G.R. No. 81567 July 9, 1990 Efren H. Mercado for petitioner in G.R. No. 83162.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No.
ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR 85727.
P. DURAL, FELICITAS V. SESE, petitioners,
vs. Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO,
The Solicitor General for the respondents.
BRIG. GEN. ALEXANDER AGUIRRE, respondents.

G.R. Nos. 84581-82 July 9, 1990

PER CURIAM:
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
vs. The are eight (8) petitioners for habeas corpus filed before the Court, which have been
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. consolidated because of the similarity of issues raised, praying for the issuance of the
writ of habeas corpus, ordering the respective respondents to produce the bodies of the
G.R. Nos. 84583-84 July 9, 1990
persons named therein and to explain why they should not be set at liberty without
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. further delay.
ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON
In their respective Returns, the respondents uniformly assert that the privilege of the writ
CASIPLE, petitioners,
of habeas corpus is not available to the petitioners as they have been legally
vs.
arrested and are detained by virtue of valid informations filed in court against them.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT.
COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and The petitioners counter that their detention is unlawful as their arrests were
Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon made without warrant and, that no preliminary investigation was first conducted, so that
City, respondents. the informations filed against them are null and void.
G.R. No. 83162 July 9, 1990 The Court has carefully reviewed the contentions of the parties in their respective
pleadings, and it finds that the persons detained have not been illegally arrested nor
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A.
arbitrarily deprived of their constitutional right to liberty, and that the circumstances
OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner,
attending these cases do not warrant their release on habeas corpus.
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR The arrest of a person without a warrant of arrest or previous complaint is recognized in
MARIANO, respondents. law. The occasions or instances when such an arrest may be effected are clearly spelled
out in Section 5, Rule 113 of the Rules of Court, as amended, which provides:
G.R. No. 85727 July 9, 1990
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS
private person may, without a warrant, arrest a person:
ESPIRITU, petitioner,
vs. (a) When, in his presence, the person to be arrested has committed, is
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. actually committing, or is attempting to commit an offense;
G.R. No. 86332 July 9, 1990 (b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B.
has committed it; and
NAZARENO. ALFREDO NAZARENO, petitioner,
vs. (c) When the person to be arrested is a prisoner who has escaped
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, from a penal establishment or place where he is serving final judgment
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, or temporarily confined while his case is pending, or has escaped
P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents. while being transferred from one confinement to another.
Efren H. Mercado for petitioners in G.R. No. 81567. In cases falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the nearest
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
police station or jail, and he shall be proceeded against in accordance
Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in with Rule 112, Section 7.
G.R. Nos. 84583-84.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113
of the Rules of Court, as amended, is justified when the person arrested is caught
in flagranti delicto, viz., in the act of committing an offense; or when an offense has just
been committed and the person making the arrest has personal knowledge of the facts
indicating that the person arrested has committed it. The rationale behind lawful arrests,
without warrant, was stated by this Court in the case of People vs. Kagui
Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and searched for
the evidence and tokens of his crime without a warrant, would be to
leave society, to a large extent, at the mercy of the shrewdest, the
most expert, and the most depraved of criminals, facilitating their
escape in many instances.
The record of the instant cases would show that the persons in whose behalf these
petitions for habeas corpus have been filed, had freshly committed or were actually
committing an offense, when apprehended, so that their arrests without a warrant were
clearly justified, and that they are, further, detained by virtue of valid informations filed
against them in court.
A brief narration of the facts and events surrounding each of the eight (8) petitions is in
order.
I 2045, are all in the nature of continuing offenses which set them apart
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the
Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM)
received confidential information about a member of the NPA Sparrow Unit (liquidation
squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt
Avenue, Quezon City. Upon verification, it was found that the wounded person, who was
listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of
the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day
before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In
view of this verification, Rolando Dural was transferred to the Regional Medical Services
of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988,
Rolando Dural was positively identified by eyewitnesses as the gunman who went on top
of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers
seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.
As a consequence of this positive identification, Rolando Dural was referred to the
Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional
Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon
with the crime of "Double Murder with Assault Upon Agents of Persons in Authority." The
case was docketed therein as Criminal Case No. C-30112 and no bail was
recommended. On 15 February 1988, the information was amended to include, as
defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still
unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on
behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ
of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ on
12 February 1988. Thereafter, the parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before
the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion
Act had been filed against them, and they were accordingly released. The petition
for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and
academic and is accordingly dismissed, since the writ of habeas corpus does not lie in
favor of an accused in a criminal case who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the act of
shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after
the commission of the said offense for his arrest came a day after the said shooting
incident. Seemingly, his arrest without warrant is unjustified.
However, Rolando Dural was arrested for being a member of the New Peoples Army
(NPA), an outlawed subversive organization. Subversion being a continuing offense, the
arrest of Rolando Dural without warrant is justified as it can be said that he was
committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against the State and are in
the nature of continuing crimes. As stated by the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners that they
were initially arrested illegally is, therefore, without basis in law and in
fact. The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance, on the occasion thereof, or incident
thereto, or in connection therewith under Presidential Proclamation No.
from the common offenses, aside from their essentially involving a
massive conspiracy of nationwide magnitude. Clearly then, the arrest
of the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as its fighting
armed elements, or for committing non-violent acts but in furtherance
of the rebellion, is more an act of capturing them in the course of an
armed conflict, to quell the rebellion, than for the purpose of
immediately prosecuting them in court for a statutory offense. The
arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of
the existence of probable cause before the issuance of a judicial
warrant of arrest and the granting of bail if the offense is bailable.
Obviously, the absence of a judicial warrant is no legal impediment to
arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very
survival of society and its government and duly constituted authorities.
If killing and other acts of violence against the rebels find justification in
the exigencies of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these
contingencies continues cannot be less justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and
at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr.
were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving
the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no
longer available to him. For, as held in the early case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his arrest, the
fact remains that the defendant was actually in court in the custody of
the law on March 29, when a complaint sufficient in form and
substance was read to him. To this he pleaded not guilty. The trial
followed, in which, and in the judgment of guilty pronounced by the
court, we find no error. Whether, if there were irregularities in bringing
him personally before the court, he could have been released on a writ
of habeas corpus or now has a civil action for damages against the
person who arrested him we need not inquire. It is enough to say that
such irregularities are not sufficient to set aside a valid judgment
rendered upon a sufficient complaint and after a trial free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo
Buenaobra, without warrant, is also justified. When apprehended at the house of Renato
Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo
Buenaobra admitted that he was an NPA courier and he had with him letters to Renato
Constantino and other members of the rebel group. Amelia Roque, upon the other hand,
was a member of the National United Front Commission, in charge of finance,
and admitted ownership of subversive documents found in the house of her sister in
Caloocan City. She was also in possession of ammunition and a fragmentation grenade
for which she had no permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y
Ibanes, a member of the NPA, who had surrendered to the military authorities, told
military agents about the operations of the Communist Party of the Philippines (CPP)
and the New Peoples Army (NPA) in Metro Manila. He identified some of his former
comrades as "Ka Mong", a staff member of the Communications and Transportation
Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier from
Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain
house occupied by Renato Constantino located in the Villaluz Compound, Molave St.,
Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National
United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge
Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was
conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal
Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security
Group (CSG). In the course of the search, the following articles were found and taken
under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or authority to
possess the firearms, ammunition, radio and other communications equipment. Hence,
he was brought to the CIS Headquarters for investigation. When questioned, he refused
to give a written statement, although he admitted that he was a staff member of the
executive committee of the NUFC and a ranking member of the International Department
of the Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo
Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When
accosted, he readily admitted to the military agents that he is a regular member of the
CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to
Renato Constatino, and other members of the rebel group. On further questioning, he
also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated
August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell datre)"
dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated August
11, 1988.
Also found Buenaobra's possession was a piece of paper containing a written but
jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia",
at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts
of Amelia Roque, the military agents went to the given address the next day (13 August
1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying
themselves as military agents and after seeking permission to search the place, which
was granted, the military agents conducted a search in the presence of the occupants of
the house and the barangay captain of the place, one Jesus D. Olba.
The military agents found the place to be another safehouse of the NUFC/CPP. They
found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and
subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of
live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a
fragmentation grenade. As a result, Amelia Roque and the other occupants of the house
were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous documents
belonged to her and that the other occupants of the house had no knowledge of them.
As a result, the said other occupants of the house were released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest
after which an information charging her with violation of PD 1866 was filed with the
Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case
No. C-1196. Another information for violation of the Anti-Subversion Act was filed against
Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed
therein as Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed against Wilfredo
Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is
docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of
Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo
Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame,
Quezon City. According, the petition for habeas corpus filed on his behalf is now moot
and academic. Only the petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are officers and/or
members of the National United Front Commission (NUFC) of the CPP was not
controverted or traversed by said petitioners. The contention must be deemed
admitted. 5 As officers and/or members of the NUFC-CPP, their arrest, without warrant,
was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest
without warrant of Roque was additionally justified as she was, at the time of
apprehension, in possession of ammunitions without license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the rules. Both are
admittedly members of the standing committee of the NUFC and, when apprehended in
the house of Renato Constatino, they had a bag containing subversive materials, and
both carried firearms and ammunition for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13
August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato
Constatino at Marikina Heights, Marikina, which was still under surveillance by military
agents. The military agents noticed bulging objects on their waist lines. When frisked, the
agents found them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could not
produce any. Hence, they were brought to PC Headquarters for investigation. Found in
their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1)
magazine for Cal. 7.65 containing ten (10) live ammunition of same
caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with
one (1) magazine containing five (5) live ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple
as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the
military.
On 15 August 1988, the record of the investigation and other documentary evidence
were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an
inquest, after which Domingo Anonuevo and Ramon Casiple were charged with violation
of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila.
The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively.
No bail was recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of
Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple
were unlawfully arrested without a warrant and that the informations filed against them
are null and void for having been filed without prior hearing and preliminary investigation.
On 30 August 1988, the Court issued the writ of habeas corpus, and after the
respondents had filed a Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested
because there was no previous warrant of arrest, is without merit The record shows that
Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and
ammunition in their person when they were apprehended.
There is also no merit in the contention that the informations filed against them are null
and void for want of a preliminary investigation. The filing of an information, without a
preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7,
Rule 112 of the Rules of Court, as amended, reads:
Sec. 7. When accused lawfully arrested without a warrant. When a
person is lawfully arrested without a warrant for an offense cognizable
by the Regional Trial Court the complaint or information may be filed
by the offended party, peace officer or fiscal without a preliminary
investigation having been first conducted, on the basis of the affidavit
of the offended party or arresting officer or person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-availability of a lawyer, a
responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its
inception.
If the case has been filed in court without a preliminary investigation
having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduced evidence in his favor in
the manner prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the
informations filed against them, the prosecutor made identical certifications, as follows:
This is to certify that the accused has been charged in accordance
with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, that no
preliminary investigation was conducted because the accused has not
made and signed a waiver of the provisions of Art. 125 of the Revised
Penal Code, as amended; that based on the evidence presented,
there is reasonable ground to believe that the crime has been
committed, and that the accused is probably guilty thereof.
Nor did petitioners ask for a preliminary investigation after the informations had been
filed against them in court. Petitioners cannot now claim that they have been deprived of
their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is
justified under the Rules, since she had with her unlicensed ammunition when she was
arrested. The record of this case shows that on 12 May 1988, agents of the PC
Intelligence and Investigation of the Rizal PC-INP Command, armed with a search
warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro
Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green
Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the
CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny
Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol
were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were
brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce
any permit or authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The
case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand,
was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of
Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally
arrested and detained, and denied the right to a preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her
arrest without a warrant is justified. No preliminary investigation was conducted because
she was arrested without a warrant and she refused to waive the provisions of Article
125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as
amended.
V bare assertion that they went to visit Constantino, who was to leave for
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque
claim that the firearms, ammunition and subversive documents alleged to have been
found in their possession when they were arrested, did not belong to them, but were
"planted" by the military agents to justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their aforesaid
claim. On the other hand, no evil motive or ill-will on the part of the arresting officers that
would cause the said arresting officers in these cases to accuse the petitioners falsely,
has been shown. Besides, the arresting officers in these cases do not appear to be
seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and
Casiple say, "there is absolutely nothing in the evidence submitted during the inquest
that petitioners are on the 'AFP Order of Battle with a reward of P150,000.00 each on
their heads.'" 6 On the other hand, as pointed out by the Solicitor General, the arrest of
the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an
in-depth surveillance of NPA safehouses pointed to by no less than former comrades of
the petitioners in the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners Roque,
Buenaobra, Anonuevo and Casiple, was the lawful search and seizure
conducted by the military at the residence of Renato Constantino at
Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro
Manila. The raid at Constantino's residence, was not a witch hunting or
fishing expedition on the part of the military. It was a result of an in-
depth military surveillance coupled with the leads provided by former
members of the underground subversive organizations. That raid
produced positive results. to date, nobody has disputed the fact that
the residence of Constantino when raided yielded communication
equipment, firearms and ammunitions, as well as subversive
documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to his place,
reasonably conducted a "stake-out" operation whereby some
members of the raiding team were left behind the place. True enough,
barely two hours after the raid and Constantino's arrest, petitioner
Buenaobra arrived at Constantino's residence. He acted suspiciously
and when frisked and searched by the military authorities, found in his
person were letters. They are no ordinary letters, as even a cursory
reading would show. Not only that, Buenaobra admitted that he is a
NPA courier and was there to deliver the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and Casiple arrived
at Constantino's place. Would it be unreasonable for the military
agents to believe that petitioners Anonuevo and Casiple are among
those expected to visit Constantino's residence considering that
Constatino's information was true, in that Buenaobra did come to that
place? Was it unreasonable under the circumstances, on the part of
the military agents, not to frisk and search anyone who should visit the
residence of Constantino, such as petitioners Anonuevo and Casiple?
Must this Honorable Court yield to Anonuevo and Casiple's flimsy and
Saudi Arabia on the day they were arrested thereat?
As to petitioner Roque, was it unreasonable for the military authorities
to effect her arrest without warrant considering that it was Buenaobra
who provided the leads on her identity? It cannot be denied that
Buenaobra had connection with Roque. Because the former has the
phone number of the latter. Why the necessity of jumbling Roque's
telephone number as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and Buenaobra have not
offered any plausible reason so far.
In all the above incidents, respondents maintain that they acted
reasonably, under the time, place and circumstances of the events in
question, especially considering that at the time of petitioner's arrest,
incriminatory evidence, i.e, firearms, ammunitions and/or subversive
documents were found in their possession.
Petitioners, when arrested, were neither taking their snacks nor
innocently visiting a camp, but were arrested in such time, place and
circumstances, from which one can reasonably conclude tat they were
up to a sinister plot, involving utmost secrecy and comprehensive
conspiracy.
 IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner
Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article
142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of
Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General Secretary of the
Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association
of drivers and operators of public service vehicles in the Philippines, organized for their
mutual aid and protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while
he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was
awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to
hire his jeepney. When he went down to talk to them, he was immediately put under
arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes,
bodily lifted him and placed him in their owner-type jeepney. He demanded that his
sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his
request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at Blumentritt,
Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same
morning, he was brought before the respondent Lim and, there and then, the said
respondent ordered his arrest and detention. He was thereafter brought to the General
Assignment Section, Investigation Division of the Western Police District under Police
Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his
liberty. 7
The respondents claim however, that the detention of the petitioner is justified in view of
the Information filed against him before the Regional Trial Court of Manila, docketed
therein as Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the
Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a judicial
warrant of arrest since petitioner when arrested had in fact just committed an offense in
that in the afternoon of 22 November 1988, during a press conference at the National
Press Club.
Deogracias Espiritu through tri-media was heard urging all drivers and
operators to go on nationwide strike on November 23, 1988, to force
the government to give into their demands to lower the prices of spare
parts, commodities, water and the immediate release from detention of
the president of the PISTON (Pinag-isang Samahan ng Tsuper
Operators Nationwide). Further, we heard Deogracias Espiritu taking
the place of PISTON president Medardo Roda and also announced
the formation of the Alliance Drivers Association to go on nationwide
strike on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to investigate
him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that
afternoon at a gathering of drivers and symphatizers at the corner of Magsaysay Blvd.
and Valencia Street, Sta. Mesa, Manila where he was heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali
sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory
ang gusto nating pagbaba ng halaga ng spare parts, bilihin at and
pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo
na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He was invited for
questioning and brought to police headquarters after which an Information for violation of
Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court
of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with the provisions
of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of
a valid information filed with the competent court, he may not be released on habeas
corpus. He may, however be released upon posting bail as recommended. However, we
find the amount of the recommended bail (P60,000.00) excessive and we reduce it to
P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the
submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained.
The record of this case shows that at about 8:30 o'clock in the morning of 14 December
1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina
and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the
killing was Ramil Regal who was arrested by the police on 28 December 1988. Upon
questioning, Regal pointed to Narciso Nazareno as on of his companions in the killing of
the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up
Narciso Nazareno and brought him to the police headquarters for questioning. Obviously,
the evidence of petitioner's guilt is strong because on 3 January 1989, an information
charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo
Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is
docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was
denied by the trial court in an order dated 10 January 1989, even as the motion to post
bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial
court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of
Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus,
returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch
24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the
petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas
corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents
by reason of an information filed against him with the Regional Trial Court of Makati,
Metro Manila which had taken cognizance of said case and had, in fact, denied the
motion for bail filed by said Narciso Nazareno (presumably because of the strength of
the evidence against him).
The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are
based upon the facts and the law. Consequently, we will not disturb the same. Evidently,
the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b),
Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil
Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by reason of
a crime, does not presuppose as a necessary requisite for the
fulfillment thereof, the indubitable existence of a crime. For the
detention to be perfectly legal, it is sufficient that the agent or person in
authority making the arrest has reasonably sufficient grounds to
believe the existence of an act having the characteristics of a crime
and that the same grounds exist to believe that the person sought to
be detained participated therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges have been
filed in the proper courts against the petitioners. The rule is, that if a person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court
judge, and that the court or judge had jurisdiction to issue the process or make the order,
of if such person is charged before any court, the writ of habeas corpus will not be
allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
charged, had jurisdiction or not to issue the process, judgment or order or to take
cognizance of the case, but rather, as the Court itself states in Morales,
Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase
and aspect of petitioner's detention-from the moment petition was taken into custody up
to the moment the court passes upon the merits of the petition;" and "only after such a
scrutiny can the court satisfy itself that the due process clause of our Constitution has in
fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is
what should henceforth be done in all future cases of habeas corpus. In Short, all cases
involving deprivation of individual liberty should be promptly brought to the courts for
their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in
G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is
hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.

Sec. 4. When writ is allowed or discharge authorized. If it appears

that the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the discharge of a person
charged with a convicted of an offense in the Philippines or of a person
suffering imprisonment under lawful judgment. (emphasis supplied)

At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter,
abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no
longer available after an information is filed against the person detained and a warrant of
arrest or an order of commitment, is issued by the court where said information has been
filed. 14The petitioners claim that the said ruling, which was handed down during the past
dictatorial regime to enforce and strengthen said regime, has no place under the present
democratic dispensation and collides with the basic, fundamental, and constitutional
rights of the people. Petitioners point out that the said doctrine makes possible the arrest
and detention of innocent persons despite lack of evidence against them, and, most
often, it is only after a petition for habeas corpus is filed before the court that the military
authorities file the criminal information in the courts of law to be able to hide behind the
protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to
the freedom and liberty of the people and permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based upon
express provision of the Rules of Court and the exigencies served by the law. The fears
expressed by the petitioners are not really unremediable. As the Court sees it, re-
examination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is
not the answer. The answer and the better practice would be, not to limit the function of
the habeas corpus to a mere inquiry as to whether or not the court which issued the
process, judgment or order of commitment or before whom the detained person is
G.R. No. 93239 March 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDISON SUCRO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Fidencio S. Raz for accused-appellant.
GUTIERREZ, JR., J.:
Edison Sucro was charged with and convicted of violation of Section 4, Article II of the
Dangerous Drugs Act, under an Information which reads:
That on or about the 21st day of March, 1989, in the evening, in the Poblacion,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, acting as a
pusher or broker in the business of selling, administering, delivery, giving away
to another and/or distributing prohibited drugs, did then and there wilfully,
unlawfully and feloniously and without authority of law have in his possession
and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were confiscated from him by the police
authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried
marijuana leaves to a customer. (Rollo, p. 9)
Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not
guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered,
the pertinent portion of which reads:
WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of
the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act,
as amended, and sentencing him to suffer the penalty of life imprisonment, and
pay a fine of P20,000, and costs. He shall be entitled to full credit in the service
of his sentence with the period for which he has undergone preventive
imprisonment to the date of promulgation of this judgment. All the items of
marijuana confiscated in this case are declared forfeited in favor of the State.
(Rollo, p. 41)
From the foregoing judgment of conviction, accused-appellant interposes this appeal,
assigning the following as errors allegedly committed by the court a quo, to wit:
I Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens
THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE
PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA,
TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE
TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST
SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY
OFFENSE AT THE TIME OF HIS ARREST.
II
THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO
GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4,
ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO
SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P
20,000.00. (Appellant's Brief, p. 1)
The antecedent facts of the case as summarized by the Solicitor General are as follows:
On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan,
was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP
Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of
information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN,
May 2,1989).
As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself
under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to
the house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat.
Fulgencio saw appellant enter the chapel, taking something which turned out
later to be marijuana from the compartment of a cart found inside the chapel,
and then return to the street where he handed the same to a buyer, Aldie
Borromeo. After a while appellant went back to the chapel and again came out
with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It
was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the
activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring
developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to
report that a third buyer later Identified as Ronnie Macabante, was transacting
with appellant. (pp. 18-19, Ibid)
At that point, the team of P/Lt. Seraspi proceeded to the area and while the
police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt.
Seraspi to intercept Macabante and appellant. P/Lt. Seraspi and his team
caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of
the Aklan Medical Center. Upon seeing the police, Macabante threw something
to the ground which turned out to be a tea bag of marijuana. (pp. 6-8, TSN,
June 19, 1989) When confronted, Macabante readily admitted that he bought
the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May
24, 1989) The police team was able to overtake and arrest appellant at the
corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4
teabags of marijuana from the cart inside the chapel and another teabag from
Macabante, The teabags of marijuana were sent to the PC-INP Crime
(Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of
marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)
As can be seen from the facts, the issue hinges mainly on whether or not the arrest
without warrant of the accused is lawful and consequently, whether or not the evidence
resulting from such arrest is admissible.
We rule in the affirmative.
The accused-appellant contends that his arrest was illegal, being a violation of his rights
granted under Section 2, Article III of the 1987 Constitution. He stresses that there was
sufficient time for the police officers to apply for a search and arrest warrants considering
that Fulgencio informed his Station Commander of the activities of the accused two days
before March 21, 1989, the date of his arrest.
This contention is without merit.
Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where
arrest without warrant is considered lawful. The rule states:
Arrest without warrant, when lawful. A peace officer or 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;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it;
(Emphasis supplied)
An offense is committed in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances created thereby and proceeds
at once to the scene thereof. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v.
Samonte, 16 Phil. 516 [1910])
The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to
monitor the activities of the accused who was earlier reported to be selling marijuana at a
chapel two (2) meters away from Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He
saw Sucro talk to some persons, go inside the chapel, and return to them and exchange
some things. These, Sucro did three times during the time that he was being monitored.
Fulgencio would then relay the on-going transaction to P/Lt. Seraspi.
Anent the second requirement, the fact that Macabante, when intercepted by the police,
was caught throwing the marijuana stick and when confronted, readily admitted that he
bought the same from accused-appellant clearly indicates that Sucro had just sold the
marijuana stick to Macabante, and therefore, had just committed an illegal act of which
the police officers had personal knowledge, being members of the team which monitored
Sucro's nefarious activity.
The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27,
1990) that police officers have personal knowledge of the actual commission of the crime
when it had earlier conducted surveillance activities of the accused. Thus, it stated:
When Luciano and Caraan reached the place where the alleged transaction
would take place and while positioned at a street comer, they saw appellant
Regalado Bati and Warner Marquez by the side of the street about forty to fifty
meters away from them (the public officers). They saw Marquez giving
something to Bati, who, thereafter handed a wrapped object to Marquez who
then inserted the object inside the front of his pants in front of his abdomen
while Bati, on his part, placed the thing given to him inside his pocket. (p. 2)
xxx xxx xxx
. . . Both Patrolman Luciano and Caraan actually witnessed the same and their
testimonies were based on their actual and personal knowledge of the events
that took place leading to appellant's arrest. They may not have been within
hearing distance, specially since conversation would expectedly be carried on
in hushed tones, but they were certainly near enough to observe the
movements of the appellant and the buyer. Moreover, these prosecution
witnesses are all law enforcers and are, therefore, presumed to have regularly
performed their duties in the absence of proof to the contrary (People v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)
The accused questions the failure of the police officers to secure a warrant considering
that Fulgencio himself knew of Sucro's activities even prior to the former's joining the
police force. Fulgencio reported Sucro's activities only three days before the incident.
As the records reveal, Fulgencio and Sucro had known each other since their childhood
years and that after Fulgencio joined the police force, he told the accused-appellant not
to sell drugs in their locality. Hence, it is possible that because of this friendship,
Fulgencio hesitated to report his childhood friend and merely advised him not to engage
in such activity. However, because of reliable information given by some informants that
selling was going on everyday, he was constrained to report the matter to the Station
Commander.
On the other hand, the failure of the police officers to secure a warrant stems from the
fact that their knowledge acquired from the surveillance was insufficient to fulfill the
requirements for the issuance of a search warrant. What is paramount is that probable
cause existed. Thus, it has been held in the case of People v. Lo Ho Wing, et al. (G.R.
No. 88017, January 21, 1991):
In the instant case, it was firmly established from the factual findings of the trial
court that the authorities had reasonable ground to believe that appellant would
attempt to bring in contraband and transport it within the country. The belief was
based on intelligence reports gathered from surveillance activities on the
suspected syndicate, of which appellant was touted to be a member. Aside from
this, they were also certain as to the expected date and time of arrival of the
accused from China. But such knowledge was clearly insufficient to enable
them to fulfill the requirements for the issuance of a search warrant. 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.
As the Solicitor General has pointed out:
 There are several instances when a warrantless search and seizure can be
effected without necessarily being preceded by an arrest provided the same is
effected on the basis of probable cause (e.g. stop and search without warrant at
checkpoints). Between warrantless searches and seizures at checkpoints and
in the case at bar the latter is more reasonable considering that unlike in the
former, it was effected on the basis of probable cause. Under the circumstances
(monitoring of transactions) there existed probable cause for the arresting
officers, to arrest appellant who was in fact selling marijuana and to seize the
contraband.
That searches and seizures must be supported by a valid warrant is not an absolute rule
(Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted
by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on
Criminal Procedure, which provides that 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. (People v. Castiller, G.R. No. 87783, August 6, 1990)
Furthermore, the testimony of Macabante was corroborated on material points by public
officers Fulgencio and Seraspi.
There is nothing in the record to suggest that the police officers were compelled by any
motive than to accomplish their mission to capture a drug pusher in the execution of the
crime, the presumption being that police officers perform their duties regularly in the
absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on
Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]).
The prosecution evidence was further bolstered by the findings of the Forensic Chemist
that the items seized were all positive for marijuana.
In contrast to the evidence presented by the prosecution, accused-appellant's defense is
alibi which is unavailing considering that he was positively identified by Macabante to be
the person from whom he bought marijuana.

