samples were taken from the hashish found
among the personal effects of accused and the same were
brought to the PC Crime Laboratory for chemical analysis.
In the chemistry report, it was established that the objects
examined were hashish. a prohibited drug which is a derivative
of marijuana. Thus, an information was filed against accused
for violation of the Dangerous Drugs Act.
ISSUE: WON search of the accused personal effects was
illegal because it was made without a search warrant and,
therefore, the prohibited drugs which were discovered during
the illegal search are not admissible as evidence against him
HELD: The Constitution guarantees the right of the people to
be secure in their persons, houses, papers and effects against
unreasonable searches and seizures.5 However, where the
search is made pursuant to a lawful arrest, there is no need to
obtain a search warrant.
Accused was searched and arrested while transporting
prohibited drugs (hashish). A crime was actually being
committed by the accused and he was caught in flagrante
delicto. Thus, the search made upon his personal effects falls
squarely under paragraph (1) of Rule 112 Section 5 of the
Rules of Court, which allow a warrantless search incident to a
lawful arrest.7
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 could 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.8 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.9
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,10 or where the accused
was acting suspiciously,11 and attempted to flee.12
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,13 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) travelling
bags containing 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
8
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.
[G.R. No. 128222. June 17, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHUA
HO SAN @ TSAY HO SAN, accused-appellant.
FACTS:
In response to reports of rampant smuggling of firearms and
other contraband, Jim Lagasca Cid (hereafter CID), as Chief of
Police of the Bacnotan Police Station, of La Union began
patrolling the Bacnotan coastline with his officers. While
monitoring the coastal area of Barangay Bulala on 29 March
1995, he intercepted a radio call at around 12:45 p.m. from
Barangay Captain Juan Almoite (hereafter ALMOITE) of
Barangay Tammocalao requesting police assistance regarding
an unfamiliar speedboat the latter had spotted. According to
ALMOITE, the vessel looked different from the boats ordinarily
used by fisherfolk of the area and was poised to dock at
Tammocalao shores. CID and six of his men led by his Chief
Investigator, SPO1 Reynoso Badua (hereafter BADUA),
proceeded forthwith to Tammocalao beach and there conferred
with ALMOITE. CID then observed that the speedboat ferried a
lone male passenger. As it was routine for CID to deploy his
men in strategic places when dealing with similar situations, he
ordered his men to take up positions thirty meters from the
coastline. When the speedboat landed, the male passenger
alighted, and using both hands, carried what appeared a
multicolored strawbag. He then walked towards the road. By
this time, ALMOITE, CID and BADUA, the latter two
conspicuous in their uniform and issued side-arms, became
suspicious of the man as he suddenly changed direction and
broke into a run upon seeing the approaching officers. BADUA,
however, prevented the man from fleeing by holding on to his
right arm. Although CID introduced themselves as police
officers, the man appeared impassive. Speaking in English,
CID then requested the man to open his bag, but he seemed
not to understand. CID thus tried speaking Tagalog, then
Ilocano, but still to no avail. CID then resorted to what he
termed sign language; he motioned with his hands for the man
to open the bag. This time, the man apparently understood and
acceded to the request. A search of the bag yielded several
transparent plastic packets containing yellowish crystalline
substances.CID then gestured to the man to close the bag,
which he did. As CID wished to proceed to the police station,
he signaled the man to follow, but the latter did not to
comprehend. Hence, CID placed his arm around the shoulders
of the man and escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the
facial features of the man, that he was probably Taiwanese.
CID then "recited and informed the man of his constitutional
rights" to remain silent, to have the assistance of a counsel,
etc. Eliciting no response from the man, CID ordered his men
to find a resident of the area who spoke Chinese to act as an
interpreter. In the meantime, BADUA opened the bag and
counted twenty-nine (29) plastic packets containing yellowish
crystalline substances which he and CID suspected was
shabu. The interpreter, Mr. Go Ping Guan, finally arrived,
through whom the man was "apprised of his constitutional
rights." The police authorities were satisfied that the man and
the interpreter perfectly understood each other despite their
uncertainty as to what language was spoken. But when the
policemen asked the man several questions, he retreated to
his obstinate reticence and merely showed his I.D. with the
name Chua Ho San printed thereon. CHUA's bag and its
contents were sent to the PNP Crime Laboratory at Camp
Diego Silang, Carlatan, San Fernando, La Union for laboratory
examination. In the meantime, CHUA was detained at the
Bacnotan Police Station.
CHUA was initially charged with illegal possession of
methamphetamine hydrochloridebefore the RTC which
docketed the case as Criminal Case No. 4037. However,
pursuant to the recommendation of the Office of the Provincial
Prosecutor of San Fernando, La Union, that the facts of the
case could support an indictment for illegal transport of a
regulated drug, the information was subsequently amended to
allege that CHUA "willfully, unlawfully and feloniously
transpor(ted) 28.7 kilos of [m]ethamphetamine [h]ydrochloride
(shabu) without the necessary permit or authority to transport
the same" in violation of Section 15, Article III of R.A. 6425 as
amended by R.A. 7659.
CHUA denounced the prosecutions story as a distortion of the
truth. He denied he was ever favored with an interpreter or
informed of his "constitutional rights," particularly of his right to
counsel. Consequently, his arrest was tainted with illegality and
the methamphetamine hydrochloride found in the bag should
have been regarded inadmissible as evidence. He also
maintained that CID never graced the occasion of his setting
foot for the first time at Tammocalao beach. BADUA certainly
never prevented him from running away, as such thought failed
to make an impression in his mind. Most significantly, he
denied ownership and knowledge of the contents of the bag,
emphasizing that RONG alone exercised dominion over the
same.
In a decision promulgated on 10 February 1997, the RTC
found that the prosecution successfully discharged its burden
of proving that CHUA transported 28.7 kilos of
methamphetamine hydrochloride without legal authority to do
so. Invoking People v. Tagliben as authority, the RTC
characterized the search as incidental to a valid in flagrante
delicto arrest, hence it allowed the admission of the
methamphetamine hydrochloride as corpus delicti. The RTC
also noted the futility of informing CHUA of his constitutional
rights to remain silent, and to have competent and independent
counsel preferably of his own choice, considering the language
barrier and the observation that such irregularity was rectified
when accused was duly arraigned and (afterwards)
participated in the trial of this case. The RTC then disregarded
the inconsistencies and contradictions in the testimonies of the
prosecution witnesses as these referred to minor details which
did not impair the credibility of the witnesses or tarnish the
credence conferred on the testimonies thus delivered.
ISSUE: WON it is a valid searches and seizures.
HELD: NO.
We reverse the RTC.
In cases of inflagrante delicto arrests, a peace officer or a
private person may without a warrant, arrest a person, when, in
his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of
such fact or as recent case law adverts to, personal knowledge
of facts or circumstances convincingly indicative or constitutive
of probable cause. The term probable cause had been
understood to mean a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to
warrant a cautious mans belief that the person accused is
guilty of the offense with which he is charged. Specifically with
respect to arrests, it is such facts and circumstances which
would lead a reasonably discreet and prudent man to believe
that an offense has been committed by the person sought to
be arrested. In People v. Montilla, the Court acknowledged that
the evidentiary measure for the propriety of filing criminal
charges, and correlatively, for effecting warrantless arrest, has
been reduced and liberalized. Noting that the previous
statutory and jurisprudential evidentiary standard was "prima
facie evidence" and that it had been dubiously equated with
probable cause.
Guided by these principles, this Court finds that there are no
facts on record reasonably suggestive or demonstrative of
CHUAs participation in an ongoing criminal enterprise that
could have spurred police officers from conducting the
obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding
that "accused was caught red-handed carrying the bagful of
[s]habu when apprehended. In short, there is no probable
cause. At least in People v.Tangliben, the Court agreed with
the lower court's finding that compelling reasons (e.g., accused
was acting suspiciously, on the spot identification by an
informant that accused was transporting prohibitive drug, and
the urgency of the situation) constitutive of probable cause
impelled police officers from effecting an in flagrante delicto
arrest. In the case at bar, the Solicitor General proposes that
the following details are suggestive of probable cause --
persistent reports of rampant smuggling of firearm and other
contraband articles, CHUA's watercraft differing in appearance
from the usual fishing boats that commonly cruise over the
Bacnotan seas, CHUAs illegal entry into the Philippines (he
9
lacked the necessary travel documents or visa), CHUAs
suspicious behavior, i.e. he attempted to flee when he saw the
police authorities, and the apparent ease by which CHUA can
return to and navigate his speedboat with immediate dispatch
towards the high seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute
probable cause. None of the telltale clues, e.g., bag or
package emanating the pungent odor of marijuana or other
prohibited drug, confidential report and/or positive identification
by informers of courier(s) of prohibited drug and/or the time
and place where they will transport/deliver the same,
suspicious demeanor or behavior and suspicious bulge in the
waist-- accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no classified
information that a foreigner would disembark at Tammocalao
beach bearing prohibited drug on the date in question. CHUA
was not identified as a drug courier by a police informer or
agent. The fact that the vessel that ferried him to shore bore no
resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense. And despite claims by CID and BADUA that CHUA
attempted to flee, ALMOITE testified that the latter was merely
walking and oblivious to any attempt at conversation when the
officers approached him.
True, CHUA entered Philippine territory without a visa. This
was not obvious to the police. But gossamer to the officers
sense perception and view were CHUA disembarking from a
speedboat, CHUA walking casually towards the road, and
CHUA carrying a multicolored strawbag. These acts did not
convey any impression that he illegally entered Philippine
shores.Neither were these overt manifestations of an ongoing
felonious activity nor of CHUAs criminal behavior as clearly
established in CIDs testimony.
To reiterate, the search was not incidental to an arrest. There
was no warrant of arrest and the warrantless arrest did not fall
under the exemptions allowed by the Rules of Court as already
shown. From all indications, the search was nothing but a
fishing expedition. It is worth mentioning here that after
introducing themselves, the police officers immediately
inquired about the contents of the bag. What else could have
impelled the officers from displaying such inordinate interest in
the bag but to ferret out evidence and discover if a felony had
indeed been committed by CHUA -- in effect to "retroactively
establish probable cause and validate an illegal search and
seizure."
The State then attempted to persuade this Court that there was
a consented search, a legitimate waiver of the constitutional
guarantee against obtrusive searches. It is fundamental,
however, that to constitute a waiver, it must first appear that the
right exists; secondly, that the person involved had knowledge,
actual or constructive, of the existence of such a right; and
lastly, that said person had an actual intention to relinquish the
right. CHUA never exhibited that he knew, actually or
constructively of his right against unreasonable searches or
that he intentionally conceded the same. This can be inferred
from the manner by which the search was performed.
CHUA obviously failed to understand the events that overran
and overwhelmed him. The police officers already introduced
themselves to CHUA in three languages, but he remained
completely deadpan. The police hence concluded that CHUA
failed to comprehend the three languages. When CHUA failed
to respond again to the polices request to open the bag, they
resorted to what they called sign language. They claimed that
CHUA finally understood their hand motions and gestures. This
Court disagrees. If CHUA could not understand what was orally
articulated to him, how could he understand the polices sign
language. More importantly, it cannot logically be inferred from
his alleged cognizance of the sign language that he
deliberately, intelligently, and consciously waived his right
against such an intrusive search. This Court is not unmindful of
cases upholding the validity of consented warrantless searches
and seizure. But in these cases, the police officers' request to
search personnel effects was orally articulated to the accused
and in such language that left no room for doubt that the latter
fully understood what was requested. In some instances, the
accused even verbally replied to the request demonstrating
that he also understood the nature and consequences of such
request.
It was eventually discovered that the bag contained the
regulated substance. But this is a trifling matter. If evidence
obtained during an illegal search even if tending to confirm or
actually confirming initial information or suspicion of felonious
activity is absolutely considered inadmissible for any purpose
in any proceeding, the same being the fruit of a poisonous tree
how much more of "forbidden fruits" which did not confirm any
initial suspicion of criminal enterprise as in this case - because
the police admitted that they never harbored any initial
suspicion. Casting aside the regulated substance as evidence,
the remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUAs conviction.
[G.R. No. 120431. April 1, 1998]
RODOLFO ESPANO, accused-petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
FACTS:
The evidence for the prosecution, based on the testimony of
Pat. Romeo Pagilagan, shows that on July 14, 1991, at about
12:30 a.m., he and other police officers, namely, Pat. Wilfredo
Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western
Police District (WPD), Narcotics Division went to Zamora and
Pandacan Streets, Manila to confirm reports of drug pushing in
the area. They saw petitioner selling something to another
person. After the alleged buyer left, they approached petitioner,
identified themselves as policemen, and frisked him. The
search yielded two plastic cellophane tea bags of marijuana.
When asked if he had more marijuana, he replied that there
was more in his house. The policemen went to his residence
where they found ten more cellophane tea bags of marijuana.
Petitioner was brought to the police headquarters where he
was charged with possession of prohibited drugs. On July 24,
1991, petitioner posted bail and the trial court issued his order
of release on July 29, 1991.
By way of defense, petitioner testified that on said evening, he
was sleeping in his house and was awakened only when the
policemen handcuffed him. He alleged that the policemen were
looking for his brother-in-law Lauro, and when they could not
find the latter, he was instead brought to the police station for
investigation and later indicted for possession of prohibited
drugs. His wife Myrna corroborated his story.
The trial court rejected petitioners defense as a mere
afterthought and found the version of the prosecution more
credible and trustworthy.
Thus, on August 14, 1992, the trial court rendered a decision,
convicting petitioner of the crime charged, the dispositive
portion of which reads:
Petitioner appealed the decision to the Court of Appeals. The
appellate court, however, affirmed the decision of the trial court
in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in
convicting him on the basis of the following: (a) the pieces of
evidence seized were inadmissible; (b) the superiority of his
constitutional right to be presumed innocent over the doctrine
of presumption of regularity; (c) he was denied the
constitutional right of confrontation and to compulsory process;
and (d) his conviction was based on evidence which was
irrelevant and not properly identified.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
After a careful examination of the records of the case, this
Court finds no compelling reason sufficient to reverse the
decisions of the trial and appellate courts.
