Professional Documents
Culture Documents
COURT: [To witness Ruel Nalagon] Q What action [was] commenced by your office if
any as to the report made by your asset
Q I am showing you this document/sworn statement regarding the alleged possession of Mr.
of Ruel Nala[gon] given to PO3 Rodrigo Romulo Nala of unlicensed firearms?
Delfin, Investigator, SCOT/PDEU Bukidnon A Our officer through authorized personnel,
Police Provincial Office, Camp Ramon conducted surveillance operation on the spot,
Onahon, Malaybalay City on or about 12:30 in headed by this affiant.
the afternoon of June 25, 2001, in the presence
of PO3 Macrino Alcoser, Operative of Special Q What was the result of the surveillance conducted
Case Operation Team. Are you the same Ruel by your office?
Nalagon who has given a statement before the A The result turned out to be positive and we have
above-named police officer? [concrete] evidence that indeed this Romulo
A Yes, Sir. Nala is engaged with the above illegal act.
Q You have given a statement before the Q Are there more information you wish to inform
abovenamed police officer or Investigator that this Court.
you have personal knowledge that a certain A None, as of the moment.
Romulo Nala in Purok 4, Poblacion, Kitaotao,
Q Do you affirm the truthfulness of the above
Bukidnon has in his possession a .22 magnum
statement made by you and [will you]
pistol and 9MM pistol[?] Why and how do you
voluntarily sign the same?
know that he has in his possession such pistols?
A Yes, sir.
A Because I personally saw and witnessed him
bringing or carrying said pistols. That is all.[28]
Q Where did you see him bringing or carrying said It did not even occur to the examining judge to clarify how
pistols? did the police officers conduct an on the spot surveillance on
A I saw him personally in the public market of June 25, 2001 on a 2-hour interval between 12:30 p.m.,[29] when
Kitaotao, Bukidnon. I also witnessed him Nalagon executed the affidavit, and 2:30 p.m.,[30] when PO3
firing said pistol especially when he is drunk. Macrino L. Alcoser testified before the respondent judge that
they conducted surveillance operation on the spot right after
Q How often did you see him carrying and firing said
Nalagon executed his affidavit. Even if we apply the
pistols?
presumption of regularity in the performance of duty, the on the
A Many times.
spot surveillance claimed by Alcoser contradicts his statement
Q Do you know Romulo Nala? Are you friends with in the application for the issuance of warrant that he conducted
said person? long range surveillance of petitioner. At any rate, regardless of
A Yes, sir because we are neighbors in Purok 4, the nature of the surveillance and verification of the information
Poblacion, Kitaotao, Bukidnon. carried out by the police officers, the fact remains that both the
applicant, PO3 Macrino L. Alcoser, and his witness Ruel
Q This Romulo Nala, is he bringing these two (2) Nalagon did not have personal knowledge of petitioners lack of
pistols at the same time? license to possess firearms, ammunitions and explosive; and did
A No sir, he is bringing often times the .22 magnum not adduce the evidence required to prove the existence of
and I saw him only twice bringing 9MM pistol. probable cause that petitioner had no license to possess a
Q Do you have something more to add or say in this firearm. Hence, the search and seizure warrant issued on the
investigation? basis of the evidence presented is void.
A None as of this moment.
Can petitioner be charged with illegal possession of incriminating the accused. The object must be open to eye and
firearms and explosive allegedly seized from his house? hand and its discovery inadvertent.[35]
Petitioner contends that said articles are inadmissible as
evidence against him because they were not the same items No presumption of regularity may be invoked in aid of the
specifically listed in the warrant. The Office of the Provincial process when the officer undertakes to justify an encroachment
Prosecutor, on the other hand, claims that petitioner should be of rights secured by the Constitution. In this case, the firearms
held liable because the items seized bear a direct relation to the and explosive were found at the rear portion of petitioners
offense of illegal possession of firearms. These arguments, house[36] but the records do not show how exactly were these
however, become immaterial in view of the nullity of the search items discovered. Clearly, therefore, the plain view doctrine
warrant which made possible the seizure of the questioned finds no application here not only because the police officers
articles. had no justification to search the house of petitioner (their
search warrant being void for lack of probable cause), but also
The settled rule is that where entry into the premises to be because said officers failed to discharge the burden of proving
searched was gained by virtue of a void search warrant, that subject articles were inadvertently found in petitioners
prohibited articles seized in the course of the search are house.
inadmissible against the accused. In Roan v. Gonzales,[31] the
prosecution sought to charge the accused with illegal The issue of the reasonableness of the implementation of
possession of firearms on the basis of the items seized in a the search and seizure warrant, i.e., whether the search was
search through a warrant which the Court declared as void for conducted in the presence of witnesses and whether the air rifle
lack of probable cause. In ruling against the admissibility of the which the trial court ordered to be returned to petitioner was
items seized, the Court said indeed among the items seized during the search, are matters
that would be best determined in the pending administrative
Prohibited articles may be seized but only as long as the search case for grave misconduct and irregularity in the performance
is valid. In this case, it was not because: 1) there was no valid of duty against the police officers who conducted the search.
search warrant; and 2) absent such a warrant, the right thereto
was not validly waived by the petitioner. In short, the military Considering that the search and seizure warrant in this
officers who entered the petitioners premises had no right to be case was procured in violation of the Constitution and the Rules
there and therefore had no right either to seize the pistol and of Court, all the items seized in petitioners house, being fruits
bullets.[32] of the poisonous tree, are inadmissible for any purpose in any
proceeding. The exclusion of these unlawfully seized evidence
Conformably, the articles allegedly seized in the house of is the only practical means of enforcing the constitutional
petitioner cannot be used as evidence against him because injunction against unreasonable searches and
access therein was gained by the police officer using a void seizures.[37] Hence, the complaints filed against petitioner for
search and seizure warrant. It is as if they entered petitioners illegal possession of firearms and explosive based on illegally
house without a warrant, making their entry therein illegal, and obtained evidence have no more leg to stand on.[38] Pending
the items seized, inadmissible. resolution of said cases, however, the articles seized are to
remain in custodia legis.[39]
Moreover, it does not follow that because an offense
is malum prohibitum, the subject thereof is necessarily Finally, the Court notes that among the items seized by the
illegal per se. Motive is immaterial in mala prohibita, but the officers were four pcs. of disposable lighter and unestimated
subjects of this kind of offense may not be summarily seized numbers of cellophane used for packing of shabu. These items
simply because they are prohibited. A warrant is still are not contraband per se, nor objects in connection with the
necessary,[33] because possession of any firearm becomes offense of illegal possession of firearms for which the warrant
unlawful only if the required permit or license therefor is not was issued. Moreover, it is highly preposterous to assume that
first obtained.[34] these items were used in connection with offenses involving
illegal drugs. Even granting that they were, they would still be
So also, admissibility of the items seized cannot be inadmissible against the petitioner for being products of an
justified under the plain view doctrine. It is true that, as an illegal search. Hence, the subject articles should be returned to
exception, the police officer may seize without warrant illegally petitioner.[40]
possessed firearm, or any contraband for that matter,
inadvertently found in plain view. However, said officer must WHEREFORE, in view of all the foregoing, the petition
have a prior right to be in the position to have that view of the is GRANTED. The October 18, 2001 and February 15, 2002
objects to be seized. The plain view doctrine applies when the Orders of the Regional Trial Court of Malaybalay City, Branch
following requisites concur: (a) the law enforcement officer in 10, are REVERSED and SET ASIDE insofar as it denied
search of the evidence has a prior justification for an intrusion petitioners omnibus motion to quash the search warrant. Search
or is in a position from which he can view a particular area; (b) and Seizure Warrant No. 30-01 dated June 25, 2001 is
the discovery of the evidence in plain view is inadvertent; (c) it declared VOIDand the articles seized by virtue thereof are
is immediately apparent to the officer that the item he observes declared inadmissible in evidence. Pending resolution of
may be evidence of a crime, contraband or otherwise subject to Criminal Case Nos. 10943-2001-P and 10944-2001-P for
seizure. The law enforcement officer must lawfully make an illegal possession of firearms, ammunitions and explosive
initial intrusion or properly be in a position from which he can against petitioner, the items (caliber .38 revolver with Serial
particularly view the area. In the course of such lawful Number 1125609 and 5 pieces live ammunitions; fragmentation
intrusion, he came inadvertently across a piece of evidence grenade; and .22 long barrel) subject thereof, must remain
in custodia legis. The four pieces of disposable lighter and 1.) Whether or not the petitioners have the legal standing to
cellophane seized should be returned to petitioner. assail the legality of search warrants issued against the
corporation of which they were officers.
SO ORDERED.
2.) Whether or not the search warrants issued partakes the
nature of a general search warrants.
In this case, the Burgos (D) was arrested on the sole basis of Whether or not there is a violation of the constitutional
Masamlok's verbal report. Masamlok led the authorities to right against unreasonable search and seizure
suspect that the accused had committed a crime. They were
still fishing for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on the basis of Ruling:
information from the lips of a frightened wife cannot make the
arrest lawful. If an arrest without warrant is unlawful at the The Supreme Court held that under Section 5 Rule 113
moment it is made, generally nothing that happened or is of the Rules of Court provides:
discovered afterward can make it lawful. The fruit of a
poisoned tree is necessarily also tainted.
Arrest without warrant; when lawful a peace officer or a
private person may, without a warrant, arrest a person:
PEOPLE VS MALMSTEDT
b) When an offense has in fact just been committed, and he The Supreme Court Held that warrantless arrest
has personal knowledge of facts indicating that the person to allowed under Rule 113 of the rules of court not justified
be arrested has committed it; and unless the accused was caught in flagrante or a crime was
about to be committed or had just been committed.
c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is A vessels and aircraft are subject to warrantless searches and
serving final judgment or temporary confined while his case is seizures for violation of the customs law because these
pending, or has escaped while being transferred from one vehicles may be quickly moved out of the locality or
confinement to another jurisdiction before the warrant can be secured.
Accused was searched and arrested while transporting
prohibited drugs. A crime was actually being committed by
the accused and he was caught in flagrante delicto, thus the In the present case, from the conflicting declarations of
the PC witnesses, it is clear that they had at least two days
search made upon his personal effects falls squarely under
within which they could have obtained a warrant to arrest and
paragraph 1 of the foregoing provision of law, which allows a
search Aminnudin who was coming to Iloilo on the M/V
warrantless search incident to a lawful arrest.
Wilcon 9. His name was known. The vehicle was identified.
The date of his arrival was certain. And from the information
Probable cause has been defined as such facts and they have received, they could have persuaded a judge that
circumstances which could lead a reasonable, discreet and there was a probable cause, indeed, to justify the issuance of a
prudent man to believe that an offense has been committed, warrant. Yet they did nothing. The Bill of Rights was ignored
and that the object sought in connection with the offense are in altogether because the PC lieutenant who was the head of the
the placed sought to be searched. arresting team had determine on his own authority that a
When NARCOM received the information that a Caucasian search warrant was not necessary.
travelling from Sagada to Baguio City was carrying with him
a prohibited drug, there was no time to obtain a search
warrant. The evidence of probable cause should be determined
by a judge and not law enforcement agents.
ACQUITTED
PEOPLE VS AMINNUDIN
Accused-appellants defense rests solely on denial. She The trial court brushed aside the defenses observation that
claimed that she was engaged in the buying and selling of there were discrepancies between the testimony of Sgt. Parajas
and the evidence presented, such as the color of the bag
allegedly taken from accused-appellant and the kind of With regard to the search of moving vehicles, this had been
marijuana taken from the bag, as immaterial. Similarly justified on the ground that the mobility of motor vehicles
brushed aside was the defenses contention that the evidence makes it possible for the vehicle to be searched to move out of
against accused-appellant, such as the Receipt of Property the locality or jurisdiction in which the warrant must be
Seized 10 and her signature thereon, 11 and the Booking Sheet sought. 17
and Arrest Report 12 and her signature thereon, 13 were
inadmissible due to the absence of counsel, since these were This in no way, however, gives the police officers unlimited
not confessions or extra-judicial statements. discretion to conduct warrantless searches of automobiles in
the absence of probable cause. When a vehicle is stopped and
Finally, the trial court did not give credence to the testimonies subjected to an extensive search, such a warrantless search has
of accused-appellant and her witness Nestor Yangkin, in view been held to be valid only as long as the officers conducting
of the testimony of Sgt. Parajas that he took the bag containing the search have reasonable or probable cause to believe before
the marijuana from accused-appellants lap. Moreover, the the search that they will find the instrumentality or evidence
court a quo observed that there was a discrepancy between the pertaining to a crime, in the vehicle to be searched. 18
testimonies of accused-appellant and Yangkin on the matter of
the 10 sacks of cabbage, which led the court to conclude that The NARCOM officers in the case at bar had probable cause
the former was in the act of transporting marijuana at the time to stop and search all vehicles coming from the north at Acop,
of her arrest. Tublay, Benguet in view of the confidential information they
received from their regular informant that a woman having the
Accused-appellant filed a motion for reconsideration, alleging same appearance as that of accused-appellant would be
that the marijuana leaves found in the bag taken from her was bringing marijuana from up north. They likewise have
inadmissible in evidence as it was the product of a warrantless probable cause to search accused-appellants belongings since
search, which motion was denied by the trial court for lack of she fits the description given by the NARCOM informant.
merit on November 22, 1988.chanrobles.com:cralaw:red
Since there was a valid warrantless search by the NARCOM
Aggrieved, Accused-appellant filed the instant appeal, alleging agents, any evidence obtained during the course of said search
that the court a quo erred (1) in not finding the warrantless is admissible against Accused-Appellant.chanrobles virtual
search conducted by the NARCOM agents as illegal and lawlibrary
unconstitutional, and (2) in admitting the illegally obtained
evidences and convicting her on the basis of said evidences. At any rate, no objection was raised by the accused-appellant
in the court below on the inadmissibility of the evidence
Accused-appellant is in error. against her on the ground that the same was obtained in a
warrantless search. This amounts to a waiver of the objection
The general rule regarding searches and seizures can be stated on the legality of the search and the admissibility of the
in this manner: no person shall be subjected to a search of his evidence obtained therefrom. 19 Amid a waiver, the court is
person, personal effects or belongings, or his residence except duty bound to admit the evidence. 20
by virtue of a search warrant or on the occasion of a lawful
arrest. 14 The basis for the rule can be found in Article III, Reviewing the evidence, We find the same sufficient to prove
Section 2 of the 1987 Constitution, which accused-appellants guilt beyond reasonable doubt.
states:jgc:chanrobles.com.ph
The prosecution had shown, primarily through the positive
"The right of the people to be secure in their persons, houses, testimony of Sgt. Parajas, that the bag containing the dried
papers, and effects against unreasonable searches and seizures marijuana leaves was taken from accused-appellants
of whatever nature and for any purpose, shall be inviolable, possession.
and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge She denies this fact and contends that the bag in question was
after examination under oath or affirmation of the complainant actually taken from the luggage carrier above the passenger
and the witnesses he may produce, and particularly describing seats and not from her. Indisputably, We have two opposing
the place to be searched, and the persons or things to be versions of what actually happened at the checkpoint in Km.