The accused-appellant claims that the arrest having been done without warrant, it follows
that the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering its
compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from
such lawful arrest are admissible in evidence.
Edison Sucro assails the trial court's reliance on the statement of Macabante whose
reason for testifying could be merely to escape prosecution.
We quote the trial court's finding as to the testimony of Macabante:
Sucro alleges that he could not have committed the crime since he was with his uncle
and cousin distributing handbills for his Auntie's candidacy. The fact, however, remains
that it does not preclude the possibility that he was present in the vicinity as established
by his admission that he moved a lot and even had the occasion to meet Macabante on
the street.
It is well-settled that mere denials cannot prevail against the positive identification of the
appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406
[1988]; and People v. Paco, 170 SCRA 681 [1989])
Premises considered, this Court is convinced that appellant Edison Sucro had indeed
committed the offense charged. The trial court's decision must be upheld.

The non-filing of a complaint against him for possession of marijuana may have WHEREFORE, the decision appealed from is hereby AFFIRMED.
been the reason of (sic) his willingness to testify in court against the accused.
But this does not necessarily taint the evidence that proceeds from his lips. As
explained by Lt. Seraspi, the best sources of information against drug pushers SO ORDERED.
are usually their customers, especially if as in this case, there is no other direct
evidence of the selling except the testimony of the buyer. We accept this
observation as a realistic appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities to bolster the drive against
pushers who are the real felons in our society. We have observed the
demeanor of the witness in court, and found him to be straightforward,
unhesitating, and spontaneous in his declarations, so that we are satisfied as to
his intention and disposition to tell the truth (Rollo, p. 40)

Time and again it has been held that the findings of the trial court are entitled to great
weight and should not be disturbed on appeal unless it is shown that the trial court had
overlooked certain facts of weight and importance, it being acknowledged. that the court
below, having seen and heard the witnesses during the trial, is in a better position to
evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4,
1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53
[1969]; and People v. Espejo, 36 SCRA 400 [1970]).
 PEOPLE OF THE PHILIPPINES,
Appellee,
- versus -
JACK RACHO y RAQUERO,
Appellant.
DECISION
NACHURA, J.:
On appeal is the Court of Appeals (CA) Decision[1] dated May 22, 2008 in CA-G.R. CR-
H.C. No. 00425 affirming the Regional Trial Court [2] (RTC) Joint Decision[3] dated July 8,
2004 finding appellant Jack Racho y Raquero guilty beyond reasonable doubt of
Violation of Section 5, Article II of Republic Act (R.A.) No. 9165.
The case stemmed from the following facts:
On May 19, 2003, a confidential agent of the police transacted through cellular phone
with appellant for the purchase of shabu. The agent later reported the transaction to the
police authorities who immediately formed a team composed of member of the Philippine
Drug Enforcement Agency (PDEA), the Intelligence group of the Philippine Army and the
local police force to apprehend the appellant. [4] The agent gave the police appellants
name, together with his physical description. He also assured them that appellant would
arrive in Baler, Aurora the following day.
On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him
that he was on board a Genesis bus and would arrive in Baler, Aurora, anytime of the
day wearing a red and white striped T-shirt. The team members then posted themselves
along the national highway in Baler, Aurora. At around 3:00 p.m. of the same day, a
Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential
agent pointed to him as the person he transacted with earlier. Having alighted from the
bus, appellant stood near the highway and waited for a tricycle that would bring him to
his final destination. As appellant was about to board a tricycle, the team approached
him and invited him to the police station on suspicion of carrying shabu. Appellant
immediately denied the accusation, but as he pulled out his hands from his pants pocket,
a white envelope slipped therefrom which, when opened, yielded a small sachet
containing the suspected drug.[5]
The team then brought appellant to the police station for investigation. The confiscated
specimen was turned over to Police Inspector Rogelio Sarenas De Vera who marked it
with his initials and with appellants name. The field test and laboratory examinations on
the contents of the confiscated sachet yielded positive results for methamphetamine
hydrochloride.[6]
Appellant was charged in two separate Informations, one for violation of Section 5 of
R.A. 9165, for transporting or delivering; and the second, of Section 11 of the same law
for possessing, dangerous drugs, the accusatory portions of which read:
That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in
Baler, Aurora and within the jurisdiction of this Honorable Court, the
said accused, did then and there, unlawfully, feloniously and willfully
have in his possession five point zero one (5.01) [or 4.54] grams of
Methamphetamine Hydrochloride commonly known as Shabu, a
regulated drug without any permit or license from the proper
authorities to possess the same.
CONTRARY TO LAW.[7]
That at about 3:00 oclock (sic) in the afternoon on May 20,
2003 in Baler, Aurora, the said accused did then and there, unlawfully,
feloniously and willfully transporting or delivering dangerous drug of
5.01 [or 4.54] grams of shabu without any permit or license from the
proper authorities to transport the same.
CONTRARY TO LAW.[8]
During the arraignment, appellant pleaded Not Guilty to both charges.
At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his
brother to inform him about their ailing father. He maintained that the charges against
him were false and that no shabu was taken from him. As to the circumstances of his
arrest, he explained that the police officers, through their van, blocked the tricycle he was
riding in; forced him to alight; brought him to Sea Breeze Lodge; stripped his clothes and
underwear; then brought him to the police station for investigation.[9]
On July 8, 2004, the RTC rendered a Joint Judgment[10] convicting appellant of Violation
of Section 5, Article II, R.A. 9165 and sentencing him to suffer the penalty of life
imprisonment and to pay a fine of P500,000.00; but acquitted him of the charge of
Violation of Section 11, Article II, R.A. 9165. On appeal, the CA affirmed the RTC
decision.[11]
Hence, the present appeal.
In his brief,[12] appellant attacks the credibility of the witnesses for the
prosecution. He likewise avers that the prosecution failed to establish the identity of the
confiscated drug because of the teams failure to mark the specimen immediately after
seizure. In his supplemental brief, appellant assails, for the first time, the legality of his
arrest and the validity of the subsequent warrantless search. He questions the
admissibility of the confiscated sachet on the ground that it was the fruit of the poisonous
tree.
The appeal is meritorious.
We have repeatedly held that 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 is not a hard and fast rule. We have reviewed such factual findings when
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.[13]
Appellant focuses his appeal on the validity of his arrest and the search and seizure of
the sachet of shabu and, consequently, the admissibility of the sachet. It is noteworthy
that although the circumstances of his arrest were briefly discussed by the RTC, the
validity of the arrest and search and the admissibility of the evidence against appellant
were not squarely raised by the latter and thus, were not ruled upon by the trial and
appellate courts.
It is well-settled that an appeal in a criminal case opens the whole case for
review. This Court is clothed with ample authority to review matters, even those not
raised on appeal, if we find them necessary in arriving at a just disposition of the case.
Every circumstance in favor of the accused shall be considered. This is in keeping with
the constitutional mandate that every accused shall be presumed innocent unless his
guilt is proven beyond reasonable doubt.[14]
After a thorough review of the records of the case and for reasons that will be discussed
below, we find that appellant can no longer question the validity of his arrest, but the
sachet of shabu seized from him during the warrantless search is inadmissible in
evidence against him.
The records show that appellant never objected to the irregularity of his arrest
before his arraignment. In fact, this is the first time that he raises the issue. Considering
this lapse, coupled with his active participation in the trial of the case, we must abide with
jurisprudence which dictates that appellant, having voluntarily submitted to the
jurisdiction of the trial court, is deemed to have waived his right to question the validity of
his arrest, thus curing whatever defect may have attended his arrest. The legality of the
arrest affects only the jurisdiction of the court over his person. Appellants warrantless
arrest therefore cannot, in itself, be the basis of his acquittal. [15]
As to the admissibility of the seized drug in evidence, it is necessary for us to
ascertain whether or not the search which yielded the alleged contraband was lawful.[16]
The 1987 Constitution states that a search and consequent seizure must be
carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence
obtained therefrom shall be inadmissible for any purpose in any proceeding. [17] Said
proscription, however, admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in plain view;
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.[18]
What constitutes a reasonable or unreasonable warrantless search or seizure is
purely a judicial question, determinable from the uniqueness of the circumstances
involved, including the purpose of the search or seizure, the presence or absence of
probable cause, the manner in which the search and seizure was made, the place or
thing searched, and the character of the articles procured.[19]
The RTC concluded that appellant was caught in flagrante delicto, declaring that he was
caught in the act of actually committing a crime or attempting to commit a crime in the
presence of the apprehending officers as he arrived in Baler, Aurora bringing with him a
sachet of shabu.[20] Consequently, the warrantless search was considered valid as it was
deemed an incident to the lawful arrest.
Recent jurisprudence holds that in searches incident to a lawful arrest, the
arrest must precede the search; generally, the process cannot be reversed.
Nevertheless, a search substantially contemporaneous with an arrest can precede the
arrest if the police have probable cause to make the arrest at the outset of the search.
[21]
Thus, given the factual milieu of the case, we have to determine whether the police
officers had probable cause to arrest appellant. Although probable cause eludes exact
and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported
by circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged.[22]
The determination of the existence or absence of probable cause necessitates
a reexamination of the established facts. On May 19, 2003, a confidential agent of the
police transacted through cellular phone with appellant for the purchase of shabu. The
agent reported the transaction to the police authorities who immediately formed a team
to apprehend the appellant. On May 20, 2003, at 11:00 a.m., appellant called up the
agent with the information that he was on board a Genesis bus and would arrive in Baler,
Aurora anytime of the day wearing a red and white striped T-shirt. The team members
posted themselves along the national highway in Baler, Aurora, and at around 3:00 p.m.
of the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus,
the confidential agent pointed to him as the person he transacted with, and when the
latter was about to board a tricycle, the team approached him and invited him to the
police station as he was suspected of carrying shabu. When he pulled out his hands
from his pants pocket, a white envelope slipped therefrom which, when opened, yielded
a small sachet containing the suspected drug. [23] The team then brought appellant to the
police station for investigation and the confiscated specimen was marked in the
presence of appellant. The field test and laboratory examinations on the contents of the
confiscated sachet yielded positive results for methamphetamine hydrochloride.
Clearly, what prompted the police to apprehend appellant, even without a warrant, was
the tip given by the informant that appellant would arrive in
Baler, Aurora carrying shabu. This circumstance gives rise to another question: whether
that information, by itself, is sufficient probable cause to effect a valid warrantless arrest.
The long standing rule in this jurisdiction is that reliable information alone is not
sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused
perform some overt act that would indicate that he has committed, is actually committing,
or is attempting to commit an offense. [24] We find no cogent reason to depart from this
well-established doctrine.
The instant case is similar to People v. Aruta,[25] People v. Tudtud,[26] and People
v. Nuevas.[27]
In People v. Aruta, a police officer was tipped off by his informant that a certain Aling
Rosa would be arriving from Baguio City the following day with a large volume of
marijuana. Acting on said tip, the police assembled a team and deployed themselves
near the Philippine National Bank (PNB) in Olongapo City. While thus positioned, a
Victory Liner Bus stopped in front of the PNB building where two females and a man got
off. The informant then pointed to the team members the woman, Aling Rosa, who was
then carrying a traveling bag. Thereafter, the team approached her and introduced
themselves. When asked about the contents of her bag, she handed it to the
apprehending officers. Upon inspection, the bag was found to contain dried marijuana
leaves.[28]
The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station,
Davao City, received a report from a civilian asset that the neighbors of a certain Noel
Tudtud (Tudtud) were complaining that the latter was responsible for the proliferation of
marijuana in the area. Reacting to the report, the Intelligence Section conducted
surveillance. For five days, they gathered information and learned that Tudtud was
involved in illegal drugs. On August 1, 1999, the civilian asset informed the police that
Tudtud had headed to Cotabato and would be back later that day with a new stock of
marijuana. At around 4:00 p.m. that same day, a team of police officers posted
themselves to await Tudtuds arrival. At 8:00 p.m., two men disembarked from a bus and
helped each other carry a carton. The police officers approached the suspects and
asked if they could see the contents of the box which yielded marijuana leaves.[29]
In People v. Nuevas, the police officers received information that a certain male person,
more or less 54 in height, 25 to 30 years old, with a tattoo mark on the upper right hand,
and usually wearing a sando and maong pants, would make a delivery of marijuana
leaves. While conducting stationary surveillance and monitoring of illegal drug trafficking,
they saw the accused who fit the description, carrying a plastic bag. The police accosted
the accused and informed him that they were police officers. Upon inspection of the
plastic bag carried by the accused, the bag contained marijuana dried leaves and bricks
wrapped in a blue cloth. In his bid to escape charges, the accused disclosed where two
other male persons would make a delivery of marijuana leaves. Upon seeing the two
male persons, later identified as Reynaldo Din and Fernando Inocencio, the police
approached them, introduced themselves as police officers, then inspected the bag they
were carrying. Upon inspection, the contents of the bag turned out to be marijuana
leaves.[30]
In all of these cases, we refused to validate the warrantless search precisely because
there was no adequate probable cause. We required the showing of some overt act
indicative of the criminal design.
As in the above cases, appellant herein was not committing a crime in the presence of
the police officers. Neither did the arresting officers have personal knowledge of facts
indicating that the person to be arrested had committed, was committing, or about to
commit an offense. At the time of the arrest, appellant had just alighted from the Gemini
bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner
that would engender a reasonable ground for the police officers to suspect and conclude
that he was committing or intending to commit a crime. Were it not for the information
given by the informant, appellant would not have been apprehended and no search
would have been made, and consequently, the sachet of shabu would not have been
confiscated.
We are not unaware of another set of jurisprudence that deems reliable information
sufficient to justify a search incident to a lawful warrantless arrest. As cited in People v.
Tudtud, these include People v.
Maspil, Jr.,[31] People v. Bagista,[32] People v. Balingan,[33] People v. Lising,[34] People v.
Montilla,[35] People v. Valdez,[36] and People v. Gonzales.[37] In these cases, the Court
sustained the validity of the warrantless searches notwithstanding the absence of overt
acts or suspicious circumstances that would indicate that the accused had committed,
was actually committing, or attempting to commit a crime. But as aptly observed by the
Court, except in Valdez and Gonzales, they were covered by the other exceptions to the
rule against warrantless searches.[38]
Neither were the arresting officers impelled by any urgency that would allow them to do
away with the requisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a
member of the arresting team, their office received the tipped information on May 19,
2003. They likewise learned from the informant not only the appellants physical
description but also his name. Although it was not certain that appellant would arrive on
the same day (May 19), there was an assurance that he would be there the following day
(May 20). Clearly, the police had ample opportunity to apply for a warrant.[39]
Obviously, this is an instance of seizure of the fruit of the poisonous tree, hence, the
confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of the
1987 Constitution, any evidence obtained in violation of this or the preceding section
shall be inadmissible for any purpose in any proceeding.
Without the confiscated shabu, appellants conviction cannot be sustained based on the
remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of
his right to question the illegality of his arrest by entering a plea and his active
participation in the trial of the case. As earlier mentioned, the legality of an arrest affects
only the jurisdiction of the court over the person of the accused. A waiver of an illegal,
warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized
during an illegal warrantless arrest.[40]
One final note. As clearly stated in People v. Nuevas,[41]
x x x In the final analysis, we in the administration of justice would
have no right to expect ordinary people to be law-abiding if we do not
insist on the full protection of their rights. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal search and seizure as
long as the law enforcers show the alleged evidence of the crime
regardless of the methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law enforcement.
Ironically, it only fosters the more rapid breakdown of our system of
justice, and the eventual denigration of society. While this Court
appreciates and encourages the efforts of law enforcers to uphold the
law and to preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the parameters
set by the Constitution and the law. Truly, the end never justifies the
means.[42]
WHEREFORE, premises considered, the Court of Appeals Decision dated May
22, 2008 in CA-G.R. CR-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack
Raquero Racho is ACQUITTED for insufficiency of evidence.
The Director of the Bureau of Corrections is directed to cause the immediate
release of appellant, unless the latter is being lawfully held for another cause; and to
inform the Court of the date of his release, or the reasons for his confinement, within ten
(10) days from notice.
No costs.
SO ORDERED.
G.R. No. 95847-48. March 10, 1993.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT;
LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE
PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The
policemen arrested Gerente only some three (3) hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece of wood
and a concrete hollow block which the killers had used to bludgeon him to death. The
eye-witness, Edna Edwina Reyes, reported the happening to the policemen and
pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since
the policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully arrest Gerente
without a warrant. If they had postponed his arrest until they could obtain a warrant, he
would have fled the law as his two companions did.
2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN
MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted
on Gerente's person was likewise lawful because it was made as an incident to a valid
arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court
which provides: "Section 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." The frisk and search of
appellant's person upon his arrest was a permissible precautionary measure of arresting
officers to protect themselves, for the person who is about to be arrested may be armed
and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143,
cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled
that "the individual being arrested may be frisked for concealed weapons that may be
used against the arresting officer and all unlawful articles found his person, or within his
immediate control may be seized."
3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT
BAR. There is no merit in appellant's allegation that the trial court erred in convicting
him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace
despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's
skull could have been inflicted by one person only. what Dr. Bernales stated was a mere
possibility that only one person dropped the concrete hollow block on the head of the
victim, smashing it. That circumstance, even if true, does not absolve the other two co-
conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the
act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-
testimony of Edna Edwina Reyes, that she overheard the appellant and his companions
conspire to kill Blace, that acting in concert, they attacked their victim with a piece of
wood and a hollow block and caused his death. "When there is no evidence indicating
that the principal witness for the prosecution was moved by improper motive, the
presumption is that he was not so moved and his testimony is entitled to full faith and
credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in
giving full credit to Edna Reyes' testimony.
4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor
General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil
indemnity for the death of Clarito Blace should be increased to P50,000.00 in
accordance with our ruling in People vs. Sison, 189 SCRA 643.
DECISION
GRIO-AQUINO, J p:
This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro
Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic
Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to suffer the penalty of
imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20)
years, as maximum; and also found him guilty of Murder for which crime he was
sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the
appealed decision reads:
"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in
Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8
of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve
years and one day as minimum to twenty years as maximum, and a fine of twelve
thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs.
"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty
beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating
circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of
reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in
the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case
of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with
the full term of his preventive imprisonment." (p. 25, Rollo.)
Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A.
6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court
of Valenzuela, Metro Manila. The Information reads:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, without justification, did then and there wilfully, unlawfully and feloniously have
in his possession and control dried flowering tops wrapped in foil with markings and
place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.)
The same accused, together with Totoy and Fredo Echigoren who are both at large, was
charged with Murder in Criminal Case No. 10256-V-90 in an information of the same
date and signed by the same Assistant Provincial Prosecutor, as follows:
"That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused together with two (2) others who are still at large and against whom the
preliminary investigation has not yet been terminated by the Office of the Provincial
Prosecutor of Bulacan, conspiring, confederating together and mutually helping one
another, armed with a piece of wood and hallow (sic) block and with intent to kill one
Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident
premeditation and treachery, attack, assault and hit with the said piece of wood and
hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body,
thereby inflicting serious physical injuries which directly caused the death of the said
victim." (p. 3, Rollo.)
Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel
Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and
smoking marijuana in the house of the appellant which is about six (6) meters away from
the house of the prosecution witness who was in her house on that day. She overheard
the three men talking about their intention to kill Clarito Blace. She testified that she
heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy
Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan
mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn,
August 24, 1990.)
Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at
about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified
that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace,
followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood
in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's
head. Thereafter, the three men dragged Blace to a place behind the house of Gerente.
At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police
Station received a report from the Palo Police Detachment about a mauling incident. He
went to the Valenzuela District Hospital where the victim was brought. He was informed
by the hospital officials that the victim died on arrival. The cause of death was massive
fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia,
together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to
Paseo de Blas where the mauling incident took place. There they found a piece of wood
with blood stains, a hollow block and two roaches of marijuana. They were informed by
the prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to
Gabriel Gerente as one of the three men who killed Clarito.
The policemen proceeded to the house of the appellant who was then sleeping. They
told him to come out of the house and they introduced themselves as policemen.
Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained
dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau
of Investigation for examination. The Forensic Chemist found them to be marijuana.
Only the appellant, Gabriel Gerente, was apprehended by the police. The other
suspects, Fredo and Totoy Echigoren, are still at large.
On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor
Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for
Murder.
When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A
joint trial of the two cases was held. On September 24, 1990, the trial court rendered a
decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder.
In this appeal of the appellant, the following errors are ascribed to the trial court:
1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence
by the prosecution; and
2. the court a quo gravely erred in convicting the accused-appellant of the crimes
charged despite the absence of evidence required to prove his guilt beyond reasonable
doubt.
The appellant contends that the trial court erred in admitting the marijuana leaves as
evidence in violation of his constitutional right not to be subjected to illegal search and
seizure, for the dried marijuana leaves were seized from him in the course of a
warrantless arrest by the police officers. We do not agree.
The search of appellant's person and the seizure of the marijuana leaves in his
possession were valid because they were incident to a lawful warrantless arrest.
Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide:
'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
"(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;"
"(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; . . .'
The policemen arrested Gerente only some three (3) hours after Gerente and his
companions had killed Blace. They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the instruments of death: a piece of wood
and a concrete hollow block which the killers had used to bludgeon him to death. The
eye-witness, Edna Edwina Reyes, reported the happening to the policemen and
pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since
the policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully arrest Gerente
without a warrant. If they had postponed his arrest until they could obtain a warrant, he
would have fled the law as his two companions did.
In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil
effected one (1) day after he had shot to death two Capcom soldiers. The arrest was indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to
held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. P50,000.00.
221, 228, thus:
SO ORDERED.
"To hold that no criminal can, in any case, be arrested and searched for the evidence
and tokens of his crime without a warrant, would be to leave society, to a large extent, at
the mercy of the shrewdest, the most expert, and the most depraved of criminals,
facilitating their escape in many instances."

The search conducted on Gerente's person was likewise lawful because it was made as
an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the
Revised Rules of Court which provides:

"SECTION 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."

The frisk and search of appellant's person upon his arrest was a permissible
precautionary measure of arresting officers to protect themselves, for the person who is
about to be arrested may be armed and might attack them unless he is first disarmed. In
Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law,
1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for
concealed weapons that may be used against the arresting officer and all unlawful
articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in convicting him of
having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite
the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull
could have been inflicted by one person only.

What Dr. Bernales stated was a mere possibility that only one person dropped the
concrete hollow block on the head of the victim, smashing it. That circumstance, even if
true, does not absolve the other two co-conspirators in the murder of Blace for when
there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The
conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she
overheard the appellant and his companions conspire to kill Blace, that acting in concert,
they attacked their victim with a piece of wood and a hollow block and caused his death.
"When there is no evidence indicating that the principal witness for the prosecution was
moved by improper motive, the presumption is that he was not so moved and his
testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588).
Hence, the trial court did not err in giving full credit to Edna Reyes' testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of his

innocence.