Lastly, the issue on the admissibility of the marijuana seized
should likewise be ruled upon. Rule 113 Section 5(a) of the
Rules of Court provides:
A peace officer or a private person may, without a warrant,
arrest a person:
a. when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
x x x x x x x x x.
Petitioners arrest falls squarely under the aforecited rule. He
was caught in flagranti as a result of a buy-bust operation
conducted by police officers on the basis of information
received regarding the illegal trade of drugs within the area of
Zamora and Pandacan Streets, Manila. The police officer saw
petitioner handing over something to an alleged buyer. After
the buyer left, they searched him and discovered two
cellophanes of marijuana. His arrest was, therefore, lawful and
the two cellophane bags of marijuana seized were admissible
in evidence, being the fruits of the crime.
10
As for the ten cellophane bags of marijuana found at
petitioners residence, however, the same are inadmissible in
evidence.
The 1987 Constitution guarantees freedom against
unreasonable searches and seizures under Article III, Section
2 which provides:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
An exception to the said rule is a warrantless search incidental
to a lawful arrest for dangerous weapons or anything which
may be used as proof of the commission of an offense. It may
extend beyond the person of the one arrested to include the
premises or surroundings under his immediate control. In this
case, the ten cellophane bags of marijuana seized at
petitioners house after his arrest at Pandacan and Zamora
Streets do not fall under the said exceptions.
The articles seized from petitioner during his arrest were valid
under the doctrine of search made incidental to a lawful arrest.
The warrantless search made in his house, however, which
yielded ten cellophane bags of marijuana became unlawful
since the police officers were not armed with a search warrant
at the time. Moreover, it was beyond the reach and control of
petitioner.G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY
PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and
NARCISO CABRERA, respondents.
FACTS:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign
initiated by the Mayor of the City of Manila, Ramon D.
Bagatsing, elements of the Special Anti-Narcotics Group,
Auxilliary Services Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and confiscated
from dealers, distributors, newsstand owners and peddlers
along Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic and
indecent and later burned the seized materials in public at the
University belt along C.M. Recto Avenue, Manila, in the
presence of Mayor Bagatsing and several officers and
members of various student organizations.
Among the publications seized, and later burned, was "Pinoy
Playboy" magazines published and co-edited by plaintiff Leo
Pita.
In his Answer and Opposition filed on December 27,1983
defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and 3,
1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that
the said confiscation and seizure was (sic) undertaken
pursuant to P.D. No. 960, as amended by P.D. No. 969, which
amended Article 201 of the Revised Penal Code. In opposing
the plaintiffs application for a writ of preliminary injunction,
defendant pointed out that in that anti- smut campaign
conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials,
and that the plaintiffs establishment was not raided.
On February 3, 1984, the trial court promulgated the Order
appealed from denying the motion for a writ of preliminary
injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds,
among other things, as follows:
We cannot quarrel with the basic postulate suggested by
appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the constitutional
guarantee protecting the right to express oneself in print (Sec.
9, Art. IV), and the protection afforded by the constitution
against unreasonable searches and seizure (Sec. 3, Art.IV). It
must be equally conceded, however, that freedom of the press
is not without restraint as the state has the right to protect
society from pornographic literature that is offensive to public
morals, as indeed we have laws punishing the author,
publishers and sellers of obscene publications (Sec. I , Art.
201, Revised Penal Code, as amended by P.D. No. 960 and
P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain
exceptions, as when there is consent to the search or seizure,
(People vs. Malesugui 63 Phil. 22) or search is an incident to
an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon,
76 Phil. 637) or is conducted in a vehicle or movable structure
(See Papa vs. Magno, 22 SCRA 857). 3
The petitioner now ascribes to the respondent court the
following errors:
1. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the police officers could
without any court warrant or order seize and confiscate
petitioner's magazines on the basis simply of their
determination that they are obscene.
ISSUE: WON it is a valid searches and seizures.
HELD: NO.
It is also significant that in his petition, the petitioner asserts
constitutional issues, mainly, due process and illegal search
and seizure.
As we so strongly stressed in Bagatsing, a case involving the
delivery of a political speech, the presumption is that the
speech may validly be said. The burden is on the State to
demonstrate the existence of a danger, a danger that must not
only be: (1) clear but also, (2) present, to justify State action to
stop the speech. Meanwhile, the Government must allow it (the
speech). It has no choice. However, if it acts notwithstanding
that (absence of evidence of a clear and present danger), it
must come to terms with, and be held accountable for, due
process.
The Court is not convinced that the private respondents have
shown the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory injunction had
been sought below. First of all, they were not possessed of a
lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search
and seizure, by way of a search warrant.
The fact that the former respondent Mayor's act was
sanctioned by "police power" is no license to seize property in
disregard of due process. In Philippine Service Exporters, Inc.
v. Drilon, 38 We defined police power as "state authority to
enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ." 39
Presidential Decrees Nos. 960 and 969 are, arguably, police
power measures, but they are not, by themselves, authorities
for high-handed acts. They do not exempt our law enforcers, in
carrying out the decree of the twin presidential issuances (Mr.
Marcos'), from the commandments of the Constitution, the right
to due process of law and the right against unreasonable
searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We
quote:
Sec. 2. Disposition of the Prohibited Articles. The disposition
of the literature, films, prints, engravings, sculptures, paintings,
or other materials involved in the violation referred to in Section
1 hereof (Art. 201), RPC as amended) shall be governed by
the following rules:
(a) Upon conviction of the offender, to be forfeited in favor of
the Government to be destroyed.
(b) Where the criminal case against any violator of this decree
results in an acquittal, the obscene/immoral literature, films,
prints, engravings, sculptures, paintings or other materials and
articles involved in the violation referred to in Section 1
(referring to Art. 201) hereof shall nevertheless be forfeited in
favor of the government to be destroyed, after forfeiture
proceedings conducted by the Chief of Constabulary.
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not
be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the
persons or things to be seized.
It is basic that searches and seizures may be done only
through a judicial warrant, otherwise, they become
unreasonable and subject to challenge. In Burgos v. Chief of
Staff,AFP, 43 We counter-minded the orders of the Regional
11
Trial Court authorizing the search of the premises of We Forum
and Metropolitan Mail, two Metro Manila dailies, by reason of a
defective warrant. We have greater reason here to reprobate
the questioned raid, in the complete absence of a warrant,
valid or invalid. The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a political
case, because, and as we have indicated, speech is speech,
whether political or "obscene".
The Court is not ruling out warrantless searches, as the Rules
of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of person arrested. A
person charged with an offense may be searched for
dangerous weapons or anything which may be used as proof
of the commission of the offense. 44
but as the provision itself suggests, the search must have been
an incident to a lawful arrest, and the arrest must be on
account of a crime committed. Here, no party has been
charged, nor are such charges being readied against any
party, under Article 201, as amended, of the Revised Penal
Code.
We reject outright the argument that "[t]here is no constitutional
nor legal provision which would free the accused of all criminal
responsibility because there had been no warrant,"45 and that
"violation of penal law [must] be punished."46 For starters,
there is no "accused" here to speak of, who ought to be
"punished". Second, to say that the respondent Mayor could
have validly ordered the raid (as a result of an anti-smut
campaign) without a lawful search warrant because, in his
opinion, "violation of penal laws" has been committed, is to
make the respondent Mayor judge, jury, and executioner rolled
into one. And precisely, this is the very complaint of the
petitioner.
WHEREFORE, the petition is GRANTED. The decision of the
respondent court is REVERSED and SET ASIDE. It appearing,
however, that the magazines subject of the search and seizure
ave been destroyed, the Court declines to grant affirmative
relief. To that extent, the case is moot and academic.
G.R. No. L-25434 July 25, 1975
HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as
Acting Commissioner, Philippine Fisheries Commission, and
THE PHILIPPINE NAVY, petitioners,
vs.
HONORABLE FRANCISCO ARCA, as Presiding Judge of the
Court of First Instance of Manila (Branch 1) and MORABE, DE
GUZMAN & COMPANY, respondents.
FACTS:
On July 20, 1965, petitioner Fisheries Commissioner requested
the Philippine Navy to apprehend vessels Tony Lex VI and
Tony Lex III, also respectively called Srta. Winnie and Srta.
Agnes, for alleged violations of some provisions of the
Fisheries Act and the rules and regulations promulgated
thereunder.
On August 5 or 6, 1965, the two fishing boats were actually
seized for illegal fishing with dynamite. Fish caught with
dynamite and sticks of dynamite were then found aboard the
two vessels.
On September 30, 1965, there were filed in the court of First
Instance of Palawan a couple of informations, one against the
crew members of Tony Lex III, and another against the crew
members of Tony Lex VI both for violations of Act No. 4003,
as amended by Commonwealth Acts Nos. 462, 659 and 1088,
i.e., for illegal fishing with the use of dynamite. On the same
day, the Fiscal filed an ex parte motion to hold the boats in
custody as instruments and therefore evidence of the crime (p.
54, rec.), and cabled the Fisheries Commissioner to detain the
vessels (p. 56, rec.).
On October 2 and 4, likewise, the Court of First Instance of
Palawan ordered the Philippine Navy to take the boats in
custody.
On October 2, 1965, respondent company filed a complaint
with application for preliminary mandatory injunction, docketed
as Civil Case No. 62799 with the Court of First Instance of
Manila against herein petitioners. Among others, it was alleged
that at the time of the seizure of the fishing boats in issue, the
same were engaged in legitimate fishing operations off the
coast of Palawan; that by virtue of the offer of compromise
dated September 13, 1965 by respondent company to the
Secretary of Agriculture and Natural Resources, the numerous
violations of the Fishery Laws, if any, by the crew members of
the vessels were settled.
On October 9, 1965, petitioners, represented by the Solicitor
General, opposed the above-mentioned complaint, alleging
among others, that: (1) the issuance of the writ would disrupt
the status quo of the parties and would render nugatory any
decision of the respondent court favorable to the defendant; (2)
that the vessels, being instruments of a crime in criminal cases
Nos. 3416 and 3417 filed with the Court of First Instance of
Palawan, the release of the vessels sans the corresponding
order from the above-mentioned court would deprive the same
of its authority to dispose of the vessels in the criminal cases
and the Provincial Fiscal would not be able to utilize said
vessels as evidence in the prosecution of said cases; (3) that
as petitioners herein were in possession of one of the vessels
in point, they cannot now be deprived of the legal custody
thereof by reason of the dismissal of Civil Case No. 56701; (4)
that petitioner Fisheries Commissioner has the power to seize
and detain the vessels pursuant to Section 5 of Republic Act
No. 3215 in relation to Sections 903 and 2210 of the Revised
Tariff and Customs Code; (5) that respondents herein have not
exhausted administrative remedies before coming to court; (6)
that the compromise agreement approved by the Secretary of
Agriculture and Natural Resources and indorsed to the
Fisheries Commissioner is never a bar to the prosecution of
the crime perpetrated by the crew members of the vessels
belonging to respondent company.
On October 18, 1965, herein petitioners, as defendants in said
Civil Case No. 62799, filed their answer to the complaint with
affirmative defenses, reiterating the grounds in their opposition
to the issuance of a writ of preliminary mandatory injunction
and adding that herein private respondent admitted committing
the last violation when it offered in its letter dated September
21, 1965 to the Acting Commissioner of Fisheries, to
compromise said last violation (Exh. 12, pp. 60-61, rec.).
On said day, October 18, 1965, the respondent Judge issued
the challenged order granting the issuance of the writ of
preliminary mandatory injunction and issued the preliminary
writ upon the filing by private respondent of a bond of
P5,000.00 for the release of the two vessels (pp. 95-102, rec.).
On October 19, 1965, herein petitioners filed a motion for
reconsideration of the order issuing the preliminary writ on
October 18, 1965 on the ground, among others, that on
October 18, 1965 the Philippine Navy received from the
Palawan Court of First Instance two orders dated October 2
and 4, 1965 requiring the Philippine Navy to hold the fishing
boats in custody and directing that the said vessels should not
be released until further orders from the Court, and that the
bond of P5,000.00 is grossly insufficient to cover the
Government's losses in case the two vessels, which are worth
P495,000.00, are placed beyond the reach of the Government,
thus frustrating their forfeiture as instruments of the crime (pp.
103-109, rec.).
On November 23, 1965, respondent Judge denied the said
motion for reconsideration (p. 110, rec.).
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
WE rule that the respondent Judge of the Manila Court of First
Instance acted without jurisdiction and with grave abuse of
discretion when he issued on October 18, 1965 the order
directing the issuance of a writ of preliminary mandatory
injunction and when he refused to reconsider the same.
III
Herein petitioners can validly direct and/or effect the seizure of
the vessels of private respondent for illegal fishing by the use
of dynamite and without the requisite licenses.
Search and seizure without search warrant of vessels and air
crafts for violations of the customs laws have been the
traditional exception to the constitutional requirement of a
search warrant, because the vessel can be quickly moved out
of the locality or jurisdiction in which the search warrant must
be sought before such warrant could be secured; hence it is
not practicable to require a search warrant before such search
or seizure can be constitutionally effected (Papa vs. Mago, L-
27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs.
Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149,
158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225;
Gonzales, Philippine Constitutional Law, 1966 ed., p. 300).
The same exception should apply to seizures of fishing vessels
breaching our fishery laws. They are usually equipped with
powerful motors that enable them to elude pursuing ships of
the Philippine Navy or Coast Guard.
12
Another exception to the constitutional requirement of a search
warrant for a valid search and seizure, is a search or seizure
as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637;
Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under
our Rules of Court, a police officer or a private individual may,
without a warrant, arrest a person (a) who has committed, is
actually committing or is about to commit an offense in his
presence; (b) who is reasonably believed to have committed
an offense which has been actually committed; or (c) who is a
prisoner who has escaped from confinement while serving a
final judgment or from temporary detention during the
pendency of his case or while being transferred from one
confinement to another (Sec. 6, Rule 113, Revised Rules of
Court). In the case at bar, the members of the crew of the two
vessels were caught inflagrante illegally fishing with dynamite
and without the requisite license. Thus their apprehension
without a warrant of arrest while committing a crime is lawful.