seized."cralaw virtua1aw library 16, Acop, Tublay, Benguet, resulting in the accused-
appellants apprehension, that of the prosecution and that of
Article III, Section 3 (2) further ordains that any evidence the defense. In situations like this, the matter of assigning
obtained in violation of the aforementioned right shall, among values to the testimony of witnesses is best performed by the
others, "be inadmissible for any purpose in any trial courts because, unlike appellate courts, they can weigh
proceeding."cralaw virtua1aw library such testimony in the light of the demeanor, conduct and
attitude of the witnesses at the trial. 21 The exception is when
The constitutional proscription against warrantless searches the trial court has overlooked certain facts of substance and
and seizures admits of certain exceptions. Aside from a search value that, if considered, might affect the result, 22 which We
incident to a lawful arrest, a warrantless search had been do not find in the instant case.
upheld in cases of a moving vehicle, 15 and the seizure of
evidence in plain view. 16 Moreover, Accused-appellants defense was weakened by the
fact that her witness Nestor Yangkin contradicted her on the present his passport when required to do so, that a warrantless
matter of the 10 sacks of vegetables appellant claims to have search was made of the personal effects of the accused. In
brought with her at the time of her arrest. Appellant claims she other words, the information received by the NARCOM
loaded the sacks of vegetables on the bus and tried to pay for agents that a certain Caucasian travelling from Sagada to
its fare, but that conductor Yangkin, put her off. Yangkin Baguio City was carrying prohibited drugs together with the
claims otherwise: the sacks of vegetables were loaded by a suspicious failure or refusal of the accused to present his
man who told him that the fare for the sacks will be paid upon passport, supplied the probable cause that reasonably led the
arrival in Baguio City, and that no one on the bus offered to NARCOM agents to believe that the said accused was then
pay for the same.cralawnad and there committing a crime. Thus
In weighing contrary declarations and statements, greater "Warrantless search of the personal effects of an accused has
weight must generally be given to the positive testimonies of been declared by this Court as valid, because of existence of
the prosecution witnesses than the denials of the Accused- probable cause, where the smell of marijuana emanated from a
Appellant. 23 plastic bag owned by the accused, or where the accused was
acting suspiciously, and attempted to flee."cralaw virtua1aw
Given the discrepancy on this point, the trial court correctly library
disregarded the corroborative testimony of Nestor Yangkin.
The matter of the ownership of the 10 sacks of vegetables is x x x
material since appellants reason for being on the bus was to
deliver these sacks to Baguio City. If the sacks of vegetables
are not hers, then the only conclusion that can be drawn is that "The receipt of information by NARCOM that a Caucasian
she was on her way to Baguio City to sell the marijuana found coming from Sagada had prohibited drugs in his possession,
in her possession. plus the suspicious failure of the accused to produce his
passport, taken together as a whole, led the NARCOM officers
As to the alleged discrepancies in the prosecutions case, such to reasonably believe that the accused was trying to hide
as the color of the stripes of the bag which contained the something illegal from the authorities. From these
marijuana and whether the items seized from accused- circumstances arose a probable cause which justified the
appellant were marijuana leaves or marijuana fruit tops, these warrantless search that was made on the personal effects of the
are minor in character and do not detract from the accused. In other words, the acts of the NARCOM officers in
prosecutions case since it was shown by the Receipt of requiring the accused to open his pouch bag and in opening
Property Seized, 24 which was signed by accused-appellant, one of the wrapped objects found inside said bag (which was
that these were the very items taken from her at the time of her discovered to contain hashish) as well as the two (2) travelling
arrest. bags containing two (2) teddy bears with hashish stuffed
inside them, were prompted by accuseds own attempt to hide
WHEREFORE, finding no error in the decision appealed his identity by refusing to present his passport, and by the
from, the same is hereby AFFIRMED in toto. Costs information received by the NARCOM that a Caucasian
against Accused-Appellant. coming from Sagada had prohibited drugs in his possession.
To deprive the NARCOM agents of the ability and facility to
SO ORDERED. act accordingly, including, to search even without warrant, in
the light of such circumstances, would be to sanction
Narvasa, C.J., Regalado and Melo, JJ., concur. impotence and ineffectiveness in law enforcement, to the
detriment of society." (198 SCRA 401).
Separate Opinions
In the case at bar, the NARCOM agents searched the bag of
the accused on the basis alone of an information they received
PADILLA, J., dissenting:chanrob1es virtual 1aw library that a woman, 23 years of age with naturally curly hair, and
52" or 53" in height would be transporting marijuana. The
Although there is a similarity in the factual circumstances of extensive search was indiscriminately made on all the
the case at bar with those of the Malmstedt case (GR No. baggages of all passengers of the bus where the accused was
91107, 19 June 1991, 198 SCRA 101) where the Court upheld riding, whether male or female, and whether or not their
the validity of the warrantless search, however, in the present physical appearance answered the description of the suspect as
case, I am of the view that the information alone received by described in the alleged information. If there really was such
the NARCOM agents, without other suspicious circumstances an information, as claimed by the NARCOM agents, it is a
surrounding the accused, did not give rise to a probable cause perplexing thought why they had to search the baggages of
justifying the warrantless search made on the bag of the ALL passengers, not only the bags of those who appeared to
accused. answer the description of the woman suspected of carrying
marijuana.
In the Malmstedt case, it will be recalled that no extensive
search was immediately made of the Personal effects of the Moreover, the accused was not at all acting suspiciously when
accused. It was only after the NARCOM agents noticed a the NARCOM agents searched her bag, where they allegedly
bulge on the waist of the accused (causing them to suspect that found the marijuana.
he was carrying a gun) and only after he failed or refused to
From the circumstances of the case at bar, it would seem that
the NARCOM agents were only fishing for evidence when
they searched the baggages of all the passengers, including Harris v. United States
that of the accused. They had no probable cause to reasonably 390 U.S. 234 (1968)
believe that the accused was the woman carrying marijuana
alluded to in the information they allegedly received. Thus, the U.S. Supreme Court
warrantless search made on the personal effects of herein
accused on the basis of mere information, without more, is to
Harris v. United States, 390 U.S. 234 (1968)
my mind bereft of probable cause and therefore, null and void.
It follows that the marijuana seized in the course of such
warrantless search was inadmissible in evidence. Harris v. United States
No. 92
A regulation of the Metropolitan Police Department requires PEOPLE OF THE PHILIPPINES, appellee, vs. DANILO
the officer who takes an impounded vehicle in charge to ASIS y FONPERADA and GILBERT
search the vehicle thoroughly, to remove all valuables from it, FORMENTO y SARICON, appellant.
and to attach to the vehicle a property tag listing certain
information about the circumstances of the impounding. DECISION
Pursuant to this regulation, and without a warrant, the
PANGANIBAN, J.:
arresting officer proceeded to the lot to which petitioner's car
had been towed in order to search the vehicle, to place a
property tag on it, to roll up the windows, and to lock the Circumstantial evidence that merely arouses suspicions or
doors. The officer entered on the driver's side, searched the gives room for conjecture is not sufficient to convict. It must do
car, and tied a property tag on the steering wheel. Stepping out more than just raise the possibility, or even the probability, of
of the car, he rolled up an open window on one of the back guilt. It must engender moral certainty. Otherwise, the
doors. Proceeding to the front door on the passenger side, the constitutional presumption of innocence prevails, and the
officer opened the door in order to secure the window and accused deserves acquittal.
door. He then saw the registration card, which lay face up on
the metal stripping over which
The Case
Page 390 U. S. 236
the door closes. The officer returned to the precinct, brought For automatic review before this Court is the March 8,
petitioner to the car, and confronted petitioner with the 2000 Decision[1] of the Regional Trial Court (RTC) of Manila
registration card. Petitioner disclaimed all knowledge of the (Branch 54) in Criminal Case No. 98-163090, finding Danilo
card. The officer then seized the card and brought it into the Asis y Fonperada and Gilbert[2] Formento y Saricon guilty
precinct. Returning to the car, he searched the trunk, rolled up beyond reasonable doubt of robbery with homicide aggravated
the windows, and locked the doors. by abuse of confidence, superior strength and treachery. The
decretal portion of the Decision reads as follows:
The sole question for our consideration is whether the officer
discovered the registration card by means of an illegal search. WHEREFORE, the two (2) accused are found guilty beyond
We hold that he did not. The admissibility of evidence found reasonable doubt of the crime of Robbery with Homicide with
as a result of a search under the police regulation is not the generic aggravating circumstances of abuse of confidence,
presented by this case. The precise and detailed findings of the superior strength and treachery; and each is sentenced to death
District Court, accepted by the Court of Appeals, were to the under Article 294, par. 1 of the Revised Penal Code; they are
effect that the discovery of the card was not the result of a also ordered to jointly and severally pay P100,000.00 as
search of the car, but of a measure taken to protect the car damages to the heirs of the victim.[3]
while it was in police custody. Nothing in the Fourth
Amendment requires the police to obtain a warrant in these Appellants were charged in an Information[4] dated
narrow circumstances. February 18, 1998, worded as follows:[5]
Once the door had lawfully been opened, the registration card, That on or about February 10, 1998, in the City of Manila,
with the name of the robbery victim on it, was plainly visible. Philippines, the said accused, conspiring and confederating
It has long been settled that objects falling in the plain view of together and mutually helping each other, did then and there
an officer who has a right to be in the position to have that wilfully, unlawfully and feloniously, with intent to gain and by
means of force and violence upon person, to wit: by then and closed the door and proceeded to Luneta, where [his] mother
there stabbing one YU HING GUAN @ ROY CHING with a exercises, to inform her of what he saw. After informing [his]
bladed instrument on the different parts of the body thereafter mother, Huang first went to the Chinatown Police Station and
take, rob and carry away the following, to wit: reported the incident; thereafter, he went to another station
located in Soler corner Reina Regente to report the incident
Cash money in the amount of P20,000.00 again.
one (1) wristwatch Diana Yu, the sister of the victim, testified that on February 9,
1998, before 8:30 oclock in the evening, she was in the office
of her brother where she was working at 1042 Benavidez St.,
one (1) gold necklace
Binondo, Manila. She saw the two appellants, namely: Danilo
Asis and Gilbert Formento, and her brother (the victim), who
and undetermined items are all deaf-mutes, talking in sign language. She testified that
Danilo Asis frequented the office of the victim, while Gilbert
or all in the total amount of P20,000.00 more or less, Formento came only on the night of February 9, 1998. At
belonging to said YU HING GUAN @ ROY CHING against around 8:30 oclock in the evening, she left the office, leaving
his will, to the damage and prejudice of the said owner in the both appellants and the victim behind. The following morning,
aforesaid amount more or less of P20,000.00, Philippine at around 7:30 oclock in the morning, her son, George Huang,
Currency, and as a result thereof, he sustained mortal stab informed her of her brothers (victims) death. Upon learning of
wounds which were the direct and immediate cause of his said incident, she went to the office where she saw her
death.[6] brothers body. She discovered that the sales proceeds of the
preceding day were missing and the necklace of her brother
When arraigned on July 9, 1998, both appellants pleaded (victim) which he always wore was also missing.
not guilty.[7] Found to be deaf-mutes, they were assisted, not
only by a counsel de oficio,[8] but also by an interpreter from the On re-direct examination, Diana testified that she suspected
Calvary Baptist Church. After due trial, appellants were found both appellants, especially Gilbert Formento, to have
guilty and sentenced to death. perpetrated the crime because of the fact that she saw the pair
of shorts of the victim in the bag of appellant Gilbert
Formento.
The Facts
Version of the Prosecution Jimmy Pagaduan testified that he was a helper in the Yu Hing
Guan Auto Supply for five years already. He saw the two
appellants everyday in the store of the victim. Furthermore, he
In its Brief,[9] the Office of the Solicitor General (OSG) testified that as far as he knows, Danilo Asis owed the victim
detailed the facts in the following manner: PhP 3,000.00 and that he saw a list thereof which the victim
showed him. On February 9, 1998, he left the store at around
The prosecution presented nine (9) witnesses. Although none 6:00 oclock in the evening and he saw both appellants
of them had actually seen the crime committed, strong and conversing with the victim.
substantial circumstantial evidence abound linking beyond
reasonable doubt both appellants to the crime. SPO2 Pablo Ileto of WPD Homicide Section testified that on
February 11, 1998, he was at Barangay Sto. Ni[]o, Hagunoy,
As culled from the records, hereunder are the pertinent facts of Bulacan together with Sgt. Napoleon Timbol, PO3 Luis Chico,
the case: and witness, Diana Yu. The three (3) of them were trying to
locate the whereabouts of appellant Gilbert Formento in
connection with the death of Yu Hing Guan a.k.a. Roy Ching.
George Huang, the nephew of the victim Yu Hing Guan a.k.a.
They coordinated with the Hagunoy Bulacan police and
Roy Ching, always passes by the store of the victim at 1042
searched the area. Diana Yu saw Gilbert Formento in a
Benavidez Street, Binondo, Manila to bring food stuff, ice and
delivery truck and she pointed him to them. Thereafter, they
other things to his uncle and mother, Diana Yu, who work[s]
invited Gilbert Formento to their office at the WPD Homicide
in the office of said store.
Section. But before going to the WPD station, they first
brought Gilbert Formento to his house. Upon reaching the
On February 9, 1998, at around 6:30 oclock in the morning, house, Diana Yu asked from the wife of the suspect for the
Huang arrived at the victims store and discovered that the steel stolen money. However, they could not understand each other,
door of the store was locked from the outside. When he so the wife gave Diana Yu the bag of Gilbert Formento where
opened the steel door, he found everything to be normal Diana Yu noticed the pair of shorts which belonged to the
except for the inner door which had always been left open but victim. PO2 Ileto noticed what appears to be blood stains on
which was closed at that time with only a chair blocking it. the pair of shorts.
When he removed the blocking chair, he discovered the body SPO1 Benito Cabatbat testified that he, together with SPO1
of his uncle, Yu Hing Guan a.k.a. Roy Ching (victim), lying Alfredo Opriasa, SPO1 Raul Olavario, the photographer SPO2
prostrate on the ground with a knife embedded on his nape. He Tabio, and fingerprint technician Domingo Daclan of the
District Crime Laboratory Division went to the crime scene to p.m., ahead of Gilbert Formento. He proceeded to PICC to
conduct the investigation on February 10, 1998. Upon arriving help his friend Nestor, a cigarette vendor.
at the scene, they saw the victim lying prostrate on the ground,
barefooted, and clad only in brief. He denied killing Ching. When he went back to Roy Chings
store at 10 a.m. the following day, he felt depressed upon
After photographing the victim, the team went upstairs where knowing that Roy Ching was dead. He was arrested and
traces of blood were seen on the second and third floors. incarcerated on that same day.[12](Citations omitted)
(b) The facts from which the inferences are derived are
proven; and In any event, appellants argument of illegal search and
seizure cannot simply be brushed aside, considering the
guarantee so sacredly enshrined in our Constitution.