The Solicitor General correctly pointed out in the appellee's brief that the award of
P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to
P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.
[G.R. No. 136267. July 10, 2001]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA
CUBCUBIN, JR., accused-appellant.
DECISION
MENDOZA, J.:
This case is here on automatic review of the decision, [1] dated October 5, 1998, of
the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel
Abrenica Cubcubin, Jr. guilty of murder and sentencing him to suffer the penalty of
death.
The information against accused-appellant alleged:
That on or about August 26, 1997, in the City of Cavite, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the abovenamed accused, armed with an
unlicensed homemade (paltik) Smith and Wesson caliber .38 revolver, with no serial
number, with intent to kill, acting with treachery and evident premeditation and taking
advantage of the darkness of [the] night, did, then and there, willfully, unlawfully, and
feloniously, assault, attack and shoot with the aforesaid unlicensed firearm a certain
HENRY PECHO PIAMONTE, hitting and inflicting upon the latter gunshot wounds in the
head which caused the latters instantaneous death.
CONTRARY TO LAW.[2]
Accused-appellant pleaded not guilty to the charge, whereupon trial on the merits
ensued.
Eight witnesses were presented by the prosecution: police officers Florentino M.
Malinao, Jr., Enrico A. Rosal, Raymundo D. Estoy, Jr., and Virgilio L. Pilapil, all of whom
belong to the Cavite City Police Department; National Bureau of Investigation ballistician
Isabelo D. Silvestre, Jr.; NBI Forensic Chemist II Juliet Gelacio-Mahilum; Dr. Regalado
D. Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health
(DOH) in Cavite City; and Danet D. Garcellano, a food server at the Sting Cafe in San
Antonio, Cavite City. The testimony of Police Chief Inspector Edwin G. Nemenzo, Chief
of the Records, Firearms and Explosives Division of the Philippine National Police (PNP)
in Camp Crame, Quezon City, was dispensed with in view of his certification, dated
October 7, 1997 (Exh. N),[3] that accused-appellant is not a licensed/registered holder of
firearm of any kind and caliber.
The prosecution evidence is to the following effect:
At about 3:30 in the morning of August 26, 1997, Sgt. Rogel, desk officer of the
Cavite City police station, received a telephone call that a person had been shot near the
cemetery along Julian Felipe Boulevard in San Antonio, Cavite City. For this reason, a
police team, composed of SPO1 Malinao, Jr., PO3 Rosal, PO3 Estoy, Jr., PO3 Manicio,
and SPO3 Manalo, responded to the call and found Henry P. Piamonte slumped dead on
his tricycle which was then parked on the road. Police photographer Fred Agana took
pictures of the crime scene (Exhs. A, A-1, A-2, and A-3) [4] showing the victim slumped on
the handle of the tricycle.[5] PO3 Rosal testified that a tricycle driver, who refused to
divulge his name, told him that accused-appellant and the victim were last seen together
coming out of the Sting Cafe, located in San Antonio near the gate of Sangley Point,
Cavite City, about a kilometer and a half away from the crime scene. Forthwith, PO3
Rosal and SPO1 Malinao, Jr. went to the cafe and talked to Danet Garcellano, a food
server/waitress in Sting Cafe.[6] The other policemen at the police station called up City
Prosecutor Agapito Lu who also proceeded to Sting Cafe. Garcellano told the police
investigators that she had seen accused-appellant arrive at Sting Cafe at about 12:00
midnight and drink beer; that at about 2:30 a.m., the victim arrived and joined accused-
appellant; that the two stayed in the cafe until 3:30 a.m.; and that she did not know if they
left together as she was serving other customers. Garcellano described accused-
appellant as a lean, dark-complexioned, and mustachioed man who had on a white t-
shirt and brown short pants.[7]
Armando Plata, another tricycle driver, told PO3 Rosal and SPO1 Malinao, Jr. that
Garcellanos description fitted a person known as alias Jun Dulce. Armando Plata, who
knew where accused-appellant lived, led PO3 Rosal, SPO1 Malinao, Jr., and Prosecutor
Lu to accused-appellants house in Garcia Extension, Cavite City. The policemen
knocked on the door for about three minutes before it was opened by a man who
answered the description given by Danet Garcellano and who turned out to be accused-
appellant. The police operatives identified themselves and informed him that he was
being sought in connection with the shooting near the cemetery. Accused-appellant
denied involvement in the incident. PO3 Rosal and SPO1 Malinao, Jr. then asked
permission to enter and look around the house.[8]
SPO1 Malinao, Jr. said that upon entering the house, he noticed a white t-shirt,
bearing the brand name Hanes (Exh. H)[9] and the name Dhenvher written in the inner
portion of the shirts hemline, placed over a divider near the kitchen. Upon close
examination, he said that he found it to be bloodied." When he picked up the t-shirt, two
spent .38 caliber shells fell from it. PO3 Rosal stayed with accused-appellant while he
conducted a search. They then took the t-shirt and the two bullet shells. SPO1 Malinao,
Jr. then asked accused-appellant to go with them to Sting Cafe for purposes of
identification. There, accused-appellant was positively identified by Danet Garcellano as
the victims companion. The police investigators asked accused-appellant where the fatal
gun was. SPO1 Malinao, Jr. said accused-appellant refused to tell him where he hid the
gun so he sought his (accused-appellants) permission to go back to his house to
conduct a further search. Thereupon, SPO1 Malinao, Jr., accompanied by Prosecutor
Lu, PO3 Estoy, Jr., PO3 Manicio, SPO3 Manalo, and PO3 Rosal, proceeded thereto.
[10]
Inside the house, they saw accused-appellants 11-year old son Jhumar. PO3 Estoy,
Jr. found on top of a plastic water container (drum) outside the bathroom a homemade
Smith and Wesson caliber .38 revolver (six shooter), without a serial number (Exh.
F). He found the gun loaded with five live bullets (Exhs. M, M-1, M-2, M-3, and M-
4). PO3 Estoy, Jr. said that he inscribed his initials RDE (for Raymundo D. Estoy) on the
cylinder of the gun with the use of a sharp object. While PO3 Estoy, Jr. was conducting
the search, SPO1 Malinao, Jr. and PO3 Rosal stayed with accused-appellant in the sala.
[11]
The .38 caliber gun (Exhs. B, B-1), [12] the white Hanes t-shirt (Exhs. B-2, B-2-A, B-2-
B),[13] and the two spent .38 caliber shells (Exhs. B-2, B-2-B) [14] were all
photographed. Accused-appellant was then taken to the police station, where he was
photographed (Exh. B-3)[15] along with the things seized from him.
SPO4 Virgilio Pilapil, Chief Investigator of the Criminal Investigation Division,
testified that on August 26, 1997, the case involving the killing of Henry Pecho Piamonte
was forwarded to him by PO3 Rosal together with the evidence consisting of a
bloodstained white Hanes t-shirt, a .38 revolver with five live ammunitions, and two
deformed slugs. After an evaluation of the evidence, he formally filed a criminal
complaint for murder against accused-appellant. He took blood samples of the victim
and submitted the same to the NBI for laboratory examination.[16]
Dr. Regalado Sosa, City Health Officer II and City Medico-Legal Officer of the
Department of Health in Cavite City, conducted a postmortem examination of the
cadaver and prepared an autopsy report (Exh. O)[17] which showed the following findings:
AUTOPSY REPORT
EXTERNAL FINDINGS:
A medium built fair complexioned male adult human body in its cadaveric
state with gunshot wounds . . . described as follows:
= Gunshot wound, 1.5 cm. x 0.5 cm., oval in shape with powder burns more
on top of the wound to 2.5 cms. elevation/height located at the angle of
the right jaw and/or 5 cms. below the inferior level of the right ear.The
wound has irregular and inverted borders. It is directed inwards fracturing
the lower edge of the angle of the right mandible and the lead slug is
embedded at the right lateral portion of the first (1st) cervical vertebrae
hence extracted.
= Gunshot wound, 1 cm. in d[iameter] with inverted irregular borders located
at the left frontal region 5 cms. above the temporal end of the left
eyebrow. It is directed inwards and downwards fracturing the bone
(frontal) underneath into [the] intracranial cavity.
INTERNAL FINDINGS:
= Presence of circular complete fracture, 0.8 cm. in d[iameter] at the left
frontal region.
= The left frontal lobe of the brain is perforated and the frontal lobe is
enveloped with liquid and clotted blood.
= The lead slug is found at the inner surface of the left frontal lobe.
= The right mandibular region was incised near the gunshot wound and the
area is severely hematomatous and explored until a lead slug [was] found
at the 1st cervical vertebrae at the right side.
= Stomach contains liquid and little rice and with alcoholic (beer) smell.
= Other internal organs are significantly normal.
Slugs extracted:
1. 0.6 cm. in d[iameter] lead slug with one end is markedly deformed. The
length of the slug is 1.6 cms.
Note: One diagonal incised line was marked on the slug.
2. A 0.7 cm. in d[iameter] lead slug . . . roundly/ovally deformed [on] one
end. The length of the slug is 1.8 cm.
Note: Two diagonal incised lines [were] marked on the said slug.
Dr. Sosa testified that the victim sustained two gunshot wounds (Exh. R),[18] the first
one located on the right jaw below the ear while the second wound located at the left
temporal side above the left eyebrow. The slug from the first gunshot wound remained at
the base of the neck, near the spinal column. There were powder burns, called tatooing,
surrounding the first wound which showed that the victim was shot point-blank. The
second slug was also embedded at the front lobe of the brain. [19] Dr. Sosa indicated in
the Certificate of Death (Exh. Q) that the victim died of shock secondary to severe
intracranial hemorrhage due to multiple gunshot wounds.[20]
Upon written request (Exh. C)[21] of Prosecutor Lu, the NBI conducted a ballistics
examination to determine whether the two slugs taken from the body of the victim were
fired from the firearm recovered from accused-appellant.
Isabelo D. Silvestre, Jr., an NBI ballistician, conducted on September 10, 1997 a
comparative examination of the two evidence bullets, marked as HPP-1 (Exh. E) and
HPP-2 (Exh. E-1), which had been recovered from the victims head and the three test
bullets (Exhs. G, G-1, G-2) fired from the seized .38 caliber firearm. The tests showed
that the evidence bullets were fired from the subject firearm. [22] The empty shells from the
three test bullets fired were duly marked (Exhs. G-3, G-4, G-5). No photographs were
taken. Silvestres findings were confirmed by four other NBI ballisticians: Chief Ballistician
Rogelio Munar, Supervising Ballistician Ernie Magtibay, Senior Ballistician Elmer Pieded,
and, Flor Landicho, another ballistician. The two .38 caliber empty shells recovered from
accused-appellant were no longer examined.[23]
Prosecutor Lu also made a written request (Exh. J) [24] for a laboratory examination
of the bloodstains on the white Hanes t-shirt of accused-appellant to determine whether
such were identical to the blood of the victim.
Juliet Gelacio-Mahilum, NBI Forensic Chemist II, testified that on September 26,
1997, she conducted three kinds of laboratory examinations, namely, (a) benzidine test,
to determine the presence of blood; (b) precipitin test, to determine if the bloodstains
came from human or animal blood; and (c) ABO grouping test, to determine the blood
group. When tested and matched together, the bloodstained white Hanes t-shirt and the
blood sample of the victim yielded positive results for human blood belonging to blood
type O (Exh. K).[25]
For its part, the defense presented accused-appellant himself, his son Jhumar, and
his sister Yolanda Cubcubin Padua.
Accused-appellant Fidel Abrenica Cubcubin, Jr. testified that he enlisted in the
Philippine Constabulary as a soldier in 1974 but was discharged in 1977 for being
AWOL. He said he left for Saudi Arabia where he worked as a driver and came back in
1979. He was later employed as a driver by a friend, who owned a junk shop in Cavite
City. He admitted knowing the victim whom he addressed as Kuya.Accused-appellant
testified that from 10:00 in the evening to 12:00 midnight of August 25, 1997, he and
some friends played a card game called tong-its on Molina Street, Cavite
City. Afterwards, he proceeded to the Sting Cafe where he had some drinks while waiting
for food to be served. Henry Piamonte, a tricycle driver, arrived and had drinks with
him. After a while, the victim left as a passenger was waiting to be given a ride. The
victim came back to the restaurant before 1:00 a.m. and had another bottle of beer with
accused-appellant. At about 1:30 a.m., the victim again left to transport another
passenger. After that, the victim did not come back anymore.[26]
Accused-appellant said he left Sting Cafe at about 2:00 a.m. and took a tricycle
home to 1151 Garcia Extension, San Antonio, Cavite City. He was sleeping on the sofa
in his bedroom when he was awakened by the arrival of three policemen, two of them he
recognized as SPO1 Malinao, Jr. and PO3 Estoy, Jr., who pointed their guns at him and
told him to lie face down. He said he was handcuffed while the policemen searched his
room, turning the sala set upside down and opening the cabinets. His son, Jhumar,
stood beside him. Before leaving, the policemen took from the clothes stand a white t-
shirt belonging to his son Denver. Accused-appellant said that he did not ask them why
they were searching the place as he was afraid they would maltreat him. He denied the
claim of the policemen that the white t-shirt had blood stains. He claimed that the
policemen did not have any search warrant nor a warrant of arrest when they took him
into custody. Nor did they inform him of his constitutional right to remain silent and to be
assisted by counsel. He also said that he was made to stay in a police patrol car for
almost two hours before he was brought inside the police station. He denied owning the .
38 caliber revolver presented to him by Prosecutor Lu and SPO4 Pilapil or that the same
had been recovered from his house. He also denied the prosecutions claim that he was
taken to the Sting Cafe where he was allegedly identified by Danet Garcellano as the
person last seen with the victim before the latter was killed.[27]
Jhumar Cubcubin, son of accused-appellant, testified that at about 4:00 in the
morning of August 26, 1997, he was sleeping on the second floor of the house when he
was roused from his sleep by loud knocks on the door. When he opened the door, he
saw three policemen who were looking for his father. He told them that his father was not
around, but he was shoved away. They proceeded upstairs to the room of his father
where they took from the clothes stand a white Hanes t-shirt belonging to his brother
Denver. They put his father in a police patrol car waiting outside. Jhumar immediately
went to his aunt, Yolanda Cubcubin Padua, and reported to her what had happened. He
went back to the house and saw some policemen still conducting a search. As the
policemen were about to leave, a van with some other policemen on board arrived. They
asked him where the water container was located. They went inside the house and,
when they came out, one of them announced that he had found a gun, which was then
photographed. Jhumar said that while his father was inside the police patrol car, his aunt
was arguing with the policemen. At that instance, SPO1 Malinao, Jr. spread the t-shirt
and told Jhumars aunt Eto, puro dugo damit niya, although the t-shirt had no
bloodstains. He said that he and his father never gave permission to the policemen to
search their house.[28]
Yolanda Cubcubin Padua, accused-appellants sister, testified that at about 5:30 in
the morning of August 26, 1997, she was told by her nephew, Jhumar, that accused-
appellant had been apprehended by some policemen. She and Jhumar then went to the
police patrol car where she saw her brother in handcuffs. She said she protested to the
policemen that there was no evidence that accused-appellant had killed the
victim. Yolanda said she saw the confiscated white Hanes t-shirt, but she claimed the
same did not have any bloodstain on it. She went back to her house to call up her
mother in Gen. Trias, Cavite to let her know what had happened. She then went out to
see accused-appellant and saw Jhumar, who told her that some policemen were
searching accused-appellants house and found a gun.[29]
On October 5, 1998, the trial court rendered its decision finding accused-appellant
guilty of murder. It based its finding on circumstantial evidence, to wit: (1) That Danet
Garcellano, a waitress at the Sting Cafe, saw accused-appellant arrive at about 12:00
midnight of August 25, 1997 and drink beer, while the victim arrived at about 2:30 a.m. of
August 26, 1997 and joined accused-appellant in drinking beer at the bar. She said that
she served them beer and they stayed for about an hour, that the two later had an
argument as accused-appellant wanted to have two more bottles of beer which the
victim paid for, and that at about 3:30 a.m., the victim and accused-appellant left and
boarded the victims tricycle; (2) That PO3 Rosal and SPO1 Malinao, Jr. testified that they
saw the lifeless body of the victim, with bullet wounds on his head, slumped on the
handle of his tricycle, that the crime scene was about 50 meters away from the house of
accused-appellant, and that when they were told by an unidentified tricycle driver that the
victim and accused-appellant were seen leaving the Sting Cafe together, they went to
Sting Cafe and interviewed Danet Garcellano who described the appearance of the
victims companion. Armando Plata, another tricycle driver who knew accused-appellant
as the person being described by Garcellano, accompanied the policemen to the house
of accused-appellant; (3) That after SPO1 Malinao, Jr. was allowed to enter the house,
he found a white Hanes t-shirt with bloodstains on it and also recovered two spent .38
caliber shells; (4) That when accused-appellant was taken to the Sting Cafe, he
was positively identified by Danet Garcellano as the victims companion moments prior to
his death; (5) That when the investigators returned to the house of accused-appellant,
PO3 Estoy, Jr. found a .38 caliber revolver placed on top of a plastic water container
located outside the bathroom; (6) That laboratory examination conducted by the forensic
chemist, Juliet Gelacio-Mahilum, showed that the bloodstains on the white Hanes t-shirt
were human blood, type O, which matched the blood type of the victim; and (7) That per
ballistic examination of NBI ballistician, Isabelo D. Silvestre, Jr., the two slugs recovered
from the head of the victim were fired from the .38 caliber revolver seized from accused-
appellants house.
The trial court rejected accused-appellants alibi, giving full credence to the
testimonies of Danet Garcellano and the police investigators whom it found to have no
motive to falsely implicate accused-appellant. It admitted the prosecution evidence
consisting of the white Hanes t-shirt, two spent shells, and the .38 caliber revolver, on the
ground that these items had been seized as incident to a lawful arrest.It ruled that since
Dr. Sosa testified that the victim was shot point-blank while on his tricycle and was not in
a position to see the assailant, the qualifying circumstance of treachery was present, not
to mention that the victim was unarmed and thus totally defenseless. The trial court
theorized that while the victim was on his tricycle, the assailant went around and shot
him on the left temple. It held that the use of an unlicensed firearm in killing the victim
constituted an aggravating circumstance. Hence, the trial court found accused-appellant
guilty of murder and accordingly imposed on him the penalty of death. Hence, this
appeal.
On April 18, 2000, the Court received a letter, dated April 5, 2000, [30] from Victoria
Abrenica Dulce, mother of accused-appellant, with an attached affidavit of desistance
entitled Sinumpaang Salaysay ng Pag-Uurong, dated November 14, 1997,[31] executed
by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been
mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of the
criminal case against him. In her letter, Dulce said that the affidavit of desistance was
supposed to be submitted to the trial court prior to the presentation of the evidence for
the prosecution, but, for unknown reasons, the same was not done by accused-
appellants counsel. This affidavit of desistance, however, not being formally offered
before the trial court, has no probative value.
We now consider accused-appellants assignment of errors.
 First. Accused-appellant contends that his arrest, effected on August 26, 1997
without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on Criminal
Procedure, as amended, provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
Under 5(b), two conditions must concur for a warrantless arrest to be valid: first, the
offender has just committed an offense and, second, the arresting peace officer or
private person has personal knowledge of facts indicating that the person to be arrested
has committed it. It has been held that personal knowledge of facts in arrests without a
warrant must be based upon probable cause, which means an actual belief or
reasonable grounds of suspicion.[32]
In this case, the arrest of accused-appellant was effected shortly after the victim
was killed. The question, therefore, is whether there was probable cause for PO3 Rosal
and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant
committed the crime. We hold that there was none. The two did not have personal
knowledge of facts indicating that accused-appellant had committed the crime. Their
knowledge of the circumstances from which they allegedly inferred that accused-
appellant was probably guilty was based entirely on what they had been told by others,
to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30
in the morning of August 26, 1997 and reported that a man had been killed along Julian
Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and
the victim coming out of the Sting Cafe; by Danet Garcellano, waitress at the Sting Cafe,
who said that the man last seen with the victim was lean, mustachioed, dark-
complexioned and was wearing a white t-shirt and a pair of brown short pants; by a
tricycle driver named Armando Plata who told them that the physical description given by
Garcellano fitted accused-appellant, alias Jun Dulce and who said he knew where
accused-appellant lived and accompanied them to accused-appellants house. Thus,
PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others.
In an analogous case,[33] the police was informed that the accused was involved in
subversive activities. On the basis of this information, the police arrested the accused
and, in the course of the arrest, allegedly recovered an unlicensed firearm and some
subversive materials from the latter. This Court held that the arresting officers had no
personal knowledge since their information came entirely from an informant. It was
pointed out that at the time of his arrest, the accused was not in possession of the
firearm nor engaged in subversive activities. His arrest without a warrant could not be
justified under 5(b).
In another case,[34] the accused, in a case of robbery with rape, were arrested
solely on the basis of the identification given by one of the victims. This Court held the
arrest to be illegal for lack of personal knowledge of the arresting officers. More recently,
in Posadas v. Ombudsman,[35] this Court, in declaring the arrest without warrant of two
University of the Philippines students to be illegal, held:
There is no question that this case does not fall under paragraphs (a) and (c). The
arresting officers in this case did not witness the crime being committed. Neither are the
students fugitives from justice nor prisoners who had escaped from confinement. The
question is whether paragraph (b) applies because a crime had just been committed and
the NBI agents had personal knowledge of facts indicating that [the students] were
probably guilty.
....
[T]he NBI agents in the case at bar tried to arrest [the students] four days after the
commission of the crime. They had no personal knowledge of any fact which might
indicate that the two students were probably guilty of the crime. What they had were the
supposed positive identification of two alleged eyewitnesses, which is insufficient to
justify the arrest without a warrant by the NBI.
Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the
scene of the crime. When [the NBI agents] attempted to arrest [the students], the latter
were not committing a crime nor were they doing anything that would create the
suspicion that they were doing anything illegal. On the contrary, [they], under the
supervision of the U.P. police, were taking part in a peace talk called to put an end to the
violence on the campus.
Nor can it be argued that the arresting officers had probable cause to believe
accused-appellant to be guilty of the killing of the victim because they found a
bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his
house. At the time accused-appellant was arrested, he was not doing anything overtly
criminal. The alleged discovery of the gun came after his arrest. Moreover, as will
presently be explained, the objects allegedly seized from accused-appellant were
illegally obtained without a search warrant.
Be that as it may, accused-appellant cannot now question the validity of his arrest
without a warrant. The records show that he pleaded not guilty to the charge when
arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for
reinvestigation in which he alleged that he had been illegally detained without the benefit
of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his
motion and ordered the City Prosecutor to conduct a preliminary investigation and
submit his findings within thirty (30) days thereof.[36] On October 7, 1997, City Prosecutor
Agapito S. Lu moved for the resetting of accused-appellants arraignment from October
8, 1997 to the first week of November, 1997 on the ground that the findings on the
laboratory and ballistics examinations had not yet been received from the NBI.
[37]
Accused-appellant did not object to the arraignment. The City Prosecutors request
was, therefore, granted and the arraignment was reset to November 11, 1997. [38] Nor did
accused-appellant move to quash the information on the ground that his arrest was
illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on
November 11, 1997, at the scheduled arraignment, accused-appellant, with the
assistance of counsel, pleaded not guilty to the charge.[39] On the same day, the trial
court issued an order stating that, as a result of accused-appellants arraignment, his
motion for preliminary investigation had become moot and academic and, accordingly,
set the case for trial.[40] Accused-appellant thus waived the right to object to the legality of
his arrest.[41]
Second. Accused-appellant contends that neither he nor his son gave permission
to the arresting police officers to search his house and, therefore, the Hanes t-shirt, the
two spent slugs, and the .38 caliber revolver allegedly found in his house are
inadmissible in evidence. The prosecution, on the other hand, insists that accused-
appellant consented to the search of his house.
To be sure, the right against unreasonable searches and seizures is a personal
right which may be waived expressly or impliedly. But a waiver by implication cannot be
presumed. There must be persuasive evidence of an actual intention to relinquish the
right. A mere failure on the part of the accused to object to a search cannot be construed
as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda de Garcia
v. Locsin,[42] As the constitutional guaranty is not dependent upon any affirmative act of
the citizen, the courts do not place the citizen in the position of either contesting an
officers authority by force, or waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not consent or an invitation thereto, but is
merely a demonstration or regard for the supremacy of the law.
Because a warrantless search is in derogation of a constitutional right, peace
officers who conduct it cannot invoke regularity in the performance of official functions
and shift to the accused the burden of proving that the search was unconsented. It is
noteworthy that the testimonies of the two prosecution witnesses, SPO1 Malinao, Jr. and
PO3 Rosal, on the search show laborious effort to emphasize that accused-appellant
gave them permission to search his house. At every turn, even when they were not
being asked, they said the search was made with the consent of the accused. As
Shakespeare would put it, the lady doth protest too much, methinks. Indeed, not only
does accused-appellant stoutly deny that he ever consented to the search of his dwelling
but the prosecution has not shown any good reason why accused-appellant might have
agreed to the search.
The prosecution says the search can be justified as incidental to a valid
arrest. Even assuming the warrantless arrest to be valid, the search cannot be
considered an incident thereto. A valid arrest allows only the seizure of evidence or
dangerous weapons either in the person of the one arrested or within the area of his
immediate control. The rationale for such search and seizure is to prevent the person
arrested either from destroying evidence or from using the weapon against his captor. It
is clear that the warrantless search in this case cannot be justified on this ground. For
neither the t-shirt nor the gun was within the area of accused-appellants immediate
control. In fact, according to the rosecution, the police found the gun only after going
back to the house of accused-appellant.
Nor can the warrantless search in this case be justified under the plain view
doctrine. As this Court held in People v. Musa:[43]
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 defendants guilt. The plain view doctrine is usually applied where a police
officer is not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29
L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following
limitations on the application of the doctrine:
What the plain view cases have in common is that the police officer in each of them had
a prior justification for an intrusion in the course of which he came inadvertently across a
piece of evidence incriminating the accused. The doctrine serves to supplement the prior
justification whether it be a warrant for another object, hot pursuit, search incident to
lawful arrest, or some other legitimate reason for being present unconnected with a
search directed against the accused and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is immediately apparent to
the police that they have evidence before them; the plain view doctrine may not be used
to extend a general exploratory search from one object to another until something
incriminating at last emerges. [Id., 29 L.Ed. 2d 583. See also Texas v. Brown, 460 U.S.
730, 75 L. Ed. 2d 502 (1983)]
Here, the search of accused-appellants house was illegal and, consequently, the things
obtained as a result of the illegal search, i.e., the white Hanes t-shirt, two spent shells,
and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said that
the .38 caliber gun was discovered through inadvertence. After bringing accused-
appellant to the Sting Cafe where he was positively identified by a waitress named Danet
Garcellano as the victims companion, the arresting officers allegedly asked accused-
appellant where he hid the gun used in killing the victim. According to SPO1 Malinao, Jr.,
when accused-appellant refused to answer, he sought accused-appellants permission to
go back to his house and there found the .38 caliber revolver on top of a plastic water
container outside the bathroom. Thus, the gun was purposely sought by the police
officers and they did not merely stumble upon it.
Nor were the police officers justified in seizing the white Hanes t-shirt placed on top
of the divider in plain view as such is not contraband nor is it incriminating in nature
which would lead SPO1 Malinao, Jr. to conclude that it would constitute evidence of a
crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not bloodied which could
have directed his attention to take a closer look at it.From the photograph of the t-shirt
(Exh. B-2), it is not visible that there were bloodstains. The actual t-shirt (Exh. H) merely
had some small specks of blood at its lower portion.
Third. There is no evidence to link accused-appellant directly to the crime. Danet
Garcellano said that accused-appellant arrived at about midnight of August 25, 1997;
that the victim joined him at about 2:30 a.m.; and that although both left the Sting Cafe at
about 3:30 a.m., she really did not know if they left together. Thus, Danet testified:
PROSECUTOR LU:
....
Q Were they together when they left Sting Cafe or they left one after the other?
A When they were already bringing along with them the two bottles of beer, they
talked and afterwards, I already left them and I served the other customers.
Q Did you actually see Henry Piamonte leave the Sting Cafe?
A They were about to leave already at that time because they were already bringing
with them the two bottles of beer, Sir.
Q But did you see Henry Piamonte actually leave the Sting Cafe?
A When Henry Piamonte left the Sting Cafe, Henry boarded a tricycle, Sir.
Q How about Cubcubin, how did he leave the Sting Cafe?
 A He followed Henry, Sir.
Q How did he follow Henry, on foot, on board a vehicle or what?
A I do not know anymore, Sir, because I already served the other customers inside.
[44]
....
On cross-examination, Danet said:
ATTY. BAYBAY:
Q When he left, he left alone?
A I do not know anymore, Sir, because I already served inside.
Q Are you saying to us that you did not see him when he left?
A No, Sir, what I know is that he and Cubcubin were together because of the two
bottles of beer which were paid by Piamonte inside, Sir.
....
ATTY. BAYBAY:
Q The accused Fidel Cubcubin left Sting Cafe at 3:30?
A Yes, Sir.
Q Now, how could you be sure of the time when you were serving other people at
that time?
A That is only my estimation, Sir.
Q You only estimated?
A Yes, Sir.
Q And, what was the basis of your estimation?
A Because at that time there were only few customers in that place, Sir.
Q So, you are not really sure what time Fidel Cubcubin left?
A Yes, Sir.
Q You also did not see him leave?
A No, Sir.[45]
In People v. Gallarde,[46] it was explained that positive identification refers
essentially to proof of identity and not per se to that of being an eyewitness to the very
act of commission of the crime. A witness may identify a suspect or accused in a criminal
case as the perpetrator of the crime. This constitutes direct evidence. Or, he may not
have actually seen the crime committed, but is nevertheless able to identify a suspect or
accused as the perpetrator of the crime, as when the latter is the person or one of the
persons last seen with the victim immediately before and right after the commission of
the crime. This is the second type of positive identification, which, when taken together
with other pieces of evidence constituting an unbroken chain, leads to a fair and
reasonable conclusion that the accused is the author of the crime to the exclusion of all
others.
This rule, however, cannot be applied in the present case because Danet
Garcellano did not actually see accused-appellant and the victim leave the Sting Cafe
together. There is thus serious doubt as to whether accused-appellant was really the last
person seen with the victim. Her testimony is insufficient to place accused-appellant in
the scene of the crime so as to form part of the chain of circumstantial evidence to show
that accused-appellant committed the crime. Suspicion alone is insufficient, the required
quantum of evidence being proof beyond reasonable doubt.[47]
Nor is there adequate evidence to prove any ill motive on the part of accused-
appellant. Accused-appellant testified that he could not have killed the victim because
the latter was his friend whom he considered his kuya or elder brother.[48] There is no
showing that the killing of the victim was by reason of a supposed altercation they had as
to who would pay for the two bottles of beer ordered while they were at the Sting
Cafe. The beer was later paid for by the victim. Motive is proved by the acts or
statements of the accused before or immediately after the commission of the
offense, i.e., by deeds or words that may express the motive or from which his reason for
committing the offense may be inferred.[49]
Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the
following in order to sustain a conviction based on circumstantial evidence: (a) there is
more than one circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the case at bar, there are serious doubts as to whether the crime was committed
by accused-appellant in view of the following: (1) As already stated, Danet Garcellano, a
waitress at the Sting Cafe, did not actually see accused-appellant and the victim leaving
the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal and SPO1
Malinao, Jr. testified that when they arrived at the scene of the crime, they were informed
by a tricycle driver that the victim and the accused-appellant had earlier left the Sting
Cafe together, but the tricycle driver was not presented to confirm this fact; (3) SPO1
Malinao, Jr. testified that the white Hanes t-shirt was bloodied, but the evidence shows
that it had some bloodstains only on its lower portion (Exh. H), while the photograph of
the t-shirt (Exhs. B-2, B-2-A, B-2-B), supposedly taken at the time of the search, shows
that it had no bloodstains and this discrepancy was not explained by SPO1 Malinao, Jr.;
(4) The fact that the t-shirt was tested positive for type O blood does not necessarily
mean that the bloodstains came from the victim who also had a type O blood; (5)
Accused-appellant was never given a paraffin test to determine if he was positive for
gunpowder nitrates; (8) The .38 caliber gun allegedly found in his house was not
examined for the possible presence of accused-appellants fingerprints; and (9) The
allegation that the gun was placed on top of a water container in accused-appellants
house is unbelievable as it is improbable that accused-appellant could be so careless as
to leave the fatal weapon there when he could have hidden it or thrown it away.
Nor can we rest easy on the prosecutions claim as to where the two empty shells
and the t-shirt were allegedly found. SPO1 Malinao, Jr. testified that these were placed
beside the white Hanes t-shirt and fell when he took the shirt. On direct examination,
SPO1 Malinao, Jr. said:
PROSECUTOR LU:
 Q What else did you tell Cubcubin at that time? A I asked his permission so that I could take a look at the t-shirt, Sir.
A We asked him to allow us to go inside the house and he let us go inside the house, Q And you said, you looked at it?
then after entering the same, while we were in the sala near the kitchen we saw
the white Hanes t-shirt there, Sir, that was near the kitchen. A Yes, Sir.