Consequently, the seizure of the vessel, its equipment and
dynamites therein was equally valid as an incident to a lawful
arrest.
WHEREFORE, THE PETITION IS HEREBY GRANTED AND
THE ORDER OF RESPONDENT JUDGE DATED OCTOBER
18, 1965, THE WRIT OF PRELIMINARY MANDATORY
INJUNCTION ISSUED THEREUNDER AND THE ORDER
DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS
NULL AND VOID, WITH COSTS AGAINST PRIVATE
RESPONDENT.
G.R. No. 83988 September 29, 1989
RICARDO C. VALMONTE AND UNION OF LAWYERS AND
ADVOCATES FOR PEOPLE'S RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION
DISTRICT COMMAND, respondents.
FACTS:
On 20 January 1987, the National Capital Region District
Command (NCRDC) was activated pursuant to Letter of
Instruction 02/87 of the Philippine General Headquarters, AFP,
with the mission of conducting security operations within its
area of responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the
social, economic and political development of the National
Capital Region. 1 As part of its duty to maintain peace and
order, the NCRDC installed checkpoints in various parts of
Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said
checkpoints, the residents of Valenzuela are worried of being
harassed and of their safety being placed at the arbitrary,
capricious and whimsical disposition of the military manning
the checkpoints, considering that their cars and vehicles are
being subjected to regular searches and check-ups, especially
at night or at dawn, without the benefit of a search warrant
and/or court order. Their alleged fear for their safety increased
when, at dawn of 9 July 1988, Benjamin Parpon, a supply
officer of the Municipality of Valenzuela, Bulacan, was gunned
down allegedly in cold blood by the members of the NCRDC
manning the checkpoint along McArthur Highway at Malinta,
Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning
shots fired in the air. Petitioner Valmonte also claims that, on
several occasions, he had gone thru these checkpoints where
he was stopped and his car subjected to search/check-up
without a court order or search warrant.
Petitioners further contend that the said checkpoints give the
respondents a blanket authority to make searches and/or
seizures without search warrant or court order in violation of
the Constitution;2and, instances have occurred where a
citizen, while not killed, had been harassed.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
Petitioners' concern for their safety and apprehension at being
harassed by the military manning the checkpoints are not
sufficient grounds to declare the checkpoints as per se illegal.
No proof has been presented before the Court to show that, in
the course of their routine checks, the military indeed
committed specific violations of petitioners' right against
unlawful search and seizure or other rights.
In a case filed by the same petitioner organization, Union of
Lawyers and Advocates for People's Right (ULAP) vs.
Integrated National Police, 3it was held that individual
petitioners who do not allege that any of their rights were
violated are not qualified to bring the action, as real parties in
interest.
The constitutional right against unreasonable searches and
seizures is a personal right invocable only by those whose
rights have been infringed, 4 or threatened to be infringed.
What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.
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 right 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. 6
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.
G.R. No. 136292 January 15, 2002
RUDY CABALLES y TAIO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
FACTS:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja
and Pat. Alex de Castro, while on a routine patrol in Barangay
Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep
unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the
two police officers flagged down the vehicle. The jeep was
driven by appellant. When asked what was loaded on the jeep,
he did not answer; he appeared pale and nervous.
With appellant's consent, the police officers checked the cargo
and they discovered bundles of 3.08 mm aluminum/galvanized
conductor wires exclusively owned by National Power
Corporation (NPC). The conductor wires weighed 700 kilos
and valued at P55, 244.45. Noceja asked appellant where the
wires came from and appellant answered that they came from
Cavinti, a town approximately 8 kilometers away from
Sampalucan. Thereafter, appellant and the vehicle with the
high-voltage wires were brought to the Pagsanjan Police
Station. Danilo Cabale took pictures of the appellant and the
jeep loaded with the wires which were turned over to the Police
Station Commander of Pagsanjan, Laguna. Appellant was
incarcerated for 7 days in the Municipal jail.
On April 27, 1993, the court a quo rendered judgment5 the
dispositive portion of which reads:
"WHEREFORE, finding the accused guilty beyond reasonable
doubt of the crime of Theft of property worth P55,244.45, the
Court hereby sentences him to suffer imprisonment from TWO
(2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision
Correccional, as minimum, to TEN (10) YEARS of Prision
Mayor, as maximum, to indemnify the complainant National
Power Corporation in the amount of P55, 244.45, and to pay
the costs."
On appeal, the Court of Appeals affirmed the judgment of
conviction but deleted the award for damages on the ground
13
that the stolen materials were recovered and modified the
penalty imposed.
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was
violated when the police officers searched his vehicle and
seized the wires found therein without a search warrant and
when samples of the wires and references to them were
admitted in evidence as basis for his conviction;
Petitioner contends that the flagging down of his vehicle by
police officers who were on routine patrol, merely on
"suspicion" that "it might contain smuggled goods," does not
constitute probable cause that will justify a warrantless search
and seizure. He insists that, contrary to the findings of the trial
court as adopted by the appellate court, he did not give any
consent, express or implied, to the search of the vehicle.
Perforce, any evidence obtained in violation of his right against
unreasonable search and seizure shall be deemed
inadmissible.
ISSUE: Whether the evidence taken from the warrantless
search is admissible against the appellant.
HELD: NO.
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent
mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the occupant
committed a criminal activity.15 Thus, the rules governing
search and seizure have over the years been steadily
liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so considering that
before a warrant could be obtained, the place, things and
persons to be searched must be described to the satisfaction
of the issuing judge a requirement which borders on the
impossible in the case of smuggling effected by the use of a
moving vehicle that can transport contraband from one place to
another with impunity. We might add that a warrantless search
of a moving vehicle is justified on the ground that it is not
practicable to secure a warrant because the vehicle can be
quickly moved out of the locality or jurisdiction in which the
warrant must be sought.16 Searches without warrant of
automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such
searches are made at borders or 'constructive borders' like
checkpoints near the boundary lines of the State.17
The mere mobility of these vehicles, however, does not give
the police officers unlimited discretion to conduct indiscriminate
searches without warrants if made within the interior of the
territory and in the absence of probable cause.18 Still and all,
the important thing is that there was probable cause to conduct
the warrantless search, which must still be present in such a
case.
Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man's belief that the person accused is guilty of the
offense with which he is charged; or the existence of such facts
and circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed
and that the items, articles or objects sought in connection with
said offense or subject to seizure and destruction by law is in
the place to be searched.19 The required probable cause that
will justify a warrantless search and seizure is not determined
by a fixed formula but is resolved according to the facts of each
case.20
Routine inspections are not regarded as violative of an
individual's right against unreasonable search. The search
which is normally permissible in this instance is limited to the
following instances: (1) where the officer merely draws aside
the curtain of a vacant vehicle which is parked on the public
fair grounds;24 (2) simply looks into a vehicle;25 (3) flashes a
light therein without opening the car's doors;26 (4) where the
occupants are not subjected to a physical or body search;27
(5) where the inspection of the vehicles is limited to a visual
search or visual inspection;28 and (6) where the routine check
is conducted in a fixed area.29
None of the foregoing circumstances is obtaining in the case at
bar. The police officers did not merely conduct a visual search
or visual inspection of herein petitioner's vehicle. They had to
reach inside the vehicle, lift the kakawati leaves and look inside
the sacks before they were able to see the cable wires. It
cannot be considered a simple routine check.
In the case at bar, the vehicle of the petitioner was flagged
down because the police officers who were on routine patrol
became suspicious when they saw that the back of the vehicle
was covered with kakawati leaves which, according to them,
was unusual and uncommon.
We hold that the fact that the vehicle looked suspicious simply
because it is not common for such to be covered with kakawati
leaves does not constitute "probable cause" as would justify
the conduct of a search without a warrant.
In addition, the police authorities do not claim to have received
any confidential report or tipped information that petitioner was
carrying stolen cable wires in his vehicle which could otherwise
have sustained their suspicion. Our jurisprudence is replete
with cases where tipped information has become a sufficient
probable cause to effect a warrantless search and seizure.37
Unfortunately, none exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in
petitioner's vehicle were in plain view, making its warrantless
seizure valid.
It is clear from the records of this case that the cable wires
were not exposed to sight because they were placed in
sacks39 and covered with leaves. The articles were neither
transparent nor immediately apparent to the police authorities.
They had no clue as to what was hidden underneath the
leaves and branches. As a matter of fact, they had to ask
petitioner what was loaded in his vehicle. In such a case, it has
been held that the object is not in plain view which could have
justified mere seizure of the articles without further search.40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja
that he checked the vehicle "with the consent of the accused"
is too vague to prove that petitioner consented to the search.
He claims that there is no specific statement as to how the
consent was asked and how it was given, nor the specific
words spoken by petitioner indicating his alleged "consent." At
most, there was only an implied acquiescence, a mere passive
conformity, which is no "consent" at all within the purview of the
constitutional guarantee.
In the case at bar, Sgt. Victorino Noceja testified on the
manner in which the search was conducted in this wise:
In case of consented searches or waiver of the constitutional
guarantee against obtrusive searches, it is fundamental that to
constitute a waiver, it must first appear that (1) the right exists;
(2) that the person involved had knowledge, either actual or
constructive, of the existence of such right; and (3) the said
person had an actual intention to relinquish the right.55
In the case at bar, the evidence is lacking that the petitioner
intentionally surrendered his right against unreasonable
searches. The manner by which the two police officers
allegedly obtained the consent of petitioner for them to conduct
the search leaves much to be desired. When petitioner's
vehicle was flagged down, Sgt. Noceja approached petitioner
and "told him I will look at the contents of his vehicle and he
answered in the positive." We are hard put to believe that by
uttering those words, the police officers were asking or
requesting for permission that they be allowed to search the
vehicle of petitioner. For all intents and purposes, they were
informing, nay, imposing upon herein petitioner that they will
search his vehicle. The "consent" given under intimidating or
coercive circumstances is no consent within the purview of the
constitutional guaranty. In addition, in cases where this Court
upheld the validity of consented search, it will be noted that 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. In the
case of herein petitioner, the statements of the police officers
were not asking for his consent; they were declaring to him that
they will look inside his vehicle. Besides, it is doubtful whether
permission was actually requested and granted because when
Sgt. Noceja was asked during his direct examination what he
did when the vehicle of petitioner stopped, he answered that
he removed the cover of the vehicle and saw the aluminum
wires. It was only after he was asked a clarificatory question
that he added that he told petitioner he will inspect the vehicle.
To our mind, this was more of an afterthought. Likewise, when
Pat. de Castro was asked twice in his direct examination what
they did when they stopped the jeepney, his consistent answer
was that they searched the vehicle. He never testified that he
asked petitioner for permission to conduct the search.56
14
Neither can petitioner's passive submission be construed as an
implied acquiescence to the warrantless search. In People vs.
Barros,57appellant Barros, who was carrying a carton box,
boarded a bus where two policemen were riding. The
policemen inspected the carton and found marijuana inside.
When asked who owned the box, appellant denied ownership
of the box and failed to object to the search. The Court there
struck down the warrantless search as illegal and held that the
accused is not to be presumed to have waived the unlawful
search conducted simply because he failed to object, citing the
ruling in the case of People vs. Burgos.
WHEREFORE, the impugned decision is REVERSED and
SET ASIDE, and accused Rudy Caballes is hereby
ACQUITTED of the crime charged. Cost de oficio.
[G.R. No. 136860. January 20, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y
VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
FACTS:
It appears from the evidence adduced by the prosecution that
in August of 1996, intelligence operatives of the Philippine
National Police (PNP) stationed in Tarlac, Tarlac began
conducting surveillance operation on suspected drug dealers in
the area. They learned from their asset that a certain woman
from Tajiri, Tarlac and a companion from Baguio City were
transporting illegal drugs once a month in big bulks.
On October 19, 1996, at about 10 oclock in the evening, Chief
Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing
in connection with a tip which his office received that the two
drug pushers, riding in a tricycle, would be making a delivery
that night. An hour later, the Police Alert Team installed a
checkpoint in Barangay Salapungan to apprehend the
suspects. Witness SPO1 Marlon Gamotea, PO3 Florante
Ferrer and SPO3 Roberto Aquino were assigned to man the
checkpoint.
At about 1:00 oclock in the morning of the following day, SPO1
Gamotea and PO3 Ferrer flagged down a passing tricycle. It
had two female passengers seated inside, who were later
identified as the appellant Agpanga Libnao and her co-accused
Rosita Nunga. In front of them was a black bag. Suspicious of
the black bag and the twos uneasy behavior when asked about
its ownership and content, the officers invited them to Kabayan
Center No.2 located at the same barangay. They brought with
them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay
Captain Roy Pascual to witness the opening of the black bag.
In the meantime, the two women and the bag were turned over
to the investigator on duty, SPO3 Arthur Antonio. As soon as
the barangay captain arrived, the black bag was opened in the
presence of the appellant, her co-accused and personnel of
the center. Found inside it were eight bricks of leaves sealed in
plastic bags and covered with newspaper. The leaves were
suspected to be marijuana.
After trial, the court convicted appellant and her co-accused
Rosita Nunga.
Aggrieved by the verdict, appellant interposed the present
appeal. In her brief, she assigned the following errors:
1. The Honorable Regional Trial Court failed to appreciate the
contention of the defense that the right of accused against
illegal and unwarranted arrest and search was violated by the
police officers who arrested both accused.
ISSUE: WON it is a valid searches and seizures.
HELD: YES.
We are not persuaded by these contentions; hence, the appeal
must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on
the absence of a warrant for her arrest. She contends that at
the time she was apprehended by the police officers, she was
not committing any offense but was merely riding a tricycle. In
the same manner, she impugns the search made on her
belongings as illegal as it was done without a valid warrant or
under circumstances when warrantless search is permissible.
Consequently, any evidence obtained therein is inadmissible
against her.