(c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt. There is no question that appellants were collared without
any arrest warrant. Neither was there any valid search warrant
obtained against them. However, they never questioned the
legality of their arrest through a motion to quash the
Bloodstained Trousers
Information. Instead, they entered a plea of not guilty and
participated in the trial. Settled is the rule that any objection
The prosecution argues that the strongest piece of involving the arrest or the trial courts procedure of acquiring
evidence damning appellants is the victims bloodstained pair of jurisdiction over the person of the accused must be made before
short pants recovered from the bag of Gilbert Formento. It the arraignment; otherwise, the objection is deemed waived. [28]
argues that since the trousers were recovered from one of the Indeed, appellants do not now question the legality of their
appellants, then Rule 131 (j) of the Revised Rules of Court arrest. What they object to is the introduction of the
should apply. The said provision is worded, thus: bloodstained pair of shorts allegedly recovered from the bag of
Appellant Formento. They argue that the search was illegally
Sec. 3. Disputable presumptions. done, making the obtainment of the pair of shorts illegal and
taints them as inadmissible. The prosecution, on the other hand,
The following presumptions are satisfactory if uncontradicted, contends that it was the wife of appellant who voluntarily
but may be contradicted and overcome by other evidence: surrendered the bag that contained the bloodstained trousers of
the victim.[29] Her act, it claims, constituted a valid consent to
the search without a warrant.[30]
We clarify. Primarily, the constitutional right against we do not presume acquiescence [to] the loss of fundamental
unreasonable searches and seizures, being a personal one, rights.[35]
cannot be waived by anyone except the person whose rights are
invaded or who is expressly authorized to do so on his or her Neither can the OSG claim that appellants wife
behalf.[31] In the present case, the testimonies of the prosecution voluntarily surrendered the bag that contained the bloodstained
witnesses show that at the time the bloodstained pair of shorts trousers of the victim.[36] As admitted by Prosecution Witness
was recovered, Appellant Formento, together with his wife and PO2 Pablo Ileto, the victims sister and appellants wife cannot
mother, was present. Being the very subject of the search, understand each other.[37] Eventually, appellants wife gave the
necessarily, he himself should have given consent. Since he was belongings of Gilbert Formento where the bloodstained shorts
physically present, the waiver could not have come from any of the victim were recovered.[38] How can the surrender of
other person. appellants belongings in this case be voluntary, when the person
surrendering them did not even understand the person she was
The OSG cites Lopez v. Commissioner of communicating with?
Customs,[32] which validated a waiver of a warrantless search,
when a woman thought to be the wife of the accused -- but who To be sure, the OSG cannot even use the argument that the
later turned out to be a manicurist -- surrendered to the police search was made by a private individual, the victims sister, and
the papers belonging to the appellant. The instant appeal, thereby skirt the issue of constitutional protection against
however, presents a different situation, because here the unlawful searches by the State.
accused himself was present when the search was made. Hence, The victims sister herself testified against this argument
consent should have been obtained from or given by as follows:
him. In Lopez, the accused was not present when the search was
made; hence, the consent given by the occupant of the hotel ATTY. FONTANILLA
room was deemed the consent of the accused who was then
Q So Gilbert Formento was not wearing the alleged
renting the space.
trouser[s]?
The OSGs argument loses even more cogency when
A The bag was given by his mother or his wife, sir.
evaluated against the well-settled principles on searches and
seizures without warrants. Q To whom?
To constitute a valid waiver, it must be shown A To the policemen, sir.
that first, the right exists; second, the person involved had
knowledge, actual or constructive, of the existence of such a Q And they searched this, is that right?
right; and third, the person had an actual intention to relinquish A Yes sir.[39]
the right.[33] How could Appellant Formento have consented to
a warrantless search when, in the first place, he did not This testimony clearly forecloses the assertion that it was
understand what was happening at that moment? The not the police authorities who conducted the search. This
prosecution witnesses themselves testified that there was no testimony in fact belies that of PO2 Pablo Ileto[40] that it was the
interpreter to assist him -- a deaf-mute -- during the arrest, prosecution witness who was talking to appellants wife, and
search and seizure. Naturally, it would seem that he indeed who conducted the search that yielded the bloodstained
consented to the warrantless search, as the prosecution would shortpants.
want this Court to believe.
All told, the bloodstained pair of shorts was a piece of
As early as 1938, Justice Jose P. Laurel pointed out evidence seized on the occasion of an unlawful search and
in Pasion vda. de Garcia v. Locsin: seizure. Thus, it is tainted and should thus be excluded for being
the proverbial fruit of the poisonous tree.[41] In the language of
As the constitutional guaranty is not dependent upon any the fundamental law, it shall be inadmissible in evidence for any
affirmative act of the citizen, the courts do not place the purpose in any proceeding.[42]
citizen in the position of either contesting an officers authority
by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a Bloodstained Shirt
consent or an invitation thereto, but is merely a demonstration
of regard for the supremacy of the law.[34]
The prosecution then contends that when the other
appellant, Danilo Asis, was brought to the police station for
investigation the following day, the police found bloodstain on
his shirt.
This point becomes even more pronounced in the present
case, in which appellant is a deaf-mute, and there was no Again, this fact cannot be taken as an indication of guilt
interpreter to explain to him what was happening. His seeming on the part of Appellant Asis. It does not point to the conclusion
acquiescence to the search without a warrant may be attributed that he was involved in the crime charged against him. We
to plain and simple confusion and ignorance. cannot agree that since there was bloodstain on his clothing,
ergo, he committed the robbery and the attendant killing. At
Verily, courts indulge every reasonable presumption most, this piece of circumstantial evidence, taken with the other
against waiver of fundamental constitutional rights and x x x one, may lead to suspicion. But courts do not rely on
circumstantial evidence that merely arouses suspicion or As they themselves correctly observe, their complicity in
conjecture.[43] For circumstantial evidence to lead to conviction, the crime becomes even more doubtful because, as testified to
it must do more than just raise the mere possibility or even by his sister, the neighbors heard shouts; these could not have
probability of guilt.[44] It must engender moral certainty. come from deaf-mutes. Furthermore, appellants question the
non-presentation of the results of the tests conducted on the
fingerprints lifted from the crime scene.
Motive for the Crime
Robbery Completely
The Last Persons Seen Unsubstantiated
Talking with the Victim
DECISION xxxxxxxxx
PANGANIBAN, J.: A scrutiny of the evidence for the prosecution shows that the
events leading to the arrest of the accused started when SPO4
In acquitting the appellant, the Court reiterates the Nicolas Bolonia, chief of the PNP vice control section,
constitutional proscription that evidence (in this case, received a tip from his informer that the accused, Roel
prohibited drugs) seized without a valid search warrant is Encinada would be arriving on board the M/V Sweet Pearl at
inadmissible in any proceeding. A yield of incriminating about seven oclock in the morning of May 21, 1992. On cross-
evidence will not legitimize an illegal search. Indeed, the end examination SPO4 Bolonia testified that the information was
never justifies the means. given to him by his asset at about four oclock in the afternoon
of May 20, 1992. After receiving the tip he relayed the
information to SPO4 Cipriano Iligan, Jr., PNP chief of
intelligence.SPO4 Bolonia further declared that he would have
The Case
applied for a search warrant but there was simply no time for
it.
This principle is stressed in this appeal from the
Judgment,[1] promulgated on July 15, 1994 by the Regional xxxxxxxxx
Trial Court of Surigao City, Branch 32,[2] in Criminal Case No.
3668, convicting Appellant Roel Encinada of illegal In the later case of People vs. Tangliben (184 SCRA 220) the
transportation of prohibited drugs under Section 4 of Republic Supreme Court modified its ruling in the Aminuddin case
Act No. 6425, as amended by Batas Pambansa Blg. 179. when it held that the arrest and search is lawful when the
police had to act quickly and there was no more time to secure
An Information,[3] dated May 22, 1992, was filed by Third
a search warrant. It is noted that the tip was given to SPO4
Asst. Surigao City Prosecutor Virgilio M. Egay charging
Bolonia by his informant at about the closing time of the
appellant of said crime allegedly committed as follows:
offices of the various courts. He still had to inform SPO4
Iligan in order to coordinate with him. The boat carrying the
That on or about May 21, 1992, in the City of Surigao, accused was scheduled to dock in Surigao City at seven
Philippines, and within the jurisdiction of this Honorable oclock the following morning when the courts had not yet
Court, the above-named accused, in gross disregard of the opened.
prohibition of the provisions of Republic Act No. 6425 as
amended by Batas Pambansa Bilang 179, did then and there
It is therefore quite obvious that the police did not have
willfully, unlawfully and feloniously have in his possession,
enough time to apply for a search warrant in the interim. The
custody and control dried marijuana leaves weighing 800
police cannot be faulted for acting on the tip and for stopping
grams, more or less, which he transported to Surigao City
and searching the accused even without a warrant.
from Cebu City aboard a passenger ship, well knowing that
such acts are expressly prohibited by law.
In the case at bar, the accused was caught in flagrante
delicto in actual possession of the marijuana. The search made
Before arraignment, appellant, assisted by Counsel
upon his personal effects falls squarely under paragraph (a) of
Antonio Casurra, offered to plead guilty to a lesser
Rule 113, Section 5 of the 1985 Rules on Criminal Procedure
offense, i.e., illegal possession of prohibited drugs.[4] The trial
which allows a warrantless search as an incident to a lawful
court requested the prosecution to study the offer, [5] but the
arrest (People vs. Malmstedt, 198 SCRA 401).
records do not show any agreement on such proposal.
Upon his arraignment, appellant pleaded not guilty to the xxxxxxxxxxxx
charge.[6] After the prosecution presented its evidence, the
defense filed, with leave of court,[7] a Demurrer to Evidence WHEREFORE, premises considered, the demurrer to
dated September 1, 1993,[8] questioning the admissibility of the evidence in question is denied for lack of merit.
evidence which allegedly was illegally seized from
appellant. The court a quo denied the motion, ruling:[9]
After trial in due course, the assailed Judgment was
rendered, the decretal portion of which reads:
WHEREFORE, premises considered, the Court finds the hand over the plastic chairs, to which the latter complied (pp.
accused, Roel Encinada, guilty beyond reasonable doubt of the 5, 6, 17 TSN, March 3, 1993, pp. 30-32, 35 TSN, November
violation of Section 4, Article II, of Republic Act No. 6425 as 27, 1992).
amended by Batas Pambansa Bilang 179, and hereby
sentences him to suffer the penalty of life imprisonment and to Bolonia noticed that there were two small chairs, one green
pay a fine of twenty thousand pesos (P20,000.00) without and the other blue, stacked together and tied with a piece of
subsidiary imprisonment in case of insolvency; and to pay the string. Between the stack of chairs, there was a bulky
costs. package. Bolonia examined it closely and smelled the peculiar
scent of marijuana. Making a small tear in the cellophane
The marijuana (Exhibit B) involved in this case is hereby cover, Bolonia could see and smell the what appeared to be
forfeited to the government to be destroyed or disposed of marijuana, a prohibited drug (pp. 6-9 TSN, March 3, 1993,
pursuant to present rules and regulations. The two plastic Exh. B, D and sub-markings; pp. 32-34. 35-39 TSN,
chairs (Exhibits D and D-1) are also forfeited to the November 27, 1992).
government.
Encinada was brought to the central police station. Bolonia, in
the presence of one Nonoy Lerio who is a member of the local
The Facts media and a friend of Encinada, opened the package. It was
discovered that indeed, the contents consisted of dried leaves
known as marijuana. In the course of the investigation,
Version of the Prosecution Encinada surrendered to Bolonia his passenger ticket issued
by M/V Sweet Pearl (pp. 9-11 TSN, March 3, 1993, Exh. E;
pp. 34-35, 39-40 TSN, November 27, 1992).
The Solicitor General, in the Appellees Brief, recounts the
events leading to appellants arrest, as follows:[10] On July 13, 1992, Bolonia brought the package of dried leaves
for examination at the PNP Crime Laboratory at Camp
At around 4 p.m. of May 20, 1992, SPO4 Nicolas Bolonia was Evangelista, Cagayan de Oro City. The forensic chemist,
in his house when he received a tip from an informant that Inspector Vicente Armada, tested the leaves and confirmed
Roel Encinada would be arriving in Surigao City from Cebu that they were positive for marijuana. However, the marijuana
City in the morning of May 21, 1992 on board the M/V Sweet only weighed 610 grams, which Armada opined to be
Pearl bringing with him marijuana. Bolonia was then Chief of probably due to shrinkage and moisture loss (pp. 12-17, 19-21,
the Vice Control Squad of the Surigao City Police (pp. 27-29; 24-40, 41; TSN, November 27,1992, Exh. A, B. C and sub-
TSN, November 27, 1992, 34-40; p. 10, TSN, May 14, 1993). markings.)
8.b) Josephine Nodalo testified that she is a beautician, and In his Brief, appellant submits the following assignment
that she was one of the four (4) passengers of the motorela of errors:[13]
driven by Ruben Concha, which motorela was forcibly
stopped by men who are chasing it after travelling a distance
I. The lower court erred in finding that the accused was caught
of 5 to 10 meters away from its loading area near the PPA
in flagranti (sic) delicto in possession of the subject marijuana
Gate.
leaves and is the one responsible in transporting the same;
All the four (4) passengers were ordered to disembarked (sic)
II. The lower court gravely erred in finding that search and the
from the motorela whereupon they were all subjected to body
arrest of the accused without a warrant would fall under the
search including their (baggage).
doctrine of warrantless search as incident to a lawful arrest --
That it was the male passenger who was sitting at the rear
III. The lower court gravely erred in finding that the subject
portion of the motorela who was picked up by the Police
marijuana leaves is admissible in evidence
In short, the main issues are (1) the sufficiency of the the back of the motor and holding an (sic)
evidence showing possession of marijuana by appellant and (2) imaginary chairs with his left arm).
the validity of the search conducted on the person and
belongings of the appellant. Between these two contentions, the choice of the trial
court prevails because this is a matter that involves credibility
of witnesses. On this subject of credibility, the opinion of the
trial court deserves great respect as it was in a better position to
The Courts Ruling observe the demeanor and deportment of the witnesses on the
stand;[15] hence, it was in a superior situation to assess their
testimonies.
The petition is meritorious.
Furthermore, proof of ownership of the marijuana is not
necessary in the prosecution of illegal drug cases;[16] it is
sufficient that such drug is found in appellants possession.
First Issue: Illegal Possession of Prohibited Drugs
Appellant claims that the prosecution failed to prove his Second Issue: Illegal Search and Seizure
possession and ownership of the plastic baby chairs. He
contends that the testimonies of Bolonia and Iligan conflicted
as to the number of passengers riding the motorela. Such Based on the foregoing discussion, appellants conviction
alleged conflict is peripheral and irrelevant. Hence, it deserves could have been affirmed by this Court. However, the very
scant consideration. Appellant adds that such testimonies also evidence implicating him -- the prohibited drugs found in his
conflicted as to the place where appellant sat inside possession -- cannot be used against him in this case or, for that
the motorela. This claim, aside from being flimsy, is also not matter, in any proceeding.
supported by the transcript of stenographic notes.