Q Where exactly was the white t-shirt placed at that time when you saw the same? Q When you said, you looked at it, how did you look at it?

A Because after entering the house you will see the entire portion of that house and A I spread it out in front of him, Sir.
there is a table there and that t-shirt was placed on the table. Q And when you spread it out in front of him, did you ask him whose t-shirt is it?
Q Was that t-shirt visible from the front door of the house? A I asked him if that t-shirt belongs to him, Sir.
A Yes, Sir. Q What did he say?
Q Can you describe to us the t-shirt that you saw? A According to him, the t-shirt does not belong to him, Sir.
A Before I got the t-shirt, I even asked his permission for me to be able to get the t- Q You also testified that you found two empty shells?
shirt, Sir, and he even gave me the permission to get the same, after getting the
t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with A Yes, Sir.
blood stains.
Q Where did you find these two empty shells?
Q This white t-shirt, can you tell us the brand of the t-shirt?
A From the bedroom upstairs, Sir.
A Hanes, Sir.
Q Bedroom upstairs?
Q How about the blood spot or blood stains, can you tell us how many, if you can
remember? A Yes, Sir.

A We were in a hurry, I did not count the blood stains anymore but there were blood Q You mean, it is a two-storey house?
stains on the t-shirt, Sir.
A Yes, Sir, there is a bedroom upstairs.
Q How about these 2 empty shells that fell when you lifted the t-shirt, can you
Q You found it when you went up?
describe to us these 2 empty shells?
A I first asked his permission to look around inside the house, Sir, because I was
A Empty shells of .38 cal. bullets, Sir.
asking him also about the whereabouts of the firearm he had.
Q What did you do with the empty shells?
Q And he allowed you?
[50]
A I got the t-shirt as well as the 2 empty shells and I showed them to him, Sir.
A He allowed me, sir.
However, on cross-examination, he said he found the empty shells on top of a
Q And when you went upstairs, you found the two empty shells?
cabinet (tokador) in the bedroom on the second floor of the house. Thus, he testified:
A Yes, Sir, they were placed on their tokador on a place where there is a curtain.
ATTY. BAYBAY:
Q In your previous testimony and this is found on page 41 of the TSN, you stated that
Q Where was this t-shirt again when you first saw it?
you got the t-shirt and when you lifted the t-shirt, two empty shells fell off?
A In the kitchen area, Sir.
A After finding the two empty shells for a .38 caliber, Sir, I placed them together with
Q Where in the kitchen area, on the floor or on the wall? the t-shirt.

A It was immediately in front of the door because the house has no divider anymore, Q What you are telling us now is that you went upstairs, you found two empty shells
Sir. and you put them together with the t-shirt, that is what you are telling us now?

Q And that t-shirt was immediately near the door, on the floor? A After finding and taking a look at the t-shirt, I put it on the original place where it
was, Sir, and after finding the two empty shells, it so happened that the
A Yes, Sir. investigator was behind me so after that, I showed to him the t-shirt as well as
the empty shells.[51]
Q What did you do after that, when you saw the t-shirt there?
....
 Q Also in your previous testimony, you got the t-shirt and you asked the permission accused-appellants house and before going up to the second storey? It is also
to get the t-shirt, after getting the t-shirt, there were 2 empty shells which fell. noteworthy that whereas at first SPO1 Malinao, Jr. said he found the t-shirt placed on the
The question is, do you remember that this happened? table near the kitchen, he later said he found it on the floor.
A These two empty shells which I recovered upstairs, sir, I placed them on top of the WHEREFORE, the decision of the Regional Trial Court, Branch 88, Cavite City,
t-shirt. finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of the crime of murder, is
REVERSED and accused-appellant is hereby ACQUITTED on the ground of reasonable
Q You said, when you got the t-shirt, something fell, in your direct testimony? doubt.
A While Fidel Cubcubin was just beside me, Sir, I got the t-shirt, I spread it out and Accused-appellant is ordered immediately released from custody unless he is
nothing fell yet at that time, then I asked him about the firearm that he used. being held for some other lawful cause. The Director of Prisons is directed to implement
this Decision and to report to the Court the action taken hereon within five (5) days from
.... receipt hereof.
SO ORDERED.
Q Do you remember having been asked this particular question:
Q Can you describe to us the t-shirt that you saw?
A Before I got the t-shirt I even asked his permission for me to be able to get the t-
shirt, Sir, and he even gave me the permission to get the same, after getting the
t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with
blood stains.
A Yes, Sir, I remember it.
Q I am just referring to two empty shells that fell, which you said, is that true?
A Yes, Sir, there were empty shells that fell, but I first placed them on top of the t-shirt
because I was planning to wrap these empty shells in the t-shirt.
Q You also testified here on page 40 that the t-shirt was visible from the front door of
the house, is that true?
A Yes, Sir.
Q And you were referring to the time that you entered the house?
A Yes, Sir.
Q And that was the time that you lift[ed] the t-shirt when you saw it and you got it?
A What I said before was that, I got the t-shirt, I lifted it, after that, I placed it on its
original place, Sir, and I asked him about the firearm but he was not
commenting anything on that, so I asked permission from him to go upstairs to
look around.
Q When you said you placed that from the place where you found it, how did you put
it on the place where you found it?
A I placed it there the way I saw it before, the way it was previously placed there, Sir,
because I was planning to bring the t-shirt.[52]
Thus, caught in his own contradiction, SPO1 Malinao, Jr. prevaricated but in the
process committed more contradictions. He said he found the empty shells on top of
the tokador on the second floor of the house, brought them downstairs, and then placed
them on the t-shirt. When he got the t-shirt, the empty shells fell on the floor. But how
could he have gotten the shells from the second floor if, according to him, he found them
by accident when they fell from the t-shirt which he found immediately after entering
[G.R. No. 128285. November 27, 2001]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLANA alias
CATONG EDGARDO PERAYRA, RENE SALDEVEA and RICHARD
BANDAY, defendant-appellants.
DECISION
PER CURIAM:
This is an automatic review of the decision of the Regional Trial Court, Branch 15 of
Roxas City in Criminal Case No. 4659 finding accused-appellants Antonio Plana,
Edgardo Perayra, Rene Saldevea and Richard Banday guilty beyond reasonable doubt
of the crime of Rape with Homicide and imposing upon them the supreme penalty of
Death.
The Information filed against accusedappellants reads:
That on or about 10:30 oclock in the morning of September 23, 1994, at Brgy. Cubi,
Dumarao, Capiz, and within the jurisdiction of this Court, the above-named accused did,
then and there, wilfully and feloniously, and by conspiring and helping one another, gang-
up and have carnal knowledge of HELEN PIROTE [should read Helen Perote]. will, and,
thereafter, by means of cruelty which augmented her suffering, did, then and there,
strike, mangle and stab said HELEN PIROTE several times with both blunt and sharp-
edged weapons thereby inflicting upon her serious multiple wounds causing massive
hemorrhage which resulted to [sic] her death.[1]
At their arraignment, accused-appellants pleaded not guilty. During the trial, the
prosecution presented as its witnesses Dr. Ricardo Betita, Jr., Felix Lagud, Rene
Bustamante, Antonio Mendoza, Amalia Rafael, Linda Perote and Romeo de la Torre
Diaz. Their testimonies, taken together, establish that:
On September 26, 1994, the victim, Helen Perote, was found dead by her brother
and the police in Brgy. Cobe, Dumarao, Capiz. The body was in prone position and was
already in an advance state of decomposition. Per the post mortem examination
conducted by Dr. Ricardo Betita, Rural Health Officer of Cuartero, Capiz, the victim
sustained the following injuries:
1. Clean edges stab wound 2x5 cm left anterior chest.
2. Avulsion with irregular edges wound 8x12 cm middle chest area.
3. Avulsion of the nose and upper lip portion/area.
4. Clean edges wound or stab wound 2x5 cm epigastric area.
5. Clean edges stab wound 2x5 cm left hypogastric area.
6. Clean edges stab wound 2x5 cm hypogastric area.
7. Clean edges stab wound 2x5 cm left posterior upper back.
8. Clean edges stab wound 2x5 cm mid upper portion of the back.
9. Clean edges stab wound 2x5 cm left posterior back level of 8th ribs.
10. Clean edges stab wound 2x5 cm left back level of left lumbar area.
11. Clean edges wound 2x5 cm middle low back area.
12. Clean edges wound 2x5 cm right low back area at level of lumbar area.
13. Clean edges wound 2x5 cm left gluteal area near the anus.
14. Vagina: Introitus can easily insert 2 fingers/Hymen with laceration 3
and 9 oclock (old laceration) and on the state of decomposition.
The most probable cause of death was massive hemorrhage or blood loss secondary to
multiple stab wound[s].[2]
When he took the witness stand, Dr. Betita described the fourteen (14) wounds
inflicted on the victim as follows: Wound No. 1 was located just above the left breast of
the victim. It was seven (7) to nine (9) centimeters deep. It was a fatal wound as it hit the
heart of the victim. Wound No. 2 was located in the middle chest area of the victim.
Wound No. 3 was an avulsion on the nose and upper lip. There was also a missing
tooth. The wound could have been caused by a hard object or that the victim fell with her
face hitting the ground. Wound No. 4 was a stab wound located at the upper part of the
abdomen. It was seven (7) centimeters deep and was probably caused by a knife or a
bladed instrument. Wound No. 5 was a stab wound located at the left side above the
pubis area. Wound No. 6 was a stab wound located above the pubis area also. It was
seven (7) to ten (10) centimeters deep. The urinary bladder and the uterus could have
been hit by this wound. Wound No. 7 was a stab wound and located at the right scapular
area of the body. With a depth of seven (7) centimeters, the wound hit the lungs of the
victim. Wound No. 8 was a stab wound and located at the upper back portion. It could
have affected the spinal cord causing paralysis. Wound No. 9 was a fatal stab wound
located at the left posterior back level of the 8th rib. The wound could have affected the
spinal cord, the lungs and the abdominal aorta. Wound No. 10 was located at the left
lumbar area which could have hit the kidney of the victim. Wound No. 11 was located at
the middle low back area. Wound No. 12 was located at the middle portion of the back
just above the right lumbar area. Wound No. 13 was located near the anus. The wound
was inflicted with the victim facing downward or the assailant was at the back of the
victim. Finally, Entry No. 14 was the laceration on the hymen of the victims sexual organ.
[3]
According to Dr. Betita, the victim died more than seventy-two (72) hours already
before the police authorities found her body.[4]
On September 23, 1994, or three (3) days before the victims body was found, at
around 10:30 in the morning, Felix Lagud was walking at the feeder road in Barangay
Cobe, Dumarao, Capiz. He just came from his farm in Alipasyawan, Dumarao and was
on his way home to Poblacion Ilawod. A movement at about fifty meters to his left side
caught his attention. He saw three persons who seemed to be wrestling. He came nearer
so he would be able to see them more clearly. From about a distance of twenty (20)
meters, he saw the three men holding a girl while another man was on top of her. The
girl was being raped and she was later stabbed. Frightened that the assailants would see
him, Lagud ran away. He intended to go straight home but when he passed by the house
of Porferio Haguisan, the latter invited him for a milagrosa. Lagud obliged and stayed at
the house of his kumpare until 2:00 in the afternoon.[5]
On September 26, 1994, while he was in Ungon Ilaya, Lagud heard that a girl was
found dead in Barangay Cobe. It was the same place where, three days earlier, he saw
the four men gang up on the girl.He wanted to go to the place but he was told that the
foul smell coming from the decomposed body already permeated the place. He later
learned that the deceased was Helen Perote.[6]
In his affidavit,[7] as well as in his testimony in court, Lagud identified accused-
appellants Plana, Perayra and Saldevea as the three men who were holding the girl
while their fourth companion was raping her. At the time of the incident, he did not yet
recognize the fourth man who was on top of the girl. However, when he saw accused-
appellants at the municipal hall where they were brought when they were arrested on
September 26, 1994, he identified the fourth man to be accused-appellant Banday.[8]
Rene Bustamante corroborated in part the testimony of Lagud. Between 10:30 to
11:00 in the morning of September 23, 1994, Bustamante was looking for his
carabao. He found it near the fishpond owned by accused-appellant Saldevea in
Barangay Cobe. Bustamante was tugging the carabao when he heard the sound of men
laughing. When he looked back, he saw accused-appellant Saldevea, who was then
shirtless, pull up his pants. Accused-appellant Saldevea were with three other men. They
were washing their hands on the fishpond. Bustamante recognized one of them to be
accused-appellant Perayra.Bustamante proceeded to his home in Barangay Ungon,
Ilaya, Dumarao, Capiz.[9]
On September 25, 1994, Bustamante was in their house with his wife and children.
His mother-in-law, Linda Perote, arrived looking for her daughter Helen. The wife of
Bustamante is the older sister of Helen. They learned that Helen had been missing since
September 23, 1994. She was supposed to go to the house of her other sister, Susan,
but she (Helen) never reached the latters place. They began to search for her. On
September 26, 1994, they found her lifeless body with no clothes on but her panty. There
were already maggots infesting her body. Bustamante confirmed in open court that
accused-appellants were the men that he saw on September 23, 1994 near the place
where the body of Helen was found.[10]
Antonio Mendoza, barangay captain of Barangay Hambad, Dumarao, Capiz and
storeowner, narrated during the hearing that on September 23, 1994, at past 8:00 in the
morning, accused-appellants arrived at his store. They bought two bottles of ESQ whisky
and proceeded to drink the liquor. Accused-appellants were drinking in Mendozas store
until almost 10:00 in the morning. Thereafter, they left bringing with them the one-half full
bottle of whisky that they did not consume.[11]
Two days after that incident, on September 25, 1994, Porferio Haguisan and
members of the Regional Security of the Armed Forces (RSAF) came to see Mendoza to
ask him if he saw accused-appellants.Mendoza told them that accused-appellants were
in his store in the morning of September 23, 1994. Haguisan and the police left. The
following day, Mendoza heard that Helens body was found dead near the fishpond
owned by the brother of accused-appellant Saldevea. The place is approximately 500
meters away from Mendozas store.[12]
The last person who talked with the victim was her older sister Amalia Rafael. In
the morning of September 23, 1994, Helen went to see Amalia to tell her that they were
going to have a milagrosa in the house of their other sister, Susan. Amalia instructed
Helen to go ahead. Helen then left to proceed to Susans house. Going there, Helen
would usually pass by the railway track and the feeder road. After Helen left, Amalia
followed her to their sisters house. Amalia took the same route passing by the railway
track and feeder road. On her way, Amalia met accused-appellants on the feeder road
near the fishpond. At the time, she only knew accused-appellants Plana and
Perayra. She noticed that the four men were not wearing any shirts but only their denim
pants. They were obviously drunk as their faces were red and they walked in a zigzag
manner. Amalia saw that accused-appellant Plana had a knife tucked in his waist.[13]
There were already many people when Amalia arrived at Susans house. However,
Helen was nowhere to be found. Amalia did not stay long there as she only got food. On
September 25, 1994, while she was working in the ricefield, their mother, Linda, came.
She told Amalia that Helen had not come home. They then went to see Helens
classmates to ask them if they knew where she went. All they knew is that she went to a
milagrosa. On September 26, 1994, they found the body of Helen near the fishpond of
accused-appellant Saldevea in Barangay Cobe, Dumarao, Capiz. Helen was then only
eighteen years old.[14]
The Chief of Police of Dumarao Police Station, Romeo dela Torre Diaz, received
report of Helens disappearance in the afternoon of September 25, 1994. Later in the
evening, he granted clearance to the 601st Mobile Force Company to conduct the
search. The following day, upon hearing that the body of Helen was already found, Diaz
went to the station of the 601st Mobile Force Company. Accused-appellants, who were
already there, were turned over to him for investigation. Thereafter, Diaz went to the
place where Helens body was found in Barangay Cobe.[15]
Linda Perote, the victims mother, described on the witness stand the shock, grief
and anguish that she felt upon learning of her daughters death. She averred that the
family spent almost fifty thousand pesos (P50,000.00) for Helens wake and burial.[16]
Upon the other hand, accused-appellants interposed the defense of denial and
alibi. Their account of their activities on that fateful day of September 23, 1994 is as
follows:
At around 7:30 in the morning, accused-appellants had lomi in the eatery owned by
Eddie Pendon. After eating, they accompanied accused-appellant Saldevea to the public
market to buy fish. From the public market, they all boarded a tricycle to go to Barangay
Bugnay. When they alighted the tricycle, they met barangay captain Tony Mendoza.
Mendoza boarded the tricycle while accused-appellants proceeded to Mendozas store.
Accused-appellants bought two bottles of whisky from the store. They drank the liquor at
said store until past 10:00 in the morning.[17]
Thereafter, accused-appellants Plana and Banday had to leave behind accused-
appellants Saldevea and Perayra to go to the house of Planas aunt and uncle, Vicente
and Felomina Docutan. They reached the house of the Docutans at around 10:30 in the
morning. It only took them a couple of minutes to get there by foot. Accused-appellants
Plana and Banday were tasked to cook the chicken for the celebration that night. Also at
the house of the Docutan couple was Nolan Obena. Accused-appellants Plana and
Banday stayed there until 9:00 in the evening. Accused-appellant Banday slept over at
the house of accused-appellant Plana since he (accused-appellant Banday) lived quite
far.[18]
For their part, after accused-appellants Plana and Banday left the store, accused-
appellants Perayra and Saldevea proceeded to the house of the latters sister-in-law,
Monina Saldevea. Accused-appellant Saldevea cooked the fish that they earlier bought
in the public market. They then had lunch and after eating, they slept. Accused-appellant
Perayra slept until 4:00 in the afternoon. Accused-appellant Saldevea woke up earlier
and was soon outside the house plowing the field. Accused-appellant Perayra went
home at 4:30 in the afternoon.[19]
To buttress their defense of denial and alibi, accused-appellants further accounted
for their activities on the days subsequent to September 23, 1994. Accused-appellant
Plana claimed that he spent the day gathering wood on September 24, 1994. The
following day, he just stayed at their house but in the afternoon, he played basketball
with accused-appellant Perayra and their friends. Later in the evening, at about 11:00,
certain members of the RSAF came to the house of accused-appellant Plana. Accused-
appellant Perayra was still there because he slept over at said house. The RSAF
questioned them if they saw a girl named Helen Perote. They answered no. Accused-
appellants Plana and Perayra then accompanied the law enforcers to see a certain
Lando. The authorities inquired from Lando if there was a woman who boarded his
bering transportation. Lando answered in the negative. Accused-appellants Plana and
Perayra were then instructed by the police to go to the police detachment. Since it was
already late, accused-appellants Plana and Perayra asked if they could just go there in
the morning of the following day.[20]
Accused-appellant Perayra averred that he stayed at his house the whole day of
September 24, 1994. The following day, he went to the house of accused-appellant
Plana in the afternoon. They agreed to meet later in the evening at the wake in the
house of the Igaras family. They left the wake at 10:00 in the evening. Accused-appellant
Perayra decided to spend the night at the house of accused-appellant Plana. At 11:00 in
the evening, they were awakened by the brother of accused-appellant Plana. They were
informed that members of the RSAF were outside the house looking for them. Accused-
appellant Perayra was brought in front of the house while accused-appellant Plana was
brought at the back. Accused-appellant Perayra was asked of his whereabouts on
September 23, 1994.[21]
Accused-appellant Banday recounted that he left the house of accused-appellant
Plana early morning of September 24, 1994. He slept there the night before after they
had dinner at the house of the Docutans. He never left his house on September 24 and
25, 1994. On September 26, 1994, he received word that the police chief wanted to ask
him some questions. He thus went to the police detachment as instructed. He did not
see the other accused-appellants when he arrived at the detachment. The authorities
began interrogating him. They wanted him to confess to the killing and raping of
Helen. When he refused, they punched him. Later in the afternoon, the four accused-
appellants were brought to the municipal hall in Dumarao, Capiz. They were placed
under detention there.[22]
Aside from accused-appellants, the defense presented other witnesses, namely,
Julia Barrientos, Nolan Obena, Igleserio Farinas, Rolando Naelgas and Monina
Saldevea. Barrientos tried to refute the allegation of prosecution witness Felix Lagud that
he saw accused-appellants rape and stab Helen in Barangay Cobe. Barrientos testified
that on September 23, 1994, at 10:00 in the morning, on her way to the public market,
she saw Lagud sitting on the bench outside his house. Lagud was then selling amakan,
hence, he could not have seen what he claimed he saw.[23]
Obena corroborated the alibi of accused-appellants Plana and Banday that from
10:30 in the morning to 8:00 in the evening on September 23, 1994, they were at the
house of the Docutan couple.[24]Farinas, a basket vendor, said during his testimony that
he saw accused-appellant Plana and his two companions at around 10:30 in the morning
of that fateful day. They passed by the house of Ronie Saldevea, brother of accused-
appellant Saldevea, where Farinas was buying baskets. He (Farinas) even had a short
conversation with accused-appellant Plana. Farinas saw accused-appellant Plana and
his companions head towards Barangay Cobe. [25] Naelgas corroborated the testimony of
Obena. Naelgas saw Obena when the latter bought baskets from Ronie. He (Naelgas)
affirmed that accused-appellants Plana and Banday passed by the house of Ronie. They
came from the direction of the nearby high school and went down the hill going to
Barangay Cobe.[26]
Monina Saldevea, sister-in-law of accused-appellant Saldevea, corroborated the
alibi of accused-appellants Saldevea and Perayra. She attested that on September 23,
1994, accused-appellants Saldevea and Perayra arrived at her house at 10:30 in the
morning. They had their lunch there. Accused-appellant Saldevea helped prepare the
same. Accused-appellant Perayra stayed at the house of Monina until 4:30 in the
afternoon when he went home. On the other hand, accused-appellant Saldevea did not
leave the house until September 25, 1994. The following day, he went to the detachment
after he was informed by accused-appellant Perayra that the authorities wanted to
investigate them for the death of Helen Perote.[27] Edith Perayra, mother of accused-
appellant Perayra, averred that in the morning of September 23, 1994, her son asked
permission from her to go to the public market. He told her that he was going there with
accused-appellant Saldevea. When he got home at 5:00 in the afternoon, he told his
mother that he ate lunch at the house of Monina Saldevea with accused-appellant
Saldevea. Accused-appellant Perayra did not leave their house except to buy cigarettes
in the afternoon of September 25, 1994. The following day, at 6:00 in the morning,
accused-appellant Perayra reported to the police detachment after he learned that the
authorities wanted to ask him questions. At the detachment, he was surprised to learn
that be was one of the suspects in the rape-slaying of Helen. Accused-appellants were
all brought to the municipal hall in Dumarao, Capiz where they were detained.[28]
Lagud was called again to the witness stand by the prosecution to rebut the
testimony of Julia Barrientos, witness for the defense. Lagud admitted that he knows
Barrientos but denied seeing her on September 23, 1994. According to Lagud,
Barrientos claim that she saw him selling amakan on that date is not true because he
had already stopped said business in 1992.[29]
On November 23, 1996, after due trial, a judgment was rendered by the trial court
finding accused-appellants guilty beyond reasonable doubt of the crime of rape with
homicide. The trial court imposed upon them the supreme penalty of death. The
dispositive portion of the trial courts decision reads:
WHEREFORE, finding accused ANTONIO PLANA, EDGARDO PERAYRA, RENE
SALDEVEA and RICHARD BANDAY guilty beyond reasonable doubt of the complex
crime of Rape with Homicide as defined and punished under Art. 335 of the Revised
Penal Code, as amended by Rep. Act No. 7659, judgment is hereby rendered
sentencing them to suffer the supreme penalty of DEATH and, likewise, ordering them to
pay jointly and severally the heirs of the victim, Helen Perote, twenty five thousand pesos
(P25,000.00) as actual damages and fifty thousand pesos (P50,000.00) as civil liability.
SO ORDERED.[30]
In their appeal brief, accused-appellants assail their conviction alleging that the trial
court committed the following errors:
a. The trial court erred in not appreciating the defense of alibi/denial put up by the
appellants they had nothing to do with the commission of the crime as their testimonies
and their witnesses, individually and collectively taken together, showed with clarity and
beyond doubt they were not at the scene of the crime and did not commit the offenses
charged.
b. The trial court erred in not censuring the actuation of the police authorities in detaining
appellants without benefit of Court filed information nor judicial order of detention as well
as violation of their constitutional rights during their so-called custodial invitation and A Yes, mam.
interrogation.
Q What was that unusual incident that called your attention?
c. The trial court erred in not appreciating the inconsistencies and inherent A I saw that as if there were wrestling.
weaknesses/improbabilities of the testimonies of prosecutions witness which showed
tons of doubt of appellants guilt entitling them to acquittal.[31] Q On which part of the barangay road where you were walking that you saw there
seems to be wrestling persons?
Accused-appellants vigorously deny that they committed the rape and killing of A On my left side.
Helen. They maintain that their testimonies, taken together with that of the other defense
witnesses, show that they were not at the scene of the crime. In other words, they fault Q Now, how far were you from the very spot where you saw there seems to be
the trial court for not giving credence to their defense of alibi. Corollarily, they point out wrestling persons?
the alleged inconsistencies and improbabilities in the testimonies of the witnesses for the
A 50 meters. About 50 meters.
prosecution. Accused-appellants likewise denounce as violative of their constitutional
rights their detention without, at the time, a judicial order or an information filed in court. Q Now, when you saw this what did you do?
After a careful review of the evidence on record, the Court is constrained to affirm A I came near so that I could see it clearly.
the judgment of conviction of accused-appellants.
Q How near did you approached that spot, Mr. Witness?
The first and last issues raised by accused-appellants shall be addressed jointly as
they both involve the assessment of the witnesses credibility. It is well-entrenched in this A About twenty (20) meters.
jurisdiction that findings of the trial court on the credibility of witnesses and their
Q Now upon reaching that distance from the spot where you said you saw persons
testimonies are entitled to the highest respect and will not be disturbed on appeal in
who seems to be wrestling what did you see?
absence of any clear showing that the trial court overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance which would have A I saw three (3) persons holding the one who is being raped and one person was on
affected the result of the case. The trial court is in a better position to decide the question the top of the girl.
of credibility, having seen and heard the witnesses themselves and observed their
behavior and manner of testifying.[32] Q Now, did you recognized these three (3) persons whom you saw were holding the
victim?
In this case, the trial court correctly gave credence to the positive identification of
accused-appellants as the assailants of Helen by Felix Lagud. His testimony was A Yes, sir.
straightforward, direct and consistent:
Q Who were these three (3) persons holding still the victim?
PUBLIC PROSECUTOR:
A Antonio Plana, Edgardo Perayra and Rene Saldevea.
Q Mr. Lagud, where were you at about 10:30 oclock in the morning on September 23,
1994? Q Now, before that incident that you saw have you already known these three (3)
persons you have identified who have been holding the girl, one of them was
A I was walking at the feeder road of barangay Cobe, Dumarao, Capiz. actually raping -