These arguments fail to impress. The general rule is that a
search may be conducted by law enforcers only on the
strength of a search warrant validly issued by a judge as
provided in Article III, Section 2 of the 1987 Constitution.
Be that as it may, the requirement that a judicial warrant must
be obtained prior to the carrying out of a search and seizure is
not absolute. There are certain familiar exceptions to the rule,
one of which relates to search of moving vehicles. Warrantless
search and seizure of moving vehicles are allowed in
recognition of the impracticability of securing a warrant under
said circumstances as the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant may be sought.
Peace officers in such cases, however, are limited to routine
checks where the examination of the vehicle is limited to visual
inspection. When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally permissible
only if the officers made it upon probable cause, i.e., upon a
belief, reasonably arising out of circumstances known to the
seizing officer, that an automobile or other vehicle contains as
item, article or object which by law is subject to seizure and
destruction.
The warrantless search in the case at bench is not bereft of a
probable cause.The Tarlac Police Intelligence Division had
been conducting surveillance operation for three months in the
area. The surveillanceyielded the information that once a
month, appellant and her co-accused Rosita Nunga transport
drugs in big bulks. At 10:00 pm of October 19, 1996, the police
received a tip that the two will be transporting drugs that night
riding a tricycle. Surely, the two were intercepted three hours
later, riding a tricycle and carrying a suspicious-looking black
bag, which possibly contained the drugs in bulk. When they
were asked who owned it and what its content was, both
became uneasy. Under these circumstances, the warrantless
search and seizure of appellants bag was not illegal.
It is also clear that at the time she was apprehended, she was
committing a criminal offense. She was making a delivery or
transporting prohibited drugs in violation of Article II, Section 4
of R.A. No. 6425. Under the Rules of Court, one of the
instances a police officer is permitted to carry out a warrantless
arrest is when the person to be arrested is caught committing a
crime in flagrante delicto, thus:
Section 5. Arrest without Warrant; when lawful. - A peace
officer or a private person may, without warrant, arrest a
person:
(a) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
IN VIEW WHEREOF, the instant appeal is DENIED. The
decision of the trial court finding appellant guilty beyond
reasonable doubt of the offense of violation of Article II, Section
4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing
her to an imprisonment of reclusion perpetua and to pay a fine
of two million pesos is hereby AFFIRMED.
TOPIC: Instances of Warrantless Searches
G.R. No. 97143 October 2, 1995
TOPIC: Instances of Warrantless Searches
G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.
FACTS: The appellant, Mari Musa, seeks, in this appeal, the
reversal of the decision, dated August 31, 1990, 1 of the
Regional Trial Court (RTC) of Zamboanga City, Branch XII,
finding him guilty of selling marijuana in violation of Article II,
Section 4 of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972.
The information filed on December 15, 1989 against the
appellant reads:
That on or about December 14, 1989, in the City of
Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the
above-named accused, not being authorized by law, did then
and there, wilfully, unlawfully and feloniously sell to one SGT.
AMADO ANI, two (2) wrappers containing dried marijuana
leaves, knowing the same to be a prohibited drug.
Upon his arraignment on January 11, 1990, the appellant
pleaded not guilty. Prosecution evidence shows that in the
morning of December 13, 1989, T/Sgt. Jesus Belarga, leader
of a NARCOTICS COMMAND (NARCOM) team based at
Calarian, Zamboanga City, instructed Sgt. Amado Ani to
conduct surveillance and test buy on a certain Mari Musa of
Suterville, Zamboanga City. Information received from civilian
informer was that this Mari Musa was engaged in selling
15
marijuana in said place. So Sgt. Amado Ani, another NARCOM
agent, proceeded to Suterville, in company with a NARCOM
civilian informer, to the house of Mari Musa to which house the
civilian informer had guided him. The same civilian informer
had also described to him the appearance of Mari Musa.
Amado Ani was able to buy one newspaper-wrapped dried
marijuana for P10.00. Sgt. Ani returned to the NARCOM office
and turned over the newspaper-wrapped marijuana to T/Sgt.
Jesus Belarga. Sgt. Belarga inspected the stuff turned over to
him and found it to be marijuana. The next day, December 14,
1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado
Ani was assigned as the poseur buyer for which purpose he
was given P20.00 by Belarga. The buy-bust money had been
taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun,
Chief of Investigation Section, and for which Belarga signed a
receipt. The team under Sgt. Foncargas was assigned as
back-up security. A pre-arranged signal was arranged
consisting of Sgt. Ani's raising his right hand, after he had
succeeded to buy the marijuana. The two NARCOM teams
proceeded to the target site in two civilian vehicles. Belarga's
team was composed of Sgt. Belarga, team leader, Sgt. Amado
Ani, poseur buyer, Sgt. Lego and Sgt. Biong. Arriving at the
target site, Sgt. Ani proceeded to the house of Mari Musa,
while the rest of the NARCOM group positioned themselves at
strategic places about 90 to 100 meters from Mari Musa's
house. T/Sgt. Belarga could see what went on between Ani
and suspect Mari Musa from where he was. Ani approached
Mari Musa, who came out of his house, and asked Ani what he
wanted. Ani said he wanted some more stuff. Ani gave Mari
Musa the P20.00 marked money. After receiving the money,
Mari Musa went back to his house and came back and gave
Amado Ani two newspaper wrappers containing dried
marijuana. Ani opened the two wrappers and inspected the
contents. Convinced that the contents were marijuana, Ani
walked back towards his companions and raised his right
hand. The two NARCOM teams, riding the two civilian
vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and
returned to the house. At the time Sgt. Ani first approached
Mari Musa, there were four persons inside his house: Mari
Musa, another boy, and two women, one of whom Ani and
Belarga later came to know to be Mari Musa's wife. The
second time, Ani with the NARCOM team returned to Mari
Musa's house, the woman, who was later known as Mari
Musa's wife, slipped away from the house. Sgt. Belarga frisked
Mari Musa but could not find the P20.00 marked money with
him. Mari Musa was then asked where the P20.00 was and he
told the NARCOM team he has given the money to his wife
(who had slipped away). Sgt. Belarga also found a plastic bag
containing dried marijuana inside it somewhere in the kitchen.
Mari Musa was then placed under arrest and brought to the
NARCOM office. At Suterville, Sgt. Ani turned over to Sgt.
Belarga the two newspaper-wrapped marijuana he had earlier
bought from Mari Musa. In the NARCOM office, Mari Musa first
gave his name as Hussin Musa. Later on, Mari Musa gave his
true name Mari Musa. T/Sgt. Jesus Belarga turned over the
two newspaper-wrapped marijuana (bought at the buy-bust),
the one newspaper-wrapped marijuana (bought at the test-buy)
and the plastic bag containing more marijuana (which had
been taken by Sgt. Lego inside the kitchen of Mari Musa) to
the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the
PC Crime Laboratory was by way of a letter-request, dated
December 14, 1989, which was stamped "RECEIVED" by the
PC Crime Laboratory on the same day. Mrs. Athena Elisa P.
Anderson, the Forensic Chemist of the PC Crime Laboratory,
examined the marijuana specimens subjecting the same to her
three tests. All submitted specimens she examined gave
positive results for the presence of marijuana. Mrs. Anderson
reported the results of her examination in her Chemistry Report
D-100-89, dated December 14, 1989. Mrs. Anderson identified
in court the two newspaper wrapped marijuana bought at the
buy-bust on December 14, 1989, through her initial and the
weight of each specimen written with red ink on each wrapper.
She also identified the one newspaper-wrapped marijuana
bought at the test-buy on December 13, 1989, through her
markings. Mrs. Anderson also identified her Chemistry Report.
T. Sgt. Belarga identified the two buy-bust newspaper wrapped
marijuana through his initial, the words "buy-bust" and the
words "December 14, 1989, 2:45 P.M." Belarga also identified
the receipt of the P20 marked money, dated December 14,
1989, and his signature thereon. He also identified the letter-
request, dated December 14, 1989, addressed to the PC
Crime Laboratory and his signature thereon and the stamp of
the PC Crime Laboratory marked "RECEIVED".
The trial court summarized the version of the defense, thus:
[O]n December 14, 1989, at about 1:30 in the afternoon, Mari
Musa was in his house at Suterville, Zamboanga City. With him
were his wife, Ahara Musa, known as Ara, his one-year old
child, a woman manicurist, and a male cousin named Abdul
Musa. About 1:30 that afternoon, while he was being
manicured at one hand, his wife was inside the one room of
their house, putting their child to sleep. Three NARCOM
agents, who introduced themselves as NARCOM agents,
dressed in civilian clothes, got inside Mari Musa's house whose
door was open. The NARCOM agents did not ask permission
to enter the house but simply announced that they were
NARCOM agents. The NARCOM agents searched Mari
Musa's house and Mari Musa asked them if they had a search
warrant. The NARCOM agents were just silent. The NARCOM
agents found a red plastic bag whose contents, Mari Musa
said, he did not know. He also did not know if the plastic bag
belonged to his brother, Faisal, who was living with him, or his
father, who was living in another house about ten arms-length
away. Mari Musa, then, was handcuffed and when Mari Musa
asked why, the NARCOM agents told him for clarification.
Mari Musa was brought in a pick-up, his wife joining him to the
NARCOM Office at Calarian, Zamboanga City. Inside the
NARCOM Office, Mari Musa was investigated by one
NARCOM agent which investigation was reduced into writing.
The writing or document was interpreted to Mari Musa in
Tagalog. The document stated that the marijuana belonged to
Mari Musa and Mari Musa was asked to sign it. But Mari Musa
refused to sign because the marijuana did not belong to him.
Mari Musa said he was not told that he was entitled to the
assistance of counsel, although he himself told the NARCOM
agents he wanted to be assisted by counsel.
Mari Musa said four bullets were then placed between the
fingers of his right hand and his fingers were pressed which felt
very painful. The NARCOM agents boxed him and Mari Musa
lost consciousness. While Mari Musa was maltreated, he said
his wife was outside the NARCOM building. The very day he
was arrested (on cross-examination Mari Musa said it was on
the next day), Mari Musa was brought to the Fiscal's Office by
three NARCOM agents. The fiscal asked him if the marijuana
was owned by him and he said "not." After that single question,
Mari Musa was brought to the City Jail. Mari Musa said he did
not tell the fiscal that he had been maltreated by the NARCOM
agents because he was afraid he might be maltreated in the
fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had
sold two wrappers of marijuana to them; that he had received
from them a P20.00 bill which he had given to his wife. He did
not sell marijuana because he was afraid that was against the
law and that the person selling marijuana was caught by the
authorities; and he had a wife and a very small child to support.
Mari Musa said he had not been arrested for selling marijuana
before. 5
After trial, the trial court rendered the assailed decision with the
following disposition:
WHEREFORE, finding accused Mari Musa y Hantatalu guilty
beyond reasonable doubt of selling marijuana and pursuant to
Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life
imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment. 6
In this appeal, the appellant contends that his guilt was not
proved beyond reasonable doubt and impugns the credibility of
the prosecution witnesses.
The appellant claims that the testimony of Sgt. Ani, the poseur-
buyer, is not credible because: (1) prior to the buy-bust
operation, neither Sgt. Ani nor the other NARCOM agents were
personally known by the appellant or vice-versa; and (2) there
was no witness to the alleged giving of the two wrappers of
marijuana by the appellant to Sgt. Ani.
Sgt. Ani testified that on December 13, 1989, upon instruction
by T/Sgt. Jesus Belarga, he conducted a test-buy operation on
the appellant whereby he bought one wrapper of marijuana for
P15.00 from the latter. 7 He reported the successful operation
to T/Sgt. Belarga on the same day. 8 Whereupon, T/Sgt.
Belarga conducted a conference to organize a buy-bust
operation for the following day. 9
On December 14, 1989, at 1:30 p.m., two NARCOM teams in
separate vehicles headed by T/Sgt. Belarga and a certain Sgt.
16
Foncardas went to the place of operation, which was the
appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga,
whose other members were Sgts. Lego and Biong. 10 Sgt. Ani
was given a marked P20.00 bill by T/Sgt. Belarga, which was
to be used in the operation.
Upon reaching the place, the NARCOM agents positioned
themselves at strategic places. 11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani what
he wanted. Sgt. Ani asked him for some more marijuana.12
Sgt. Ani gave him the marked P20.00 bill and the appellant
went inside the house and brought back two paper wrappers
containing marijuana which he handed to Sgt. Ani. 13 From his
position, Sgt. Ani could see that there were other people in the
house. 14
After the exchange, Sgt. Ani approached the other NARCOM
agents and made the pre-arranged signal of raising his right
hand. 15 The NARCOM agents, accompanied by Sgt. Ani,
went inside the house and made the arrest. The agents
searched the appellant and unable to find the marked money,
they asked him where it was. The appellant said that he gave it
to his wife.
The Court, after a careful reading of the record, finds the
testimony of Sgt. Ani regarding the buy-bust operation, which
resulted in the apprehension, prosecution and subsequent
conviction of the appellant, to be direct, lucid and forthright.
Being totally untainted by contradictions in any of the material
points, it deserves credence.
The contention that the appellant could not have transacted
with Sgt. Ani because they do not know each other is without
merit.
The appellant, besides assailing Sgt. Ani's credibility, also
questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was about
90 meters away from Sgt. Ani and the appellant, he could not
have possibly witnessed the sale.
People v. Ale does not apply here because the policeman in
that case testified that he and his companion were certain that
the appellant therein handed marijuana cigarettes to the
poseur-buyer based on the appearance of the cigarette sticks.
In the case at bar, however, T/Sgt. Belarga did not positively
claim that he saw the appellant hand over marijuana to Sgt.
Ani. What he said was that there was an exchange of certain
articles between the two.
Contrary to the contention of the appellant, it was not
impossible for T/Sgt. Belarga to have seen, from a distance of
90-100 meters, Sgt. Ani hand to the appellant "something" and
for the latter to give to the former "something."
Notwithstanding the fact that T/Sgt. Belarga could not have
been certain that what Sgt. Ani received from the appellant was
marijuana because of the distance, his testimony,
nevertheless, corroborated the direct evidence, which the
Court earlier ruled to be convincing.
The appellant next assails the seizure and admission as
evidence of a plastic bag containing marijuana which the
NARCOM agents found in the appellant's kitchen. It appears
that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the
appellant inside the house. They searched him to retrieve the
marked money but didn't find it. Upon being questioned, the
appellant said that he gave the marked money to his wife. 31
Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen
and noticed what T/Sgt. Belarga described as a "cellophane
colored white and stripe hanging at the corner of the kitchen."
32 They asked the appellant about its contents but failing to
get a response, they opened it and found dried marijuana
leaves. At the trial, the appellant questioned the admissibility of
the plastic bag and the marijuana it contains but the trial court
issued an Order ruling that these are admissible in evidence.
33
Built into the Constitution are guarantees on the freedom of
every individual against unreasonable searches and seizures
by providing in Article III, Section 2, the following:
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 witness he may produce, and particularly
describing the place to be searched and the persons or things
to be seized.
Furthermore, the Constitution, in conformity with the doctrine
laid down in Stonehill v. Diokno, 34 declares inadmissible, any
evidence obtained in violation of the freedom from
unreasonable searches and seizures. 35
While a valid search warrant is generally necessary before a
search and seizure may be effected, exceptions to this rule are
recognized. Thus, in Alvero v. Dizon, 36 the Court stated that.
"[t]he most important exception to the necessity for a search
warrant is the right of search and seizure as an incident to a
lawful arrest." 37
Rule 126, Section 12 of the Rules of Court expressly
authorizes a warrantless search and seizure incident to a
lawful arrest, thus:
Sec. 12. Search incident to lawful arrest. A person lawfully
arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense,
without a search warrant.
There is no doubt that the warrantless search incidental to a
lawful arrest authorizes the arresting officer to make a search
upon the person of the person arrested. As early as 1909, the
Court has ruled that "[a]n officer making an arrest may take
from the person arrested any money or property found upon
his person which was used in the commission of the crime or
was the fruit of the crime or which might furnish the prisoner
with the means of committing violence or of escaping, or which
may be used as evidence in the trial of the cause . . . " 38
Hence, in a buy-bust operation conducted to entrap a drug-
pusher, the law enforcement agents may seize the marked
money found on the person of the pusher immediately after the
arrest even without arrest and search warrants. 39
In the case at bar, the NARCOM agents searched the person
of the appellant after arresting him in his house but found
nothing. They then searched the entire house and, in the
kitchen, found and seized a plastic bag hanging in a corner.
The warrantless search and seizure, as an incident to a
suspect's lawful arrest, may extend beyond the person of the
one arrested to include the premises or surroundings under his
immediate control. 40 Objects in the "plain view" of an officer
who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence. 41
The "plain view" doctrine may not, however, be used to launch
unbridled searches and indiscriminate seizures nor to extend a
general exploratory search made solely to find evidence of
defendant's guilt. The "plain view" doctrine is usually applied
where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an
incriminating object. 45 Furthermore, the U.S. Supreme Court
stated the following limitations on the application of the
doctrine:
What the "plain view" cases have in common is that the police
officer in each of them had a prior justification for an intrusion
in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present unconnected
with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original
justification is legitimate only where it is immediately apparent
to the police that they have evidence before them; the "plain
view" doctrine may not be used to extend a general exploratory
search from one object to another until something incriminating
at last emerges. 46
It has also been suggested that even if an object is observed in
"plain view," the "plain view" doctrine will not justify the seizure
of the object where the incriminating nature of the object is not
apparent from the "plain view" of the object. 47 Stated
differently, 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.
In the instant case, the appellant was arrested and his person
searched in the living room. Failing to retrieve the marked
money which they hoped to find, the NARCOM agents
searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their "plain
view" when they arrested the appellant as to justify its seizure.
The NARCOM agents had to move from one portion of the
house to another before they sighted the plastic bag. Unlike
Ker vs. California, where the police officer had reason to walk
17
to the doorway of the adjacent kitchen and from which position
he saw the marijuana, the NARCOM agents in this case went
from room to room with the obvious intention of fishing for
more evidence.
Moreover, when the NARCOM agents saw the plastic bag
hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag
contained. When the appellant refused to respond, they
opened it and found the marijuana. Unlike Ker v. California,
where the marijuana was visible to the police officer's eyes, the
NARCOM agents in this case could not have discovered the
inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM
agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object
in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the
plastic bag was not immediately apparent from the "plain view"
of said object. It cannot be claimed that the plastic bag clearly
betrayed its contents, whether by its distinctive configuration,
its transprarency, or otherwise, that its contents are obvious to
an observer. 48
ISSUE: W/N the plain view doctrine is applicable in the case at
bar.
HELD: NO. We, therefore, hold that under the circumstances
of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and
cannot be presented in evidence pursuant to Article III, Section
3(2) of the Constitution.
The exclusion of this particular evidence does not, however,
diminish, in any way, the damaging effect of the other pieces of
evidence presented by the prosecution to prove that the
appellant sold marijuana, in violation of Article II, Section 4 of
the Dangerous Drugs Act of 1972. We hold that by virtue of the
testimonies of Sgt. Ani and T/Sgt. Belarga and the two
wrappings of marijuana sold by the appellant to Sgt. Ani,
among other pieces of evidence, the guilt of the appellant of
the crime charged has been proved beyond reasonable doubt.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARTURO FIGUEROA, accused-appellant.
FACTS: Arturo Figueroa was charged with Illegal Possession
of Firearm and Ammunition in an information that read:
The undersigned Assistant City Prosecutor accuses ARTURO
FIGUEROA of the crime of Illegal Possession of the Firearm
and Ammunition, committed as follows:
That on or about the 10th day of November 1989 at San
Francisco Subdivision, Brgy. San Juan, Municipality of Gen.
Trias, Province of Cavite, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did, then
and there, wilfully, unlawfully and feloniously have in his
possession and control one (1) pistol cal. 45 with defaced
serial number with one magazine and seven (7) live
ammunitions for the said firearm without first having obtained
the necessary permit or license from competent authority to
possess the same. 1
When arraigned, the accused entered a plea of "Not Guilty,"
thereupon, trial ensued.
It would appear that on 10 November 1989, at around seven
o'clock in the morning, Captain Lodivino Rosario, the Executive
Officer of the 215th PC Company, and his men arrived at the
residence of accused Arturo Figueroa at Barangay San Juan,
San Francisco Subdivision, General Trias, Cavite, to serve a
warrant for his arrest issued by the Regional Trial Court of
Makati, Branch 56, in Criminal Case No. 411 and Criminal
Case No. 412 (for the crime of Illegal Possession of
Ammunitions and for Violation of Section 16, Art. III, Republic
Act 6425). While serving the warrant of arrest, the officers
noticed, strewn around, aluminum foil packages of different
sizes in the sala. Suspecting thus the presence of "shabu" in
the premises, the arresting officers requested appellant, as
well as his brother and sister, to acquiesce to a search of the
house. The search yielded a .45 caliber pistol, a magazine,
seven live ammunitions, and a match box containing an
aluminum foil package with "shabu." Confronted, Figueroa
denied ownership of the items. An inventory was conducted by
the PC team, attested to by Barangay Captain Bigornia, of the
seized items.
The accused, besides assailing the credibility of the witnesses
for the prosecution, questioned the admissibility in evidence of
the firearm and rounds of ammunition which, he claims, were
discovered and taken during a warrantless search.
On 30 October 1990, the trial court rendered a decision finding
the accused Arturo Figueroa guilty.
From the judgment, the decretal portion of which reads
WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the crime charged and is hereby
sentenced to suffer the penalty of reclusion perpetua (life
imprisonment) and to pay the costs.
The firearm and ammunitions are confiscated and forfeited in
favor of the government.
Capt. Lodivino Rosario, Executive Officer, 215th PC Coy, is
hereby ordered to return to Arturo Figueroa the motorcycle with
Motor Engine
No. KIE 073574 taken from the house of the Figueroas on
November 10, 1989. 2
this appeal is interposed by Arturo Figueroa (a) reiterating his
argument against the admissibility against him of evidence
seized following a warrantless search and (b) challenging
anew the credibility of the prosecution witnesses.
ISSUE: W/N the firearm and rounds of ammunition are
admissible as evidence.
HELD: YES. The appeal cannot be sustained. The .45 caliber
pistol, magazine and rounds of ammunition were not unlawfully
obtained. While we might concede difficulty in readily accepting
the statement of the prosecution that the search was
conducted with consent freely given by appellant and members
of his household, it should be pointed out, in any case, that the
search and seizure was done admittedly on the occasion of a
lawful arrest. 3
A significant exception from the necessity for a search warrant
is when the search and seizure is effected as an incident to a
lawful arrest 4 and so, in People vs. Musa, 5 this Court
elaborated; thus
The warrantless search and seizure, as an incident to a
suspect's lawful arrest, may extend beyond the person of the
one arrested to include the premises or surrounding under his
immediate control. Objects in the "plain view" of an officer who
has the right to be in the position to have that view are subject
to seizure and may be presented as evidence.
Appellant faults the trial court for giving credence to the
testimony given by witnesses for the prosecution despite what
he claims to be inconsistencies in their declarations. Appellant
particularly calls attention to the assertion of prosecution
witness Sgt. Atas, to the effect that appellant was with a
companion inside a room when arrested and that the seized
firearm was found under the cushion of the bed, against the
statement of Capt. Rosario, another prosecution witness, that
appellant was alone when arrested and that the gun was found
under appellant's bed. We do not consider these discrepancies
to be so major as to warrant a complete rejection of their
questioned testimony. It is not unnatural for witnesses of the
same incident to somehow perceive differently and to thereby
vary in their respective accounts of the event. 6 The
contradiction of witnesses on minor details is nothing unusual
and should be expected. 7 We see no cogent reason for not
according due respect to the findings of the trial court on the
credibility of the witnesses.
Finally, it is claimed that appellant was just "framed-up." The
conduct of the appellant following his arrest would belie this
allegation. Appellant himself admitted that he failed to complain
about this matter when he was apprehended. Neither did he
report the so-called "planting of the gun" to the police
authorities nor did he bring it up before the Metropolitan Trial
Judge when he appeared for preliminary investigation. In fact,
it would seem that the only time appellant mentioned the
alleged "frame-up" was when he testified at the trial of this
case. No plausible reason was given by appellant that would
have prompted police authorities to falsely impute a serious
crime against him. Absent a strong showing to the contrary, we
must accept the presumption of regularity in the performance
of official duty. 8
WHEREFORE, the appealed decision is AFFIRMED in toto.
Costs against accused-appellant.
SO ORDERED.
TOPIC: Exclusionary Rule
[G.R. No. 98060. January 27, 1997.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
SATURNINA SALAZAR y PALANAS, accused-appellant.
18
FACTS: As her defense in this appeal, appellant alleges
violation of her constitutional rights against warrantless search
and seizure, and to counsel during custodial investigations.
However, the search, being merely an incident of a legitimate
buy-bust operation against illegal drugs, needed no warrant.
And while her right to counsel during the custodial investigation
was indeed violated, there were other evidence sufficient to
warrant her conviction beyond reasonable doubt.
This appeal seeks the reversal of the Decision 1 in Criminal
Case No. 925 of the Regional Trial Court of Oroquieta City,
Branch 13, finding appellant Saturnina Salazar y Palanas guilty
beyond reasonable doubt of violation of Section 4, Article II of
Republic Act No. 6425 (Dangerous Drugs Act of 1972), as
amended by Presidential DecreeNo. 1675, and imposing upon
her the penalty of life imprisonment and payment of
P20,000.00 as fine, with costs.
The Facts According to the Prosecution
Appellant was tried under an Information 2 the accusatory
portion of which reads:
"'That on or about the 23rd day of August 1988, at 1:35 o'clock
in the afternoon, more or less, in Barangay Poblacion II,
Oroquieta City, Philippines, and within the jurisdiction of this
Honorable Court, the said accused did then and there and
without authority of law, wilfully, unlawfully and feloniously sell,
deliver and give away five (5) marijuana sticks to a NARCOM
Agent posing as a buyer in consideration of the amount of Five
Peso (P25.00) marked bill with Serial No. FJ526501; and, as a
result of the said Buy-Bust operation, confiscated from the
control and possession of the accused were six (6) marijuana
sticks and five (5) grams, more or less, of dried marijuana
leaves in addition to the five (5) marijuana sticks aforestated.'
On arraignment, appellant, assisted by counsel pleaded not
guilty to the crime charged. 4 The prosecution presented Sgt.
Jim Cubillan, Cpl. Emilio de Guzman, and Forensic Chemist
Bernabe Arenga and various evidence proving the following
facts:
After being informed of the activities of drug pushers in
Oroquieta City, Sgt. Cubillan and Cpl. de Guzman of the
Narcotics Command (NARCOM) of the Philippine
Constabulary (PC), left Ozamis City on August 23, 1988, for
the former city. Upon their arrival at noon, they were met by the
police informer who accompanied them to the place where a
pusher operated. Near the City Hall, the informer pointed to
them the residence-cum-store of appellant and thereafter left
the two constabulary operatives.
Right then and there, Sgt. Cubillan took a five-peso bill with
Serial No. FJ526501 from his billfold, marked it with his initials
and handed it to Cpl. de Guzman. The latter then went to the
store and told the woman seated on the windowsill that he
wanted "to score" 5 ("mag-score nga ako"). 6 The woman
nodded. After indicating that he wanted five (5) sticks of
marijuana, Cpl. de Guzman asked her if what she was about to
give him was "genuine" and gave her the five-peso bill. After
the woman gave him five sticks of marijuana, Cpl. de Guzman
unwrapped one stick. He smelled its contents and at the same
time noticed the seeds therein. He then placed the contraband
in his pocket, showed his identification card to the woman and
told her that he was a NARCOM agent. 7
At that moment, Sgt. Cubillan approached the two. He had
positioned himself at the back of the store, around four or five
meters away from Cpl. de Guzman and the woman. 8 He and
Cpl. de Guzman arrested the woman, whom they later learned
to be Saturnina "Nena" Salazar. They recovered from appellant
the P5.00-bill. Upon being informed by Cpl. de Guzman that
appellant had taken the five marijuana sticks from a plastic
container on the table inside the store, Sgt. Cubillan took the
container which had six (6) more marijuana sticks and around
five (5) grams of dried marijuana leaves. 9
The NARCOM agents took appellant to the local PC
headquarters. On board a motorcar, Sgt. Cubillan asked her if
she knew of other pushers in the vicinity. She pointed to the
place of Josephine Bayotas. When they passed by Bayotas'
residence, the two PC operatives also arrested her. 10
At the PC headquarters in Camp Naranjo, Sgt. Cubillan
interrogated appellant while Cpl. de Guzman took her bio-data.
11 Her fingerprints were also taken. 12 Thereafter, Cpl. de
Guzman made her sign her bio-data and the paper containing
her fingerprints. It was Sgt. Cubillan who instructed her to sign
the piece of bond paper which was used to wrap the marijuana
sticks before they were submitted to the laboratory for
examination. 13
For their part, Sgt. Cubillan and Cpl. de Guzman executed a
joint affidavit to support the complaint that was to be filed
against appellant. 14
The confiscated and dried leaves were turned over to Sgt.
Dominador Berjuega who sent the specimen to the National
Bureau of Investigation (NBI in Cagayan de Oro City. NBI
Forensic Chemist Bernabe Arenga, who conducted the
examination, executed a Certification, dated August 29, 1988,
(Exh. D) 15 stating that the laboratory examinations conducted
on the eleven (11) confiscated cigarette sticks and the
"crushed dried stalks and flowering tops suspected to be
marijuana" yielded "positive results for marijuana." 16 He also
submitted Dangerous Drugs Report No. DDM-88-107 (Exh. E)
finding: 17
"Cross weight of specimens . . . 15.3280 grams
Microscopic, chemical and chromatographic examinations
conducted on the above-mentioned specimens gave
POSITIVE RESULTS for MARIJUANA."
According to the Defense
The defense presented Jeanife Mission, appellant's 12-year-
old daughter, to testify on the manner by which the arrest was
conducted by the NARCOM agents. According to Jeanife, at
around 1:35 p.m. on August 23, 1988, she was at home with
her mother. Jeanife was watching their sari-sari store in front of
their house as her mother took a nap. Two persons arrived and
went inside their house. One of them ransacked their things.
When her mother woke up, she was held by one of the two
persons and taken to the sala. Jeanife failed to hear their
conversation, but she saw the two persons take her mother
away. It was at the jail when she next saw her mother. (Di ko
na isasama yung ibang nangyari, yan na pinaka summary ng
defense. Puro Denial lang naman yan at di din tinanggap ng
trial court)
As stated earlier, Saturnina "Nena" Salazar was convicted of
the crime charged.
Through her counsel, she interposed the instant appeal.
After the parties had filed their respective briefs, appellant,
through the Public Attorney's Office, filed an urgent
manifestation and motion stating that since she was found in
possession of five (5) grams of dried marijuana leaves and
eleven (11) sticks of marijuana which, at .02 gram per stick,
would all sum up to less than 6 grams only and therefore would
involve a penalty of only six (6) years, her appeal should be
referred to the Court of Appeals for review. As legal basis
therefor, she cited the Decision in People vs. Simon 23 and the
August 15, 1994 Resolution in G.R. No. 113360, People vs.
Margarita Joseco y Magbanua, where the total weight of the
subject illegal drugs was 400 grams. 24 However, in the
Resolution of March 27, 1995, the Court merely noted the said
urgent manifestation and motion. 25 Hence, notwithstanding
the insignificant amount of marijuana involved, the Court itself
shall consider this case. 26 After all, the penalty actually
imposed by the trial court was life imprisonment.
Ruling of the Trial Court
The trial court gave full faith and credence to the testimonies of
the prosecution witnesses. On the other hand, it found that the
defense was unable to sufficiently rebut the presumption of
regularity in the government witnesses' performance of their
duty, finding it hard to believe that the NARCOM agents
brought her to their headquarters to force her into divulging the
identity of other drugs pushers in the area and that the case
against her was only a "trumped-up charge". Appellant's
defense consisting of denials did not overcome the positive
testimony of the prosecution witnesses.
The Court's Ruling
Appellant's Guilt Sufficiently Proven
Section 4, Article II of R.A. 6425 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.
19
xxx xxx xxx"
Indispensable in every prosecution for illegal sale of marijuana,
a prohibited drug, is the submission of proof that the sale of the
illicit drug took place between the poseur-buyer and the seller
thereof, coupled with the presentation of the corpus delicti as
evidence in court. 27 The element of sale must be
unequivocally established in order to sustain a conviction.
This is the import of the testimony of Cpl. de Guzman
COURT:
Q Do you know what is the meaning of score?
A That is the term used by the users so that they will not be
identified.
Q And what did the suspected pusher say?
A She nodded.
xxx xxx xxx
Q What made you conclude that the 5 cigarette sticks which
the alleged pusher gave you were marijuana cigarettes?
A I learned that from my training and schooling.
xxx xxx xxx
Q And will you please tell us why you arrested that woman?
A We arrested her because our Narcom agent bought
marijuana from her (sic) and after that we arrested her.
xxx xxx xxx
A We arrested her because she sold a suspected marijuana
cigarette.
Q And this table were (sic) the plastic container was placed
from where the five suspected marijuana cigarettes were
taken, where was it located?
A Inside the store.
Q And what did you do after you were informed by de Guzman
that the five suspected marijuana cigarettes were taken from
the plastic container?
A I got the plastic container and I saw six sticks of suspected
marijuana cigarettes and five grams of dried marijuana leaves.
xxx xxx xxx
Tinanggal ko uit yung Q&A parts na kasama na sa facts sa
taas ^
Combined with the findings of Forensic Chemist Arenga that
the cigarette sticks confiscated from appellant were marijuana,
the corpus delicti of the crime had thus been established with
certainty and conclusiveness.
Search Warrant Unnecessary
In alleging that the NARCOM agents conducted an unlawful
search and seizure in her house, appellant contends that,
because said agents had known of alleged drug-pushing
activities in Oroquieta City, they should have obtained a search
warrant before intruding into her residence. Appellant's
contention is devoid of merit as the necessity of acquiring a
search warrant has not been proven in this case.
In going to Oroquieta City on the strength of reports of drug-
pushing activities, the NARCOM agents did not know of the
identity of the alleged pushers. 30 When they conducted the
buy-bust operation, it was precisely for the purpose of
entrapping and identifying the culprit. A buy-bust operation has
been considered as an effective mode of apprehending drug
pushers. If carried out with due regard to constitutional and
legal safeguards, a buy-bust operation deserves judicial
sanction. 31
Because the drug pusher had been caught in flagrante delicto,
the arresting officers were duty-bound to apprehend the culprit
immediately and to search her for anything which may be used
as proof of the commission of the crime. 32 The search, being
an incident of a lawful arrest, needed no warrant for its validity.
Hence, appellant may not successfully claim the right against a
warrantless search, 34 even as regards the plastic container
with dried marijuana leaves which was found on the table in
her house/store. Contrary to appellant's contention, the
contraband seized from her, having been obtained as a result
of the buy-bust operation to which the defense failed to impute
any irregularity, was correctly admitted in evidence.
Informer's Testimony Merely Corroborative
Neither is her right to confront witnesses against her affected
by the prosecution's failure to present the informer who pointed
to her as a drug pusher. The presentation of an informant in an
illegal drugs case is not essential for conviction nor is it
indispensable for a successful prosecution because his
testimony would be merely corroborative and cumulative. 35 In
a case involving the sale of illegal drugs, what should be
proven beyond reasonable doubt is the fact of the sale itself.
Hence, like the non-presentation of the marked money used in
buying the contraband, the non-presentation of the informer on
the witness stand would not necessarily create a hiatus in the
prosecutions' evidence.
(insert: sinaktan daw siya and all pero di ito inadmit ng court
kasi self-serving)
Prosecution's Other Evidence
Sufficient for Conviction
As in the Simon case, where the non-admission of certain
pieces of evidence did not weaken the prosecution's case,
there is proof beyond reasonable doubt of the consummation
of the sale of marijuana by appellant to a NARCOM agent.
Hence, the presumption of innocence in her favor has been
sufficiently overturned in accordance with law. Her contention
that a mother-of-five like her would not resort to selling illegal
drugs in such a small amount as the marijuana involved in this
case, is belied by her own admission that when she committed
the crime, she was still on probation for having been caught in
another occasion selling marijuana in 1986. 40
Neither could the location of her residence and store behind
the DSWD office and near the city jail as well as the fact that
she did not know Cpl. de Guzman deter her from committing
the offense.
Appellant's contention that she could not have taken the risk of
selling the five (5) marijuana sticks for only five pesos and
therefore the contraband was "planted," is totally baseless.
She herself did not bring out this alleged irregularity in the
performance of the NARCOM agents' duty at the witness
stand. On the other hand, the testimony of the two (2) peace
officers carried with it the presumption of regularity in the
performance of official functions. 42
Appellant claims that the prosecution evidence is weak
because Sgt. Cubillan was allegedly caught lying on the
witness stand. She alleges that the prevarication of said
witness was reflected by his testimony that after arresting
appellant, they proceeded to the PC headquarters. Later, he
testified that they still dropped by Bayotas' residence to arrest
her. This alleged change in testimony which was explained by
the witness himself, 43 is too inconsequential to dent the
prosecution's compelling evidence on the fact of sale of illegal
drugs.
The Court also finds too preposterous to merit scrutiny
appellant's contention that in convicting her, the trial court
relied on her previous conviction for violation of theDangerous
Drugs Law. Her being under probation was not alleged in the
Information. It was brought out in the trial where she herself
admitted that she was on probation when she committed the
offense in this case. However, while the trial court mentioned
that fact in the Decision of March 1, 1991, it based its findings
on evidence presented by both the prosecution and the
defense and not on the fact that appellant was a probationer
convicted of engaging in the abominable trade of illegal drugs
when she committed the offense.
The Proper Penalty
There being no circumstance to disqualify appellant from
availment of the benefits of the Indeterminate Sentence law,
the same must be applied.
Prescinding from the foregoing, this Court is convinced that the
guilt of appellant has been sufficiently proven beyond
reasonable doubt by the evidence on record.
WHEREFORE, the appealed Decision convicting appellant
Saturnina Salazar y Palanas of the crime of violation of Section
4, Article II of Republic Act. No. 6425, as amended, is hereby
AFFIRMED subject to the MODIFICATION that appellant shall
suffer the indeterminate sentence of four (4) months of arresto
mayor as minimum penalty to four (4) years and two (2)
months of prision correccional as maximum penalty.
Considering that appellant has been detained for the maximum
penalty herein imposed, her IMMEDIATE RELEASE from
custody, unless she is being held for other valid reasons, is
hereby ordered.
SO ORDERED.
#34 TOPIC: Exclusionary Rule
G.R. No. L-69401 June 23, 1987
RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR
ALIH, EDRIS MUKSAN, MULSIDI WARADIL, BILLY ASMAD
RAMSID ASALI, BANDING USMAN, ANGGANG HADANI,
20
WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN,
MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA
ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO,
petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY
AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED
COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL
ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING
OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE)
AND INTERNAL DEFENSE COMMAND, OTHERWISE
KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS
CAPACITY AS COMMANDING OFFICER OF THE
PHILIPPINE MARINES AND 1ST LIEUTENANT DARWIN
GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR,
INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE
PHILIPPINES, respondents.
FACTS: On November 25, 1984, a contingent of more than two
hundred Philippine marines and elements of the home defense
forces raided the compound occupied by the petitioners at
Gov. Alvarez street, Zamboanga City, in search of loose
firearms, ammunition and other explosives. 1
The military operation was commonly known and dreaded as a
"zona," which was not unlike the feared practice of the
kempeitai during the Japanese Occupation of rounding up the
people in a locality, arresting the persons fingered by a hooded
informer, and executing them outright (although the last part is
not included in the modern refinement).
The initial reaction of the people inside the compound was to
resist the invasion with a burst of gunfire. No one was hurt as
presumably the purpose was merely to warn the intruders and
deter them from entering. Unfortunately, as might be expected
in incidents like this, the situation aggravated soon enough.
The soldiers returned fire and a bloody shoot-out ensued,
resulting in a number of casualties. 2
The besieged compound surrendered the following morning,
and sixteen male occupants were arrested, later to be finger-
printed, paraffin-tested and photographed over their objection.
The military also inventoried and confiscated nine M16 rifles,
one M14 rifle, nine rifle grenades, and several rounds of
ammunition found in the premises. 3
On December 21, 1984, the petitioners came to this Court in a
petition for prohibition and mandamus with preliminary
injunction and restraining order. Their purpose was to recover
the articles seized from them, to prevent these from being used
as evidence against them, and to challenge their finger-
printing, photographing and paraffin-testing as violative of their
right against self-incrimination.4
The Court, treating the petition as an injunction suit with a
prayer for the return of the articles alleged to have been
illegally seized, referred it for hearing to Judge Omar U. Amin
of the regional trial court, Zamboanga City. 5After receiving the
testimonial and documentary evidence of the parties, he
submitted the report and recommendations on which this
opinion is based. 6
The petitioners demand the return of the arms and ammunition
on the ground that they were taken without a search warrant as
required by the Bill of Rights. This is confirmed by the said
report and in fact admitted by the respondents, "but with
avoidance. 7
Article IV, Section 3, of the 1973 Constitution, which was in
force at the time of the incident in question, provided as
follows:
Sec. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not
be violated, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined by the
judge, or such other responsible officer as may be authorized
by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the
persons or things to be seized.
It was also declared in Article IV, Section 4(2) that-
Sec. 4(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding.
The respondents, while admitting the absence of the required
such warrant, sought to justify their act on the ground that they
were acting under superior orders. 8 There was also the
suggestion that the measure was necessary because of the
aggravation of the peace and order problem generated by the
assassination of Mayor Cesar Climaco. 9
Superior orders" cannot, of course, countermand the
Constitution. The fact that the petitioners were suspected of
the Climaco killing did not excuse the constitutional short-cuts
the respondents took. As eloquently affirmed by the U.S.
Supreme Court in Ex parte Milligan: 10
The Constitution is a law for rulers and people, equally in war
and in peace, and covers with the shield of its protection all
classes of men, at all times and under all circumstances. No
doctrine, involving more pernicious consequences, was ever
invented by the wit of man than that any of its provisions can
be suspended during any of the great exigencies of
government.
ISSUE: Whether or not the acts of the respondents are
violative of the Bill of Rights.
HELD: YES. The precarious state of lawlessness in
Zamboanga City at the time in question certainly did not
excuse the non-observance of the constitutional guaranty
against unreasonable searches and seizures. There was no
state of hostilities in the area to justify, assuming it could, the
repressions committed therein against the petitioners.
It is so easy to say that the petitioners were outlaws and
deserved the arbitrary treatment they received to take them
into custody; but that is a criminal argument. It is also
fallacious. Its obvious flaw lies in the conclusion that the
petitioners were unquestionably guilty on the strength alone of
unsubstantiated reports that they were stockpiling weapons.
The record does not disclose that the petitioners were wanted
criminals or fugitives from justice. At the time of the "zona,"
they were merely suspected of the mayor's slaying and had not
in fact even been investigated for it. As mere suspects, they
were presumed innocent and not guilty as summarily
pronounced by the military.
Indeed, even if were assumed for the sake of argument that
they were guilty, they would not have been any less entitled to
the protection of the Constitution, which covers both the
innocent and the guilty. This is not to say, of course, that the
Constitution coddles criminals. What it does simply signify is
that, lacking the shield of innocence, the guilty need the armor
of the Constitution, to protect them, not from a deserved
sentence, but from arbitrary punishment. Every person is
entitled to due process. It is no exaggeration that the basest
criminal, ranged against the rest of the people who would
condemn him outright, is still, under the Bill of Rights, a
majority of one.
If the respondents did not actually disdain the Constitution
when they made their illegal raid, they certainly gave every
appearance of doing so. This is truly regrettable for it was
incumbent on them, especially during those tense and tindery
times, to encourage rather than undermine respect for the law,
which it was their duty to uphold.
In acting as they did, they also defied the precept that "civilian
authority is at all times supreme over the military" so clearly
proclaimed in the 1973 Constitution. 11 In the instant case, the
respondents simply by-passed the civil courts, which had the
authority to determine whether or not there was probable
cause to search the petitioner's premises. Instead, they
proceeded to make the raid without a search warrant on their
own unauthorized determination of the petitioner's guilt.
The respondents cannot even plead the urgency of the raid
because it was in fact not urgent. They knew where the
petitioners were. They had every opportunity to get a search
warrant before making the raid. If they were worried that the
weapons inside the compound would be spirited away, they
could have surrounded the premises in the meantime, as a
preventive measure. There was absolutely no reason at all why
they should disregard the orderly processes required by the
Constitution and instead insist on arbitrarily forcing their way
into the petitioner's premises with all the menace of a military
invasion.
Conceding that the search was truly warrantless, might not the
search and seizure be nonetheless considered valid because it
was incidental to a legal arrest? Surely not. If all the law
enforcement authorities have to do is force their way into any
house and then pick up anything they see there on the ground
that the occupants are resisting arrest, then we might as well
delete the Bill of Rights as a fussy redundancy.
When the respondents could have easily obtained a search
warrant from any of the TEN civil courts then open and
functioning in Zamboanga City, 12 they instead simply barged
21
into the beleaguered premises on the verbal order of their
superior officers. One cannot just force his way into any man's
house on the illegal orders of a superior, however lofty his
rank. Indeed, even the humblest hovel is protected from official
intrusion because of the ancient rule, revered in all free
regimes, that a man's house is his castle.
It may be frail; its roof may shake; the wind may enter; the rain
may enter. But the King of England may not enter. All the
forces of the Crown dare not cross the threshold of the ruined
tenement. 13
If the arrest was made under Rule 113, Section 5, of the Rules
of Court in connection with a crime about to be committed,
being committed, or just committed, what was that crime?
There is no allegation in the record of such a justification.
Parenthetically, it may be observed that under the Revised
Rule 113, Section 5(b), the officer making the arrest must have
personal knowledge of the ground therefor as stressed in the
recent case of People v. Burgos. 14
It follows that as the search of the petitioners' premises was
violative of the Constitution, all the firearms and ammunition
taken from the raided compound are inadmissible in evidence
in any of the proceedings against the petitioners. These
articles are "fruits of the poisonous tree. 15 As Judge Learned
Hand observed, "Only in case the prosecution which itself
controls the seizing officials, knows that it cannot profit by their
wrong, will the wrong be repressed. 16 Pending determination
of the legality of such articles, however, they shall remain in
custodia legis, subject to such appropriate disposition as the
corresponding courts may decide. 17
The objection to the photographing, fingerprinting and paraffin-
testing of the petitioners deserves slight comment. The
prohibition against self-incrimination applies to testimonial
compulsion only. As Justice Holmes put it in Holt v. United
States, 18 "The prohibition of compelling a man in a criminal
court to be a witness against himself is a prohibition of the use
of physical or moral compulsion to extort communications from
him, not an exclusion of his body as evidence when it may be
material."
The fearful days of hamleting salvaging, "zona" and other
dreaded operations should remain in the past, banished with
the secret marshals and their covert license to kill without trial.
We must be done with lawlessness in the name of law
enforcement. Those who are supposed to uphold the law must
not be the first to violate it. As Chief Justice Claudio Teehankee
stressed in his concurring opinion in Lacanilao v. De Leon, 19
"It is time that the martial law regime's legacy of the law of
force be discarded and that there be a return to the force and
rule of law."
All of us must exert efforts to make our country truly free and
democratic, where every individual is entitled to the full
protection of the Constitution and the Bill of Rights can stand
as a stolid sentinel for all, the innocent as well as the guilty,
including the basest of criminals.
WHEREFORE, the search of the petitioners' premises on
November 25, 1984, is hereby declared ILLEGAL and all the
articles seized as a result thereof are inadmissible in evidence
against the petitioners in any proceedings. However, the said
articles shall remain in custodia legis pending the outcome of
the criminal cases that have been or may later be filed against
the petitioners.
SO ORDERED.
TOPIC: Privacy of Communication and Correspondence
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA,
respondents.
FACTS: A civil case damages was filed by petitioner Socorro
D. Ramirez in the Regional Trial Court of Quezon City alleging
that the private respondent, Ester S. Garcia, in a confrontation
in the latter's office, allegedly vexed, insulted and humiliated
her in a "hostile and furious mood" and in a manner offensive
to petitioner's dignity and personality," contrary to morals, good
customs and public policy."
In support of her claim, petitioner produced a verbatim
transcript of the event and sought moral damages, attorney's
fees and other expenses of litigation in the amount of
P610,000.00. The transcript on which the civil case was based
was culled from a tape recording of the confrontation made by
petitioner.The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon
M'am.
Defendant Ester S. Garcia (ESG) Anobaangnangyarisa 'yo,
nakalimotkana kung paanokanapuntarito, porke member kana,
magsumbongka kung anoanggagawinkosa 'yo.
CHUCHI Kasi, naka duty ako noon.
ESG Taposiniwan no. (Sic)
CHUCHI Hindi m'am, peroilanbesesnanilaakongbinalikan,
sabingganoon
ESG Ito and (sic) masasabikosa 'yo, ayaw kung (sic) mag
explain ka, kasihanggang 10:00 p.m.,
kinabukasanhindikanapumasok. Ngayonakoangbabaliksa 'yo,
nag-aaplykasa States, nag-aaplykasa review mo, kung
kakailanganinang certification mo,
kalimutanmonakasihindikasa akin makakahingi.
CHUCHI Hindi M'am. Kasianganokotalaga noon i-
cocontinueko up to 10:00 p.m.
ESG Bastoska, nakalimutanmona kung
paanokapumasokditosa hotel. Magsumbongkasa Union kung
gusto mo. Nakalimutanmona kung paanokanakapasokdito "Do
you think that on your own makakapasokka kung hindiako.
Panunumbyoyannakita (Sinusumbatannakita).
CHUCHI ItutuloykonaM'amsanaang duty ko.
ESG Kasoilangbesesnaakongbinabalikandoonngmga no
(sic) ko. Nakalimutanmonaba kung paanokapumasoksa hotel,
kung on your own merit alamkonaman kung gaanoka "kabobo"
mo. Maramiang nag-aaplyalamkonghindikapapasa.
CHUCHI Kumuha kami ng exam noon.
ESG Oo, perohindikapapasa.
CHUCHI Eh, bakitakoangnakuhaniDr. Tamayo
ESG Kukuninkakasiako.
CHUCHI Eh, di sana
ESG Huwag mong ipagmalakina may
utakkakasiwalakangutak.
Akalamobamakukuhakaditokunghindiako.
CHUCHI Mag-eexplainako.
ESG Huwagna, hindiako mag-papa-explain sa 'yo,
makaalalaka kung paanoka puma-rito. "Putang-ina" sasabi-
sabihinmokamag-anakngnanay at
tataymoangmgamagulangko. Walanaakongpakialam,
dahilnanditokasaloob, nasalabaskapuwedekanghindipumasok,
okeyyannasaloobkaumaliskadoon.
CHUCHI KasiM'am, binbalikanakongmgataga Union.
ESG Nandiyannarinako, perohuwag mong
kalimutannahindikamakakapasok kung hindiako. Kung
hindimokinikilalayanokeylangsa akin, dahiltaposkana.
CHUCHI Ina-anokom'amnautangnaloob.
ESG Huwagnalang, hindimoutangnaloob, kasi kung bagasa
no, nilapastanganmoako.
CHUCHI Paanokitanilapastanganan?
ESG Mabuti pa lumabaskana. Hindi naakomakikipagusapsa
'yo. Lumabaskana.Magsumbongka.
As a result of petitioner's recording of the event and alleging
that the said act of secretly taping the confrontation was illegal,
private respondent filed a criminal case before the Regional
Trial Court of Pasay City for violation of Republic Act 4200,
entitled "An Act to prohibit and penalize wire tapping and other
related violations of private communication, and other
purposes."
Upon arraignment, in lieu of a plea, petitioner filed a Motion to
Quash the Information on the ground that the facts charged do
not constitute an offense, particularly a violation of R.A. 4200.
In an order May 3, 1989, the trial court granted, agreeing with
petitioner that 1) the facts charged do not constitute an offense
under R.A. 4200; and that 2) the violation punished by R.A.
4200 refers to a the taping of a communication by a person
other than a participant to the communication.
RespondentCA promulgated its assailed Decision declaring the
trial court's order of May 3, 1989 null and void, and holding
that:
[T]he allegations sufficiently constitute an offense punishable
under Section 1 of R.A. 4200. In thus quashing the information
based on the ground that the facts alleged do not constitute an
offense, the respondent judge acted in grave abuse of
discretion correctible by certiorari. 5
Petitioner vigorously argues, as her "main and principal
issue"that the applicable provision of Republic Act 4200 does
not apply to the taping of a private conversation by one of the
parties to the conversation. She contends that the provision
22
merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the
communication.In relation to this, petitioner avers that the
substance or content of the conversation must be alleged in
the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.Finally, petitioner argues that
R.A. 4200 penalizes the taping of a "private communication,"
not a "private conversation" and that consequently, her act of
secretly taping her conversation with private respondent was
not illegal under the said act.
ISSUE: W/N the Anti-Wiretapping Act applies in recordings by
one of the parties in the conversation
HELD: YES. First, legislative intent is determined principally
from the language of a statute.Section 1 of R.A. 4200 entitled,
"An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other
Purposes," provides:
Sec. 1. It shall be unlawful for any person, not being authorized
by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or
walkie-talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it
illegal for any person, not authorized by all the parties to any
private communication to secretly record such communication
by means of a tape recorder. The law makes no distinction as
to whether the party sought to be penalized by the statute
ought to be a party other than or different from those involved
in the private communication. The statute's intent to penalize
all persons unauthorized to make such recording is
underscored by the use of the qualifier "any". Consequently, as
respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private
conversation with another without the knowledge of the latter
(will) qualify as a violator" under this provision of R.A. 4200.
The unambiguity of the express words of the provision, taken
together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held
by the respondent court that the provision seeks to penalize
even those privy to the private communications. Where the law
makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a
violation of the statute. The substance of the same need not be
specifically alleged in the information. What R.A. 4200
penalizes are the acts of secretly overhearing, intercepting or
recording private communications by means of the devices
enumerated therein. The mere allegation that an individual
made a secret recording of a private communication by means
of a tape recorder would suffice to constitute an offense under
Section 1 of R.A. 4200.
Finally, petitioner's contention that the phrase "private
communication" in Section 1 of R.A. 4200 does not include
"private conversations"narrows the ordinary meaning of the
word "communication" to a point of absurdity. The word
communicate comes from the latin word communicare,
meaning "to share or to impart." In its ordinary signification,
communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or
imparting, as in a conversation, or signifies the "process by
which meanings or thoughts are shared between individuals
through a common system of symbols (as language signs or
gestures)" These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of
"meanings or thoughts" which are likely to include the
emotionally-charged exchange, on February 22, 1988,
between petitioner and private respondent, in the privacy of the
latter's office. Any doubts about the legislative body's meaning
of the phrase "private communication" are, furthermore, put to
rest by the fact that the terms "conversation" and
"communication" were interchangeably used by Senator
Taada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from
their conversations being overheard. But this statement
ignores the usual nature of conversations as well the
undeniable fact that most, if not all, civilized people have some
aspects of their lives they do not wish to expose. Free
conversations are often characterized by exaggerations,
obscenity, agreeable falsehoods, and the expression of anti-
social desires of views not intended to be taken seriously. The
right to the privacy of communication, among others, has
expressly been assured by our Constitution. Needless to state
here, the framers of our Constitution must have recognized the
nature of conversations between individuals and the
significance of man's spiritual nature, of his feelings and of his
intellect. They must have known that part of the pleasures and
satisfactions of life are to be found in the unaudited, and free
exchange of communication between individuals free from
every unjustifiable intrusion by whatever means.