Generally, a search and seizure must be validated by a
In his testimony, appellant vehemently denied possession previously secured warrant; otherwise, such search and seizure
of the plastic baby chairs, stressing that he was not holding them is subject to challenge.[17] Section 2, Article III of the 1987
when the search was conducted. However, his denial is easily Constitution, is apropos:
rebutted by Bolonias testimony:[14]
SEC. 2. The right of the people to be secure in their persons,
Q: When you saw Roel Encinada who disembarked
houses, papers, and effects against unreasonable searches and
from M/V Sweet Pearl, what did you observe
seizures of whatever nature and for any purpose shall be
in his person, if any?
inviolable, and no search warrant or warrant of arrest shall
A: He was carrying a (sic) baby chairs. issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
Q: What kind of chairs? complainant and the witnesses he may produce, and
A: A (sic) plastic chairs. particularly describing the place to be searched and the
persons or things to be seized.
xxxxxxxxx
Any evidence obtained in violation of this provision is
Q: After you saw Roel Encinada disembarked (sic)
legally inadmissible in evidence as a fruit of the poisonous tree.
from the boat, what did you and your
This principle is covered by this exclusionary rule:
companions do?
A: We followed him behind because we posted in SEC. 3. x x x
the different direction(s) in the wharf.
xxxxxxxxx (2) Any evidence obtained in violation of x x x the preceding
section shall be inadmissible for any purpose in any
Q: You said you followed Roel Encinada, what proceeding.
happened next when you followed him?
A: I saw Roel Encinada took (sic) a ride with a The plain import of the foregoing provision is that a search
motorcycle so I chased him and let him and seizure is normally unlawful unless authorized by a validly
stopped (sic). issued search warrant or warrant of arrest. This protection is
based on the principle that, between a citizen and the police, the
xxxxxxxxx magistrate stands as a mediator, nay, an authority clothed with
power to issue or refuse to issue search warrants or warrants of
Q: By the way, where was (sic) this (sic) two
arrest.[18]
plastic chairs placed in the motorize tricycle?
The right against warrantless searches, however, is subject
A: He was sitting at the back of the motor at the
to legal and judicial exceptions, as follows: (1) search
right portion of the seat and the chairs was
incidental to a lawful arrest, (2) search of moving vehicles, (3)
(sic) placed besides him. ([W]itness indicating
seizure in plain view, (4) customs searches, and (5) waiver by
that he was sitting (sic) an imaginary seat at
the accused themselves of their right against unreasonable intelligence information is not a sufficient ground for a
search and seizure.[19] In these cases, the search and seizure may warrantless arrest. Bolonias testimony shows that the search
be made only upon probable cause as the essential preceded the arrest:[21]
requirement. Although the term eludes exact definition,
probable cause signifies a reasonable ground of suspicion Q: You said you followed Roel Encinada, what
supported by circumstances sufficiently strong in themselves to happened next when you followed him?
warrant a cautious mans belief that the person accused is guilty A: I saw Roel Encinada took (sic) a ride with a
of the offense with which he is charged; or the existence of such motorcycle so I chased him and let him
facts and circumstances which could lead a reasonably discreet stopped (sic).
and prudent man to believe that an offense has been committed
and that the item(s), article(s) or object(s) sought in connection xxxxxxxxx
with said offense or subject to seizure and destruction by law is
Q: You said you stopped the motor tricycle in
in the place to be searched.[20]
which Roel Encinada (sic) riding, what did
In this case, Bolonia received at 4:00 p.m. on May 20, you do?
1992 an intelligence report that appellant who was carrying
A: At first I identified myself to the driver and to
marijuana would arrive the next morning aboard the M/V Sweet
some of the passengers.
Pearl.Although such report could have been the basis of
probable cause, Bolonia explained that he could not secure a xxxxxxxxx
warrant because the courts in Surigao City were already closed
for the day.Thus, he and the other lawmen had no choice but to Q: And after that, what happened next?
proceed the next morning to the port area. After appellant A: I requested Roel Encinada to disembark from
disembarked from the ship and rode a motorela, Bolonia the motor tricycle because of that information
stopped the motor vehicle and conducted the search. He given to us in his possession.
rummaged through the two strapped plastic baby chairs which
were held by appellant and found inserted between them a Q: Possession of what?
package of marijuana wrapped in a small plastic envelope.
A: Possession of marijuana, Sir.
Appellant contended before the lower court that the
warrantless search of his belongings was proscribed by the Q: And Roel Encinada alighted from the motor
Constitution. But the trial judge rejected this contention, vehicle?
opining that appellant was caught in flagrante delicto at the A: Yes, Sir.
time of his arrest. Hence, it concluded that the warrantless
search conducted after his lawful arrest was valid and that the Q: After Roel Encinada alighted from the motor
marijuana was admissible in evidence. tricycle, what happened next?
Rule 113, Section 5, discusses the instances when a A: I requested to him to see his chairs that he
warrantless arrest may be effected, as follows: carried.
Contrary to the trial courts ruling, People vs.
SEC. 5. Arrest without warrant; when lawful.A peace officer Tangliben[22] is factually inapplicable to the case at bar. The
or a private person may, without a warrant, arrest a person: prosecutions evidence did not show any suspicious behavior
when the appellant disembarked from the ship or while he rode
(a) When, in his presence, the person to be arrested has the motorela. No act or fact demonstrating a felonious
committed, is actually committing, or is attempting to commit enterprise could be ascribed to appellant under such bare
an offense; circumstances.
We disagree with the trial courts justification for the
(b) When an offense has in fact just been committed, and he
search:
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
The arrest of the accused without warrant was lawful because
there was a probable cause or ground for his
(c) When the person to be arrested is a prisoner who has
apprehension. The police had received reliable, albeit
escaped from a penal establishment or place where he is
confidential information from their informant that Roel
serving final judgment or temporarily confined while his case
Encinada would be bringing in marijuana from Cebu City on
is pending, or has escaped while being transferred from one
board the M/V Sweet Pearl. Unfortunately there was no more
confinement to another.
time for the police to apply for and secure a search warrant as
the information was received late in the afternoon of May 20,
x x x x x x x x x. 1992 and the accused was expected to arrive at seven oclock
In this case, appellant was not committing a crime in the the following morning. The different courts were closed by
presence of the Surigao City policemen. Moreover, the lawmen then. Nevertheless the police felt constrained to act on the
did not have personal knowledge of facts indicating that the valuable piece of information.
person to be arrested had committed an offense. The search
cannot be said to be merely incidental to a lawful arrest. Raw
Even if the information was received by Bolonia about In People vs. Aminnudin, the Court declared as
4:00 p.m. of May 20, 1992 at his house, there was sufficient inadmissible in evidence the marijuana found in appellants
time to secure a warrant of arrest, as the M/V Sweet Pearl was possession during a search without a warrant, because it had
not expected to dock until 7:00 a.m. the following been illegally seized. The Court firmly struck down the
day. Administrative Circular No. 13 allows applications for policemens cavalier disregard for the Bill of Rights, explaining:
search warrants even after court hours:
The present case presented no urgency. From the
conflicting declarations of the PC witnesses, it is clear that they
3. Rafflling shall be strictly enforced, except only in case had at least two days within which they could have obtained a
where an application for search warrant may be filed directly warrant to arrest and search Aminnudin who was coming to
with any judge in whose jurisdiction the place to be searched Iloilo on the M/V Wilcon 9. His name was known. The vehicle
is located, after office hours, or during Saturdays, Sundays, was identified. The date of its arrival was certain. And from the
and legal holidays, in which case the applicant is required to information they had received, they could have persuaded a
certify under oath the urgency of the issuance thereof after judge that there was probable cause, indeed, to justify the
office hours, or during Saturdays, Sundays and legal holidays; issuance of a warrant. Yet they did nothing. No effort was made
(Emphasis supplied) to comply with the law. The Bill of Rights was ignored
altogether because the PC lieutenant who was the head of the
The same procedural dispatch finds validation and arresting team, had determined on his own authority that a
reiteration in Circular No. 19, series of 1987, entitled Amended search warrant was not necessary.
Guidelines and Procedures on Applications for Search Warrants
for Illegal Possession of Firearms and Other Serious Crimes Lawmen cannot be allowed to violate the very law they
Filed in Metro Manila Courts and Other Courts with Multiple are expected to enforce. Bolonias receipt of the intelligence
Salas: information regarding the culprits identity, the particular crime
he allegedly committed and his exact whereabouts underscored
This Court has received reports of delay while awaiting raffle, the need to secure a warrant for his arrest. But he failed or
in acting on applications for search warrants in the campaign neglected to do so. Such failure or neglect cannot excuse him
against loose firearms and other serious crimes affecting peace from violating a constitutional right of the appellant.
and order. There is a need for prompt action on such It is significant that the Solicitor General does not share
applications for search warrant. Accordingly, these amended the trial judges opinion. Taking a totally different approach to
guidelines in the issuance of a search warrant are issued: justify the search, the Republics counsel avers that appellant
voluntarily handed the chairs containing the package of
1. All applications for search warrants relating to violation of marijuana to the arresting officer and thus effectively waived
the Anti-subversion Act, crimes against public order as his right against the warrantless search. This, he gleaned from
defined in the Revised Penal Code, as amended, illegal Bolonias testimony:[23]
possession of firearms and/or ammunition and violations of
the Dangerous Drugs Act of 1972, as amended, shall no Q: After Roel Encinada alighted from the motor
longer be raffled and shall immediately be taken cognizance of tricycle, what happened next?
and acted upon by the Executive Judge of the Regional Trial A: I requested to him to see his chairs that he
Court, Metropolitan Trial Court, and Municipal Trial Court carried.
under whose jurisdiction the place to be searched is located.
Q: Are you referring to the two plastic chairs?
2. In the absence of the Executive Judge, the Vice-Executive A: Yes, Sir.
Judge shall take cognizance of and personally act on the
same. In the absence of the Executive Judge or Vice- Q: By the way, when Roel Encinada agreed to
Executive Judge, the application may be taken cognizance of allow you to examine the two plastic chairs
and acted upon by any judge of the Court where the that he carried, what did you do next?
application is filed.
A: I examined the chairs and I noticed that
something inside in between the two chairs.
3. Applications filed after office hours, during Saturdays,
Sundays and holidays, shall likewise be taken cognizance of We are not convinced. While in principle we agree that
and acted upon by any judge of the Court having jurisdiction consent will validate an otherwise illegal search, we believe that
of the place to be searched, but in such cases the applicant appellant -- based on the transcript quoted above -- did not
shall certify and state the facts under oath, to the satisfaction voluntarily consent to Bolonias search of his
of the judge, that its issuance is urgent. belongings. Appellants silence should not be lightly taken as
consent to such search.[24] The implied acquiescence to the
4. Any judge acting on such application shall immediately and search, if there was any, could not have been more than mere
without delay personally conduct the examination of the passive conformity given under intimidating or coercive
applicant and his witnesses to prevent the possible leakage of circumstances and is thus considered no consent at all within
information. He shall observe the procedures, safeguards, and the purview of the constitutional guarantee.[25] Furthermore,
guidelines for the issuance of search warrants provided for in considering that the search was conducted
this Courts Administrative Circular No. 13, dated October 1, irregularly, i.e., without a warrant, we cannot appreciate
1985.
consent based merely on the presumption of regularity of the
performance of duty.
Appellants alleged acquiescence should be distinguished PEOPLE VS. ARUTA [288 SCRA 626; G.R. NO. 120515; 13
from the consent appreciated in the recent case of People vs. APR 1998]
Lacerna.[26] In said case, the search was conducted at a validly Friday, February 06, 2009 Posted by Coffeeholic Writes
established checkpoint and was made in the regular Labels: Case Digests, Political Law
performance of the policemens duty. Although it became
intrusive when the policemen opened his baggage, it was Facts: On Dec. 13, 1988, P/Lt. Abello was tipped off by his
validated by the consent of appellant, who testified in open informant that a certain Aling Rosa will be arriving from
court that he allowed such search because he had nothing to Baguio City with a large volume of marijuana and assembled a
hide. In the present case, there was no checkpoint team. The next day, at the Victory Liner Bus terminal they
established. The policemen stopped the motorela and forthwith waited for the bus coming from Baguio, when the informer
subjected the passengers to a search of their persons and pointed out who Aling Rosa was, the team approached her
baggage. In contrast to the accused in Lacerna, herein appellant and introduced themselves as NARCOM agents. When Abello
testified that he openly objected to the search by asking for a asked aling Rosa about the contents of her bag, the latter
warrant. handed it out to the police. They found dried marijuana leaves
Without the illegally seized prohibited drug, the packed in a plastic bag marked cash katutak.
appellants conviction cannot stand. There is simply no
sufficient evidence remaining to convict him. That the search Instead of presenting its evidence, the defense filed a demurrer
disclosed a prohibited substance in appellants possession, and to evidence alleging the illegality of the search and seizure of
thus confirmed the police officers initial information and the items. In her testimony, the accused claimed that she had
suspicion, did not cure its patent illegality. An illegal search just come from Choice theatre where she watched a movie
cannot be undertaken and then an arrest effected on the strength Balweg. While about to cross the road an old woman asked
of the evidence yielded by the search. her for help in carrying a shoulder bag, when she was later on
arrested by the police. She has no knowledge of the identity of
We should stress that the Court is not unmindful of the the old woman and the woman was nowhere to be found. Also,
difficulties of law enforcement agencies in suppressing the no search warrant was presented.
illegal traffic of dangerous drugs. However, quick solutions of
crimes and apprehensions of malefactors do not justify a callous The trial court convicted the accused in violation of
disregard of the Bill of Rights. Law enforcers are required to the dangerous drugs of 1972
follow the law and to respect the peoples rights. Otherwise,
their efforts become counterproductive. We remind them of this
recent exhortation by this Court:[27] Issue: Whether or Not the police correctly searched and seized
the drugs from the accused.
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 Held: The following cases are specifically provided or allowed
rights. Some lawmen, prosecutors and judges may still tend to by law:
gloss over an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime regardless of 1. Warrantless search incidental to a lawful arrest recognized
the methods by which they were obtained. This kind of under Section 12, Rule 126 of the Rules of Court 8 and by
attitude condones law-breaking in the name of law prevailing jurisprudence
enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual 2. Seizure of evidence in "plain view," the elements of which
denigration of society. While this Court appreciates and are: (a) a prior valid intrusion based on the valid warrantless
encourages the efforts of law enforcers to uphold the law and arrest in which the police are legally present in the pursuit of
to preserve the peace and security of society, we nevertheless their official duties; (b) the evidence was inadvertently
admonish them to act with deliberate care and within the discovered by the police who had the right to be where they are;
parameters set by the Constitution and the law. Truly, the end (c) the evidence must be immediately apparent, and (d) "plain
never justifies the means. view" justified mere seizure of evidence without further search;
WHEREFORE, the appeal is hereby GRANTED. The 3. Search of a moving vehicle. Highly regulated by the
assailed Decision is REVERSED and SET ASIDE. Appellant government, the vehicle's inherent mobility reduces expectation
is ACQUITTED. Unless convicted for any other crime or of privacy especially when its transit in public thoroughfares
detained for some lawful reason, Appellant Roel Encinada furnishes a highly reasonable suspicion amounting to probable
is ORDERED RELEASED immediately. cause that the occupant committed a criminal activity;
5. Customs search;
6. Stop and Frisk; Section 7. Right to break door or window to effect search.
The officer, if refused admittance to the place of
7. Exigent and Emergency Circumstances. directed search after giving notice of his purpose and authority,
may break open any outer or inner door or window of a house
The essential requisite of probable cause must still be satisfied or any part of a house or anything therein to execute the warrant
before a warrantless search and seizure can be lawfully or liberate himself or any person lawfully aiding him when
conducted. unlawfully detained therein.