Q Where were you headed to? ATTY. BARRERA:

A Going home to Poblacion Ilawod. I object to the term actual raping. There is still no proof that there was any rape,
was holding the girl only. He has not yet given testimony involving the rape.
Q And this Poblacion Ilawod is also of Dumarao, Capiz?
COURT:
A Yes, sir.
Witness may answer.
Q Where have you been?
A These three (3) persons I have already known them because we have gone
A I came from Alipasyawan, Dumarao, Capiz, visiting my farm. together in a drinking session and I also passed by Cobe.
Q This Alipasyawan is also of Dumarao, Capiz? PUBLIC PROSECUTOR:
A Yes, sir. Q Now, if these (3) persons are inside the courtroom, will you please go down from
the witness stand and tap the shoulder of these three (3)?
Q While walking in barangay road of Barangay Cobe, Dumarao, Capiz, was there
anything unusual that attracted or called your attention? ATTY. BARRERA:
 I request as he taps each of them he should mention the name.
A (Witness came down from the witness stand and tapped the shoulder of Antonio
Plana, next as Rene Saldevea and another person he named as Edgardo
Perayra.
PUBLIC PROSECUTOR CONTINUING:
Q Now, what else did you see?
A The first, at first I saw the three persons holding the victim and the other one is on
top of the victim. Later, I saw that the one who is on top of the girl raised his
hand and stabbed the victim.
Q Now, what happened after you saw that the one on top of the victim stabbed the
victim?
A Because I was afraid, I ran away because they might also see me.
Q Now, where did you proceed after you got frightened of what you saw?
A Going home to Poblacion Ilawod, Dumarao, Capiz.
Q Were you able to immediately go home?
A I was not able to go home because when I passed by the house of Porferio
Haguisan, he saw me and he invited me because it was their Milagrosa.
Q How long did you stay in the house of your Compare Porferio?
A I stayed there long. I went home already 2:00 oclock.
xxx
PUBLIC PROSECUTOR:
Q Now, what did you do when you heard that a person was found there a dead
person was found in that very place where you saw the accused on September
23, 1994, holding and raping
A I went to the Municipal Hall because I also heard that the accused were
apprehended and I went there and I saw and recognized them.
COURT:
Q You mean to tell us Mr. Witness that on September 26, 1994, when the dead body
was found in the feeder road of Cobe, you went to the Municipal Hall because
the accused was arrested, is that what you mean?
A Yes, sir.
PUBLIC PROSECUTOR:
Q What time have you gone to the Municipal Hall?
A Noon time.
Q Now, who was the dead person that was found in that spot?
A Helen Perote.
Q When this victim was still alive, have you any occasion to know her?
A Yes, I know her.
Q Now, how about the fourth man who was on top of the girl and whom you saw also
stabbed the girl on the morning of September 23, 1994, did you recognize him?
A On that incident I do not know him but when I saw him at the Municipal Hall I know
him because they were also together.
Q And did you know who this fourth man was when you went to the Municipal Hall?
A Yes, sir, Richard Banday.
Q If he is inside the courtroom will you please go down from the witness stand and
tap the shoulder of Richard Banday?
A (Witness went down from the witness stand and tapped the shoulder of a person
who, when asked answered his name as Richard Banday).[33]
Lagud remained unwavering and consistent even when he was under the grueling
cross-examination by accused-appellants counsel:
ATTY. BARRERA:
Q At that distance of 50 meters as you said from the place where you saw persons
as if wrestling there was no obstruction to your view?
A There were grasses and trees not so tall.
Q Now, would you agree with me that the place, I withdraw that. The place where you
were and the area where you saw persons as if wrestling which is the elevated
portion?
A On the place where I was.
Q So, your portion being elevated you would agree with me that you can see the
place where there are persons appearing to be wrestling because it was at the
lower portion am I correct?
A Not so clear because there were grasses and that is why I went near.
Q How were you able to identify the three (3) persons, namely, Plana, Saldevea and
Perayra?
A When I came near that is the time that I recognized them.
Q Now, you said that you came nearer to the place where persons were wrestling
and you said you were 20 meters from them but when measured it was actually
12 meters. The question is, why did you approach the place where you saw
persons wrestling?
A I went near so that it would be clear to me and I can recognize and confirm as to
what they are doing.
Q You want to tell the Court that it was out of curiosity that you approached the area
where you saw persons appearing to be wrestling?
A Yes, that is what I plan.
Q You were not afraid instead you were curious isn't it?
A I was afraid that is why when I went near I also crouched. PUBLIC PROSECUTOR:
Q Just answer my question. Were you afraid or you were curious that is why you Your honor, the translation is I did not yet know him.
approached the place where persons appeared to be wrestling.
ATTY. BARRERA:
COURT:
Q What part of his body that person who was on top you saw?
Compaero, if you have any correction just make a manifestation, just make it formal,
A From his head to his back.
ATTY. BARRERA:
Q You did not see his face?
I am sorry, your honor.
A No, sir.
COURT:
Q What was he actually doing when you saw him for the first time?
Proceed.
A He was on top of the girl.
A Just for curiosity sake.
PUBLIC PROSECUTOR:
ATTY. BARRERA:
There is a continuation, your honor, he said naga.
Q Now, at a distance of 12 meters you recognized three (3) persons holding the arms
and leg of the one lying and another person on top of the woman lying is that it? A He was on top of the girl and he was

A Yes, sir. COURT:

Q And at that distance of 12 meters you identified the three persons as the herein
accused, Plana, Perayra, and Saldevea whom you met according to you for
three times at the store of Antonio Mendoza, is that correct?
A Yes, sir.
Q Now, 12 meters distance from the place where you were sitting up to the place
where you pointed at is the area where you identified the accused holding and
another one on top of the person lying, there was no obstruction from the area
from the place where you were to the area where you saw?
A It was clear because it was near.
Q As a matter of fact the only vegetation you can find in the premises from where you
were meters away from the area where you saw what you are telling this Court
as green grass?
A Yes, sir. Short grasses.
Q And you identified only three persons holding not the one lying, you said it was
Plana, Perayra and Saldevea, and you do not know the person on top of the
person lying, who was covered on top by a man, was he a man or a woman?
He was what? You say it?
A He is forcing that his will penetrate.
Q What was that he wanted to have it penetrated?
A His organ.
Q Did the Court get you right that you said you saw - you set properly. Make it of
record that witness has been uneasy when being cross-examined. Dont make
any undesirable you sit properly. Now, did the Court get you right that the man
whom you saw at the top of the person lying was turning his back towards you?
A I saw his head and back and he was not on the back view but side view.
PUBLIC PROSECUTOR:
May I interpret. And his back was not actually against me but he was somewhat
side view position upon me.
COURT:
Q Did he have his clothes on when he was on top of the person lying?

A I think it was a girl because I heard voices like that of a woman. A No, sir.

Q You think it was a girl. At a distance of 12 meters and you said it was clear to your Q You mean to tell us that he was naked throughout?
view can you not identify the person lying and covered by one on top as a
A His pants was lowered down.
woman?
Q Was he naked up?
A It is not clear because it was covered by a person on top.
A Yes, sir.
Q Definitely, you told the Court you do not know who was the person on top of the
one lying, am I correct at that very moment? Q At that distance can you see his organ?
A Yes, sir. A I cannot see but as if he is trying to force because his back was also moving.
Q So actually you did not see his organ that he was trying to have it penetrated? PUBLIC PROSECUTOR:
A No, sir. Your honor, the witness has already described the nature of the voice as
if pleading.
Q Did you see the organ of that woman lying down?
ATTY. BARRERA:
A No, sir.
I am trying to clarify what was it moaning, crying or saying something vocal.
ATTY. BARRERA:
A Crying.
Q Now, so, did the man on top of that woman person lying whom you said was a girl
had her pants you said lowered up to where? Q You did not hear any word being uttered?
A Up to about his knees. A The words was (sic) not clear.
Q And the woman at the time you said the man was trying to force his organ Q Now, the person lying (who is) whose pleading you heard was she moving or was
penetrate that of a person lying was that person lying struggling or what was she moving her body or any part of her body?
that person lying doing?
A She was moving but she was held by three persons.
A She was struggling and she was held by three persons.
Q Now, you said that the person on top of that woman lying has his pants lowered up
Q Alright, tell us, you identified Antonio Plana what was he holding at that moment to his knee, on the other hand, the person lying did you see if she was totally
you said you saw? naked or she had something on or you have not seen it?
A The right foot of the girl. A On his top was naked but her pants was lowered on the left leg. The pants was
already taken on the right leg, the pants was not taken off.
Q How about Perayra?
Q So that the person lying was not totally naked at the time you saw it?
A On the left foot.
A As to her body she was naked but only the pants on the right side was not taken
PUBLIC PROSECUTOR: off.
I think not foot, it is the leg (witness indicating a little above the ankle). Q So at the moment because the upper part of the body had no clothes except
A Left lower part of the leg. portion of the right leg that still retains the pants you would know that it was a
woman lying of the ground is that it?
ATTY. BARRERA:
A Yes, sir.
Q And Rene Saldevea, what part was he holding, if any according to you?
Q And at that point of time while the three accused, Plana, Perayra, and Saldevea
A Two (2) hands (witness raising his two hands above his head closed together). were holding the hands of the girl and the other one on top of her, can you tell
this Court if these four (4) persons while doing those things as you described
Q And at that position as you described none of the four (4) persons including the were conversing or uttered any word?
three you identified covered the mouth of the person lying?
A I heard voices but it was not clear.
A I cannot tell because I cannot see.
Q You mean you heard voices being made by persons you saw?
Q You mean at a distance of 12 meters you cannot see if the mouth of the person
lying was covered or not? A Yes, sir.

A I cannot see because she was covered by the person lying on top of her. Q And you would like to tell the Court that at a distance of 12 meters from where you
were you never heard audibly the words coming from their voices?
Q You have not heard any sound or voice emanating from the person lying?
A I cannot understand because their voices were low.
A I heard voices but it was not clear.
Q Were they laughing?
Q Now, that voices you heard what were the nature of those voices?
A I have not noticed.
A As if pleading.
Q So, you did not notice if they were laughing?
Q You wanted to tell us that the voice you heard was the crying or moaning or
A No, sir.
 Q You did not hear if they were shouting at one another? testimonies of the other prosecution witnesses. The prosecution had sufficiently
established that accused-appellants were together and were drinking liquor at the early
A No, sir. morning of September 23, 1994; Lagud saw them along the feeder road in Barangay
Q You did not hear any of them saying go ahead, we follow also? Cobe raping a girl and later one of them stabbed her; Bustamante saw them boisterously
laughing near the fishpond where the body of Helen was found; Rafael confirmed that
A No, sir. Helen took that route on the way to their sisters house for the milagrosa; Rafael met
accused-appellants, who were all drunk, along the feeder road while she was on her way
Q Now, and later you said you saw a person on top of that girl pulled a knife and to her sisters house and; when it was found on September 26, 1994, Helens body had
stabbed that person lying whom you said was a girl is that it? already been lifeless for more than seventy-two hours.
A Yes, sir. In light of the positive identification and the other strong corroborative evidence, the
trial court properly gave scant consideration to accused-appellants defense of denial and
Q Considering that that person on top of that victim had dress over and had his pants
alibi. Alibi is concededly one of the weakest defenses in criminal cases. It cannot prevail
on top of his knee how did he stabbed that victim whom you said was a
over, and is worthless in the face of, positive identification by credible witnesses that the
woman?
accused perpetrated the crime.[35]
A I noticed that but I do not know where he get (sic) the knife but I noticed that he just
Aside from accused-appellants who expectedly gave self-serving testimonies, the
raised his hand.
defense presented other witnesses, mainly relatives of accused-appellants, to establish
Q Not one of the three (3) whom you identified gave him the knife except that you that they were not at the scene of the crime at the time of its commission. Unfortunately,
only saw that person on top of that woman all of a sudden having a knife and alibi becomes less plausible when it is corroborated by friends and relatives who may
stabbing is that it? then not be impartial witnesses. [36] On the other hand, the defense failed to impute any ill
motive on the part of the prosecution witnesses to testify falsely against accused-
A Yes, sir. appellants.
Q Now, is that person on top of the woman stabbing that woman did you hear any or Moreover, accused-appellants' defense of alibi cannot be given credence
uttered by that man stabbing that woman? considering that they themselves admit their proximity to the scene of the crime at the
time that it occurred. Accused-appellants Plana and Banday claimed that they were at
A I did not notice the words he uttered. the time at the house of accused-appellant Planas relatives in Barangay Cobe. Accused-
PUBLIC PROSECUTOR: appellants Saldevea and Perayra insisted that they were then in the house of Monina
Saldevea in Barangay Cobe. It must be noted that the rape and killing of Helen was
Your honor, there is a continuation on the answer, I did not notice if he uttered committed in the feeder road also in Barangay Cobe.
any word because immediately I ran away.
For alibi to prosper, the following must be established: (a) the presence of accused-
ATTY. BARRERA: appellant in another place at the time of the commission of the offense and; (b) physical
impossibility for him to be at the scene of the crime. [37] Accused-appellants miserably
Anyway, let it stay in the record. failed to satisfy these requisites. Considering that they admit that they were all in
COURT: Barangay Cobe, where Helen was raped and subsequently killed, it cannot be said that it
was physically impossible for them to have committed the crime.
Proceed.
Accused-appellants tried to discredit Lagud by making much of the fact that he did
ATTY. BARRERA: not immediately disclose what he witnessed to the authorities. This contention hardly
destroys the testimony of Lagud and his credibility as a witness. As Lagud explained on
Q By the way, how many times (did) you saw that man on top of the woman stabbed cross-examination, he was afraid that accused-appellants would harm him had they
that woman? known that he saw them commit the crime.[38] Besides, as consistently held by this Court,
there is no standard form of the human behavioral response to a startling or frightful
A That was the first time when he raised his hand and stabbed her then I ran away.
experience and delay in bringing up the matter to the authorities do not destroy the
Q And so, you did not notice him how many times that person stabbed the woman? veracity and credibility of the testimony offered. The Court takes judicial notice of some
peoples reluctance to be involved in criminal trials. Failure to volunteer what one knows
A No, sir. to law enforcement officials does not necessarily impair a witness credibility.[39]
Q At the time she was stabbed did you hear any voice being uttered? In obvious attempt to evade the capital penalty of death, accused-appellants opine
[34] that granting arguendo that they are guilty of any crime, the crime is only murder
A I heard as if there was a sound like a moan then I ran away.
because the rape of Helen allegedly had not been sufficiently established. This argument
The testimony of Lagud positively identifying accused-appellants as the is untenable. The evidence on record indubitably establish that, while the other accused-
perpetrators of the dastardly crime was corroborated in its material points by the appellants forcibly held Helen, accused-appellant Banday had carnal knowledge of
her. Thereafter, they killed her. Lagud categorically testified on this fact.[40] The findings of
the medico-legal corroborate Laguds testimony, thus:
Q In entry No. 14, vagina, introitus can easily insert 2 fingers/Hymen with lacerations
3 and 9 oclock (old laceration) and on the state of decomposition. In that state
of decomposition of the victim how were you able to determine the laceration of
the hymen of the said victim?
A Actually, what I did I asked help from the owner of the Funeral Homes to spread
the thigh of the victim so that I can easily see the inside of the vagina. Upon
opening, I can easily insert my two fingers because of that I tried to spread the
vaginal canal I saw three (3) lacerations, I have also seen blood clotting in that
area but one reason that I can easily insert my two (2) fingers is because the
victim was already in the state of decomposition.
xxx
Q Doctor, you said it could have been caused by the laceration that you found which
is 6x9, in what or what could have caused the vaginal laceration?
A In the vagina, the laceration in the hymen is caused only by sexual intercourse. If
the female is a virgin, it could have been caused by sexual intercourse.[41]
In fine, accused-appellants guilt for the crime of rape with homicide had been
proved beyond reasonable doubt in this case. Further, the trial court rightly appreciated
the existence of conspiracy among the accused-appellants. Their individual acts, taken
as a whole, revealed that they shared a common design to rape and kill Helen. They
acted in unison and cooperation to achieve the same unlawful objective. [42] The principle
that the act of one is the act of all is applicable to accused-appellants in this case.
With respect to the second issue raised by accused-appellants, i.e., they were
detained without judicial order and prior to the filing of the information, suffice it to say,
that they already waived their right to question the irregularity, if any, in their arrest.
[43]
Accused-appellants respectively entered a plea of not guilty at their arraignment. [44] By
so pleading, they submitted to the jurisdiction of the trial court, thereby curing any defect
in their arrest, for the legality of an arrest affects only the jurisdiction of the court over
their persons.[45]
Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659, reads:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force and intimidation;
2. x x x;
3. x x x.
xxx
When by reason or on occasion of the rape, a homicide is committed, the penalty shall
be death.
xxx
Accused-appellants guilt for the crime of rape with homicide having been
established beyond reasonable doubt, the imposition of the penalty of death upon them
is warranted. Four members of the Court maintain their position that Republic Act No.
7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they
submit to the ruling of the Court, by majority vote, that the law is constitutional and the
death penalty should be accordingly imposed.
However, there is need to modify the damages awarded to the heirs of Helen by
the trial court. In addition to the sum of P25,000.00 as actual damages, the trial court
awarded to the heirs of Helen the sum of P50,000.00 as civil indemnity. This amount
should be increased in consonance with prevailing jurisprudence[46]fixing the civil
indemnity in cases of rape with homicide at P100,000.00. The Court, likewise, finds it
proper to award the sum of P50,000.00 as moral damages. The award of moral
damages may be made to the heirs of the victim in a criminal proceeding without need of
proof. The fact that they suffered the trauma of mental or physical and psychological
sufferings which constitute the basis for moral damages under the Civil Code are too
obvious to still require recital thereof at trial.[47]
WHEREFORE, the decision of the Regional Trial Court, Branch 15, Roxas City
finding accused-appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and
Richard Banday, guilty of Rape with Homicide under Article 335 of the Revised Penal
Code, as amended by Republic Act No. 7659, and imposing upon them the supreme
penalty of Death is AFFIRMED with the MODIFICATION that said accused-appellants
are hereby ordered, jointly and severally, to pay the heirs of Helen Perote the amounts of
P100,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as actual
damages.
Let the records of this case be forwarded to the Office of the President upon finality
of this decision for possible exercise of executive clemency in accordance with Article 83
of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659.
SO ORDERED.
G.R. No. 113269 April 10, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
OSCAR CONDE y LUTOC, ALLAN ATIS y ABET and ALEJANDRO PEREZ, JR. y
CARSILLAR, accused,
OSCAR CONDE y LUTOC and ALLAN ATIS y ABET, accused-appellants.
QUISUMBING, J.:
On appeal is the decision 1 dated December 15, 1993, of the Regional Trial Court,
Branch 129, Kalookan City finding accused Oscar Conde, Allan Atis and Alejandro
Perez, Jr., guilty of the special complex crime of robbery with homicide and sentencing
each of them to suffer the penalty of reclusion perpetua with the accessory penalties
under the law, and to jointly and severally indemnify the heirs of each of the victims,
Sukhdev Singh and Biant Singh, in the amount of P50,000.00.
Accused Oscar Conde, Allan Atis and Alejandro Perez, Jr., were arraigned in an
Information which reads:
That, on or about the 25th day of May, 1992 in Kalookan City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, with intent to gain and by
means of threats and intimidation upon the persons of SUKHDEV SINGH Y
DHALNAL and BIANT SINGH Y SIDHU, did then and there wilfully, unlawfully
and feloniously take, rob and carry away cash of unestimated amount and
assorted merchandise such as umbrellas and beach towels, that on the
occasion of the said robbery and for the purpose of enabling them to take, rob
and carry away the aforementioned articles, the herein accused in pursuance of
their conspiracy, did then and there wilfully, unlawfully and feloniously and with
intent to kill, attack and stab with bladed weapons upon the persons of
SUKHDEV SINGH Y DHALNAL and BIANT SINGH Y SIDHU on the different
parts of the body, thereby inflicting upon said victims serious physical injuries
which caused their death on the above-specified date.
CONTRARY TO LAW. 2
The accused entered pleas of not guilty.
During trial, the prosecution presented the testimonies of Apollo Romero, PO3 Rodencio
Sevillano, and Dr. Gario Gajardo as witnesses.
Apollo Romero, a resident of Santolan Street, Kalookan City, Metro Manila, testified that
on May 25, 1992 at about 8:00 A.M., he was home sitting by the window and drinking
coffee when he saw four men in Santolan Street block the path of two Indian nationals
(bombay) on a motorcycle. One of the men, later identified as Oscar Conde, poked a
gun at the two Indians while his three companions approached and stabbed the Indians.
He later identified the other two assailants as Alejandro Perez, Jr., and Allan Atis. He also
saw Allan Atis take the goods 3which were being sold by the two Indians on installment.
After the stabbing, the four men fled from the crime scene towards Mabolo Street. The
fourth assailant remained unidentified. Romero was about 25 to 35 meters away from
the place where the crime was committed. 4
PO3 Rodencio Sevillano, testified that he was assigned with the Intelligence and
Investigation Division (IID) of the PNP, Kalookan City. On May 25, 1992, he was told to
investigate the abovecited incident. On May 30, 1992, the police arrested the three
accused. Police recovered the weapons used in the robbery, when Felicidad Macabare,
Conde's wife, went to the police station to talk to the accused. These weapons were
discovered inside her bag after a routine inspection. Sevillano admitted, however, that
they did not have a warrant of arrest when they apprehended the accused. Nor did they
have a search warrant when they inspected Felicidad's bag and when they searched the
house of a certain Jimmy where they found the stolen items. 5
Dario Gajardo, a doctor employed in the PNP Crime Laboratory Service at Station 4,
Central Police District, Quezon City performed the post-mortem examination on the
bodies of Sukhdev Singh and Biant Singh. He testified that the cause of death was
cardio-respiratory arrest due to shock and hemorrhage secondary to stab wounds. Biant
Singh sustained stab wounds on his lower stomach while Sukhdev Singh sustained stab
wounds at the back and right portion of the ribs. 6
The defense presented five witnesses: Alejandro Perez, Jr., Oscar Conde, Allan Atis,
Danilo Acutin and Anita Santos.
Alejandro Perez, Jr. testified that Oscar Conde and Allan Atis were his townmates from
Catbalogan, Samar. According to Perez, on May 25, 1992, at about 7:00 A.M., he went to
the Madrigal Compound at Las Pias, Metro Manila to visit his cousin Danilo and
apologize for not attending his uncle's 40th death anniversary and their fiesta. Upon his
arrival they went to the Pulang Lupa Cemetery and visited the graves of his uncle and
their grandfather. From the cemetery, they went home where they drank some beer until
late afternoon. Together with Oscar Conde and Allan Atis, he was arrested in Tandang
Sora, Quezon City on May 30, 1992. 7
Danilo Acutin corroborated Alejandro's testimony. 8
Oscar Conde testified that on May 25, 1992, he was in Barangay Polo Street, Paraaque
mending his fishing net. He was with his wife, Felicidad Macabare; and his uncle, Tancio
Loto. He said the police arrested Alejandro Perez, Jr., Allan Atis, Felicidad Macabare and
him in Tandang Sora, Quezon City on May 30, 1992. 9 (Later reports indicated, however,
that Felicidad was not among those arrested. 10 )
Allan Atis stated that he was in MCU where he worked as a construction worker for a
certain Romy Ramos on May 25, 1992. He denied having anything to do with the death
of the two Indian nationals. 11
On December 15, 1993, the trial court rendered its decision, thus:
WHEREFORE, premises considered, this Court finds the accused Oscar Conde
y Lutoc, Allan Atis y Abet and Alejandro Perez, Jr. y Carsillar guilty beyond
 reasonable doubt of the special complex crime of Robbery with Homicide as
defined and penalized under Article 294, paragraph 1 of the Revised Penal
Code, in relation to the Solis ruling. Accordingly, the 3 accused shall each serve
the penalty of Reclusion Perpetua, with all the accessory penalties under the
law.
Pursuant to Section 7, Rule 117 of the 1985 Rules on Criminal Procedure, as
amended, the 3 accused shall be credited with the period of their preventive
detention.
By way of compensatory damages, the accused shall jointly and severally
indemnify the heirs, if any, of deceased SUKHDEV SINGH and BIANT SINGH
in the sum of P50,000.00 for each, without subsidiary imprisonment in case of
insolvency.
SO ORDERED. 12
The three accused appealed. However, the counsel de parte for accused Alejandro
Perez, Jr., Atty. Jose M. Marquez, failed to file brief for Perez, prompting this Court to
dismiss his appeal. The decision of the trial court became final and executory with
respect to accused Alejandro Perez, Jr. 13 Hence the present appeal concerns only
appellants Atis and Conde, who filed their separate briefs.
Atis avers that the trial court erred:
I
. . . IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE
PROSECUTION WITNESSES AND IN DISREGARDING THE CLAIM OF THE
DEFENSE.
II
. . . IN FINDING ACCUSED-APPELLANT ALLAN ATIS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH DOUBLE
HOMICIDE DESPITE [OF] THE INSUFFICIENCY OF EVIDENCE. 14
Atis argues that the prosecution failed to establish his identity as one of the perpetrators
of the crime. He alleges that Apollo Romero only saw him in court. Atis likewise claims
that he was arrested without any warrant of arrest several days after the crime. 15
Oscar Conde avers that the trial court erred in:
I committed does not detract from the credibility and reliability of Romero's testimony.
. . . NOT HOLDING THE ARREST OF THE ACCUSED ILLEGAL
II
. . . ACCORDING THE TESTIMONIES OF PROSECUTION WITNESSES
APOLLO ROMERO AND PO3 RODENCIO SEVILLANO FULL CREDENCE.
III
. . . HOLDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ROBBERY WITH DOUBLE (sic) HOMICIDE. 16
Oscar Conde claims that he was illegally arrested by the authorities. He adds that the
Indian Embassy was pressuring the police to solve the murder. He avers that the
testimony of Romero is insufficient to sustain his conviction. He cites the delay of
Romero in reporting what he saw, hence Romero's testimony is unbelievable. Lastly,
Conde wants this Court to disregard as evidence the stolen items and weapons illegally
seized by the police. 17
The Office of the Solicitor General, for its part, filed its appellee's brief only in regard to
Oscar Conde's appeal. According to the OSG, the testimony of Apollo Romero deserves
full faith and credence since the appellants failed to show any improper motive on his
part. The same is true for the testimony of PO3 Sevillano who also enjoys the
presumption of regularity in the performance of his official duties. In conclusion, the
Solicitor General prays that the conviction of the appellants be affirmed. Citing People
vs. Escandor, 265 SCRA 444, 445 (1996), the OSG stresses that the findings of the trial
court, especially on the credibility of witnesses, are generally accorded great weight and
respect on appeal, because the trial court is in the best position to make an honest
determination of the witnesses' behavior and deportment during trial. 18
In substance, the issues raised by both appellants are (1) Whether or not the
identification made by Apollo Romero deserves credence; (2) Whether or not the arrests
of the appellants were illegal; (3) Whether or not the alleged stolen objects, i.e., the
beach towel and umbrella, can be presented in evidence.
Anent the first issue, we are in agreement with the submission by the Office of the
Solicitor General. First, factual findings of the trial court are conclusive upon this Court
and its evaluation regarding the credibility of witnesses are given great weight and
respect unless there is a showing that the trial court had overlooked, misunderstood or
misapplied some fact or circumstance of weight and substance that would have affected
the result of the case. 19Being in a better position to observe the witnesses for the
prosecution as well as the defense, the trial court's appreciation of their testimony,
truthfulness, honesty and candor deserves the highest respect. 20
Allan Atis insists that it was impossible for Romero to have identified him since Romero
only saw him inside the court room and that Romero had not seen him before. However,
there is nothing in law and jurisprudence which requires, as a condition sine qua non for
the positive identification by a prosecution witness of a felon, that witness must first know
the latter personally. 21 The fact that Romero never saw Atis before the crime was
Oscar Conde insists that the delay of Romero in reporting the incident makes his
testimony unworthy of credence. It is however well settled in jurisprudence that delay in
divulging the names of perpetrators of a crime, if sufficiently explained, does not impair
the credibility of the witness and his testimony. 22 Likewise, credibility is not affected by
the initial reluctance of witnesses to volunteer information. 23 It is not uncommon for
witnesses to a crime to show some reluctance about getting involved in a criminal case
as, in fact, the natural reticence of most people to get involved is of judicial notice. 24
Romero categorically identified both Oscar Conde and Allan Atis as two of the
perpetrators of the crime. Appellants failed to adduce any improper motive on his part
which would motivate him to implicate them in the said crime. Absent such motive, the
testimony of Romero should be accorded full faith and credence as the testimony of a
disinterested party who only wants to see justice upheld. 25
The two appellants interposed the negative defenses of alibi and denial. But as held in
several cases, these defenses cannot overcome the straightforward testimony and the
positive identification made by a prosecution witness. 26
We now turn to the appellants' vehement assertion that they have been illegally arrested.
The records of the case will show that the arrests of the appellants came after the lapse
of 5 days from the time they were seen committing the crime. At the time they were
arrested, the police were not armed with any warrants for their arrests. Section 5 of Rule
113, of the Revised Rules of Criminal Procedure 27 enumerates the instances when an
arrest can be made without warrant, namely:
(a) When, in his presence the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has 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 temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another.
None of the above circumstances is present in this case. Appellants were merely walking
along Tandang Sora Avenue and were not committing any crime. Neither can it be said
that the crime had just been committed. Five days had already passed from the time of
the robbery with homicide. It cannot also be said that the arresting officers had probable
cause based on personal knowledge. PO3 Sevillano admitted that they learned about
the suspects from Apollo Romero and certain unnamed informants. The third
circumstance is patently not present. The lapse of five days gave the police more than
enough time to conduct surveillance of the appellants and apply for a warrant of arrest.
Clearly, appellants' rights provided in Sec. 2, Art. III of the Constitution 28 were violated.
Unfortunately, appellants did not assert their constitutional rights prior to their
arraignment. This is fatal to their case. An accused is estopped from assailing the legality
of his arrest if he failed to move for the quashing of the Information against him before
his arraignment. 29 When the appellants entered their pleas on arraignment without
invoking their rights to question any irregularity, which might have accompanied their
arrests, they voluntarily submitted themselves to the jurisdiction of the court and the
judicial process. 30 Any objection, defect, or irregularity attending their arrests should had
been made before they entered their pleas. 31 It is much too late for appellants to raise
the question of their warrantless arrests. Their pleas to the information upon arraignment
constitute clear waivers of their rights against unlawful restraint of liberty. 32
Furthermore, the illegal arrest of an accused is not sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after trial free from error. 33 The
warrantless arrest, even if illegal, cannot render void all other proceedings including
those leading to the conviction of the appellants and his co-accused, nor can the state
be deprived of its right to convict the guilty when all the facts on record point to their
culpability. 34
As for the stolen objects presented in evidence, their seizure is assailed by appellants.
We agree that the warrantless search in the house of a certain Jimmy, based on the
confession of accused Alejandro Perez, Jr., 35is definitely questionable. PO3 Rodencio
Sevillano categorically stated that they were able to recover the stolen items, i.e., the
beach towel and the umbrella, because of the confession of Alejandro Perez, Jr. who
was not assisted by counsel when he confessed and eventually led the police to the
whereabouts of the said items. 36 The use of evidence against the accused obtained by
virtue of his testimony or admission without the assistance of counsel while under
custodial investigation is proscribed under Sections 12 and 17, Article III of the
Constitution. 37
Under the libertarian exclusionary rule known as the "fruit of the poisonous tree",
evidence illegally obtained by the state should not be used to gain other evidence
because the illegally obtained evidence taints all evidence subsequently
obtained. 38 Simply put, the objects confiscated at said house are inadmissible as
evidence.
Without the stolen objects as evidence, we are left with only the testimony of Apollo
Romero that he saw Allan Atis take the beach towel and the umbrella. 39 A reading of the
said testimony will indicate that such was not categorical and straightforward, to wit:
Q: And can you tell us, Mr. Witness, more or less what did Allan Atis did
(sic)?
A: Yes, ma'm.
Q: What?
A: He stabbed one of the Indian Nationals at the back.
Q: Can you still recall with what instrument did Allan Atis used (sic) in
stabbing the Indian National at the back.
A: I cannot recall anymore, ma'm.
Q: What about Alejandro Perez, what did he do?
A: Allan Atis was the one who took the goods being sold by the Indian
Nationals in installment.
 Q: Who took the goods? Will you please identify the person who took the
goods from the Indian Nationals?