In Gaanan vs. Intermediate Appellate Court,a case which dealt
with the issue of telephone wiretapping, we held that the use of
a telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among
those "device(s) or arrangement(s)" enumerated therein,
following the principle that "penal statutes must be construed
strictly in favor of the accused." 20The instant case turns on a
different note, because the applicable facts and circumstances
pointing to a violation of R.A. 4200 suffer from no ambiguity,
and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-
recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at
bench is clear and unambiguous and leaves us with no
discretion, the instant petition is hereby DENIED. The decision
appealed from is AFFIRMED. Costs against petitioner.
SO ORDERED.
TOPIC: Privacy of Communication and Correspondence
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE
PHILIPPINES, respondents.
FACTS: This petition for certiorari asks for an interpretation of
Republic Act No. 4200, otherwise known as the Anti-
Wiretapping Act.
In the morning of October 22, 1975, complainant Atty. Tito
Pintor and his client Manuel Montebon were in the living room
of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they filed
with the Office of the City Fiscal of Cebu against Leonardo
Laconico. After they had decided on the proposed conditions,
complainant made a telephone call to Laconico.
That same morning, Laconico telephoned appellant, who is a
lawyer, to come to his office and advise him on the settlement
of the direct assault case because his regular lawyer, Atty.
Leon Gonzaga, went on a business trip. According to the
request, appellant went to the office of Laconico where he was
briefed about the problem.
When complainant called up, Laconico requested appellant to
secretly listen to the telephone conversation through a
telephone extension so as to hear personally the proposed
conditions for the settlement. Appellant heard complainant
enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure
had been increased to P8,000.00. A breakdown of the
P8,000.00 had been made together with other demands, to wit:
(a) P5,000.00 no longer for the teacher Manuel Montebon, but
for Atty. Pintor himself in persuading his client to withdraw the
case for Direct Assault against Atty. Laconico before the Cebu
City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the
students of Don Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or
another section of Don Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the
Maltreatment case earlier filed against Manuel Montebon at the
Cebu City Fiscal's Office, whereas Montebon's affidavit of
23
desistance on the Direct Assault Case against Atty. Laconico to
be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don
Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct
Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26,
1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask
Laconico if he was agreeable to the conditions. Laconico
answered 'Yes'. Complainant then told Laconico to wait for
instructions on where to deliver the money. Complainant called
up again and instructed Laconico to give the money to his wife
at the office of the then Department of Public Highways.
Laconico who earlier alerted his friend Colonel Zulueta of the
Criminal Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the money.
When he received the money at the Igloo Restaurant,
complainant was arrested by agents of the Philippine
Constabulary.
Appellant executed on the following day an affidavit stating that
he heard complainant demand P8,000.00 for the withdrawal of
the case for direct assault. Laconico attached the affidavit of
appellant to the complainant for robbery/extortion which he
filed against complainant. Since appellant listened to the
telephone conversation without complainant's consent,
complainant charged appellant and Laconico with violation of
the Anti-Wiretapping Act.
After trial on the merits, the lower court found both Gaanan and
Laconico guilty of violating Section 1 of Republic Act No.
4200.Petitioner appealed to the appellate court. The
Intermediate Appellate Court affirmed the decision of the trial
court, holding that the communication between the
complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner
overheard such communication without the knowledge and
consent of the complainant; and that the extension telephone
which was used by the petitioner to overhear the telephone
conversation between complainant and Laconico is covered in
the term "device' as provided in Rep. Act No. 4200.
The petitioner assails the decision of the appellate court and
raises the following issues; (a) whether or not the telephone
conversation between the complainant and accused Laconico
was private in nature; (b) whether or not an extension
telephone is covered by the term "device or arrangement"
under Rep. Act No. 4200; (c) whether or not the petitioner had
authority to listen or overhear said telephone conversation and
(d) whether or not Rep. Act No. 4200 is ambiguous and,
therefore, should be construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
spoken word, to tap any wire or cable or by using any other
device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or however
otherwise described:
It shall be unlawful for any person, be he a participant or not in
the act or acts penalized in the next preceeding sentence, to
knowingly possess any tape record, wire record, disc record, or
any other such record, or copies thereof, of any communication
or spoken word secured either before or after the effective date
of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other
person: Provided, that the use of such record or any copies
thereof as evidence in any civil, criminal investigation or trial of
offenses mentioned in Section 3 hereof, shall not be covered
by this prohibition.
ISSUE: W/N an extension telephone is among the prohibited
devices in Section 1 of the Act, such that its use to overhear a
private conversation would constitute unlawful interception of
communications between the two parties using a telephone
line.
HELD: YES. There is no question that the telephone
conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered
were made between one person and another as distinguished
from words between a speaker and a public. It is also
undisputed that only one of the parties gave the petitioner the
authority to listen to and overhear the caller's message with the
use of an extension telephone line. Obviously, complainant
Pintor, a member of the Philippine bar, would not have
discussed the alleged demand for an P8,000.00 consideration
in order to have his client withdraw a direct assault charge
against Atty. Laconico filed with the Cebu City Fiscal's Office if
he knew that another lawyer was also listening.
Because of technical problems caused by the sensitive nature
of electronic equipment and the extra heavy loads which
telephone cables are made to carry in certain areas, telephone
users often encounter what are called "crossed lines". An
unwary citizen who happens to pick up his telephone and who
overhears the details of a crime might hesitate to inform police
authorities if he knows that he could be accused under Rep.
Act 4200 of using his own telephone to secretly overhear the
private communications of the would be criminals.
The main issue in the resolution of this petition, however,
revolves around the meaning of the phrase "any other device
or arrangement." Is an extension of a telephone unit such a
device or arrangement as would subject the user to
imprisonment ranging from six months to six years with the
accessory penalty of perpetual absolute disqualification for a
public officer or deportation for an alien? Private secretaries
with extension lines to their bosses' telephones are sometimes
asked to use answering or recording devices to record
business conversations between a boss and another
businessman. Would transcribing a recorded message for the
use of the boss be a proscribed offense? or for that matter,
would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension
telephones are not included in the enumeration of "commonly
known" listening or recording devices, nor do they belong to
the same class of enumerated electronic devices contemplated
by law. He maintains that in 1964, when Senate Bill No. 9 (later
Rep. Act No. 4200) was being considered in the Senate,
telephones and extension telephones were already widely
used instruments, probably the most popularly known
communication device.
Whether or not listening over a telephone party line would be
punishable was discussed on the floor of the Senate. Yet,
when the bill was finalized into a statute, no mention was made
of telephones in the enumeration of devices "commonly known
as a dictaphone or dictagraph, detectaphone or walkie talkie or
tape recorder or however otherwise described." The omission
was not a mere oversight. Telephone party lines were
intentionally deleted from the provisions of the Act.
The respondent People argue that an extension telephone is
embraced and covered by the term "device" within the context
of the aforementioned law because it is not a part or portion of
a complete set of a telephone apparatus. It is a separate
device and distinct set of a movable apparatus consisting of a
wire and a set of telephone receiver not forming part of a main
telephone set which can be detached or removed and can be
transferred away from one place to another and to be plugged
or attached to a main telephone line to get the desired
communication corning from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a
"device or arrangement" for the purpose of secretly
overhearing, intercepting, or recording the communication.
There must be either a physical interruption through a wiretap
or the deliberate installation of a device or arrangement in
order to overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category
as a dictaphone, dictagraph or the other devices enumerated
in Section 1 of RA No. 4200 as the use thereof cannot be
considered as "tapping" the wire or cable of a telephone line.
The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use. It
is a rule in statutory construction that in order to determine the
true intent of the legislature, the particular clauses and phrases
of the statute should not be taken as detached and isolated
expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts.
Hence, the phrase "device or arrangement" in Section 1 of RA
No. 4200, although not exclusive to that enumerated therein,
should be construed to comprehend instruments of the same
or similar nature, that is, instruments the use of which would be
tantamount to tapping the main line of a telephone. It refers to
instruments whose installation or presence cannot be
presumed by the party or parties being overheard because, by
24
their very nature, they are not of common usage and their
purpose is precisely for tapping, intercepting or recording a
telephone conversation.An extension telephone is an
instrument which is very common especially now when the
extended unit does not have to be connected by wire to the
main telephone but can be moved from place ' to place within a
radius of a kilometer or more. A person should safely presume
that the party he is calling at the other end of the line probably
has an extension telephone and he runs the risk of a third party
listening as in the case of a party line or a telephone unit which
shares its line with another. The conduct of the party would
differ in no way if instead of repeating the message he held out
his hand-set so that another could hear out of it and that there
is no distinction between that sort of action and permitting an
outsider to use an extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes must be
construed strictly in favor of the accused. Thus, in case of
doubt as in the case at bar, the penal statute must be
construed as not including an extension telephone. In the case
of People v. Purisima, 86 SCRA 542, 562, we explained that:
American jurisprudence sets down the reason for this rule to
be the tenderness of the law of the rights of individuals; the
object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court limited.
The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise
definition of forbidden acts."
We also ruled that on the construction or interpretation of a
legislative measure, the primary rule is to search for and
determine the intent and spirit of the law. Not only did our
lawmakers not contemplate the inclusion of an extension
telephone as a prohibited device or arrangement" but of
greater importance, they were more concerned with penalizing
the act of recording than the act of merely listening to a
telephone conversation.It can be readily seen that our
lawmakers intended to discourage, through punishment,
persons such as government authorities or representatives of
organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain
some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated
devices in RA No. 4200 or others of similar nature. We are of
the view that an extension telephone is not among such
devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the
then Intermediate Appellate Court dated August 16, 1984 is
ANNULLED and SET ASIDE. The petitioner is hereby
ACQUITTED of the crime of violation of Rep. Act No. 4200,
otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
TOPIC: Privacy of Communication and Correspondence
G.R. No. 107383 February 20, 1996
CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.
FACTS:This is a petition to review the decision of the Court of
Appeals, affirming the decision of the Regional Trial Court of
Manila which ordered petitioner to return documents and
papers taken by her from private respondent's clinic without the
latter's knowledge and consent.
Petitioner Cecilia Zulueta is the wife of private respondent
Alfredo Martin. On March 26, 1982, petitioner entered the clinic
of her husband, a doctor of medicine, and in the presence of
her mother, a driver and private respondent's secretary, forcibly
opened the drawers and cabinet in her husband's clinic and
took 157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use
in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner
had filed against her husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against petitioner.
TheRegional Trial Court of Manila rendered judgment for
private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in
paragraph 3 of plaintiff's Complaint or those further described
in the Motion to Return and Suppress" and ordering Cecilia
Zulueta and any person acting in her behalf to immediately
return the properties to Dr. Martin and to pay him P5,000.00,
as nominal damages; P5,000.00, as moral damages and
attorney's fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and
petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers
in question. The Court of Appeals affirmed the decision of the
Regional Trial Court.In appealing from the decision of the Court
of Appeals affirming the trial court's decision, petitioner's only
ground is that in Alfredo Martin v. Alfonso Felix, Jr., this Court
ruled that the documents and papers were admissible in
evidence and, therefore, their use by petitioner's attorney,
Alfonso Felix did not constitute malpractice or gross
misconduct.
ISSUE: W/N the injunction declaring the privacy of
communication and correspondence to be inviolable apply
even to the spouse of the aggrieved party
HELD:YES. The Court of Appeals erred in affirming the trial
courts decision. Petitioner's contention has no merit.
Indeed the documents and papers in question are inadmissible
in evidence. The constitutional injunction declaring "the privacy
of communication and correspondence [to be] inviolable" is no
less applicable simply because it is the wife (who thinks herself
aggrieved by her husband's infidelity) who is the party against
whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a
"lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law."Any violation of this
provision renders the evidence obtained inadmissible "for any
purpose in any proceeding."
The intimacies between husband and wife do not justify any
one of them in breaking the drawers and cabinets of the other
and in ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not shed
his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between
the spouses by making it privileged. Neither husband nor wife
may testify for or against the other without the consent of the
affected spouse while the marriage subsists. Neither may be
examined without the consent of the other as to any
communication received in confidence by one from the other
during the marriage, save for specified exceptions. But one
thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the
other. And this has nothing to do with the duty of fidelity that
each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of
merit.
SO ORDERED.
[other issue]
The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as
25
complainant in that case, charged that in using the documents
in evidence, Atty. Felix, Jr. committed malpractice or gross
misconduct because of the injunctive order of the trial court. In
dismissing the complaint against Atty. Felix, Jr., this Court took
note of the following defense of Atty. Felix; Jr. which it found to
be "impressed with merit:"
On the alleged malpractice or gross misconduct of respondent
[Alfonso Felix, Jr.], he maintains that:
When respondent refiled Cecilia's case for legal separation
before the Pasig Regional Trial Court, there was admittedly an
order of the Manila Regional Trial Court prohibiting Cecilia from
using the documents Annex "A-1 to J-7." On September 6,
1983, however having appealed the said order to this Court on
a petition for certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside the order of
the trial court. Hence, during the enforceability of this Court's
order, respondent's request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot be
looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice
for respondent to use petitioner's admission as evidence
against him in the legal separation case pending in the
Regional Trial Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru his
counsel but by Dr. Martin himself under oath, such verified
admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his
admission. For Cecilia to avail herself of her husband's
admission and use the same in her action for legal separation
cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case
amounts to no more than a declaration that his use of the
documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not
constitute a violation of the injunctive order of the trial court. By
no means does the decision in that case establish the
admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was
acquitted of the charge of violating the writ of preliminary
injunction issued by the trial court, it was only because, at the
time he used the documents and papers, enforcement of the
order of the trial court was temporarily restrained by this Court.
The TRO issued by this Court was eventually lifted as the
petition for certiorari filed by petitioner against the trial court's
order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective
again.