The accused cannot be said to be committing a crime, she was Section 12. Delivery of property and inventory thereof to court;
merely crossing the street and was not acting suspiciously for return and proceedings thereon.
the Narcom agents to conclude that she was committing a
crime. There was no legal basis to effect a warrantless arrest of (a) The officer must forthwith deliver the property seized to the
the accuseds bag, there was no probable cause and the accused judge who issued the warrant, together with a true inventory
was not lawfully arrested. thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the
The police had more than 24 hours to procure a search warrant issuing judge shall ascertain if the return has been made, and if
and they did not do so. The seized marijuana was illegal and none, shall summon the person to whom the warrant was issued
inadmissible evidence. and require him to explain why no return was made. If the return
has been made, the judge shall ascertain whether section 11 of
this Rule has been complained with and shall require that the
RULE 113, RULES OF COURT property seized be delivered to him. The judge shall see to it
that subsection (a) hereof has been complied with.
Section 5. Arrest without warrant; when lawful. A peace (c) The return on the search warrant shall be filed and kept by
officer or a private person may, without a warrant, arrest a thecustodian of the log book on search warrants who shall enter
person: therein the date of the return, the result, and other actions of the
judge.
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting A violation of this section shall constitute contempt of court.
to commit an offense;
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed
it; and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final Terry v. Ohio
judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another.
In cases falling under paragraph (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the Citation. 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)
nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112. Brief Fact Summary. The Petitioner, John W. Terry (the
Petitioner), was stopped and searched by an officer after the
officer observed the Petitioner seemingly casing a store for a
RULE 126, RULES OF COURT potential robbery. The officer approached the Petitioner for
questioning and decided to search him first.
Section 2. Court where application for search warrant shall be
filed. Anapplication for search warrant shall be filed with Synopsis of Rule of Law. An officer may perform a search for
the following: weapons without a warrant, even without probable cause, when
the officer reasonably believes that the person may be armed
a) Any court within whose territorial jurisdiction a crime was and dangerous.
committed.
b) For compelling reasons stated in the application, any court
within the judicial region where the crime was committed if the Facts. The officer noticed the Petitioner talking with another
place of the commission of the crime is known, or any court individual on a street corner while repeatedly walking up and
within the judicial region where the warrant shall be enforced. down the same street. The men would periodically peer into a
store window and then talk some more. The men also spoke to
However, if the criminal action has already been filed, a third man whom they eventually followed up the street. The
the application shall only be made in the court where the officer believed that the Petitioner and the other men were
criminal action is pending. casing a store for a potential robbery. The officer decided to
approach the men for questioning, and given the nature of the
behavior the officer decided to perform a quick search of the policemen, whereupon the two tried to run but unable
men before questioning. A quick frisking of the Petitioner to escape because the other lawmen surrounded them. The
produced a concealed weapon and the Petitioner was charged suspects were then searched. One of them the accused-
with carrying a concealed weapon. appellant was found with a .38 caliber with live ammunitions in
it, while his companion had a fan knife. The weapons were
Issue. Whether a search for weapons without probable cause taken from them and they were turned over to the police
for arrest is an unreasonable search under the Fourth headquarters for investigation. An information was filed before
Amendment to the United States Constitution (Constitution)? the RTC convicting the accused of illegal possession of firearm
arm. A witness testified that the weapon was among the articles
stolen at his shop, which he reported to the police including the
revolver. For his part, Mengote made no effort to prove that he
owned the fire arm or that he was licensed to possess it but
Held. The Supreme Court of the United States (Supreme instead, he claimed that the weapon was planted on him at the
Court) held that it is a reasonable search when an officer time of his arrest. He was convictedfor violation of P.D.1866
performs a quick seizure and a limited search for weapons on a and was sentenced to reclusion perpetua. In his appeal he pleads
person that the officer reasonably believes could be armed. A that the weapon was not admissible as evidence against him
typical beat officer would be unduly burdened by being because it had been illegally seized and therefore the fruit of a
prohibited from searching individuals that the officer suspects poisonous tree.
to be armed.
Dissent. Justice William Douglas (J. Douglas) dissented, Issue: Whether or not the warrantless search and arrest was
reasoning that the majoritys holding would grant powers to illegal.
officers to authorize a search and seizure that even a magistrate
would not possess.
Held: An evidence obtained as a result of an illegal search and
Concurrence. seizure inadmissible in any proceeding for any purpose as
Justice John Harlan (J. Harlan) agreed with the majority, but provided by Art. III sec 32 of the Constitution. Rule 113 sec.5
he emphasized an additional necessity of the reasonableness of of the Rules of Court, provides arrest without warrant lawful
the stop to investigate the crime. when: (a) the person to be arrested has committed, is actually
Justice Byron White (J. White) agreed with the majority, but committing, or is attempting to commit an offense, (b) when the
he emphasized that the particular facts of the case, that there offense in fact has just been committed, and he has personal
was suspicion of a violent act, merit the forcible stop and frisk. knowledge of the facts indicating the person arrested has
committed it and (c) the person to be arrested has escaped from
a penal establishment or a place where he is serving final
Discussion. The facts of the case are important to understand judgment or temporarily confined while his case is pending, or
the Supreme Courts willingness to allow the search. The has escaped while being transferred from one confinement to
suspicious activity was a violent crime, armed robbery, and if another.
the officers suspicions were correct then he would be in a
dangerous position to approach the men for questioning These requirements have not been established in the case at bar.
without searching them. The officer also did not detain the At the time of the arrest in question, the accused appellant was
men for a long period of time to constitute an arrest without merely looking from side to side and holding his abdomen,
probable cause. according to the arresting officers themselves. There was
apparently no offense that has just been committed or was being
actually committed or at least being attempt by Mengote in their
presence. Moreover a person may not be stopped and frisked in
a broad daylight or on a busy street on unexplained suspicion.
[G.R. Nos. 119772-73. February 7, 1997] That on or about the 30th day of August 1994, at the arrival
area of Ninoy Aquino International Airport, Pasay City, x x x,
the above-named accused not being authorized by law, did,
then and there wilfully, unlawfully and feloniously import and
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. bring into the Philippines 5579.80 grams of heroin which is
NIGEL RICHARD GATWARD, and U AUNG legally considered as a prohibited drug. (Information also
WIN, accused, NIGEL RICHARD dated Sept. 14, 1994)
GATWARD, accused-appellant.
Accused Nigel Richard Gatward in Criminal Case No. 94-
DECISION 6268 pleaded not guilty of the charge when arraigned.
REGALADO, J.:
On the other hand, accused U Aung Win in Criminal Case No.
94-6269, assisted by Atty. Willy Chan of the Public Attorneys
The accession into our statute books on December 31, Office of the Department of Justice, entered a plea of guilty of
1993 of Republic Act No. 7659,[1] which authorized the re- the crime charged upon his arraignment. Since it is a capital
imposition of the death penalty and amended certain provisions offense, the Court asked searching questions to determine the
of the Revised Penal Code and the Dangerous Drugs Act of voluntariness and the full comprehension by the accused of the
1972, raised the level of expectations in the drive against consequences of his plea. The accused manifested that he was
criminality. As was to be expected, however, some innovations entering a plea of guilty voluntarily without having been
therein needed the intervention of this Court for a judicial forced or intimidated into doing it. The nature of the charge
interpretation of amendments introduced to the dangerous drugs was explained to him, with emphasis that the offense carries
law.[2] with it the penalty of reclusion perpetua to death and his
The same spin-off of novelty, this time by the new pleading guilty of it might subject him to the penalty of
provision fixing the duration of reclusion perpetua which death. The accused answered that he understood fully the
theretofore had not been spelled out with specificity in the charge against him and the consequences of his entering a plea
Revised Penal Code, produced some conflicting constructions, of guilty. The defense counsel likewise made an assurance in
more specifically on whether such penalty is divisible or open court that he had explained to U Aung Win the nature of
indivisible in nature. That is actually the major issue in these the charge and the consequences of his pleading guilty of it.
cases, the factual scenario and the culpability of both accused
having been. Having been thus apprised, the accused still maintained his
plea of guilty of the offense charged against him. Since the
The antecedents being undisputed, and with a careful offense admitted by him is punishable by death, the case was
review and assessment of the records of this case having still set for trial for the reception of the evidence of the
sustained the same, we reproduce hereunder the pertinent parts prosecution to prove the guilt and the degree of culpability of
of the decision of the trial court jointly deciding the criminal the accused and that of the defense to establish mitigating
cases separately filed against each of the accused. Although circumstances.
only one of them, Nigel Richard Gatward, has appealed his
conviction to us, for reasons hereinafter explained we shall
Upon motion of the prosecution without any objection from
likewise include the disposition by the court a quo of the case
the defense, these two cases were consolidated and tried
against U Aung Win.
jointly, since the offenses charged arose from a series of
1. The lower court stated the cases against the related incidents and the prosecution would be presenting
accused, the proceedings therein and its findings common evidence in both.
thereon, as follows:
At about 3:30 in the afternoon of August 30, 1994, accused U
In Criminal Case No. 94-6268, the accused is charged with Aung Win, a passenger of TG Flight No. 620 of the Thai
violating Section 4 of Republic Act No. 6425, the Dangerous Airways which had just arrived from Bangkok, Thailand,
Drugs Act of 1972, allegedly in this manner: presented his luggage, a travelling bag about 20 inches in
length, 14 inches in width and 10 inches in thickness, for
That on or about the 31st (sic) day of August 1994, in the examination to Customs Examiner Busran Tawano, who was
vicinity of the Ninoy Aquino International Airport, Pasay assigned at the Arrival Area of the Ninoy Aquino International
City, x x x , the above-named accused not being authorized by Airport (NAIA) in Pasay City. The accused also handed to
law, did then and there wilfully, unlawfully and feloniously Tawano his Customs Declaration No. 128417 stating that he
transport heroin (2605.70 grams and 2632.0 grams) contained had no articles to declare. When Tawano was about to inspect
in separate carton envelopes with a total weight of 5237.70 his luggage, the accused suddenly left, proceeding towards the
grams which is legally considered as a prohibited direction of Carousel No. 1, the conveyor for the pieces of
drug. (Information dated Sept. 14, 1994) luggage of the passengers of Flight No. 620, as if to retrieve
another baggage from it.
After having inspected the luggages of the other incoming they arrived in the hotel. It was gathered by the law enforcers
passengers, Tawano became alarmed by the failure of U Aung that Gatward and Zaw Win Naing were scheduled to leave for
Win to return and suspected that the bag of the accused Bangkok on board a KLM flight.
contained illegal articles. The Customs Examiner reported the
matter to his superiors. Upon their instructions, the bag was On August 31, 1994, operatives of the NAIA Customs Police
turned over to the office of the Customs Police in the NAIA mounted a surveillance operation at the Departure Area for
for x-ray examination where it was detected that it contained Gatward and Zaw Win Naing who might be leaving the
some powdery substance. When opened, the bag revealed two country. At about 7:45 p.m. of the same date, Special Agent
packages containing the substance neatly hidden in between Gino Minguillan of the Customs Police made a verification on
its partitions. Representative samples of the substance were the passenger manifest of KLM Royal Dutch Airlines Flight
examined by Elizabeth Ayonon, a chemist of the Crime No. 806, bound for Amsterdam via Bangkok, which was
Laboratory Service of the Philippine National Police (PNP) scheduled to depart at about 7:55 that evening. He found the
assigned at the Arrival Area of the NAIA, and by Tita name GATWARD/NRMR listed therein as a passenger for
Advincula, another chemist of the PNP Crime Laboratory Amsterdam and accordingly informed his teammates who
Service at Camp Crame, and found to be positive for responded immediately.Customs Police Captain Juanito
heroin. The two chemists concluded that the entire substance, Algenio requested Victorio Erece, manager of the KLM airline
with a total weight of 5,579.80 grams, contained in the two at the NAIA, to let passenger Gatward disembark from the
packages found in the bag of U Aung Win, is heroin. aircraft and to have his checked-in luggage, if any,
unloaded. The manager acceded to the request to off-load
A manhunt was conducted to locate U Aung Win. The Gatward but not to the unloading of his check-in bag as the
personnel of the Bureau of Immigration and Deportation in the plane was about to depart and to do so would unduly delay the
NAIA were asked to place the accused in the hold order flight. However, Erece made an assurance that the bag would
list. The offices of the different airlines in the airport were also be returned immediately to the Philippines on the first
alerted to inform the Enforcement and Security Service and available flight from Bangkok. Upon his disembarkment,
the Customs Police Division of the NAIA of any departing Gatward was invited by the police officers for investigation.
passenger by the name of U Aung Win who would check in at
their departure counters. A team was likewise sent to the Park At about 3:00 oclock in the afternoon of September 1, 1994,
Hotel in Belen St., Paco, Manila, which accused U Aung Win Gatwards luggage, a travelling bag almost of the same size as
had indicated in his Customs Declaration as his address in the that of U Aung Win, was brought back to the NAIA from
Philippines. But the accused was not found in that hotel. Bangkok through the Thai Airways, pursuant to the request of
Erece which was telexed in the evening of August 31, 1994, to
At about 7:45 p.m. of the same date of August 30, 1994, Rey the KLM airline manager in Bangkok. Upon its retrieval, the
Espinosa, an employee of the Lufthansa Airlines, notified the law enforcers subjected the bag to x-ray examinations in the
commander of the NAIA Customs Police District Command presence of accused Gatward and some Customs officials. It
that a certain Burmese national by the name of U Aung Win was observed to contain some powdery substance. Inside the
appeared at the check-in counter of the airline as a departing bag were two improvised envelopes made of cardboard each
passenger. Immediately, a team of law enforcers proceeded to containing the powdery substance, together with many
the Departure Area and apprehended the accused after he had clothes. The envelopes were hidden inside the bag, one at the
been identified through his signatures in his Customs side in between a double-wall, the other inside a partition in
Declaration and in his Bureau of Immigration and Deportation the middle. Upon its examination by Chemists Ayonon and
Arrival Card. Customs Examiner Tawano also positively Advincula pursuant to the request of Police Senior Inspector
identified the accused as the person who left his bag with him John Campos of the NARCOM, the powdery substance
at the Arrival Area of the NAIA. contained in the two cardboard envelopes, with a net weight of
5,237.70 grams, was found to be heroin.[3]
During the investigation of U Aung Win, the agents of the
Customs Police and the Narcotics Command (NARCOM) The court below made short shrift of the defense raised by
gathered the information that the accused had a contact in herein appellant. Apart from the well-known rule on the respect
Bangkok and that there were other drug couriers in the accorded to the factual findings of trial courts because of the
Philippines. Following the lead, a team of lawmen, together vantage position they occupy in that regard, we accept its
with U Aung Win, was dispatched to the City Garden Hotel in discussion thereon by reason of its clear concordance with the
Mabini St., Ermita, Manila, to enable U Aung Win to tenets of law and logic. Again we quote:
communicate with his contact in Bangkok for further
instructions. While the police officers were standing by, they Accused Gatward denied that the bag containing the heroin
noticed two persons, a Caucasian and an oriental, alight from a was his luggage. However, that the said bag belongs to him is
car and enter the hotel. U Aung Win whispered to Customs convincingly shown by the fact that the serial number of the
Police Special Agent Edgar Quiones that he recognized the luggage tag, which is KL 206835, corresponds to the serial
two as drug couriers whom he saw talking with his contact in number of the luggage claim tag attached to the plane ticket of
Bangkok named Mau Mau. The members of the team were the accused. Moreover, as testified to by Manager Erece of the
able to establish the identity of the two persons as accused KLM airline, the luggage of Gatward located in Container No.