A: The one wearing the white t-shirt.

Atty. Yson

Witness pointed to a person wearing a white t-shirt who when asked

answered by the name of Allan Atis. 40

The identification of Allan Atis by Apollo Romero as the one who took the items was more
of an afterthought and was not even responsive to the question made by the prosecutor.
Aside from this, the ownership of the towel and the umbrella was not even established.
In order to sustain a conviction for robbery with homicide, robbery must be proven as
conclusively as the killing itself, otherwise, the crime would only be homicide or murder,
as the case may be. 41 In this case, only the facts and causes of deaths were established
with moral certainty. Hence, there can be no robbery with homicide. The appellants are
only liable for two counts of homicide.

On the other hand, we find in order the search of the bag of Felicidad Macabare, at the
time she was visiting her husband who was a detainee. PO3 Sevillano testified, this
search is part of police standard operating procedure, 42 and is recognized as part of
precautionary measures by the police to safeguard the safety of the detainees as well as
the over-all security of the jail premises. However, the weapons 43 confiscated from
Felicidad Macabare, were not formally offered as evidence by the prosecution, 44 hence
probatively valueless. 45

WHEREFORE, the assailed decision of the Regional Trial Court of Kalookan City,
Branch 129, finding the appellants Oscar Conde and Allan Atis guilty of robbery with
homicide is hereby MODIFIED. They are declared guilty only of two counts of homicide
and each is hereby sentenced to suffer the indeterminate sentence of six (6) years and
one (1) day of prision mayor to fourteen (14) years, eight (8) months, and one (1) day
of reclusion temporal for each count of homicide. They are likewise ordered to indemnify
jointly and severally the heirs of each of the victims, Sukhdev Singh and Biant Singh, in
the amount of P50,000.00, and to pay the costs.

SO ORDERED.
IN THE MATTER OF THE PETITION G.R. No. 160792 the detainees. Petitioners impleaded Gen. Narciso Abaya (Gen. Abaya), Sec. Angelo
Reyes and Roilo Golez, who are respectively the Chief of Staff of the Armed Forces of
FOR HABEAS CORPUS OF the Philippines (AFP), Secretary of National Defense and National Security Adviser,
because they have command responsibility over Gen. Cabuay.
CAPT. GARY ALEJANO, PN (MARINES)

CAPT. NICANOR FAELDON, PN (MARINES)

Antecedent Facts
CAPT. GERARDO GAMBALA, PA

LT. SG JAMES LAYUG, PN

Early morning of 27 July 2003, some 321 armed soldiers, led by the now detained junior
CAPT. MILO MAESTRECAMPO, PA officers, entered and took control of the Oakwood Premier Luxury Apartments
(Oakwood), an upscale apartment complex, located in the business district of Makati
LT. SG ANTONIO TRILLANES IV, PN City. The soldiers disarmed the security officers of Oakwood and planted explosive
devices in its immediate surroundings. The junior officers publicly renounced their
HOMOBONO ADAZA, and support for the administration and called for the resignation of President Gloria
Macapagal-Arroyo and several cabinet members.
ROBERTO RAFAEL (ROEL) PULIDO,

Petitioners,
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to the authorities
- versus after several negotiations with government emissaries. The soldiers later defused the
explosive devices they had earlier planted. The soldiers then returned to their barracks.
GEN. PEDRO CABUAY,

GEN. NARCISO ABAYA,

On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a directive to all
SEC. ANGELO REYES, and Promulgated: the Major Service Commanders to turn over custody of ten junior officers to the ISAFP
SEC. ROILO GOLEZ, Detention Center. The transfer took place while military and civilian authorities were
investigating the soldiers involvement in the Oakwood incident.
Respondents

On 1 August 2003, government prosecutors filed an Information for coup detat with the
DECISION Regional Trial Court of Makati City, Branch 61, against the soldiers involved in the 27
July 2003 Oakwood incident. The government prosecutors accused the soldiers of coup
CARPIO, J.: detat as defined and penalized under Article 134-A of the Revised Penal Code of the
Philippines, as amended. The case was docketed as Criminal Case No. 03-2784. The
trial court later issued the Commitment Orders giving custody of junior officers Lt. SG
Antonio Trillanes IV (Trillanes) and Capt. Gerardo Gambala to the Commanding Officers
The Case of ISAFP.

This petition for review[1] seeks to nullify the Decision[2] of the Court of Appeals dated 17
September 2003 and Resolution dated 13 November 2003 in CA-G.R. SP No. 78545.
The Court of Appeals Decision and Resolution dismissed the petition for habeas
corpus filed by lawyers Homobono Adaza and Roberto Rafael Pulido (petitioners) on
behalf of their detained clients Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon
(PN-Marines), Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) (detainees).
On 2 August 2003, Gen. Abaya issued a directive to all Major Service Commanders to
take into custody the military personnel under their command who took part in the
Oakwood incident except the detained junior officers who were to remain under the
custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the Supreme
Court. On 12 August 2003, the Court issued a Resolution, which resolved to:

Petitioners named as respondent Gen. Pedro Cabuay (Gen. Cabuay), Chief of the
Intelligence Service of the Armed Forces of the Philippines (ISAFP), who has custody of
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to make
a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m. before the Court of
Appeals; (c) refer the case to the Court of Appeals for RAFFLE among the Justices
thereof for hearing, further proceedings and decision thereon, after which
a REPORT shall be made to this Court within ten (10) days from promulgation of the
decision.[3]
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003 directing
respondents to make a return of the writ and to appear and produce the persons of the
detainees before the Court of Appeals on the scheduled date for hearing and further
proceedings.
On the same date, the detainees and their other co-accused filed with the Regional Trial
Court of Makati City a Motion for Preliminary Investigation, which the trial court granted.
The appellate court declared that while the opening and reading of Trillanes letter is an
abhorrent violation of his right to privacy of communication, this does not justify the
issuance of a writ of habeas corpus. The violation does not amount to illegal restraint,
which is the proper subject of habeas corpus proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay to fulfill the
promise he made in open court to uphold the visiting hours and the right of the detainees
to exercise for two hours a day. The dispositive portion of the appellate courts decision
reads:
WHEREFORE, the foregoing considered, the instant petition is hereby DISMISSED.
Respondent Cabuay is hereby ORDERED to faithfully adhere to his commitment to
uphold the constitutional rights of the detainees in accordance with the Standing
Operations Procedure No. 0263-04 regarding visiting hours and the right of the
detainees to exercise for two (2) hours a day.

On 18 August 2003, pursuant to the directives of the Court, respondents submitted their
Return of the Writ and Answer to the petition and produced the detainees before the SO ORDERED.[4]
Court of Appeals during the scheduled hearing. After the parties filed their memoranda
on 28 August 2003, the appellate court considered the petition submitted for decision.
The Issues

On 17 September 2003, the Court of Appeals rendered its decision dismissing the
petition. Nonetheless, the appellate court ordered Gen. Cabuay, who was in charge of
Petitioners raise the following issues for resolution:
implementing the regulations in the ISAFP Detention Center, to uphold faithfully the
rights of the detainees in accordance with Standing Operations Procedure No. 0263-04.
The appellate court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees right to exercise for two hours a day. A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A DECISION
OF THE SUPREME COURT;

The Ruling of the Court of Appeals

B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
The Court of Appeals found the petition bereft of merit. The appellate court pointed out
that the detainees are already charged of coup detat before the Regional Trial Court of
Makati. Habeas corpus is unavailing in this case as the detainees confinement is under a
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF THE
valid indictment, the legality of which the detainees and petitioners do not even question.
CONDITIONS OF THE DETAINED JUNIOR OFFICERS DETENTION.

The Court of Appeals recognized that habeas corpus may also be the appropriate
remedy to assail the legality of detention if there is a deprivation of a constitutional right.
However, the appellate court held that the constitutional rights alleged to have been
violated in this case do not directly affect the detainees liberty. The appellate court ruled
that the regulation of the detainees right to confer with their counsels is reasonable under The Ruling of the Court
the circumstances.

The petition lacks merit.


Petitioners claim that the Courts 12 August 2003 Order granted the petition and the
Court remanded the case to the Court of Appeals only for a factual hearing. Petitioners
thus argue that the Courts Order had already foreclosed any question on the propriety
and merits of their petition.
Petitioners claim is baseless. A plain reading of the 12 August 2003 Order shows that the
Court referred to the Court of Appeals the duty to inquire into the cause of the junior
officers detention. Had the Court ruled for the detainees release, the Court would not
have referred the hearing of the petition to the Court of Appeals. The Court would have
forthwith released the detainees had the Court upheld petitioners cause.
In a habeas corpus petition, the order to present an individual before the court is a
preliminary step in the hearing of the petition.[6] The respondent must produce the person
and explain the cause of his detention. [7] However, this order is not a ruling on the
propriety of the remedy or on the substantive matters covered by the remedy. Thus, the
Courts order to the Court of Appeals to conduct a factual hearing was not an affirmation
of the propriety of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus necessarily includes
the determination of the propriety of the remedy. If a court finds the alleged cause of the
detention unlawful, then it should issue the writ and release the detainees. In the present
case, after hearing the case, the Court of Appeals found that habeas corpus is
inapplicable. After actively participating in the hearing before the Court of Appeals,
petitioners are estopped from claiming that the appellate court had no jurisdiction to
inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not the proper
remedy to address the detainees complaint against the regulations and conditions in the
ISAFP Detention Center. The remedy of habeas corpus has one objective: to inquire into
the cause of detention of a person. [8] The purpose of the writ is to determine whether a
person is being illegally deprived of his liberty.[9] If the inquiry reveals that the detention is
illegal, the court orders the release of the person. If, however, the detention is proven
lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus
very limited. It is not a writ of error.[10] Neither can it substitute for an appeal.[11]
Nonetheless, case law has expanded the writs application to circumstances where there
is deprivation of a persons constitutional rights. The writ is available where a person
continues to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary but are
also unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.[12]
However, a mere allegation of a violation of ones constitutional right is not sufficient. The
courts will extend the scope of the writ only if any of the following circumstances is
present: (a) there is a deprivation of a constitutional right resulting in the unlawful
restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an
excessive penalty is imposed and such sentence is void as to the excess. [13] Whatever
situation the petitioner invokes, the threshold remains high. The violation of constitutional
right must be sufficient to void the entire proceedings.[14]
Petitioners admit that they do not question the legality of the detention of the detainees.
Neither do they dispute the lawful indictment of the detainees for criminal and military
offenses. What petitioners bewail is the regulation adopted by Gen. Cabuay in the ISAFP
Detention Center preventing petitioners as lawyers from seeing the detainees their
clients any time of the day or night. The regulation allegedly curtails the detainees right
to counsel and violates Republic Act No. 7438 (RA 7438). [15] Petitioners claim that the
regulated visits made it difficult for them to prepare for the important hearings before the
Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center violated the
detainees right to privacy of communication when the ISAFP officials opened and read
the personal letters of Trillanes and Capt. Milo Maestrecampo (Maestrecampo).
Petitioners further claim that the ISAFP officials violated the detainees right against cruel
and unusual punishment when the ISAFP officials prevented the detainees from having
contact with their visitors. Moreover, the ISAFP officials boarded up with iron bars and
plywood slabs the iron grills of the detention cells, limiting the already poor light and
ventilation in the detainees cells.
Pre-trial detainees do not forfeit their constitutional rights upon confinement. [16] However,
the fact that the detainees are confined makes their rights more limited than those of the
public.[17] RA 7438, which specifies the rights of detainees and the duties of detention
officers, expressly recognizes the power of the detention officer to adopt and implement
reasonable measures to secure the safety of the detainee and prevent his escape.
Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or any
medical doctor or priest or religious minister or by his counsel, from visiting and
conferring privately chosen by him or by any member of his immediate family with him,
or from examining and treating him, or from ministering to his spiritual needs, at any
hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial
responsibility over any detainee or prisoner may undertake such reasonable
measures as may be necessary to secure his safety and prevent his escape.
(Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from visiting a
detainee client at any hour of the day or, in urgent cases, of the night. However, the last
paragraph of the same Section 4(b) makes the express qualification
that notwithstanding the provisions of Section 4(b), the detention officer has the power
to undertake such reasonable measures as may be necessary to secure the safety of
the detainee and prevent his escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard. The
regulations governing a detainees confinement must be reasonable measures x x x to
secure his safety and prevent his escape. Thus, the regulations must be reasonably
connected to the governments objective of securing the safety and preventing the
escape of the detainee. The law grants the detention officer the authority to undertake
such reasonable measures or regulations.
Petitioners contend that there was an actual prohibition of the detainees right to effective
representation when petitioners visits were limited by the schedule of visiting hours.
Petitioners assert that the violation of the detainees rights entitle them to be released
from detention.
Petitioners contention does not persuade us. The schedule of visiting hours does not
render void the detainees indictment for criminal and military offenses to warrant the
detainees release from detention. The ISAFP officials did not deny, but merely regulated,
the detainees right to counsel. The purpose of the regulation is not to render ineffective
the right to counsel, but to secure the safety and security of all detainees. American
cases are instructive on the standards to determine whether regulations on pre-trial
confinement are permissible.
In Bell v. Wolfish,[18] the United States (U.S.) Supreme Court held that regulations must
be reasonably related to maintaining security and must not be excessive in achieving
that purpose. Courts will strike down a restriction that is arbitrary and purposeless.
[19]
However, Bell v. Wolfish expressly discouraged courts from skeptically questioning
challenged restrictions in detention and prison facilities.[20] The U.S. Supreme Court
commanded the courts to afford administrators wide-ranging deference in implementing
policies to maintain institutional security.[21]
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the standard to
make regulations in detention centers allowable: such reasonable measures as may
be necessary to secure the detainees safety and prevent his escape. In the present
case, the visiting hours accorded to the lawyers of the detainees are reasonably
connected to the legitimate purpose of securing the safety and preventing the escape of
all detainees.
While petitioners may not visit the detainees any time they want, the fact that the
detainees still have face-to-face meetings with their lawyers on a daily basis clearly
shows that there is no impairment of detainees right to counsel. Petitioners as counsels
could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m.
The visiting hours are regular business hours, the same hours when lawyers normally
entertain clients in their law offices. Clearly, the visiting hours pass the standard of
reasonableness. Moreover, in urgent cases, petitioners could always seek permission
from the ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees, giving
petitioners sufficient time to confer with the detainees. The detainees right to counsel is
not undermined by the scheduled visits. Even in the hearings before the Senate and the
Feliciano Commission,[22] petitioners were given time to confer with the detainees, a fact
that petitioners themselves admit.[23] Thus, at no point were the detainees denied their
right to counsel.
Petitioners further argue that the bars separating the detainees from their visitors and the
boarding of the iron grills in their cells with plywood amount to unusual and excessive
punishment. This argument fails to impress us. Bell v. Wolfish pointed out that while a
detainee may not be punished prior to an adjudication of guilt in accordance with due
process of law, detention inevitably interferes with a detainees desire to live comfortably.
[24]
The fact that the restrictions inherent in detention intrude into the detainees desire to
live comfortably does not convert those restrictions into punishment. [25] It is when the
restrictions are arbitrary and purposeless that courts will infer intent to punish. [26] Courts
will also infer intent to punish even if the restriction seems to be related rationally to the
alternative purpose if the restriction appears excessive in relation to that purpose. [27] Jail
officials are thus not required to use the least restrictive security measure. [28] They must
only refrain from implementing a restriction that appears excessive to the purpose it
serves.[29]
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and respondents concede,
that the essential objective of pretrial confinement is to insure the detainees presence at
trial. While this interest undoubtedly justifies the original decision to confine an individual
in some manner, we do not accept respondents argument that the Governments interest
in ensuring a detainees presence at trial is the only objective that may justify restraints
and conditions once the decision is lawfully made to confine a person. If the government
could confine or otherwise infringe the liberty of detainees only to the extent necessary to
ensure their presence at trial, house arrest would in the end be the only constitutionally
justified form of detention. The Government also has legitimate interests that stem from
its need to manage the facility in which the individual is detained. These legitimate
operational concerns may require administrative measures that go beyond those that
are, strictly speaking, necessary to ensure that the detainee shows up at trial. For
example, the Government must be able to take steps to maintain security and order at
the institution and make certain no weapons or illicit drugs reach detainees. Restraints
that are reasonably related to the institutions interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if they are discomforting and
are restrictions that the detainee would not have experienced had he been released
while awaiting trial. We need not here attempt to detail the precise extent of the
legitimate governmental interests that may justify conditions or restrictions of pretrial
detention. It is enough simply to recognize that in addition to ensuring the detainees
presence at trial, the effective management of the detention facility once the individual is
confined is a valid objective that may justify imposition of conditions and restrictions of
pretrial detention and dispel any inference that such restrictions are intended as
punishment.[30]
An action constitutes a punishment when (1) that action causes the inmate to suffer
some harm or disability, and (2) the purpose of the action is to punish the inmate.
[31]
Punishment also requires that the harm or disability be significantly greater than, or be
independent of, the inherent discomforts of confinement.[32]
Block v. Rutherford,[33] which reiterated Bell v. Wolfish, upheld the blanket restriction
on contact visits as this practice was reasonably related to maintaining security.The
safety of innocent individuals will be jeopardized if they are exposed to detainees who
while not yet convicted are awaiting trial for serious, violent offenses and may have prior
criminal conviction.[34] Contact visits make it possible for the detainees to hold visitors
and jail staff hostage to effect escapes.[35] Contact visits also leave the jail vulnerable to
visitors smuggling in weapons, drugs, and other contraband. [36] The restriction on contact
visits was imposed even on low-risk detainees as they could also potentially be enlisted
to help obtain contraband and weapons.[37] The security consideration in the imposition of
blanket restriction on contact visits was ruled to outweigh the sentiments of the
detainees.[38]
Block v. Rutherford held that the prohibition of contact visits bore a rational connection
to the legitimate goal of internal security.[39] This case reaffirmed the hands-off doctrine
enunciated in Bell v. Wolfish, a form of judicial self-restraint, based on the premise that
courts should decline jurisdiction over prison matters in deference to administrative
expertise.[40]
In the present case, we cannot infer punishment from the separation of the detainees
from their visitors by iron bars, which is merely a limitation on contact visits. The iron
bars separating the detainees from their visitors prevent direct physical contact but still
allow the detainees to have visual, verbal, non-verbal and limited physical contact with
their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-
contact visitation regulation like in Block v. Rutherford. The limitation on the detainees
physical contacts with visitors is a reasonable, non-punitive response to valid security
concerns.
The boarding of the iron grills is for the furtherance of security within the ISAFP
Detention Center. This measure intends to fortify the individual cells and to prevent the
detainees from passing on contraband and weapons from one cell to another. The
boarded grills ensure security and prevent disorder and crime within the facility. The
diminished illumination and ventilation are but discomforts inherent in the fact of
detention, and do not constitute punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions in the ISAFP
Detention Center are not inhuman, degrading and cruel. Each detainee, except for Capt.
Nicanor Faeldon and Capt. Gerardo Gambala, is confined in separate cells, unlike
ordinary cramped detention cells. The detainees are treated well and given regular
meals. The Court of Appeals noted that the cells are relatively clean and livable
compared to the conditions now prevailing in the city and provincial jails, which are
congested with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk detention facility.
Apart from the soldiers, a suspected New Peoples Army (NPA) member and two
suspected Abu Sayyaf members are detained in the ISAFP Detention Center.
We now pass upon petitioners argument that the officials of the ISAFP Detention Center
violated the detainees right to privacy when the ISAFP officials opened and read the
letters handed by detainees Trillanes and Maestrecampo to one of the petitioners for
mailing. Petitioners point out that the letters were not in a sealed envelope but simply
folded because there were no envelopes in the ISAFP Detention Center. Petitioners
contend that the Constitution prohibits the infringement of a citizens privacy rights unless
authorized by law. The Solicitor General does not deny that the ISAFP officials opened
the letters.
Courts in the U.S. have generally permitted prison officials to open and read all incoming
and outgoing mail of convicted prisoners to prevent the smuggling of contraband into the
prison facility and to avert coordinated escapes. [41] Even in the absence of statutes
specifically allowing prison authorities from opening and inspecting mail, such practice
was upheld based on the principle of civil deaths. [42] Inmates were deemed to have no
right to correspond confidentially with anyone. The only restriction placed upon prison
authorities was that the right of inspection should not be used to delay unreasonably the
communications between the inmate and his lawyer.[43]
Eventually, the inmates outgoing mail to licensed attorneys, courts, and court officials
received respect.[44] The confidential correspondences could not be censored.[45]The
infringement of such privileged communication was held to be a violation of the inmates
First Amendment rights.[46] A prisoner has a right to consult with his attorney in absolute
privacy, which right is not abrogated by the legitimate interests of prison authorities in the
administration of the institution.[47] Moreover, the risk is small that attorneys will conspire
in plots that threaten prison security.[48]
American jurisprudence initially made a distinction between the privacy rights enjoyed by
convicted inmates and pre-trial detainees. The case of Palmigiano v.
Travisono[49] recognized that pre-trial detainees, unlike convicted prisoners, enjoy a
limited right of privacy in communication. Censorship of pre-trial detainees mail
addressed to public officials, courts and counsel was held impermissible. While incoming
mail may be inspected for contraband and read in certain instances, outgoing mail of
pre-trial detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,[50] involving convicted prisoners, the U.S.
Supreme Court held that prison officials could open in the presence of the inmates
incoming mail from attorneys to inmates. However, prison officials could not read such
mail from attorneys. Explained the U.S. Supreme Court:
The issue of the extent to which prison authorities can open and inspect incoming mail
from attorneys to inmates, has been considerably narrowed in the course of this
litigation. The prison regulation under challenge provided that (a)ll incoming and outgoing
mail will be read and inspected, and no exception was made for attorney-prisoner mail. x
xx
Petitioners now concede that they cannot open and read mail from attorneys to inmates,
but contend that they may open all letters from attorneys as long as it is done in the
presence of the prisoners. The narrow issue thus presented is whether letters
determined or found to be from attorneys may be opened by prison authorities in the
presence of the inmate or whether such mail must be delivered unopened if normal
detection techniques fail to indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication was from an
attorney before opening it for inspection, a near impossible task of administration would
be imposed. We think it entirely appropriate that the State require any such
communications to be specially marked as originating from an attorney, with his name
and address being given, if they are to receive special treatment. It would also certainly
be permissible that prison authorities require that a lawyer desiring to correspond with a
prisoner, first identify himself and his client to the prison officials, to assure that the
letters marked privileged are actually from members of the bar. As to the ability to open
the mail in the presence of inmates, this could in no way constitute censorship, since the
mail would not be read. Neither could it chill such communications, since the inmates
presence insures that prison officials will not read the mail. The possibility that
contraband will be enclosed in letters, even those from apparent attorneys, surely
warrants prison officials opening the letters. We disagree with the Court of Appeals that
this should only be done in appropriate circumstances. Since a flexible test, besides
being unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by acceding to
a rule whereby the inmate is present when mail from attorneys is inspected, have done
all, and perhaps even more, than the Constitution requires.[51]
In Hudson v. Palmer,[52] the U.S. Supreme Court ruled that an inmate has no reasonable
expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners
necessarily lose many protections of the Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the Constitution,
it is also clear that imprisonment carries with it the circumscription or loss of many
significant rights. These constraints on inmates, and in some cases the complete
withdrawal of certain rights, are justified by the considerations underlying our penal
system. The curtailment of certain rights is necessary, as a practical matter, to
accommodate a myriad of institutional needs and objectives of prison facilities,
chief among which is internal security. Of course, these restrictions or retractions also
serve, incidentally, as reminders that, under our system of justice, deterrence and
retribution are factors in addition to correction.[53]
The later case of State v. Dunn,[54] citing Hudson v. Palmer, abandoned Palmigiano v.
Travisono and made no distinction as to the detainees limited right to privacy.State v.
Dunn noted the considerable jurisprudence in the United States holding that inmate mail
may be censored for the furtherance of a substantial government interest such as
security or discipline. State v. Dunn declared that if complete censorship is permissible,
then the lesser act of opening the mail and reading it is also permissible. We quote State
v. Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible
with the close and continual surveillance of inmates and their cells required to ensure
institutional security and internal order. We are satisfied that society would insist that the
prisoners expectation of privacy always yield to what must be considered a paramount
interest in institutional security. We believe that it is accepted by our society that [l]oss of
freedom of choice and privacy are inherent incidents of confinement.
The distinction between the limited privacy rights of a pre-trial detainee and a convicted
inmate has been blurred as courts in the U.S. ruled that pre-trial detainees might
occasionally pose an even greater security risk than convicted inmates. Bell v.
Wolfish reasoned that those who are detained prior to trial may in many cases be
individuals who are charged with serious crimes or who have prior records and may
therefore pose a greater risk of escape than convicted inmates. [55] Valencia v.
Wiggins[56] further held that it is impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail security.
American cases recognize that the unmonitored use of pre-trial detainees non-privileged
mail poses a genuine threat to jail security.[57] Hence, when a detainee places his letter in
an envelope for non-privileged mail, the detainee knowingly exposes his letter to
possible inspection by jail officials.[58] A pre-trial detainee has no reasonable expectation
of privacy for his incoming mail.[59] However, incoming mail from lawyers of inmates
enjoys limited protection such that prison officials can open and inspect the mail for
contraband but could not read the contents without violating the inmates right to
correspond with his lawyer.[60] The inspection of privileged mail is limited to physical
contraband and not to verbal contraband.[61]
Thus, we do not agree with the Court of Appeals that the opening and reading of the
detainees letters in the present case violated the detainees right to privacy of
communication. The letters were not in a sealed envelope. The inspection of the folded
letters is a valid measure as it serves the same purpose as the opening of sealed letters
for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not confidential
letters between the detainees and their lawyers. The petitioner who received the letters
from detainees Trillanes and Maestrecampo was merely acting as the detainees
personal courier and not as their counsel when he received the letters for mailing. In the
present case, since the letters were not confidential communication between the
detainees and their lawyers, the officials of the ISAFP Detention Center could read
the letters. If the letters are marked confidential communication between the detainees
and their lawyers, the detention officials should not read the letters but only open the
envelopes for inspection in the presence of the detainees.
The ruling in this case, however, does not foreclose the right of detainees and convicted
prisoners from petitioning the courts for the redress of grievances. Regulations and
conditions in detention and prison facilities that violate the Constitutional rights of the
detainees and prisoners will be reviewed by the courts on a case-by-case basis. The
courts could afford injunctive relief or damages to the detainees and prisoners subjected
to arbitrary and inhumane conditions. However, habeas corpus is not the proper mode to
question conditions of confinement.[67] The writ of habeas corpus will only lie if what is
challenged is the fact or duration of confinement.[68]
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of
Appeals in CA-G.R. SP No. 78545.

That a law is required before an executive officer could intrude on a citizens privacy No pronouncement as to costs.
rights[62] is a guarantee that is available only to the public at large but not to persons who
are detained or imprisoned. The right to privacy of those detained is subject to Section 4
of RA 7438, as well as to the limitations inherent in lawful detention or imprisonment. By SO ORDERED.
the very fact of their detention, pre-trial detainees and convicted prisoners have a
diminished expectation of privacy rights.

In assessing the regulations imposed in detention and prison facilities that are alleged to
infringe on the constitutional rights of the detainees and convicted prisoners, U.S.
courtsbalance the guarantees of the Constitution with the legitimate concerns of prison
administrators.[63] The deferential review of such regulations stems from the principle
that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny

analysis would seriously hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison administration.[64]

The detainees in the present case are junior officers accused of leading 300 soldiers in
committing coup detat, a crime punishable with reclusion perpetua.[65] The junior officers
are not ordinary detainees but visible leaders of the Oakwood incident involving an
armed takeover of a civilian building in the heart of the financial district of the country. As
members of the military armed forces, the detainees are subject to the Articles of War.[66]

Moreover, the junior officers are detained with other high-risk persons from the Abu
Sayyaf and the NPA. Thus, we must give the military custodian a wider range of
deference in implementing the regulations in the ISAFP Detention Center. The military
custodian is in a better position to know the security risks involved in detaining the junior
officers, together with the suspected Abu Sayyaf and NPA members. Since the
appropriate regulations depend largely on the security risks involved, we should defer to
the regulations adopted by the military custodian in the absence of patent arbitrariness.
 BRICCIO Ricky A. POLLO,
Petitioner,
- versus -
CHAIRPERSON KARINA CONSTANTINO-DAVID,
DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A.
CASTILLO, DIRECTOR III
ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE COMMISSION,
Respondents.
DECISION
VILLARAMA, JR., J.:
This case involves a search of office computer assigned to a government employee who
was charged administratively and eventually dismissed from the service. The employees
personal files stored in the computer were used by the government employer as
evidence of misconduct.
Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and
set aside the Decision[1] dated October 11, 2007 and Resolution[2] dated February 29,
2008 of the Court of Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R.
SP No. 98224) filed by petitioner Briccio Ricky A. Pollo to nullify the proceedings
conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty,
grave misconduct, conduct prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.
The factual antecedents:
Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No.
IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD)
under the Mamamayan Muna Hindi Mamaya Na program of the CSC.
On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to
respondent CSC Chairperson Karina Constantino-David which was marked Confidential
and sent through a courier service (LBC) from a certain Alan San Pascual of Bagong
Silang, Caloocan City, was received by the Integrated Records Management Office
(IRMO) at the CSC Central Office. Following office practice in which documents marked
Confidential are left unopened and instead sent to the addressee, the aforesaid letter
was given directly to Chairperson David.
The letter-complaint reads:
The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from
you personally if it is just alright for an employee of your agency to be
a lawyer of an accused govt employee having a pending case in the
csc. I honestly think this is a violation of law and unfair to others and
your office.
I have known that a person have been lawyered by one of your
attorny in the region 4 office. He is the chief of the Mamamayan muna
hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be
served if this will continue. Please investigate this anomaly because
our perception of your clean and good office is being tainted.
Concerned Govt employee[3]
Chairperson David immediately formed a team of four personnel with background in
information technology (IT), and issued a memo directing them to conduct an
investigation and specifically to back up all the files in the computers found in the
Mamamayan Muna (PALD) and Legal divisions. [4] After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV,
respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite
(Director Unite) of Chairperson Davids directive.
The backing-up of all files in the hard disk of computers at the PALD and Legal Services
Division (LSD) was witnessed by several employees, together with Directors Castillo and
Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text
messages to petitioner and the head of LSD, who were both out of the office at the time,
informing them of the ongoing copying of computer files in their divisions upon orders of
the CSC Chair. The text messages received by petitioner read:
Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of
PALD and LSD per instruction of the Chairman. If you can make it
here now it would be better.
All PCs Of PALD and LSD are being backed up per memo of the chair.
CO IT people arrived just now for this purpose. We were not also
informed about this.
 We cant do anything about it its a directive from chair.
Memo of the chair was referring to an anonymous complaint; ill send a
copy of the memo via mms[5]
Petitioner replied also thru text message that he was leaving the matter to Director Unite
and that he will just get a lawyer. Another text message received by petitioner from PALD
staff also reported the presence of the team from CSC main office: Sir may mga taga
C.O. daw sa kuarto natin.[6] At around 10:00 p.m. of the same day, the investigating team
finished their task. The next day, all the computers in the PALD were sealed and secured
for the purpose of preserving all the files stored therein. Several diskettes containing the
back-up files sourced from the hard disk of PALD and LSD computers were turned over
to Chairperson David. The contents of the diskettes were examined by the CSCs Office
for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes containing
files copied from the computer assigned to and being used by the petitioner, numbering
about 40 to 42 documents, were draft pleadings or letters[7] in connection with
administrative cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order [8] dated January 11, 2007, requiring
the petitioner, who had gone on extended leave, to submit his explanation or counter-
affidavit within five days from notice.
Evaluating the subject documents obtained from petitioners personal files, Chairperson
David made the following observations:
Most of the foregoing files are drafts of legal pleadings or
documents that are related to or connected with administrative cases
that may broadly be lumped as pending either in the CSCRO No. IV,
the CSC-NCR, the CSC-Central Office or other tribunals. It is also of
note that most of these draft pleadings are for and on behalves of
parties, who are facing charges as respondents in administrative
cases. This gives rise to the inference that the one who prepared them
was knowingly, deliberately and willfully aiding and advancing interests
adverse and inimical to the interest of the CSC as the central
personnel agency of the government tasked to discipline misfeasance
and malfeasance in the government service. The number of pleadings
so prepared further demonstrates that such person is not merely
engaged in an isolated practice but pursues it with seeming
regularity. It would also be the height of naivete or credulity, and
certainly against common human experience, to believe that the
person concerned had engaged in this customary practice without any
consideration, and in fact, one of the retrieved files (item 13 above)
appears to insinuate the collection of fees. That these draft pleadings
were obtained from the computer assigned to Pollo invariably raises
the presumption that he was the one responsible or had a hand in their
drafting or preparation since the computer of origin was within his
direct control and disposition.[9]
Petitioner filed his Comment, denying that he is the person referred to in the anonymous
letter-complaint which had no attachments to it, because he is not a lawyer and neither is
he lawyering for people with cases in the CSC. He accused CSC officials of conducting a
fishing expedition when they unlawfully copied and printed personal files in his computer,
and subsequently asking him to submit his comment which violated his right against self-
incrimination. He asserted that he had protested the unlawful taking of his computer
done while he was on leave, citing the letter dated January 8, 2007 in which he informed
Director Castillo that the files in his computer were his personal files and those of his
sister, relatives, friends and some associates and that he is not authorizing their sealing,
copying, duplicating and printing as these would violate his constitutional right to privacy
and protection against self-incrimination and warrantless search and seizure. He pointed
out that though government property, the temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is ceded to the employee who may
exercise all attributes of ownership, including its use for personal purposes. As to the
anonymous letter, petitioner argued that it is not actionable as it failed to comply with the
requirements of a formal complaint under the Uniform Rules on Administrative Cases in
the Civil Service (URACC). In view of the illegal search, the files/documents copied from
his computer without his consent is thus inadmissible as evidence, being fruits of a
poisonous tree.[10]
On February 26, 2007, the CSC issued Resolution No. 070382 [11] finding prima
facie case against the petitioner and charging him with Dishonesty, Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713
(Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner
was directed to submit his answer under oath within five days from notice and indicate
whether he elects a formal investigation. Since the charges fall under Section 19 of the
URACC, petitioner was likewise placed under 90 days preventive suspension effective
immediately upon receipt of the resolution. Petitioner received a copy of Resolution No.
070382 on March 1, 2007.
Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer)
assailing the formal charge as without basis having proceeded from an illegal search
which is beyond the authority of the CSC Chairman, such power pertaining solely to the
court. Petitioner reiterated that he never aided any people with pending cases at the
CSC and alleged that those files found in his computer were prepared not by him but by
certain persons whom he permitted, at one time or another, to make use of his computer
out of close association or friendship. Attached to the motion were the affidavit of Atty.
Ponciano R. Solosa who entrusted his own files to be kept at petitioners CPU and Atty.
Eric N. Estrellado, the latter being Atty. Solosas client who attested that petitioner had
nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees
to Atty. Solosa and not to petitioner. Petitioner contended that the case should be
deferred in view of the prejudicial question raised in the criminal complaint he filed before
the Ombudsman against Director Buensalida, whom petitioner believes had instigated
this administrative case. He also prayed for the lifting of the preventive suspension
imposed on him. In its Resolution No. 070519[12] dated March 19, 2007, the CSC denied
the omnibus motion. The CSC resolved to treat the said motion as petitioners answer.
On March 14, 2007, petitioner filed an Urgent Petition [13] under Rule 65 of the Rules of
Court, docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-
Cause Order and Resolution No. 070382 dated February 26, 2007 as having been
issued with grave abuse of discretion amounting to excess or total absence of
jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint
against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the
CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman,
and a separate complaint for disbarment against Director Buensalida.[14]
On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an
Urgent Motion for the issuance of TRO and preliminary injunction. [15] Since he failed to
attend the pre-hearing conference scheduled on April 30, 2007, the CSC reset the same
to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in
the said pre-hearing conference shall entitle the prosecution to proceed with the formal
investigation ex-parte.[16] Petitioner moved to defer or to reset the pre-hearing
conference, claiming that the investigation proceedings should be held in abeyance
pending the resolution of his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar warning on the
consequences of petitioner and/or his counsels non-appearance.[17] This prompted
petitioner to file another motion in the CA, to cite the respondents, including the hearing
officer, in indirect contempt.[18]
On June 12, 2007, the CSC issued Resolution No. 071134 [19] denying petitioners motion
to set aside the denial of his motion to defer the proceedings and to inhibit the
designated hearing officer, Atty. Bernard G. Jimenez. The hearing officer was directed to
proceed with the investigation proper with dispatch.
In view of the absence of petitioner and his counsel, and upon the motion of the
prosecution, petitioner was deemed to have waived his right to the formal investigation
which then proceeded ex parte.
On July 24, 2007, the CSC issued Resolution No. 071420,[20] the dispositive part of
which reads:
WHEREFORE, foregoing premises considered, the Commission
hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of
Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of Republic Act 6713. He is meted
the penalty of DISMISSAL FROM THE SERVICE with all its accessory
penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar
from taking future civil service examinations.[21]
On the paramount issue of the legality of the search conducted on petitioners computer,
the CSC noted the dearth of jurisprudence relevant to the factual milieu of this case
where the government as employer invades the private files of an employee stored in the
computer assigned to him for his official use, in the course of initial investigation of
possible misconduct committed by said employee and without the latters consent or
participation. The CSC thus turned to relevant rulings of the United States Supreme
Court, and cited the leading case of OConnor v. Ortega[22] as authority for the view that
government agencies, in their capacity as employers, rather than law enforcers, could
validly conduct search and seizure in the governmental workplace without meeting the
probable cause or warrant requirement for search and seizure. Another ruling cited by
the CSC is the more recent case of United States v. Mark L. Simons[23] which declared
that the federal agencys computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the Court therein recognized
that such policy did not, at the same time, erode the respondents legitimate expectation
of privacy in the office in which the computer was installed, still, the warrantless search
of the employees office was upheld as valid because a government employer is entitled
to conduct a warrantless search pursuant to an investigation of work-related misconduct
provided the search is reasonable in its inception and scope.
With the foregoing American jurisprudence as benchmark, the CSC held that petitioner
has no reasonable expectation of privacy with regard to the computer he was using in
the regional office in view of the CSC computer use policy which unequivocally declared
that a CSC employee cannot assert any privacy right to a computer assigned to
him. Even assuming that there was no such administrative policy, the CSC was of the
view that the search of petitioners computer successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the
aforecited authorities. The CSC stressed that it pursued the search in its capacity as
government employer and that it was undertaken in connection with an investigation
involving work-related misconduct, which exempts it from the warrant requirement under
the Constitution. With the matter of admissibility of the evidence having been resolved,
the CSC then ruled that the totality of evidence adequately supports the charges of
grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and
violation of R.A. No. 6713 against the petitioner. These grave infractions justified
petitioners dismissal from the service with all its accessory penalties.
In his Memorandum[24] filed in the CA, petitioner moved to incorporate the above
resolution dismissing him from the service in his main petition, in lieu of the filing of an
appeal via a Rule 43 petition. In a subsequent motion, he likewise prayed for the
inclusion of Resolution No. 071800[25] which denied his motion for reconsideration.
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after
finding no grave abuse of discretion committed by respondents CSC officials. The CA
held that: (1) petitioner was not charged on the basis of the anonymous letter but from
the initiative of the CSC after a fact-finding investigation was conducted and the results
thereof yielded a prima facie case against him; (2) it could not be said that in ordering
the back-up of files in petitioners computer and later confiscating the same, Chairperson
David had encroached on the authority of a judge in view of the CSC computer policy
declaring the computers as government property and that employee-users thereof have
no reasonable expectation of privacy in anything they create, store, send, or receive on
the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding
with the formal investigation as there was no restraining order or injunction issued by the
CA.
His motion for reconsideration having been denied by the CA, petitioner brought this
appeal arguing that
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED
AND COMMITTED SERIOUS IRREGULARITY AND BLATANT
ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE
UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY
IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8
OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT]
TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;
II
THE HONORABLE COURT GRIEVOUSLY ERRED AND
COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER
CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY
VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE
INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY
BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING
SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE
MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND
ROUTINARY INSTRUCTION;
III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED
GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO
SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF
DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00
P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE
DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE
INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES
INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS
PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND
GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE
DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE
III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;
IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO
CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL
EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO
EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24,
2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10,
2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT
MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.[26]
Squarely raised by the petitioner is the legality of the search conducted on his office
computer and the copying of his personal files without his knowledge and consent,
alleged as a transgression on his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the
right protected by the guarantee against unreasonable search and seizure under Section
2, Article III of the 1987 Constitution,[27] which provides:
SEC. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The constitutional guarantee is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures.[28] But to fully understand this concept and
application for the purpose of resolving the issue at hand, it is essential that we examine
the doctrine in the light of pronouncements in another jurisdiction. As the Court declared
in People v. Marti[29]:
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but
upon probable cause, to be determined by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched, and
the persons or things to be seized. (Sec. 1[3], Article
III)
was in turn derived almost verbatim from the Fourth Amendment to the
United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and
State Appellate Courts which are considered doctrinal in this
jurisdiction.[30]
In the 1967 case of Katz v. United States,[31] the US Supreme Court held that the act of
FBI agents in electronically recording a conversation made by petitioner in an enclosed
public telephone booth violated his right to privacy and constituted a search and
seizure. Because the petitioner had a reasonable expectation of privacy in using the
enclosed booth to make a personal telephone call, the protection of the Fourth
Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was
further noted that the existence of privacy right under prior decisions involved a two-fold
requirement: first, that a person has exhibited an actual (subjective) expectation of
privacy; and second, that the expectation be one that society is prepared to recognize as
reasonable (objective).[32]
In Mancusi v. DeForte[33] which addressed the reasonable expectations
of private employees in the workplace, the US Supreme Court held that a union
employee had Fourth Amendment rights with regard to an office at union headquarters
that he shared with other union officials, even as the latter or their guests could enter the
office. The Court thus recognized that employees may have a reasonable expectation of
privacy against intrusions by police.
That the Fourth Amendment equally applies to a government workplace was addressed
in the 1987 case of OConnor v. Ortega[34] where a physician, Dr. Magno Ortega, who
was employed by a state hospital, claimed a violation of his Fourth Amendment rights
when hospital officials investigating charges of mismanagement of the psychiatric
residency program, sexual harassment of female hospital employees and other
irregularities involving his private patients under the state medical aid program, searched
his office and seized personal items from his desk and filing cabinets. In that case, the
Court categorically declared that [i]ndividuals do not lose Fourth Amendment rights
merely because they work for the government instead of a private employer.[35] A plurality
of four Justices concurred that the correct analysis has two steps: first, because some
government offices may be so open to fellow employees or the public that no expectation
of privacy is reasonable, a court must consider [t]he operational realities of the workplace
in order to determine whether an employees Fourth Amendment rights are implicated;
and next, where an employee has a legitimate privacy expectation, an employers
intrusion on that expectation for noninvestigatory, work-related purposes, as well as for
investigations of work-related misconduct, should be judged by the standard of
reasonableness under all the circumstances.[36]
On the matter of government employees reasonable expectations of privacy in their
workplace, OConnor teaches:
x x x Public employees expectations of privacy in their offices,
desks, and file cabinets, like similar expectations of employees in the
private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employees
expectation of privacy must be assessed in the context of the
employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal
invitees. Instead, in many cases offices are continually entered by
fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put, it
is the nature of government offices that others such as fellow
employees, supervisors, consensual visitors, and the general public
may have frequent access to an individuals office. We agree with
JUSTICE SCALIA that [c]onstitutional protection against unreasonable
searches by the government does not disappear merely because the
government has the right to make reasonable intrusions in its capacity
as employer, x x x but some government offices may be so open to
fellow employees or the public that no expectation of privacy is
reasonable. x x x Given the great variety of work environments in
the public sector, the question of whether an employee has a
reasonable expectation of privacy must be addressed on a case-
by-case basis.[37] (Citations omitted; emphasis supplied.)
On the basis of the established rule in previous cases, the US Supreme Court declared
that Dr. Ortegas Fourth Amendment rights are implicated only if the conduct of the
hospital officials infringed an expectation of privacy that society is prepared to consider
as reasonable. Given the undisputed evidence that respondent Dr. Ortega did not share
his desk or file cabinets with any other employees, kept personal correspondence and
other private items in his own office while those work-related files (on physicians in
residency training) were stored outside his office, and there being no evidence that the
hospital had established any reasonable regulation or policy discouraging employees
from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not
otherwise exist), the Court concluded that Dr. Ortega has a reasonable expectation of
privacy at least in his desk and file cabinets.[38]
Proceeding to the next inquiry as to whether the search conducted by hospital officials
was reasonable, the OConnor plurality decision discussed the following principles:
Having determined that Dr. Ortega had a reasonable expectation of
privacy in his office, the Court of Appeals simply concluded without
discussion that the searchwas not a reasonable search under the
fourth amendment. x x x [t]o hold that the Fourth Amendment applies
to searches conducted by [public employers] is only to begin the
inquiry into the standards governing such searches[W]hat is
reasonable depends on the context within which a search takes place.
x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search.A determination of the
standard of reasonableness applicable to a particular class of
searches requires balanc[ing] the nature and quality of the intrusion on
the individuals Fourth Amendment interests against the importance of
the governmental interests alleged to justify the intrusion. x x x In the
case of searches conducted by a public employer, we must
balance the invasion of the employees legitimate expectations of
privacy against the governments need for supervision, control,
and the efficient operation of the workplace.
xxxx
In our view, requiring an employer to obtain a warrant whenever the
employer wished to enter an employees office, desk, or file cabinets
for a work-related purpose would seriously disrupt the routine conduct
of business and would be unduly burdensome. Imposing unwieldy
warrant procedures in such cases upon supervisors, who would
otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we
have required warrants, supervisors in offices such as at the Hospital
are hardly in the business of investigating the violation of criminal
laws. Rather, work-related searches are merely incident to the primary
business of the agency. Under these circumstances, the imposition of
a warrant requirement would conflict with the common-sense
realization that government offices could not function if every
employment decision became a constitutional matter. x x x
xxxx
The governmental interest justifying work-related intrusions by public
employers is the efficient and proper operation of the
workplace. Government agencies provide myriad services to the
public, and the work of these agencies would suffer if employers were
required to have probable cause before they entered an employees
desk for the purpose of finding a file or piece of office
correspondence. Indeed, it is difficult to give the concept of probable
cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-
related reasons. Similarly, the concept of probable cause has little
meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and
proper operation of the agency, therefore, public employers must be
given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to
an investigation of work-related employee misconduct. Even when
employers conduct an investigation, they have an interest substantially
different from the normal need for law enforcement. x x x Public
employers have an interest in ensuring that their agencies operate in
an effective and efficient manner, and the work of these agencies
inevitably suffers from the inefficiency, incompetence,
mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public interest
can be severe. In contrast to law enforcement officials, therefore,
public employers are not enforcers of the criminal law; instead, public
employers have a direct and overriding interest in ensuring that the
work of the agency is conducted in a proper and efficient manner. In
our view, therefore, a probable cause requirement for searches of
the type at issue here would impose intolerable burdens on
public employers. The delay in correcting the employee
misconduct caused by the need for probable cause rather than
reasonable suspicion will be translated into tangible and often
irreparable damage to the agencys work, and ultimately to the
public interest. x x x
xxxx
In sum, we conclude that the special needs, beyond the normal
need for law enforcement make theprobable-cause requirement
impracticable, x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A
standard of reasonableness will neither unduly burden the efforts of
government employers to ensure the efficient and proper operation of
the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer
intrusions on the constitutionally protected privacy interests of
government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of
reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the
intrusion must be reasonable:
Determining the reasonableness of any search
involves a twofold inquiry: first, one must consider
whether theaction was justified at its inception, x x
x ; second, one must determine whether the search
as actually conducted was reasonably related in
scope to the circumstances which justified the
interference in the first place, x x x
Ordinarily, a search of an employees office by a supervisor will be
justified at its inception when there are reasonable grounds for
suspecting that the search will turn up evidence that the
employee is guilty of work-related misconduct, or that the search
is necessary for a noninvestigatory work-related purpose such as
to retrieve a needed file. x x x The search will be permissible in its
scope when the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of
the nature of the [misconduct]. x x x[39] (Citations omitted; emphasis
supplied.)
Since the District Court granted summary judgment without a hearing on the factual
dispute as to the character of the search and neither was there any finding made as to
the scope of the search that was undertaken, the case was remanded to said court for
the determination of the justification for the search and seizure, and evaluation of the
reasonableness of both the inception of the search and its scope.
In OConnor the Court recognized that special needs authorize warrantless searches
involving public employees for work-related reasons. The Court thus laid down a
balancing test under which government interests are weighed against the employees
reasonable expectation of privacy. This reasonableness test implicates neither probable
cause nor the warrant requirement, which are related to law enforcement.[40]
OConnor was applied in subsequent cases raising issues on employees privacy rights in
the workplace. One of these cases involved a government employers search of an office
computer, United States v. Mark L. Simons [41] where the defendant Simons, an employee
of a division of the Central Intelligence Agency (CIA), was convicted of receiving and
possessing materials containing child pornography. Simons was provided with an office
which he did not share with anyone, and a computer with Internet access.The agency
had instituted a policy on computer use stating that employees were to use the Internet
for official government business only and that accessing unlawful material was
specifically prohibited. The policy also stated that users shall understand that the agency
will periodically audit, inspect, and/or monitor the users Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the agencys
computer network, upon initial discovery of prohibited internet activity originating from
Simons computer, to conduct a remote monitoring and examination of Simons
computer. After confirming that Simons had indeed downloaded pictures that were
pornographic in nature, all the files on the hard drive of Simons computer were copied
from a remote work station. Days later, the contractors representative finally entered
Simons office, removed the original hard drive on Simons computer, replaced it with a
copy, and gave the original to the agency security officer. Thereafter, the agency secured
warrants and searched Simons office in the evening when Simons was not around. The
search team copied the contents of Simons computer; computer diskettes found in
Simons desk drawer; computer files stored on the zip drive or on zip drive diskettes;
videotapes; and various documents, including personal correspondence. At his trial,
Simons moved to suppress these evidence, arguing that the searches of his office and
computer violated his Fourth Amendment rights. After a hearing, the district court denied
the motion and Simons was found guilty as charged.
Simons appealed his convictions. The US Supreme Court ruled that the searches of
Simons computer and office did not violate his Fourth Amendment rights and the first
search warrant was valid. It held that the search remains valid under
the OConnor exception to the warrant requirement because evidence of the crime was
discovered in the course of an otherwise proper administrative inspection. Simons
violation of the agencys Internet policy happened also to be a violation of criminal law;
this does not mean that said employer lost the capacity and interests of an
employer. The warrantless entry into Simons office was reasonable under the Fourth
Amendment standard announced in OConnor because at the inception of the search, the
employer had reasonable grounds for suspecting that the hard drive would yield
evidence of misconduct, as the employer was already aware that Simons had misused
his Internet access to download over a thousand pornographic images. The retrieval of
the hard drive was reasonably related to the objective of the search, and the search was
not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in
his office, he did not have such legitimate expectation of privacy with regard to the files in
his computer.
x x x To establish a violation of his rights under the Fourth
Amendment, Simons must first prove that he had a legitimate
expectation of privacy in the place searched or the item seized. x x x
And, in order to prove a legitimate expectation of privacy, Simons must
show that his subjective expectation of privacy is one that society is
prepared to accept as objectively reasonable. x x x
xxxx
x x x We conclude that the remote searches of Simons
computer did not violate his Fourth Amendment rights because, in light
of the Internet policy, Simons lacked a legitimate expectation of privacy
in the files downloaded from the Internet. Additionally, we conclude
that Simons Fourth Amendment rights were not violated by FBIS
retrieval of Simons hard drive from his office.
Simons did not have a legitimate expectation of privacy with
regard to the record or fruits of his Internet use in light of the
FBIS Internet policy. The policy clearly stated that FBIS would
audit, inspect, and/or monitor employees use of the Internet,
including all file transfers, all websites visited, and all e-mail
messages, as deemed appropriate. x x x This policy placed
employees on notice that they could not reasonably expect that their
Internet activity would be private. Therefore, regardless of whether
Simons subjectively believed that the files he transferred from the
Internet were private, such a belief was not objectively reasonable
after FBIS notified him that it would be overseeing his Internet use. x x
x Accordingly, FBIS actions in remotely searching and seizing the
computer files Simons downloaded from the Internet did not violate the
Fourth Amendment.
xxxx
The burden is on Simons to prove that he had a legitimate
expectation of privacy in his office. x x x Here, Simons has shown
that he had an office that he did not share. As noted above, the
operational realities of Simons workplace may have diminished his
legitimate privacy expectations. However, there is no evidence in the
record of any workplace practices, procedures, or regulations that had
such an effect. We therefore conclude that, on this record, Simons
possessed a legitimate expectation of privacy in his office.
xxxx
In the final analysis, this case involves an employees supervisor
entering the employees government office and retrieving a piece of
government equipment in which the employee had absolutely no
expectation of privacy equipment that the employer knew contained
evidence of crimes committed by the employee in the employees
office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his
employment. Here, there was a conjunction of the conduct that
violated the employers policy and the conduct that violated the criminal
law. We consider that FBIS intrusion into Simons office to retrieve the
hard drive is one in which a reasonable employer might engage. x x
x[42] (Citations omitted; emphasis supplied.)
This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board[43] which involved
the constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of
candidates for public office, students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the prosecutors
office with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as
the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The
 employees privacy interest in an office is to a large extent
circumscribed by the companys work policies, the collective
bargaining agreement, if any, entered into by management and
the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in fine, reduced; and a
degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)
Applying the analysis and principles announced in OConnor and Simons to the case at
bar, we now address the following questions: (1) Did petitioner have a reasonable
expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners
computer reasonable in its inception and scope?
In this inquiry, the relevant surrounding circumstances to consider include (1) the
employees relationship to the item seized; (2) whether the item was in the immediate
control of the employee when it was seized; and (3) whether the employee took actions
to maintain his privacy in the item. These factors are relevant to both the subjective and
objective prongs of the reasonableness inquiry, and we consider the two questions
together.[44] Thus, where the employee used a password on his computer, did not share
his office with co-workers and kept the same locked, he had a legitimate expectation of
privacy and any search of that space and items located therein must comply with the
Fourth Amendment.[45]
We answer the first in the negative. Petitioner failed to prove that he had an actual
(subjective) expectation of privacy either in his office or government-issued computer
which contained his personal files. Petitioner did not allege that he had a separate
enclosed office which he did not share with anyone, or that his office was always locked
and not open to other employees or visitors. Neither did he allege that he used
passwords or adopted any means to prevent other employees from accessing his
computer files. On the contrary, he submits that being in the public assistance office of
the CSC-ROIV, he normally would have visitors in his office like friends, associates and
even unknown people, whom he even allowed to use his computer which to him seemed
a trivial request. He described his office as full of people, his friends, unknown people
and that in the past 22 years he had been discharging his functions at the PALD, he is
personally assisting incoming clients, receiving documents, drafting cases on appeals, in
charge of accomplishment report, Mamamayan Muna Program, Public Sector Unionism,
Correction of name, accreditation of service, and hardly had anytime for himself alone,
that in fact he stays in the office as a paying customer.[46] Under this scenario, it can
hardly be deduced that petitioner had such expectation of privacy that society would
recognize as reasonable.
Moreover, even assuming arguendo, in the absence of allegation or proof of the
aforementioned factual circumstances, that petitioner had at least a subjective
expectation of privacy in his computer as he claims, such is negated by the presence of
policy regulating the use of office computers, as in Simons.
Office Memorandum No. 10, S. 2002 Computer Use Policy (CUP) explicitly provides:
POLICY
1. The Computer Resources are the property of the Civil Service
Commission and may be used only for legitimate business
purposes.
2. Users shall be permitted access to Computer Resources to
assist them in the performance of their respective jobs.
3. Use of the Computer Resources is a privilege that may be
revoked at any given time.
xxxx
No Expectation of Privacy
4. No expectation of privacy. Users except the Members of the
Commission shall not have an expectation of privacy in
anything they create, store, send, or receive on the computer
system.
The Head of the Office for Recruitment, Examination and Placement
shall select and assign Users to handle the confidential
examination data and processes.
5. Waiver of privacy rights. Users expressly waive any right to privacy
in anything they create, store, send, or receive on the computer
through the Internet or any other computer
network. Usersunderstand that the CSC may use human or
automated means to monitor the use of its Computer
Resources.
6. Non-exclusivity of Computer Resources. A computer resource is not
a personal property or for the exclusive use of a User to whom
a memorandum of receipt (MR) has been issued. It can be
shared or operated by other users. However, he is accountable
therefor and must insure its care and maintenance.
xxxx
Passwords
12. Responsibility for passwords. Users shall be responsible for
safeguarding their passwords for access to the computer
system. Individual passwords shall not be printed, stored online,
or given to others. Users shall be responsible for all
transactions made using their passwords. No User may access
the computer system with another Users password or account.
 13. Passwords do not imply privacy. Use of passwords to gain access
to the computer system or to encode particular files or
messages does not imply that Users have an expectation of
privacy in the material they create or receive on the computer
system. The Civil Service Commission has global passwords
that permit access to all materials stored on its networked
computer system regardless of whether those materials have
been encoded with a particular Users password. Only members
of the Commission shall authorize the application of the said
global passwords.
x x x x[47] (Emphasis supplied.)
The CSC in this case had implemented a policy that put its employees on notice that
they have no expectation of privacy in anything they create, store, send or receive on
the office computers, and that the CSC may monitor the use of the computer resources
using both automated or human means. This implies that on-the-spot inspections may
be done to ensure that the computer resources were used only for such legitimate
business purposes.
One of the factors stated in OConnor which are relevant in determining whether an
employees expectation of privacy in the workplace is reasonable is the existence of a
workplace privacy policy.[48] In one case, the US Court of Appeals Eighth Circuit held that
a state university employee has not shown that he had a reasonable expectation of
privacy in his computer files where the universitys computer policy, the computer user is
informed not to expect privacy if the university has a legitimate reason to conduct a
search. The user is specifically told that computer files, including e-mail, can be
searched when the university is responding to a discovery request in the course of
litigation.Petitioner employee thus cannot claim a violation of Fourth Amendment rights
when university officials conducted a warrantless search of his computer for work-related
materials.[49]
As to the second point of inquiry on the reasonableness of the search conducted on
petitioners computer, we answer in the affirmative.
The search of petitioners computer files was conducted in connection with investigation
of work-related misconduct prompted by an anonymous letter-complaint addressed to
Chairperson David regarding anomalies in the CSC-ROIV where the head of
the Mamamayan Muna Hindi Mamaya Na division is supposedly lawyering for individuals
with pending cases in the CSC. Chairperson David stated in her sworn affidavit:
8. That prior to this, as early as 2006, the undersigned has received
several text messages from unknown sources adverting to
certain anomalies in Civil Service Commission Regional Office
IV (CSCRO IV) such as, staff working in another government
agency, selling cases and aiding parties with pending cases, all
done during office hours and involved the use of government
properties;
9. That said text messages were not investigated for lack of any
verifiable leads and details sufficient to warrant an
investigation;
10. That the anonymous letter provided the lead and details as it
pinpointed the persons and divisions involved in the alleged
irregularities happening in CSCRO IV;
11. That in view of the seriousness of the allegations of irregularities
happening in CSCRO IV and its effect on the integrity of the
Commission, I decided to form a team of Central Office staff to
back up the files in the computers of the Public Assistance and
Liaison Division (PALD) and Legal Division;
x x x x[50]
A search by a government employer of an employees office is justified at inception when
there are reasonable grounds for suspecting that it will turn up evidence that the
employee is guilty of work-related misconduct.[51] Thus, in the 2004 case decided by the
US Court of Appeals Eighth Circuit, it was held that where a government agencys
computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the government
employee had no legitimate expectation of privacy as to the use and contents of his
office computer, and therefore evidence found during warrantless search of the computer
was admissible in prosecution for child pornography. In that case, the defendant
employees computer hard drive was first remotely examined by a computer information
technician after his supervisor received complaints that he was inaccessible and had
copied and distributed non-work-related e-mail messages throughout the office. When
the supervisor confirmed that defendant had used his computer to access the prohibited
websites, in contravention of the express policy of the agency, his computer tower and
floppy disks were taken and examined. A formal administrative investigation ensued and
later search warrants were secured by the police department. The initial remote search
of the hard drive of petitioners computer, as well as the subsequent warrantless
searches was held as valid under the OConnor ruling that a public employer can
investigate work-related misconduct so long as any search is justified at inception and is
reasonably related in scope to the circumstances that justified it in the first place.[52]
Under the facts obtaining, the search conducted on petitioners computer was justified at
its inception and scope. We quote with approval the CSCs discussion on the
reasonableness of its actions, consistent as it were with the guidelines established
by OConnor:
Even conceding for a moment that there is no such
administrative policy, there is no doubt in the mind of the Commission
that the search of Pollos computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as
enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in
connection with an investigation involving a work-related
 misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received
recounting that a certain division chief in the CSCRO No. IV was
lawyering for parties having pending cases with the said regional office
or in the Commission. The nature of the imputation was serious, as
it was grievously disturbing. If, indeed, a CSC employee was found
to be furtively engaged in the practice of lawyering for parties with
pending cases before the Commission would be a highly repugnant
scenario, then such a case would have shattering repercussions. It
would undeniably cast clouds of doubt upon the institutional integrity of
the Commission as a quasi-judicial agency, and in the process, render
it less effective in fulfilling its mandate as an impartial and objective
dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be
seen to be so, otherwise the general public would not have any trust
and confidence in it.
Considering the damaging nature of the accusation, the
Commission had to act fast, if only to arrest or limit any possible
adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving
the computer resources in the concerned regional office. That it was
the computers that were subjected to the search was justified
since these furnished the easiest means for an employee to
encode and store documents. Indeed, the computers would be a
likely starting point in ferreting out incriminating evidence.
Concomitantly, the ephemeral nature of computer files, that is,
they could easily be destroyed at a click of a button, necessitated
drastic and immediate action. Pointedly, to impose the need to
comply with the probable cause requirement would invariably defeat
the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the
warrantless search in an open and transparent manner. Officials and
some employees of the regional office, who happened to be in the
vicinity, were on hand to observe the process until its completion. In
addition, the respondent himself was duly notified, through text
messaging, of the search and the concomitant retrieval of files from his
computer.
All in all, the Commission is convinced that the warrantless
search done on computer assigned to Pollo was not, in any way,
vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at
ensuring its operational effectiveness and efficiency by going after the
work-related misfeasance of its employees.Consequently, the
evidence derived from the questioned search are deemed admissible.
[53]
Petitioners claim of violation of his constitutional right to privacy must necessarily fail. His
other argument invoking the privacy of communication and correspondence under
Section 3(1), Article III of the 1987 Constitution is also untenable considering the
recognition accorded to certain legitimate intrusions into the privacy of employees in the
government workplace under the aforecited authorities. We likewise find no merit in his
contention that OConnor and Simons are not relevant because the present case does
not involve a criminal offense like child pornography. As already mentioned, the search of
petitioners computer was justified there being reasonable ground for suspecting that the
files stored therein would yield incriminating evidence relevant to the investigation being
conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless
requirement in administrative searches defined in OConnor.
The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty.
Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila [54] involving a branch
clerk (Atty. Morales) who was investigated on the basis of an anonymous letter alleging
that he was consuming his working hours filing and attending to personal cases, using
office supplies, equipment and utilities. The OCA conducted a spot investigation aided by
NBI agents. The team was able to access Atty. Morales personal computer and print two
documents stored in its hard drive, which turned out to be two pleadings, one filed in the
CA and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales
computer was seized and taken in custody of the OCA but was later ordered released on
his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to
support the charge against Atty. Morales as no one from the OCC personnel who were
interviewed would give a categorical and positive statement affirming the charges
against Atty. Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty of gross
misconduct. The Court En Banc held that while Atty. Morales may have fallen short of the
exacting standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right
against unreasonable searches and seizures. The Court found no evidence to support
the claim of OCA that they were able to obtain the subject pleadings with the consent of
Atty. Morales, as in fact the latter immediately filed an administrative case against the
persons who conducted the spot investigation, questioning the validity of the
investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him
for insufficiency of evidence.
The above case is to be distinguished from the case at bar because, unlike the former
which involved a personal computer of a court employee, the computer from which the
personal files of herein petitioner were retrieved is a government-issued computer,
hence government property the use of which the CSC has absolute right to regulate and
monitor. Such relationship of the petitioner with the item seized (office computer) and
other relevant factors and circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy,
failed to establish that petitioner had a reasonable expectation of privacy in the office
computer assigned to him.
Having determined that the personal files copied from the office computer of petitioner
are admissible in the administrative case against him, we now proceed to the issue of
whether the CSC was correct in finding the petitioner guilty of the charges and
dismissing him from the service.
Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC,
are accorded not only respect but even finality if such findings are supported by
substantial evidence. Substantial evidence is such amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion, even if other equally
reasonable minds might conceivably opine otherwise.[55]
The CSC based its findings on evidence consisting of a substantial number of drafts of
legal pleadings and documents stored in his office computer, as well as the sworn
affidavits and testimonies of the witnesses it presented during the formal
investigation. According to the CSC, these documents were confirmed to be similar or
exactly the same content-wise with those on the case records of some cases pending
either with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also
substantially similar copies of those pleadings filed with the CA and duly furnished the
Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer
friends Estrellado and Solosa whom he allowed the use of his computer for drafting their
pleadings in the cases they handle, as implausible and doubtful under the
circumstances. We hold that the CSCs factual finding regarding the authorship of the
subject pleadings and misuse of the office computer is well-supported by the evidence
on record, thus:
It is also striking to note that some of these documents were in the
nature of pleadings responding to the orders, decisions or resolutions
of these offices or directly in opposition to them such as a petition for
certiorari or a motion for reconsideration of CSC Resolution. This
indicates that the author thereof knowingly and willingly participated in
the promotion or advancement of the interests of parties contrary or
antagonistic to the Commission. Worse, the appearance in one of the
retrieved documents the phrase, Eric N. Estr[e]llado, Epal kulang ang
bayad mo,lends plausibility to an inference that the preparation or
drafting of the legal pleadings was pursued with less than a laudable
motivation. Whoever was responsible for these documents was simply
doing the same for the money a legal mercenary selling or purveying
his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the
computer of Pollo raises the presumption that he was the author
thereof. This is because he had a control of the said
computer. More significantly, one of the witnesses, Margarita Reyes,
categorically testified seeing a written copy of one of the pleadings
found in the case records lying on the table of the respondent. This
was the Petition for Review in the case of Estrellado addressed to the
Court of Appeals. The said circumstances indubitably demonstrate that
Pollo was secretly undermining the interest of the Commission, his
very own employer.
To deflect any culpability, Pollo would, however, want the Commission
to believe that the documents were the personal files of some of his
friends, including one Attorney Ponciano Solosa, who incidentally
served as his counsel of record during the formal investigation of this
case. In fact, Atty. Solosa himself executed a sworn affidavit to this
effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during
her entire stay in the PALD, she never saw Atty. Solosa using the
computer assigned to the respondent. Reyes more particularly stated
that she worked in close proximity with Pollo and would have known if
Atty. Solosa, whom she personally knows, was using the computer in
question. Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the same
constitutes self-serving evidence unworthy of weight and
credence. The same is true with the other supporting affidavits, which
Pollo submitted.
At any rate, even admitting for a moment the said contention of the
respondent, it evinces the fact that he was unlawfully authorizing
private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of
pleadings, for ends not in conformity with the interests of the
Commission. He was, in effect, acting as a principal by indispensable
cooperationOr at the very least, he should be responsible for serious
misconduct for repeatedly allowing CSC resources, that is, the
computer and the electricity, to be utilized for purposes other than what
they were officially intended.
Further, the Commission cannot lend credence to the posturing of the
appellant that the line appearing in one of the documents, Eric N.
Estrellado, Epal kulang ang bayad mo, was a private joke between the
person alluded to therein, Eric N. Estrellado, and his counsel, Atty.
Solosa, and not indicative of anything more sinister. The same is too
preposterous to be believed.Why would such a statement appear in a
legal pleading stored in the computer assigned to the respondent,
unless he had something to do with it?[56]
Petitioner assails the CA in not ruling that the CSC should not have entertained an
anonymous complaint since Section 8 of CSC Resolution No. 99-1936 (URACC)
requires a verified complaint:
Rule II Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or
employee shall not be given due course unless it is in writing and
subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need
not be under oath.
No anonymous complaint shall be entertained unless there is
obvious truth or merit to the allegation therein or supported by
documentary or direct evidence, in which case the person complained
of may be required to comment.
xxxx
We need not belabor this point raised by petitioner. The administrative complaint is
deemed to have been initiated by the CSC itself when Chairperson David, after a spot
inspection and search of the files stored in the hard drive of computers in the two
divisions adverted to in the anonymous letter -- as part of the disciplining authoritys own
fact-finding investigation and information-gathering -- found a prima facie case against
the petitioner who was then directed to file his comment. As this Court held in Civil
Service Commission v. Court of Appeals[57] --
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V
of E.O. No. 292 and Section 8, Rule II of Uniform Rules on
Administrative Cases in the Civil Service, a complaint may be
initiated against a civil service officer or employee by the
appropriate disciplining authority, even without being subscribed
and sworn to. Considering that the CSC, as the disciplining authority
for Dumlao, filed the complaint, jurisdiction over Dumlao was validly
acquired. (Emphasis supplied.)
As to petitioners challenge on the validity of CSC OM 10, S. 2002 (CUP), the same
deserves scant consideration. The alleged infirmity due to the said memorandum order
having been issued solely by the CSC Chair and not the Commission as a collegial body,
upon which the dissent of Commissioner Buenaflor is partly anchored, was already
explained by Chairperson David in her Reply to the Addendum to Commissioner
Buenaflors previous memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said memorandum order was
in fact exhaustively discussed, provision by provision in the January 23,
2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr. and
Valmores. Hence, the Commission En Banc at the time saw no need to issue a
Resolution for the purpose and further because the CUP being for internal use of the
Commission, the practice had been to issue a memorandum order.[58] Moreover, being
an administrative rule that is merely internal in nature, or which regulates only the
personnel of the CSC and not the public, the CUP need not be published prior to its
effectivity.[59]
In fine, no error or grave abuse of discretion was committed by the CA in affirming the
CSCs ruling that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial
to the best interest of the service, and violation of R.A. No. 6713. The gravity of these
offenses justified the imposition on petitioner of the ultimate penalty of dismissal with all
its accessory penalties, pursuant to existing rules and regulations.
WHEREFORE, the petition for review on certiorari is DENIED.
The Decision dated October 11, 2007 and Resolution dated February 29, 2008 of the
Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.
With costs against the petitioner.
SO ORDERED.
[G.R. No. 107383. February 20, 1996.]
CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO
MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of Appeals, affirming the
decision of the Regional Trial Court of Manila (Branch X) which ordered petitioner to
return documents and papers taken by her from private respondents clinic without the
latters knowledge and consent.
The facts are as follows:
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 respondents secretary, forcibly opened the
drawers and cabinet in her husbands clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martins 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. The case was filed with the Regional Trial Court of
Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo
Martin, declaring him the capital/exclusive owner of the properties described in
paragraph 3 of plaintiffs 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 attorneys 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. On appeal, the
Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private
respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner,
without his knowledge and consent. For that reason, the trial court declared the
documents and papers to be properties of private respondent, ordered petitioner to
return them to private respondent and enjoined her from using them in evidence. In
appealing from the decision of the Court of Appeals affirming the trial courts decision,
petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr., 1 this Court ruled that
the documents and papers (marked as Annexes A-i to J-7 of respondents comment in
that case) were admissible in evidence and, therefore, their use by petitioners attorney,
Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this reason it is
contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as 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:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.],
he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilias 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-I 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 Courts order, respondents 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 petitioners 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, petitioners 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 husbands 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. Martins 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 courts order was
dismissed and, therefore, the prohibition against the further use of the documents and
papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The
constitutional injunction declaring the privacy of communication and correspondence [to
be] inviolable3is no less applicable simply because it is the wife (who thinks herself
aggrieved by her husbands 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.4 Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding.5
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.6 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. 7 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.