Nigel Richard Gatward and one Zaw Win Naing, a Thailander, 1020 of KLM Flight No. 806 was the same luggage which was
from the driver of the hotel service car used by the two when returned to the NAIA on September 1, 1994, on board Thai
Airways TG Flight No. 620, pursuant to the request made by 2. It is, however, the penalties imposed by the trial court
him to the KLM manager in Bangkok. The testimony of Erece on the two accused which this Court cannot fully accept. This
should be given weight in accordance with the presumption is the presentation made, and the rationalization thereof, by the
that the ordinary course of business has been followed. (Sec. court below:
3(q), Rule 131, Revised Rules on Evidence). No circumstance
was shown by the defense which would create a doubt as to According to Section 20 of the Dangerous Drugs Act of 1972,
the identity of the bag as the luggage of Gatward which he as amended by Republic Act No. 7659, the penalties for the
checked in for KLM Flight No. 806 for Amsterdam with offenses under Sections 3 and 4 of the said Act shall be
stopover in Bangkok. applied if the dangerous drugs involved, with reference to
heroin, is 40 grams or more. Since the heroin subject of each
Accused Gatward was present during the opening of his bag of these two cases exceeds 40 grams, it follows that the
and the examination of its contents. He was also interviewed penalty which may be imposed on each accused shall range
by some press reporters in connection with the prohibited drug from reclusion perpetua to death.
found in the bag.Gatward did not then disclaim ownership of
the bag and its heroin contents. His protestations now that the To fix the proper penalty, it becomes necessary to determine
bag does not belong to him should be deemed as an whether any mitigating or aggravating circumstance had
afterthought which deserves no credence. attended the commission of the offenses charged against the
accused. With respect to Gatward, no aggravating or
Gatward posited that he checked in a different bag when he mitigating circumstance was shown which might affect his
boarded KLM Flight No. 806, explaining that upon his criminal liability. Relative to U Aung Win, no aggravating
apprehension by the agents of the NAIA Customs Police, he circumstance was likewise established by the
threw away the claim tag for the said luggage. He alleged that prosecution.However, the voluntary plea of guilty of the said
the said bag contained, among other things, not only important accused, which was made upon his arraignment and therefore
documents and papers pertaining to his cellular phone before the presentation of the evidence of the prosecution,
business in the pursuit of which he came to the Philippines, should be appreciated as a mitigating circumstance.
but also money amounting to L 1,500.00. Gatward stressed
that the bag did not have any illegal articles in it. If this were Under Article 63 of the Revised Penal Code, which prescribes
so, it was unusual for him, and certainly not in accordance the rules for the application of indivisible penalties, in all
with the common habit of man, to have thrown away the claim cases in which the law prescribes a penalty composed of two
tag, thereby in effect abandoning the bag with its valuable indivisible penalties, the lesser penalty shall be applied, if
contents. Not having been corroborated by any other evidence, neither mitigating nor aggravating circumstances are present
and being rendered unbelievable by the circumstances in the commission of the crime, or if the act is attended by a
accompanying it as advanced by him, the stand of accused mitigating circumstance and there is no aggravating
Gatward that his luggage was different from that which circumstance. However, this rule may no longer be followed
contained the 5,237.70 grams of heroin in question commands in these cases, although the penalty prescribed by law
outright rejection.[4] is reclusion perpetua to death, since reclusion perpetua, which
was an indivisible penaltybefore, is now a divisible penalty
The trial court was also correct in rejecting the challenge with a duration from 20 years and one (1) day to 40 years, in
to the admissibility in evidence of the heroin retrieved from the accordance with Article 27 of the Revised Penal Code, as
bag of appellant. While no search warrant had been obtained for amended by Republic Act No. 7659.
that purpose, when appellant checked in his bag as his personal
luggage as a passenger of KLM Flight No. 806 he thereby Consequently, the penalty of reclusion perpetua to death
agreed to the inspection thereof in accordance with customs should at present be deemed to fall within the purview of the
rules and regulations, an international practice of strict penalty prescribed which does not have one of the forms
observance, and waived any objection to a warrantless specially provided for in the Revised Penal Code, the periods
search. His subsequent arrest, although likewise without a of which shall be distributed, applying by analogy the
warrant, was justified since it was effected upon the discovery prescribed rules, in line with Article 77 of the Revised Penal
and recovery of the heroin in his bag, or in flagrante delicto. Code. Pursuant to this principle, the penalty of reclusion
The conviction of accused U Aung Win in Criminal Case perpetua to death shall have the following periods: Death, as
No. 94-6269 is likewise unassailable. His culpability was not the maximum; thirty (30) years and one (1) day to forty (40)
based only upon his plea of guilty but also upon the evidence of years, as the medium; and twenty (20) years and one (1) day to
the prosecution, the presentation of which was required by the thirty (30) years, as the minimum.
lower court despite said plea. The evidence thus presented
convincingly proved his having imported into this country the As there is no mitigating or aggravating circumstance shown
heroin found in his luggage which he presented for customs to have attended the commission of the offense charged
examination upon his arrival at the international airport. There against Gatward, the penalty to be imposed on him shall be
was, of course, no showing that he was authorized by law to within the range of the medium period. On the other hand,
import such dangerous drug, nor did he claim or present any since U Aung Win is favored by one mitigating circumstance
authority to do so. without any aggravating circumstance to be taken against him,
the penalty which may be imposed on him shall be within the
range of the minimum period. (Art. 64(1) & (2), Revised Penal reflection, wish to continue with an appeal would not need to
Code) prove merit but could simply notify the courts of his wish to
withdraw and that would be the end of the matter. To be sure,
The accused in these cases may not enjoy the benefit of Act this is not the first time that members of foreign embassies and
No. 4103, the Indeterminate Sentence Law, for under Section consulates feel that they have a right to intrude into our judicial
2 of the said Act, its provisions shall not apply to those affairs and processes, to the extent of imposing their views on
convicted of offenses punished with life imprisonment, which our judiciary, seemingly oblivious or arrogantly disdainful of
has been interpreted by the Supreme Court as similar to the the fact that our courts are entitled to as much respect as those
penalty of reclusion perpetua as far as the non-application of in their own countries.
the Indeterminate Sentence Law is concerned.(People vs. Such faux pas notwithstanding, a reply was sent to Mr.
Simon, G.R. No. 93028, July 29, 1994)[5] Evans informing him that, while there is no arrangement
whereby a foreign consular officer may intervene in a judicial
On those considerations, the trial court handed down its proceeding in this Court but out of courtesy as enjoined in
verdict on March 3, 1995 finding both accused guilty as Republic Act No. 6713, the unauthorized pleading of appellant
charged, thus: was made under unacceptable circumstances as explained in
said reply; that it is not mandatory on this Court to dismiss an
WHEREFORE, in Criminal Case No. 94-6268, accused Nigel appeal on mere motion of an appellant; that the Court does not
Richard Gatward is found guilty beyond reasonable doubt of discuss or transmit notices of judicial action except to counsel
transporting, without legal authority therefor, 5,237.70 grams of the parties; and that, should he so desire, he could coordinate
of heroin, a prohibited drug, in violation of Section 4 of with appellants counsel whose address was furnished therein.[8]
Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended by Republic Act No. 7659; In a resolution dated June 19, 1996, appellants counsel
and there being no aggravating or mitigating circumstance was ordered to show cause why he should not be disciplinarily
shown to have attended the commission of the crime, he is dealt with or held for contempt for his failure to file appellants
sentenced to suffer the penalty of imprisonment for thirty-five brief. On July 24, 1996, said counsel and the Solicitor General
(35) years of reclusion perpetua and to pay a fine of Five were required to comment on the aforestated motion of
Million Pesos (P5,000,000.00). appellant to withdraw his appeal, no brief for him having yet
been filed. Under date of September 6, 1996, the Solicitor
General filed his comment surprisingly to the effect that the
In Criminal Case No. 94-6269, accused U Aung Win is found People interposed no objection to the motion to withdraw
guilty beyond reasonable doubt of importing or bringing into appeal. Appellants counsel, on the other hand, manifested on
the Philippines 5,579.80 grams of heroin, a prohibited drug, November 4, 1996 that he was willing to file the brief but he
without being authorized by law to do so, contrary to Section could not do so since appellant asked for time to consult his
3 of Republic Act No. 6425, the Dangerous Drugs Act of pastor who would later inform said counsel, but neither that
1972, as amended by Republic Act No. 7659; and in view of pastor nor appellant has done so up to the present.
the presence of one (1) mitigating circumstance of voluntary
plea of guilty, without any aggravating circumstance to offset It would then be worthwhile to restate for future
it, he is sentenced to suffer the penalty of imprisonment for referential purposes the rules in criminal cases on the
twenty-five (25) years of reclusion perpetua and to pay a fine withdrawal of an appeal pending in the appellate courts. The
of One Million Pesos (P1,000,000.00). basic rule is that, in appeals taken from the Regional Trial Court
to either the Court of Appeals or the Supreme Court, the same
The heroin involved in these cases is declared forfeited in may be withdrawn and allowed to be retracted by the trial court
favor of the government and ordered turned over to the before the records of the case are forwarded to the appellate
Dangerous Drugs Board for proper disposal. court.[9] Once the records are brought to the appellate court,
only the latter may act on the motion for withdrawal of
With costs de oficio.[6] appeal.[10] In the Supreme Court, the discontinuance of appeals
before the filing of the appellees brief is generally
permitted.[11] Where the death penalty is imposed, the review
It is apropos to mention at this juncture that during the shall proceed notwithstanding withdrawal of the appeal as the
pendency of this appeal, and while awaiting the filing of review is automatic and this the Court can do without the
appellants brief on an extended period granted to his counsel de benefit of briefs or arguments filed by the appellant.[12]
parte, the Court received on September 5, 1995 a
mimeographed form of a so-called Urgent Motion to Withdraw In the case at bar, however, the denial of the motion to
Appeal. It bears the signature of appellant but without the withdraw his appeal by herein appellant is not only justified but
assistance or signature of his counsel indicated thereon. No is necessary since the trial court had imposed a penalty based
reason whatsoever was given for the desired withdrawal and on an erroneous interpretation of the governing law
considering the ambient circumstances, the Court resolved on thereon. Thus, in People vs. Roque,[13] the Court denied the
September 27, 1995 to deny the same for lack of merit.[7] motion of the accused to withdraw his appeal, to enable it to
correct the wrongful imposition by the trial court of the penalty
On June 10, 1996, a letter was received from one H.M. of reclusion temporal to reclusion perpetua for the crime of
Consul M.B. Evans of the British Embassy, Consular Section, simple rape, in clear derogation of the provisions of Article 335
Manila, seeking an explanation for the aforesaid resolution and of the Revised Penal Code and the Indeterminate Sentence
with the representation that a convicted person who did not, on Law. Similarly, in another case,[14] the motion to withdraw his
appeal by the accused, whose guilt for the crime of murder was litigations.[18] The Court, this time, held that in spite of the
undeniable and for which he should suffer the medium period amendment putting the duration of reclusion perpetua at 20
of the imposable penalty which is reclusion perpetua, was not years and 1 day to 40 years, it should remain as an indivisible
allowed; otherwise, to permit him to recall the appeal would penalty since there was never any intent on the part of Congress
enable him to suffer a lesser indeterminate sentence erroneously to reclassify it into a divisible penalty. This is evident from the
decreed by the trial court which imposed the minimum of the undisputed fact that neither Article 63 nor Article 76 of the
penalty for murder, that is, reclusion temporal in its maximum Code had been correspondingly altered, to wit:
period.
Verily, if reclusion perpetua was reclassified as a
In the cases at bar, the same legal obstacle constrained the divisible penalty, then Article 63 of the Revised Penal Code
Court to deny appellants motion to withdraw his appeal. The would lose its reason and basis for existence. To illustrate, the
trial court had, by considering reclusion perpetua as a divisible first paragraph of Section 20 of the amended R.A. No. 6425
penalty, imposed an unauthorized penalty on both accused provides for the penalty of reclusion perpetua to death
which would remain uncorrected if the appeal had been allowed whenever the dangerous drugs involved are of any of the
to be withdrawn. In fact, it would stamp a nihil obstantium on a quantities stated therein. If Article 63 of the Code were no
penalty that in law does not exist and which error, initially longer applicable because reclusion perpetua is supposed to be
committed by this Court in another case on which the trial court a divisible penalty, then there would be no statutory rules for
relied, had already been set aright by this Court. determining when either reclusion perpetua or death should be
the imposable penalty. In fine, there would be no occasion for
3. As amended by Republic Act No. 7659, the respective imposing reclusion perpetua as the penalty in drug cases,
penalties imposable under Sections 3 and 4 of the Dangerous regardless of the attendant modifying circumstances.
Drugs Act, in relation to Section 20 thereof, would range
from reclusion perpetua to death and a fine of P500,000.00 This problem revolving around the non-applicability of
to P10,000,000.00 if the quantity of the illegal drug involved, the rules in Article 63 assumes serious proportions since it does
which is heroin in this case, should be 40 grams or more. In the not involve only drug cases, as aforesaid. Under the amendatory
same amendatory law, the penalty of reclusion perpetua is now sections of R.A. No. 7659, the penalty of reclusion perpetua to
accorded a defined duration ranging from twenty (20) years and death is also imposed on treason by a Filipino (Section 2),
one (1) day to forty (40) years, through the amendment qualified piracy (Section 3), parricide (Section 5), murder
introduced by it to Article 27 of the Revised Penal Code. (Section 6), kidnapping and serious illegal detention (Section
8), robbery with homicide (Section 9), destructive arson
This led the trial court to conclude that said penalty is now (Section 10), rape committed under certain circumstances
divisible in nature, and that (c)onsequently, the penalty (Section 11), and plunder (Section 12).
of reclusion perpetua to death should at present be deemed to
fall within the purview of the penalty prescribed which does not In the same resolution, the Court adverted to its holding
have one of the forms specially provided for in the Revised in People vs. Reyes, [19] that while the original Article 27 of the
Penal Code, and the periods of which shall be distributed by an Revised Penal Code provided for the minimum and the
analogous application of the rules in Article 77 of the maximum ranges of all the penalties therein, from arresto
Code. Pursuant to its hypothesis, the penalty of reclusion menor to reclusion temporal but with the exceptions of bond to
perpetua to death shall have the following periods: death, as the keep the peace, there was no parallel specification of either the
maximum; thirty (30) years and one (1) day to forty (40) years, minimum or the maximum range of reclusion perpetua. Said
as the medium; and twenty (20) years and one (1) day to thirty article had only provided that a person sentenced to suffer any
(30) years, as the minimum.[15] of the perpetual penalties shall, as a general rule, be extended
pardon after service thereof for 30 years. Likewise, in laying
We cannot altogether blame the lower court for down the procedure on successive service of sentence and the
this impass'e since this Court itself inceptively made an application of the three-fold rule, the duration of perpetual
identical misinterpretation concerning the question on the penalties is computed at 30 years under Article 70 of the Code.
indivisibility of reclusion perpetua as a penalty. In People vs.
Lucas,[16] the Court was originally of the view that by reason of Furthermore, since in the scales of penalties provided in
the amendment of Article 27 of the Code by Section 21 of the Code, specifically those in Articles 25, 70 and 71, reclusion
Republic Act No. 7569, there was conferred upon said penalty perpetua is the penalty immediately higher than reclusion
a defined duration of 20 years and 1 day to 40 years; but that temporal, then its minimum range should by necessary
since there was no express intent to convert said penalty into a implication start at 20 years and 1 day while the maximum
divisible one, there having been no corresponding amendment thereunder could be co-extensive with the rest of the natural life
to Article 76, the provisions of Article 65 could be applied by of the offender. However, Article 70 provides that the
analogy. The Court then declared that reclusion perpetua could maximum period in regard to service of the sentence shall not
be divided into three equal portions, each portion composing a exceed 40 years.
period. In effect, reclusion perpetua was then to be considered
as a divisible penalty. Thus, the maximum duration of reclusion perpetua is not
and has never been 30 years which is merely the number of
In a subsequent re-examination of and a resolution in said years which the convict must serve in order to be eligible for
case on January 9, 1995, occasioned by a motion for pardon or for the application of the three-fold rule. Under these
clarification thereof,[17] the Court en banc realized the accepted propositions, the Court ruled in the motion for
misconception, reversed its earlier pronouncement, and has clarification in the Lucas case that Republic Act No. 7659 had
since reiterated its amended ruling in three succeeding appellate
simply restated existing jurisprudence when it specified the Nor can it be said that, despite the failure of the accused
duration of reclusion perpetua at 20 years and 1 day to 40 years. to appeal, his case was reopened in order that a higher penalty
may be imposed on him. There is here no reopening of the case,
The error of the trial court was in imposing the penalties as in fact the judgment is being affirmed but with a correction
in these cases based on the original doctrine in Lucas which was of the very substance of the penalty to make it conformable to
not yet final and executory, hence open to reconsideration and law, pursuant to a duty and power inherent in this Court.The
reversal. The same having been timeously rectified, appellant penalty has not been changed since what was decreed by the
should necessarily suffer the entire extent of 40 years trial court and is now being likewise affirmed by this Court is
of reclusion perpetua, in line with that reconsidered dictum the same penalty of reclusion perpetua which, unfortunately,
subsequently handed down by this Court. In passing, it may be was imposed by the lower court in an elemental form which is
worth asking whether or not appellant subsequently learned of non-existent in and not authorized by law. Just as the penalty
the amendatory resolution of the Court under which he stood to has not been reduced in order to be favorable to the accused,
serve up to 40 years, and that was what prompted him to move neither has it been increased so as to be prejudicial to him.
posthaste for the withdrawal of his appeal from a sentence of 35
years. Finally, no constitutional or legal right of this accused is
violated by the imposition upon him of the corrected duration,
4. The case of U Aung Win ostensibly presents a more inherent in the essence and concept, of the penalty. Otherwise,
ticklish legal poser, but that is not actually so. It will be recalled he would be serving a void sentence with an illegitimate penalty
that this accused was found guilty and sentenced to suffer the born out of a figurative liaison between judicial legislation and
penalty of reclusion perpetua supposedly in its minimum unequal protection of the law. He would thus be the victim of
period, consisting of imprisonment for 25 years, and to pay a an inadvertence which could result in the nullification, not only
fine of P1,000,000.00. He did not appeal, and it may be of the judgment and the penalty meted therein, but also of the
contended that what has been said about the corrected duration sentence he may actually have served. Far from violating any
of the penalty of reclusion perpetua which we hold should be right of U Aung Win, therefore, the remedial and corrective
imposed on appellant Gatward, since reclusion perpetua is measures interposed by this opinion protect him against the risk
after all an indivisible penalty, should not apply to this accused. of another trial and review aimed at determining the correct
Along that theory, it may be asserted that the judgment period of imprisonment.
against accused U Aung Win has already become final. It may WHEREFORE, the judgment of the court a quo,
also be argued that since Section 11(a) of Rule 122 provides specifically with regard to the penalty imposed on accused-
that an appeal taken by one accused shall not affect those who appellant Nigel Richard Gatward in Criminal Case No. 94-6268
did not appeal except insofar as the judgment of the appellate and that of accused U Aung Win in Criminal Case No. 94-6269,
court is favorable and applicable to the latter, our present is hereby MODIFIED in the sense that both accused are
disposition of the correct duration of the penalty imposable on sentenced to serve the penalty of reclusion perpetua in its entire
appellant Gatward should not affect accused U Aung Win since duration and full extent. In all other respects, said judgment is
it would not be favorable to the latter. To use a trite and tired hereby AFFIRMED, but with costs to be assessed against both
legal phrase, those objections are more apparent than real. accused in all instances of these cases.
At bottom, all those postulations assume that the penalties SO ORDERED.
decreed in the judgment of the trial court are valid, specifically
in the sense that the same actually exist in law and are
authorized to be meted out as punishments. In the case of U
Aung Win, and the same holds true with respect to Gatward, the
penalty inflicted by the court a quo was a nullity because it was
never authorized by law as a valid punishment. The penalties
which consisted of aliquot one-third portions of an indivisible
penalty are self-contradictory in terms and unknown in penal SECOND DIVISION
law. Without intending to sound sardonic or facetious, it was
akin to imposing the indivisible penalties of public censure, or
perpetual absolute or special disqualification, or death in their
minimum or maximum periods. G. R. Nos. 102009-10 July 6, 1994
This was not a case of a court rendering an erroneous
judgment by inflicting a penalty higher or lower than the one PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
imposable under the law but with both penalties being legally vs.
recognized and authorized as valid punishments. An erroneous ROLANDO DE GRACIA, CHITO HENSON and JOHN
judgment, as thus understood, is a valid judgment.[20] But a DOES, accused. ROLANDO DE GRACIA, accused-
judgment which ordains a penalty which does not exist in the appellant.
catalogue of penalties or which is an impossible version of that
in the roster of lawful penalties is necessarily void, since the The Solicitor General for plaintiff-appellee.
error goes into the very essence of the penalty and does not
merely arise from the misapplication thereof. Corollarily, such Nicolas R. Ruiz, II for accused-appellant.
a judgment can never become final and executory.
REGALADO, J.: constituted authorities, for the purpose of
overthrowing the Government of the
The incidents involved in this case took place at the height of Republic of the Philippines, disrupting and
the coup d' etat staged in December, 1989 by ultra-rightist jeopardizing its activities and removing
elements headed by the Reform the Armed Forces Movement- from its allegiance the territory of the
Soldiers of the Filipino People (RAM-SFP) against the Philippines or parts thereof. 2
Government. At that time, various government establishments
and military camps in Metro Manila were being bombarded by In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito
the rightist group with their "tora-tora" planes. At around Henson, Lamberto Bicus, Rodolfo Tor and several John Does
midnight of November 30, 1989, the 4th Marine Battalion of were charged with attempted homicide allegedly committed
the Philippine Marines occupied Villamor Air Base, while the on December 1, 1989 in Quezon City upon the person of
Scout Rangers took over the Headquarters of the Philippine Crispin Sagario who was shot and hit on the right thigh.
Army, the Army Operations Center, and Channel 4, the
government television station. Also, some elements of the Appellant was convicted for illegal possession of firearms in
Philippine Army coming from Fort Magsaysay occupied the furtherance of rebellion, but was acquitted of attempted
Greenhills Shopping Center in San Juan, Metro Manila. 1 homicide.
Accused-appellant Rolando de Gracia was charged in two During the arraignment, appellant pleaded not guilty to both
separate informations for illegal possession of ammunition and charges. However, he admitted that he is not authorized to
explosives in furtherance of rebellion, and for attempted possess any firearms, ammunition and/or explosive. 3 The
homicide, docketed as Criminal Cases Nos. Q-90-11755 and parties likewise stipulated that there was a rebellion during the
Q-90-11756, respectively, which were tried jointly by the period from November 30 up to December 9, 1989. 4
Regional Trial Court of Quezon City, Branch 103.
The records show that in the early morning of December 1,
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito 1989, Maj. Efren Soria of the Intelligence Division, National
Henson and several John Does whose true names and Capital Region Defense Command, was on board a brown
identities have not as yet been ascertained, were charged with Toyota car conducting a surveillance of the Eurocar Sales
the crime of illegal possession of ammunition and explosives Office located at Epifanio de los Santos Avenue in Quezon
in furtherance of rebellion, penalized under Section 1, City, together with his team composed of Sgt. Crispin Sagario,
paragraph 3, of Presidential Decree No. 1866, allegedly M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one S/Sgt.
committed as follows: Simon and a Sgt. Ramos. The surveillance, which actually
started on the night of November 30, 1989 at around 10:00
That on or about the 5th day of P.M., was conducted pursuant to an intelligence report
DECEMBER, 1989, in QUEZON CITY, received by the division that said establishment was being
METRO MANILA, PHILIPPINES, and occupied by elements of the RAM-SFP as a communication
within the jurisdiction of this Honorable command post.
Court, the above-named accused, conspiring
and confederating together and mutually Sgt. Crispin Sagario, the driver of the car, parked the vehicle
helping one another, and without authority around ten to fifteen meters away from the Eurocar building
of law, did then and there willfully, near P. Tuazon Street, S/Sgt. Henry Aquino had earlier
unlawfully, feloniously and knowingly have alighted from the car to conduct his surveillance on foot. A
in their possession, custody and control, the crowd was then gathered near the Eurocar office watching the
following to wit: on-going bombardment near Camp Aguinaldo. After a while,
a group of five men disengaged themselves from the crowd
Five (5) bundles of C-4 or and walked towards the car of the surveillance team. At that
dynamites moment, Maj. Soria, who was then seated in front, saw the
Six (6) cartoons of M-16 approaching group and immediately ordered Sgt. Sagario to
ammunition at 20 each start the car and leave the area. As they passed by the group,
One hundred (100) bottles then only six meters away, the latter pointed to them, drew
of MOLOTOV bombs their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the
without first securing the necessary license surveillance team was able to retaliate because they sought
and/or permit to possess the same from the cover inside the car and they were afraid that civilians or
proper authorities, and armed with said bystanders might be caught in the cross-fire.
dynamites, ammunition and explosives and
pursuant to their conspiracy heretofore As a consequence, at around 6:30 A.M. of December 5, 1989,
agreed upon by them and prompted by a searching team composed of F/Lt. Virgilio Babao as team
common designs, come to an agreement and leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang,
decision to commit the crime of rebellion, and elements of the 16th Infantry Battalion under one Col.
by then and there participating therein and delos Santos raided the Eurocar Sales Office. They were able
publicly taking arms against the duly to find and confiscate six cartons of M-16 ammunition, five
bundles of C-4 dynamites, M-shells of different calibers, furtherance of rebellion and sentenced him to serve the penalty
and "molotov" bombs inside one of the rooms belonging to a of reclusion perpetua. Moreover, it made a recommendation
certain Col. Matillano which is located at the right portion of that "(i)nasmuch as Rolando de Gracia appears to be merely
the building. Sgt. Oscar Obenia, the first one to enter the executing or obeying orders and pursuant to the spirit
Eurocar building, saw appellant De Gracia inside the office of contained in the 2nd paragraph of Art. 135, R. P. C., the court
Col. Matillano, holding a C-4 and suspiciously peeping recommends that Rolando de Gracia be extended executive
through a door. De Gracia was the only person then present clemency after serving a jail term of five (5) years of good
inside the room. A uniform with the nametag of Col. behavior.
Matillano was also found. As a result of the raid, the team
arrested appellant, as well as Soprieso Verbo and Roberto That judgment of conviction is now challenged before us in
Jimena who were janitors at the Eurocar building. They were this appeal.
then made to sign an inventory, written in Tagalog, of the
explosives and ammunition confiscated by the raiding team.
Appellant principally contends that he cannot be held guilty of
No search warrant was secured by the raiding team because, illegal possession of firearms for the reason that he did not
according to them, at that time there was so much disorder have either physical or constructive possession thereof
considering that the nearby Camp Aguinaldo was being
considering that he had no intent to possess the same; he is
mopped up by the rebel forces and there was simultaneous
neither the owner nor a tenant of the building where the
firing within the vicinity of the Eurocar office, aside from the
ammunition and explosives were found; he was merely
fact that the courts were consequently closed. The group was
employed by Col. Matillano as an errand boy; he was guarding
able to confirm later that the owner of Eurocar office is a the explosives for and in behalf of Col. Matillano; and he did
certain Mr. Gutierrez and that appellant is supposedly a "boy" not have actual possession of the explosives. He claims that
therein.
intent to possess, which is necessary before one can be
convicted under Presidential Decree No. 1866, was not present
Appellant Rolando de Gracia gave another version of the in the case at bar.
incident. First, he claims that on November 30, 1989, he was
in Antipolo to help in the birthday party of Col. Matillano. He
Presidential Decree No. 1866 provides as
denies that he was at the Eurocar Sales Office on December 1,
follows:
1989. Second, he contends that when the raiding team arrived
at the Eurocar Sales Office on December 5, 1989, he was
inside his house, a small nipa hut which is adjacent to the Sec. 1. Unlawful Manufacture, Sale,
building. According to him, he was tasked to guard the office Acquisition, Disposition or Possession of
of Col. Matillano which is located at the right side of the Firearms or Ammunition or Instruments
building. He denies, however, that he was inside the room of Used or intended to be Used in the
Col. Matillano when the raiding team barged in and that he Manufacture of Firearms or Ammunition.
had explosives in his possession. He testified that when the The penalty of reclusion temporal in its
military raided the office, he was ordered to get out of his maximum period to reclusion perpetua shall
house and made to lie on the ground face down, together with be imposed upon any person who shall
"Obet" and "Dong" who were janitors of the building. He unlawfully manufacture, deal in, acquire,
avers that he does not know anything about the explosives and dispose, or possess any firearms, part of
insists that when they were asked to stand up, the explosives firearms, ammunition or machinery, tool or
were already there. instrument used or intended to be used in the
manufacture of any firearm or ammunition.
Appellant stated that he visited Col. Matillano in 1987 at the
stockade of the Philippine Constabulary-Integrated National If homicide or murder is committed with the
Police (PC-INP), and that he knew Matillano was detained use of an unlicensed firearm, the penalty of
because of the latter's involvement in the 1987 coup d' etat. In death shall be imposed.
July, 1989, appellant again went to see Matillano because he
had no job. Col. Matillano then told him that he could stay in If the violation of this Section is in
the PC-INP stockade and do the marketing for them. From that furtherance of, or incident to, or in
time until his arrest at the Eurocar office, appellant worked for connection with the crimes of rebellion,
Matillano. insurrection or subversion, the penalty of
death shall be imposed.
De Gracia believes that the prosecution witnesses were moved
to testify against him because "bata raw ako ni Col. Matillano Presidential Decree No. 1866 was passed because of an
eh may atraso daw sa kanila si Col. Matillano kaya sabi nila upsurge of crimes vitally affecting public order and safety due
ito na lang bata niya ang ipitin natin." to the proliferation of illegally possessed and manufactured
firearms, ammunition and explosives, and which criminal acts
On February 22, 1991, the trial court rendered have resulted in loss of human lives, damage to property and
judgment 5 acquitting appellant Rolando de Gracia of destruction of valuable resources of the country. The series
attempted homicide, but found him guilty beyond reasonable of coup d' etats unleashed in the country during the first few
doubt of the offense of illegal possession of firearms in years of the transitional government under then President
Corazon P. Aquino attest to the ever-growing importance of
laws such as Presidential Decree No. 1866 which seek to nip violation of a statute prohibiting the possession of this kind of
in the bud and preempt the commission of any act or acts weapon, 12 such as Presidential Decree No. 1866. Thus,
which tend to disturb public peace and order. although there is physical or constructive possession, for as
long as the animus possidendi is absent, there is no offense
I. The first issue to be resolved is whether or not intent to committed.
possess is an essential element of the offense punishable under
Presidential Decree No. 1866 and, if so, whether appellant De Coming now to the case before us, there is no doubt in our
Gracia did intend to illegally possess firearms and minds that appellant De Gracia is indeed guilty of having
ammunition. intentionally possessed several firearms, explosives and
ammunition without the requisite license or authority therefor.
The rule is that ownership is not an essential element of illegal Prosecution witness Sgt. Oscar Abenia categorically testified
possession of firearms and ammunition. What the law requires that he was the first one to enter the Eurocar Sales Office
is merely possession which includes not only actual physical when the military operatives raided the same, and he saw De
possession but also constructive possession or the subjection Gracia standing in the room and holding the several explosives
of the thing to one's control and management. 6 This has to be marked in evidence as Exhibits D to D-4. 13 At first, appellant
so if the manifest intent of the law is to be effective. The same denied any knowledge about the explosives. Then, he
evils, the same perils to public security, which the law alternatively contended that his act of guarding the explosives
penalizes exist whether the unlicensed holder of a prohibited for and in behalf of Col. Matillano does not constitute illegal
weapon be its owner or a borrower. To accomplish the object possession thereof because there was no intent on his part to
of this law the proprietary concept of the possession can have possess the same, since he was merely employed as an errand
no bearing whatsoever. 7 boy of Col. Matillano. His pretension of impersonal or
indifferent material possession does not and cannot inspire
credence.
But is the mere fact of physical or constructive possession
sufficient to convict a person for unlawful possession of
firearms or must there be an intent to possess to constitute a Animus possidendi is a state of mind which may be
violation of the law? This query assumes significance since determined on a case to case basis, taking into consideration
the offense of illegal possession of firearms is a malum the prior and coetaneous acts of the accused and the
prohibitum punished by a special law, 8in which case good surrounding circumstances. What exists in the realm of
faith and absence of criminal intent are not valid defenses. 9 thought is often disclosed in the range of action. It is not
controverted that appellant De Gracia is a former soldier,
having served with the Philippine Constabulary prior to his
When the crime is punished by a special law, as a rule, intent
separation from the service for going on absence without leave
to commit the crime is not necessary. It is sufficient that the
(AWOL). 14 We do not hesitate, therefore, to believe and
offender has the intent to perpetrate the act prohibited by the
conclude that he is familiar with and knowledgeable about the
special law. Intent to commit the crime and intent to perpetrate
the act must be distinguished. A person may not have dynamites, "molotov" bombs, and various kinds of
consciously intended to commit a crime; but he did intend to ammunition which were confiscated by the military from his
possession. As a former soldier, it would be absurd for him not
commit an act, and that act is, by the very nature of things, the
to know anything about the dangerous uses and power of these
crime itself. In the first (intent to commit the crime), there
weapons. A fortiori, he cannot feign ignorance on the import
must be criminal intent; in the second (intent to perpetrate the
of having in his possession such a large quantity of explosives
act) it is enough that the prohibited act is done freely and
consciously. 10 and ammunition. Furthermore, the place where the explosives
were found is not a military camp or office, nor one where
such items can ordinarily but lawfully be stored, as in a gun
In the present case, a distinction should be made between store, an arsenal or armory. Even an ordinarily prudent man
criminal intent and intent to possess. While mere possession, would be put on guard and be suspicious if he finds articles of
without criminal intent, is sufficient to convict a person for this nature in a place intended to carry out the business of
illegal possession of a firearm, it must still be shown that there selling cars and which has nothing to do at all, directly or
was animus possidendi or an intent to possess on the part of indirectly, with the trade of firearms and ammunition.
the accused. 11 Such intent to possess is, however, without
regard to any other criminal or felonious intent which the
On the basis of the foregoing disquisition, it is apparent, and
accused may have harbored in possessing the firearm.
Criminal intent here refers to the intention of the accused to we so hold, that appellant De Gracia actually intended to
commit an offense with the use of an unlicensed firearm. This possess the articles confiscated from his person.
is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found II. The next question that may be asked is whether or not there
guilty of a violation of the decree, it is sufficient that the was a valid search and seizure in this case. While the matter
accused had no authority or license to possess a firearm, and has not been squarely put in issue, we deem it our bounden
that he intended to possess the same, even if such possession duty, in light of advertence thereto by the parties, to delve into
was made in good faith and without criminal intent. the legality of the warrantless search conducted by the raiding
team, considering the gravity of the offense for which herein
appellant stands to be convicted and the penalty sought to be
Concomitantly, a temporary, incidental, casual, or harmless
imposed.
possession or control of a firearm cannot be considered a
It is admitted that the military operatives who raided the Warrantless search of the personal effects of
Eurocar Sales Office were not armed with a search warrant at an accused has been declared by this Court
that time. 15 The raid was actually precipitated by intelligence as valid, because of existence of probable
reports that said office was being used as headquarters by the cause, where the smell of marijuana
RAM. 16 Prior to the raid, there was a surveillance conducted emanated from a plastic bag owned by the
on the premises wherein the surveillance team was fired at by accused, or where the accused was acting
a group of men coming from the Eurocar building. When the suspiciously, and attempted to flee.
military operatives raided the place, the occupants thereof
refused to open the door despite requests for them to do so, Aside from the persistent reports received by
thereby compelling the former to break into the office. 17 The the NARCOM that vehicles coming from
Eurocar Sales Office is obviously not a gun store and it is Sagada were transporting marijuana and
definitely not an armory or arsenal which are the usual other prohibited drugs, their Commanding
depositories for explosives and ammunition. It is primarily and Officer also received information that a
solely engaged in the sale of automobiles. The presence of an Caucasian coming from Sagada on that
unusual quantity of high-powered firearms and explosives particular day had prohibited drugs in his
could not be justifiably or even colorably explained. In possession. Said information was received
addition, there was general chaos and disorder at that time by the Commanding Officer of NARCOM
because of simultaneous and intense firing within the vicinity the very same morning that accused came
of the office and in the nearby Camp Aguinaldo which was down by bus from Sagada on his way to
under attack by rebel forces. 18 The courts in the surrounding Baguio City.
areas were obviously closed and, for that matter, the building
and houses therein were deserted.
When NARCOM received the information,
a few hours before the apprehension of
Under the foregoing circumstances, it is our considered herein accused, that a Caucasian travelling
opinion that the instant case falls under one of the exceptions from Sagada to Baguio City was carrying
to the prohibition against a warrantless search. In the first with him prohibited drugs, there was no time
place, the military operatives, taking into account the facts to obtain a search warrant. In
obtaining in this case, had reasonable ground to believe that a the Tangliben case, the police authorities
crime was being committed. There was consequently more conducted a surveillance at the Victory
than sufficient probable cause to warrant their action. Liner Terminal located at Bgy. San Nicolas,
Furthermore, under the situation then prevailing, the raiding San Fernando, Pampanga, against persons
team had no opportunity to apply for and secure a search engaged in the traffic of dangerous drugs,
warrant from the courts. The trial judge himself manifested based on information supplied by some
that on December 5, 1989 when the raid was conducted, his informers. Accused Tangliben who was
court was closed. 19 Under such urgency and exigency of the acting suspiciously and pointed out by an
moment, a search warrant could lawfully be dispensed with. informer was apprehended and searched by
the police authorities. It was held that when
The view that we here take is in consonance with our doctrinal faced with on-the-spot information, the
ruling which was amply explained in People vs. police officers had to act quickly and there
Malmstedt 20 and bears reiteration: was no time to secure a search warrant.
While it is true that the NARCOM officers It must be observed that, at first, the
were not armed with a search warrant when NARCOM officers merely conducted a
the search was made over the personal routine check of the bus (where accused was
effects of accused, however, under the riding) and the passengers therein, and no
circumstances of the case, there was extensive search was initially made. It was
sufficient probable cause for said officers to only when one of the officers noticed a
believe that accused was then and there bulge on the waist of accused, during the
committing a crime. course of the inspection, that accused was
required to present his passport. The failure
Probable cause has been defined as such of accused to present his identification
facts and circumstances which would lead a papers, when ordered to do so, only
reasonable, discreet and prudent man to managed to arouse the suspicion of the
believe that an offense has been committed, officer that accused was trying to hide his
and that the objects sought in connection identity. For is it not a regular norm for an
with the offense are in the place sought to be innocent man, who has nothing to hide from
searched. The required probable cause that the authorities, to readily present his
will justify a warrantless search and seizure identification papers when required to do
is not determined by any fixed formula but so?
is resolved according to the facts of each
case.
The receipt of information by NARCOM assuredly so in case of invasion, merely
that a Caucasian coming from Sagada had seizing their persons and detaining them
prohibited drugs in his possession, plus the while any of these contingencies continues
suspicious failure of the accused to produce cannot be less justified.
his passport, taken together as a whole, led
the NARCOM officers to reasonably believe III. As earlier stated, it was stipulated and admitted by both
that the accused was trying to hide parties that from November 30, 1989 up to and until
something illegal from the authorities. From December 9, 1989, there was a rebellion. Ergo, our next
these circumstances arose a probable cause inquiry is whether or not appellant's possession of the
which justified the warrantless search that firearms, explosives and ammunition seized and recovered
was made on the personal effects of the from him was for the purpose and in furtherance of rebellion.
accused. In other words, the acts of the
NARCOM officers in requiring the accused
The trial court found accused guilty of illegal possession of
to open his pouch bag and in opening one of firearms in furtherance of rebellion pursuant to paragraph 2 of
the wrapped objects found inside said bag Article 135 of the Revised Penal Code which states that "any
(which was discovered to contain hashish)
person merely participating or executing the command of
as well as the two (2) teddy bears with
others in a rebellion shall suffer the penalty of prision
hashish stuffed inside them, were prompted
mayor in its minimum period." The court below held that
by accused's own attempt to hide his identity
appellant De Gracia, who had been servicing the personal
by refusing to present his passport, and by needs of Col. Matillano (whose active armed opposition
the information received by the NARCOM against the Government, particularly at the Camelot Hotel,
that a Caucasian coming from Sagada had
was well known), is guilty of the act of guarding the
prohibited drugs in his possession. To
explosives and "molotov" bombs for and in behalf of the latter.
deprive the NARCOM agents of the ability
We accept this finding of the lower court.
and facility to act accordingly, including, to
search even without warrant, in the light of
such circumstances, would be to sanction The above provision of the law was, however, erroneously and
impotence and ineffectiveness in law improperly used by the court below as a basis in determining
enforcement, to the detriment of society. the degree of liability of appellant and the penalty to be
imposed on him. It must be made clear that appellant is
charged with the qualified offense of illegal possession of
In addition, we find the principle enunciated in Umil, et al., vs. firearms in furtherance of rebellion under Presidential Decree
Ramos,
No. 1866 which, in law, is distinct from the crime of rebellion
et al., 21 applicable, by analogy, to the present case:
punished under Articles 134 and 135 of the Revised Penal
Code. These are two separate statutes penalizing different
The arrest of persons involved in the offenses with discrete penalties. The Revised Penal Code
rebellion whether as its fighting armed treats rebellion as a crime apart from murder, homicide, arson,
elements, or for committing non-violent acts or other offenses, such as illegal possession of firearms, that
but in furtherance of the rebellion, is more might conceivably be committed in the course of a rebellion.
an act of capturing them in the course of an Presidential Decree No. 1866 defines and punishes, as a
armed conflict, to quell the rebellion, than specific offense, the crime of illegal possession of firearms
for the purpose of immediately prosecuting committed in the course or as part of a rebellion. 22
them in court for a statutory offense. The
arrest, therefore, need not follow the usual
As a matter of fact, in one case involving the constitutionality
procedure in the prosecution of offenses
of Section 1 of Presidential Decree No. 1866, the Court has
which requires the determination by a judge
explained that said provision of the law will not be invalidated
of the existence of probable cause before the by the mere fact that the same act is penalized under two
issuance of a judicial warrant of arrest and different statutes with different penalties, even if considered
the granting of bail if the offense is bailable.
highly advantageous to the prosecution and onerous to the
Obviously the absence of a judicial warrant
accused. 23 It follows that, subject to the presence of the
is no legal impediment to arresting or
requisite elements in each case, unlawful possession of an
capturing persons committing overt acts of
unlicensed firearm in furtherance of rebellion may give rise to
violence against government forces, or any separate prosecutions for a violation of Section 1 of
other milder acts but really in pursuance of Presidential Decree No. 1866, and also a violation of Articles
the rebellious movement. The arrest or
134 and 135 of the Revised Penal Code on rebellion. Double
capture is thus impelled by the exigencies of
jeopardy in this case cannot be invoked because the first is an
the situation that involves the very survival
offense punished by a special law while the second is a felony
of society and its government and duly
punished by the Revised Penal Code, 24 with variant elements.
constituted authorities. If killing and other
acts of violence against the rebels find
justification in the exigencies of armed It was a legal malapropism for the lower court to interject the
hostilities which (are) of the essence of aforestated provision of the Revised Penal Code in this
waging a rebellion or insurrection, most prosecution for a crime under a special law. Consequently,
there is no basis for its recommendation for executive SO ORDERED.
clemency in favor of appellant De Gracia after he shall have
served a jail term of five years with good behavior. In any
event, this is a matter within the exclusive prerogative of the
President whose decision thereon should be insulated against
any tenuous importunity.
Withal, we are duly convinced that the firearms, explosives The Checkpoints Case : Valmonte v. De Villa, G.R. No.
and ammunition confiscated from appellant De Gracia were 83988 September 29, 1989 (173 SCRA 211)
illegally possessed by him in furtherance of the rebellion then DECISION
admittedly existing at that time. In the words of the court a
quo: PADILLA, J.: