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G.R. No.

L-19550 June 19, 1967


HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO,

Upon application of the officers of the government named on the margin1 hereinafter referred to as Respondents-
Prosecutors several judges2 hereinafter referred to as Respondents-Judges issued, on different dates,3 a total of
42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to the any
peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences,
and to seize and take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals,
typewriters, and other documents and/or papers showing all business transactions including disbursements receipts,
balance sheets and profit and loss statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be
used as the means of committing the offense," which is described in the applications adverted to above as "violation of
Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of
Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2)
cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against
the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an
illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the
warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court
this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the
present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or
representatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases already
adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and
declaring the same null and void, and commanding the respondents, their agents or representatives to return to
petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash
moneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been
issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3)
that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged
illegality of the aforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by
resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things
seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into
two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b)
those found and seized in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested
warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of
shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may
be.8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of
by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the
documents, papers and things seized from the offices and premises of the corporations adverted to above, since the
right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized
effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it
affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any
one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear
that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such
a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the
privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth
Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291
F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful
search and seizure does not extend to the personal defendants but embraces only the corporation whose property was
taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned
resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect,
restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether
the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and
(2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in
evidence against petitioners herein.1wph1.t

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that
accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution 13
provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but
upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant
shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws,
Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense had been
alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a
consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause,
for the same presupposes the introduction of competent proof that the party against whom it is sought has performed
particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the
applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal
heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal
Revenue (Code) and Revised Penal Code," as alleged in the aforementioned applications without reference to any
determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be
remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to
imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to
wrest it, even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court
deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the
Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific
offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant
shall issue for more than one specific offense."
The grave violation of the Constitution made in the application for the contested search warrants was compounded by
the description therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals,
typewriters, and other documents and/or papers showing all business transactions including disbursement receipts,
balance sheets and related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners
herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of
the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit
command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches and
seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in
evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the
position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule,
that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory
that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the
exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer,
against the party who procured the issuance of the search warrant and against those assisting in the execution of an
illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary
rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable
searches and seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is
that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass
against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an
offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of
no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of
the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and suffering which have resulted in their
embodiment in the fundamental law of the land.19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20 After
reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from
unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door
remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons
as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and
seizures in violation of the Constitution is, by that same authority, inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due
Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the
Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of
inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so
ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing
evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time
that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases
of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the
exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right
to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the
sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally
unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine
an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly
recognized by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate denial of
its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to
give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and
enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to
compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to
disregard it" . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints
on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state
officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it
is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no
longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the
Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to
the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction
against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to
establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then
there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other
hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause,
and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its
issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative
of the absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make
unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks
the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging
to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority
usually but, understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact
that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the
pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners
allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado
Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution
as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and
that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to
include personal belongings of said petitioners and other effects under their exclusive possession and control, for the
exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of the United
States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned
records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition or
amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In
other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach
intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of
alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either
inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein.
Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the
contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently
established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of
the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion
thereon, it being best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the
warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are
null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore
issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is
hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so
seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and
Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied,
as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises
enumerated in the same Resolution, without special pronouncement as to costs.
It is so ordered.

DISSENTING:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of
the Court on this case, I gather the following distinct conclusions:

1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are
therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution;

2. All the searches and seizures conducted under the authority of the said search warrants were consequently illegal;

3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared, abandoned;

4. The search warrants served at the three residences of the petitioners are expressly declared null and void the
searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore
issued against the use of the documents, papers and effect seized in the said residences is made permanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing to
move for the suppression of the documents, papers and effects seized in the places other than the three residences
adverted to above, the opinion written by the Chief Justice refrains from expressly declaring as null and void the such
warrants served at such other places and as illegal the searches and seizures made therein, and leaves "the matter open
for determination in appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5)
with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served
at places other than the three residences, and the illegibility of the searches and seizures conducted under the authority
thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political
and moral developments of this case should not deter this Court from forthrightly laying down the law not only for this
case but as well for future cases and future generations. All the search warrants, without exception, in this case are
admittedly general, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the
Constitution; and the searches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia
argumente, have no legal standing to ask for the suppression of the papers, things and effects seized from places other
than their residences, to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the
search warrants and the intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners
possess legal standing the said warrants are void and remain void, and the searches and seizures were illegal and remain
illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the lack of it is a
determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of a search or seizure.
On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitioners
have the requisite legal standing to move for the suppression and return of the documents, papers and effects that were
seized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the
United States Constitution. In the many years of judicial construction and interpretation of the said constitutional
provision, our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by
federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and
effects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of
documents, papers and effects gives "standing;" (b) ownership and/or control or possession actual or constructive
of premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn
application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives
"standing."

An examination of the search warrants in this case will readily show that, excepting three, all were directed against the
petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the
President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate
defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same
"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other
search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular
corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and
were actually made, in the "office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives
them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure.
Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel
vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the
defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging
to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but
belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk
neither owned by nor in exclusive possession of the defendant).

In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the
constitutional provision against unlawful searches and seizures, a person places himself or his property within a
constitutionally protected area, be it his home or his office, his hotel room or his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment
protection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his
property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he
is protected from unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his desk
drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable
seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the
purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless
other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which
the protections of the Fourth Amendment have been appropriately invoked. No doubt, the future will bring countless
others. By nothing we say here do we either foresee or foreclose factual situations to which the Fourth Amendment may
be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93
(November 13, 1951). (Emphasis supplied).

Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing
to move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises
searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration
and need not be recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically
all the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard;
1436 Colorado Street); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements
or furnished such offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy
Club); and individually, or through their respective spouses, owned the controlling stock of the corporations involved.
The petitioners' proprietary interest in most, if not all, of the premises searched therefore independently gives them
standing to move for the return and suppression of the books, papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the
searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly
technical standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is
unnecessarily and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable
searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private
property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely
historical. Even in the area from which they derive, due consideration has led to the discarding of those distinctions in
the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform
Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee", "licensee," "invitee," "guest," often
only of gossamer strength, ought not be determinative in fashioning procedures ultimately referable to constitutional
safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the property seized in
order to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a
Bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved for
their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's
president successfully moved for the return and suppression is to him of both personal and corporate documents seized
from his home during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled to
protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and seizure
were unreasonable and unlawful. The motion for the return of seized article and the suppression of the evidence so
obtained should be granted. (Emphasis supplied).

Time was when only a person who had property in interest in either the place searched or the articles seize had the
necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461
(1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the
shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S.
Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs.
Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment
unlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of
"person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where
the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the
defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against
him to demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir.
1961), supra. The court conclude that the defendant had standing on two independent grounds: First he had a
sufficient interest in the property seized, and second he had an adequate interest in the premises searched (just like
in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of the
corporation's book and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful search and
seizure." It tells us that appellant should not have been precluded from objecting to the Postal Inspector's search and
seizure of the corporation's books and records merely because the appellant did not show ownership or possession of
the books and records or a substantial possessory interest in the invade premises . . . (Henzel vs. United States, 296 F. 2d
at 651). .
Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers
seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of
either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee
had a protected interest and that there also was an invasion of privacy. Both Henzel and Villano considered also the fact
that the search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano
vs. United States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of
Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the
Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files.
The Government contended that the petitioner had no standing because the books and papers were physically in the
possession of the custodian, and because the subpoena was directed against the custodian. The court rejected the
contention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not to
enable the question of unreasonable search and seizure to be escaped through the mere procedural device of
compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861
(8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing."

The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.).
The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at
the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his home in
the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The
papers turned out to be private, personal and business papers together with corporate books and records of certain
unnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case
at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own
the premises where the records were stored, he had "standing" to move for the return of all the papers and properties
seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631:
Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell.
The only person suggested in the papers as having violated the law was Birrell. The first search warrant described the
records as having been used "in committing a violation of Title 18, United States Code, Section 1341, by the use of the
mails by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M.
Birrell. (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even
before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters not whether
he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498
(1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this
decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many
personal and corporate papers were seized from premises not petitioners' family residences; as in Birrell, the searches
were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were
suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raided
is much closer than in Birrell.

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were
directed against residences in the narrow sense of the word, as long as the documents were personal papers of the
petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their
personal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners all personal and
private papers and effects seized, no matter where these were seized, whether from their residences or corporate
offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, various pleadings
submitted to this Court indisputably show that amongst the things seized from the corporate offices and other places
were personal and private papers and effects belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where the objects of the unlawful
searches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were they
were unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or possessed
(actually or constructively) by them as shown in all the search and in the sworn applications filed in securing the void
search warrants and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, the
determination of which unlawfully seized papers, documents and things are personal/private of the petitioners or purely
corporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting
the suppression and/or return of the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move
for the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as
specifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the
great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their
protection from cases not criminal in origin or nature.
G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,

vs.

THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals,
1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He
invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as its
prohibition against deprivation of property without due process of law. There is no controversy as to the facts. We
quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D.
Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers
along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and
indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the
presence of Mayor Bagatsing and several officers and members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff
Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction
against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila,
seeking to enjoin and/or restrain said defendants and their agents from confiscating plaintiffs magazines or from
otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational
magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of freedom
of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December
14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should
not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against
indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition
for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court
granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were voluntarily
surrendered by the vendors to the police authorities, and that the said confiscation and seizure was (sic) undertaken
pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In
opposing the plaintiffs application for a writ of preliminary injunction, defendant pointed out that in that anti- smut
campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand owners and
peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction,
raising the issue as to "whether or not the defendants and/or their agents can without a court order confiscate or seize
plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent motion
for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second
restraining order would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the Interim
Rules Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order
shall be effective only for twenty days from date of its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the
issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties to
adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated
and/or burned by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to
defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a
rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s
supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum" to defendants' Comment
on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary
injunction, and dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print
(Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3,
Art.IV). It must be equally conceded, however, that freedom of the press is not without restraint as the state has the
right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing
the author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No.
960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizures recognizes
certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui 63 Phil. 22) or search is an
incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle or
movable structure (See Papa vs. Magno, 22 SCRA 857).3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police
officers could without any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their
determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court
could dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was
merely the application of petitioner for the writ of preliminary injunction.4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or
what makes for an obscene or pornographic literature. Early on, in People vs. Kottinger,5 the Court laid down the test, in
determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to
deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other
article charged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks the
ordinary and common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture
is obscene or indecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to be
decided by the "judgment of the aggregate sense of the community reached by it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has
grown increasingly complex over the years. Precisely, the question is: When does a publication have a corrupting
tendency, or when can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say
that a piece of literature has a corrupting influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a
hypothetical "community standard" whatever that is and that the question must supposedly be judged from case
to case.
About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised
Penal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and art
galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial
purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of
art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to
art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their
morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their immaturity
are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is
easier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather
for commercial purposes," 12 the pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the "redeeming" element that
should accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which
we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was
involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in the
showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants. But an
actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the
youth of the land. ...14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended
by "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes,"15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so
presented that "connoisseurs of [art], and painters and sculptors might find inspiration,"16 in it, would it cease to be a
case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas
and "two-cents worths" among judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United States, adopted the
test: "Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a
whole appeals to prurient interest."18 Kalaw-Katigbak represented a marked departure from Kottinger in the sense that
it measured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central
to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is
"obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial question
and as a consequence, to temper the wide discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development to
development, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it is
unintelligible."19

Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming
social value,"21 marked yet another development.

The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and established "basic
guidelines,"23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as
a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value."24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v.
Georgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal
Knowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary American
sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the
reluctance of the courts to recognize the constitutional dimension of the problem .27 Apparently, the courts have
assumed that "obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has allowed
a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society.
And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so
until the Court recognizes that obscene speech is speech nonetheless, although it is subject as in all speech to
regulation in the interests of [society as a whole] but not in the interest of a uniform vision of how human sexuality
should be regarded and portrayed."28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress
smut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generation.
James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature
today.29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most prestigious
museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the
divergent perceptions of men and women that have probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as
it is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisional
law on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity",
if that is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint
specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free
expression cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present
danger" that would warrant State interference and action.30 But, so we asserted in Reyes v. Bagatsing,31 "the burden to
show the existence of grave and imminent danger that would justify adverse action ... lies on the. . . authorit[ies]."32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present
danger."33 "It is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely
on his own appraisal of what the public welfare, peace or safety may require."34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger
test."35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-
but rather as a serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search
and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the
speech may validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not
only be: (1) clear but also, (2) present, to justify State action to stop the speech. Meanwhile, the Government must allow
it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence of a clear and present
danger), it must come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant
confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not
possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out
a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to
protect society from pornographic literature that is offensive to public morals."36 Neither do we. But it brings us back to
square one: were the "literature" so confiscated "pornographic"? That we have laws punishing the author, publisher and
sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969),"37
is also fine, but the question, again, is: Has the petitioner been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in
disregard of due process. In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as "state authority to
enact legislation that may interfere with personal liberty or property in order to promote the general welfare ."39
Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by themselves,
authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin
presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the right to due process of law and
the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down
procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films, prints, engravings, sculptures,
paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be
governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral
literature, films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred
to in Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his
receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the
Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I hereof, the
penalty as provided herein shall be imposed in the maximum period and, in addition, the accessory penalties provided
for in the Revised Penal Code, as amended, shall likewise be imposed .40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be
authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable
and subject to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court
authorizing the search of the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a
defective warrant. We have greater reason here to reprobate the questioned raid, in the complete absence of a warrant,
valid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political
case, because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:
SEC. 12. Search without warrant of personarrested. A person charged with an offense may be searched for dangerous
weapons or anything which may be used as proof of the commission of the offense.44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on
account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party,
under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all
criminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished." 46
For starters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent
Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant
because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap
is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear
and present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a
case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are
indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of
official power under the Civil Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing,
however, that the magazines subject of the search and seizure ave been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.
G.R. No. 72564 April 15, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANITA CLAUDIO Y BAGTANG, accused-appellant.

This is an appeal from the decision of the Regional Trial Court of Olongapo City, Branch 73 finding the accused Anita
Claudio y Bagtang guilty beyond reasonable doubt of violating Sec. 4, Rep. Act No. 6425 (Dangerous Drugs Act of 1972 as
amended) and sentencing her to serve the penalty of reclusion perpetua, to pay a fine of P 20,000.00, and to pay the
costs.

The information filed against the accused alleged:

That on or about the 21st day of July 1981, in the City of Olongapo, Philippines and within the jurisdiction of this
Honorable Court, the above-named ACCUSED without being lawfully authorized, did then and there wilfully, unlawfully
and knowingly transport 1.1 kilos of Marijuana dried leaves, which are prohibited drugs for the purpose of selling the
same from Baguio City to Olongapo City. (Rollo, p. 13)

The lower court established her guilt beyond reasonable doubt on the basis of the prosecution's evidence as follows:

To prove the guilt of the accused, the prosecution offered the following document and testimonial evidence as follows:
Exhibit "A" Letter request for Examination of suspected marijuana dried leaves weighing approximately 1.1 kilos dated
July 25, 1981; "B" plastic container; "B- 1"-marijuana contained in the plastic container; "B-1-a"another plastic
container; "C"Chemistry Report No. D-668-81;"C-1" Findings: Positive for marijuana; "D,","D-1," "D-2"and "D-3; "E"
and "E-1" photographs of accused with Pat. Daniel Obia and Pauline Tiongco showing the marijuana, "F"Victory Liner
Ticket No. 84977;"G"Sworn Statement of Pat. Daniel Obia, "H" Request for Field Test on suspected marijuana from
accused by P/Lt. Antonio V. Galindo;"H-1"date of of the request; "L"Certificate of Field Test dated July 22, 1981; "B-
2" and "B-2a" additional Wrapping paper; and the testimonies of witnesses of the prosecution, Theresa Ann Bugayong;
Pat. Daniel Obio, Cpl. Paulino Tiongco, Cpl. Ernesto Abello and Sgt. Leoncio Bagang.

Theresa Ann Bugayong22 years old, single, Forensic Chemist and a resident of 1150 Sampaloc, Metro Manila testified
that she received a request from the Task Force Bagong Buhay, Olongapo City, dated July 25, 1981, on specimen
marijuana submitted for examination. The specimen consisted of 900 grams of suspected dried marijuana flowering tops
wrapped in a newspaper placed in a plastic bag with a marking "MB Store" (Exh. "B").

The examination conducted by her proved to be positive for marijuana. After her examination, she prepared Chemistry
Report No. D-668-81 dated July 29,1981 (Exhs. "C" and "C-l"). She conducted three eliminations; microscopic
examination, the duguenoi levine test and thirdly, the confirmatory examination of thin layer chromatographic test. The
said specimen was submitted to them by OIC Danilo Santiago, a representative of the CANU, Olongapo City.

The second witness for the prosecution was Daniel Obia, 37 years old, married, policeman and residing at 34 Corpuz
St., East Tapinac, Olongapo City. Obia testified that he has been a member of the INP, since 1970 up to the present. He
was assigned in June, 1972 at the Investigation Division as operative. His job then was among other things to follow up
reports in their office, recover stolen items and apprehend suspects. On July 21,1981, he was on Detached Service with
the ANTI-NARCOTICS Unit; and that on that date, he came from Baguio City and arrived in Olongapo City at about 1:30
o'clock in the afternoon having left Baguio at about 8:30 o'clock in the morning. He took the Victory Liner in going back
to Olongapo City. His family lives in Baguio City. On board the Victory Liner, he was seated on the second seat at the
back. While he was thus seated, suspect Anita Claudio boarded the same bus and took the seat in front of him after
putting a bag which she was carrying at the back of the seat of Obia. The bag placed by suspect behind his seat was a
wooven buri bag made of plastic containing some vegetables. The act of the accused putting her bag behind Pat. Obia's
seat aroused his suspicion and made him felt (sic) nervous. With the feeling that there was some unusual, he had the
urge to search the woven plastic bag. But it was only at San Fernando, Pampanga when he was able to go to the bag. He
inserted one of his fingers in a plastic bag located at the bottom of the woven bag and smelt marijuana. The plastic
woven bag appearing to contain camote tops on the top has a big bundle of plastic of marijuana at the bottom. He could
recognize the smell of marijuana because he was assigned at that time at the ANTI-NARCOTICS Unit. He did not,
however, do anything after he discovered that there was marijuana inside the plastic bag of the accused until they
reached Olongapo City and the accused alighted from the bus in front of the Caltex Gasoline Station in Sta. Rita. Right
after the accused alighted from the bus, policeman Obina intercepted her and showed her his Id Identifying himself as a
policeman and told her he will search her bag because of the suspicion that she was carrying marijuana inside said bag.
In reply, accused told him, "Please go with me, let us settle this at home." However, the witness did not heed her plea
and instead handcuffed her right hand and with her, boarded a tricycle right away and brought the suspect to the police
headquarters with her bag appearing to contain vegetables.

At the police headquarters Investigation Section, the bag was searched in the presence of Investigator Cpl. Tiongco; Pat.
Obia, the accused and Sgt. Leoncio Bagang. Inside the plastic bag was found a big bundle of plastic containing
marijuana weighing about one kilo. Witness stated that he could detect marijuana even before the application of
chemicals because of one year and a half assignment with the CANU. After the marijuana was taken from the bag of the
accused, photographs were taken of the accused and the marijuana confiscated from her possession with Pat. Obia and
that of Investigator Tiongco, accused and himself Identified photographs shown to him in open Court. (Exhs. "D," "D-l,"
"D-2" and "D-3"). Witness was likewise shown a plastic bag of marijuana contained in a plastic container (Exhs. "B," "B-1"
and "B-1 -a") and Identified it as the one confiscated from the accused and pointed to his initials on the newspaper
wrapping which also shows the date and time, although the wrapper at the time he testified appeared to be soiled
already. The marijuana was allegedly still fresh when confiscated.

To prove further that the accused transported the confiscated marijuana from Baguio City to Olongapo City, witness
Identified Victory Liner Ticket No. 684977 which was confiscated from the accused and for Identification purposes, the
witness presented the body number of the bus he wrote at the back of the ticket which is "309" (Exhs. "F" and "F-l").
Regarding himself, he did not pay his fare from Baguio City because as a policeman, he used his badge and a free ride.

On cross-examination, witness stated that he went to Baguio City on July 15,1981 and underwent treatment of his heart
while he was there. He was given a furlough for medical treatment. He stayed in Baguio City for about five days and
returned to Olongapo City on July 21, 1981. Prior to July 21, 1981, witness never knew the accused, and the first time he
saw her was in Baguio when she boarded the same Victory Liner he took. When the accused who was bringing with her
a woven plastic bag placed the bag right behind his seat instead of placing it in front of her or beside her seat. Witness
Obia became suspicious and his suspicion was confirmed when they reached San Fernando, Pampanga, after he
checked the buri bag. The bus stopped at said town to load some gasoline. Witness inserted one of his fingers inside the
buri bag and thereafter smelt marijuana. He confirmed his testimony on direct that when witness confronted accused he
was invited to go with her in order to settle the matter to which he refused. Accused further testified that from the time
the accused placed her bag behind his seat from Baguio City, he felt so nervous and had to take his medicine at the
Tarlac Station. It was only after having taken his medicine that his apprehension was contained and thus was able to
insert his right hand inside the buri bag in San Fernando, Pampanga. His fingers reached the very bottom of the bag. He
Identified his sworn statement regarding this incident given on July 21, 1981 which is Exhibit "G." Witness likewise
Identified accused Anita Claudio in open court.

Paulino Tiongco, 52 years old, married and resident of 31 Canada St., East Bajac Bajac, Olongapo City, testified that as a
policeman on the afternoon of July 21, 1981, he was inside the Investigation Division of the Police Station, Olongapo
City. As Duty Investigator, between 1:45 and 2:00 o'clock in the afternoon of the same day, Pat. Daniel Obia arrived at
the Police Station with a woman and Identified her in the courtroom as Anita Claudio. Pat. Obia reported to him that he
apprehended Anita Claudio inside the Victory Liner bus for possession of marijuana dried leaves. The marijuana leaves
were contained in a buri bag with some vegetables such as camote tops, bananas and some other vegetables. The
marijuana was placed in a plastic wrapper with the name National Book Store colored black and white. Witness
Identified the wrapper (Exh. "B-2"). The bag contained the markings of Pat. Obia which are his initials, (Exhs. "B-2-a"),
and numbers 210781 representing the date which was placed by Pat. Obia after Cpl. Tiongco examined the suspected
marijuana.

After examining and seeing the marijuana together with the vegetables, he interviewed apprehending officer Obia and
reduced his statements in writing. Cpl. Tiongco Identifled the sworn statement of Obia (Exh. "G"). He also interviewed
accused Anita Claudio who was all the while inside the Investigation room seated on a chair. After appraising her of her
constitutional rights, he asked the accused whether she was willing to give her written statements to which the accused
refused. Hence, no statements were taken of her. However, pictures were taken inside the investigation room. Exhs. "D"
and "E," series which were already previously Identified by Pat. Obia, Witness Identified the persons appearing in the
pictures as that of Pat. Obia and the accused and also of himself. Thereafter, the marijuana contained in the plastic bag
were turned over to Lt. Galindo and Anita Claudio was detained.

Ernesto Abello, 41 years old, married and residing at No. 29 Alba Street, East Tapinac, Olongapo City, testified he was
since March 1972 a policeman and was stationed at Police Station 21, Olongapo City, Metrodiscom. However, in 1981,
he was already assigned to the CANU General Anti-NARCOTICS Unit. On July 22, 1981, he reported for work at the CANU
and received from Lt. Galindo more than a kilo of suspected marijuana dried leaves. As requested by Lt. Galindo he
conducted a field test on this marijuana which he received from Lt. Galindo, as evidenced by a request signed by him
dated July 22,1981 (Exh. "H").

In connection with the field test conducted by him on the specimen, he prepared a Certificate of Fleld Test dated July
22,1981 (Exhs. "I"). The Certificate of Field Test indicated the presence of tetra-hydrocannabinol (THC), an active
substance that can be only be found in marijuana, a prohibited drug. Cpl. Abello Identified a plastic bag of marijuana
received from Lt. Galindo which he later give to CIC Danilo Santiago, the Evidence Custodian, for the latter to bring the
specimen to the PC Crime Laboratory.

The last witness for the prosecution was Leoncio Bagang, 40 years old, married, residing at No. 27 Jones St., East
Tapinac, Olongapo City, a policeman of Olongapo City, assigned with Police Station "21." He has been a policeman since
1966 up to the present. In July, 1981, he was then assigned at the Patrol Division and his duty was to patrol the city
proper from Magsaysay Drive up to east Bajac Bajac.

He narrated that on July 21,1981, between the hours of 1:00 and 2:00 o'clock in the afternoon, he was at the Caltex
Gasoline Station, East Bajac Bajac, Olongapo City along Rizal Avenue. He was then on duty patrol using a motorcycle.
While he was at the said place, he saw Pat. Obia alighted from the Victory Liner bus ordering somebody to alight from
the same bus. When he heard Pat. Obia he approached him and asked him what was happening. Pat. Obia told him he
apprehended a certain woman possessing dried marijuana. The woman was still then inside the bus. Pat. Obia then
brought the woman to the police department who was bringing with her a buri bag. They boarded a tricycle, the woman
riding inside the tricycle while Pat. Obia sat behind the driver. He then followed in his motorcycle the said tricycle to
police station. He went inside the Investigation Section of the Police Station and he was there when Pat. Obia reported
to Cpl. Tiongco his apprehension of the woman possessing marijuana. He saw the marijuana for the first time inside the
Investigation Section placed in a buri bag covered with newspaper. He witnessed the taking out of the marijuana from
inside the bag by Pat. Obia in the presence of Cpl. Tiongco and the woman or the accused in this case, and himself.
Policeman Bagang Identified the accused in open Court. When asked about the nature of the marijuana when it was
brought out from the bag, he said that the marijuana was dried but not well dried. Aside from the marijuana inside the
buri bag, there were vegetables and bananas, Witness Identified in open Court, the marijuana he saw found in the buri
bag of the accused. His means of Identification was the signature of Pat. Obia, (Exh. "B-1"). He likewise Identified a
newspaper wrapping which was already torn.

While in the Investigation Division, witness Bagang heard the accused's answer to Cpl. Tiongco's questions that she was
going to deliver the marijuana to Sta. Rita. He, however, did not linger long at the investigation Division. After he saw the
marijuana and heard the answer of the accused to Cpl. Tiongcos question the place of delivery of the marijuana, he left
the police station. Witness likewise Identified an initial DO-21-07-81 already marked as Exhibit "B-2." DO which is an
initial, and not a signature, stands for Daniel Obia. After the testimony of Leoncio Bagang, the prosecution rested its
case. (Rollo, pp. 42-47)

Accused Claudio raised the following assignments of errors in this appeal:

I. CONVICTION UNDER SECTION 4, ART. II OF R.A. 6425 IS IMPROPER IF ONE OR SOME OF THE ELEMENTS OF
THE OFFENSE IS OR ARE ABSENT.
II. CONVICTION CAN NOT BE HAD UNDER SECTION 4, ART. II OF R.A. 6425 IF THE ALLEGED BUYMAN WAS NOT
PRESENTED TO TESTIFY.
III. APPELLANTS CONVICTION FOR DELIVERY (SEC. 4, ART II, OF R.A. 6424) IS WRONG BECAUSE SOME MATERIAL
FACTS WERE OVERLOOKED AND NOT CONSIDERED IN FAVOR OF APPELLANT. (Rollo, p. 91)

The accused alleges that she is only liable, at the most, for possession under Sec. 8, Art. II of Rep. Act No. 6425 and not
for violating Sec. 4 of the same Act.

The latter section, Sec. 4 provides:

Sec. 4. Sale, Administration, Delivery Distribution and Transportation of Prohibited Drugs.The penalty of life
imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit
or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a
minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty herein provided shall be imposed.
Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may not
be convicted under Sec. 4 of Rep. Act No. 6425.

The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which is
penalized but also the sale, administration, distribution and transportation of probihited drugs. Claudio was caught
transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4.

The accused also alleges that before the completion of delivery, the intention of the possessor is unknown.

This allegation is also unavailing. It is undisputed that Claudio had in her possession 1.1 kilos of marijuana. This is a
considerable quantity. As held in the case of People v. Toledo, (140 SCRA 259, 267) "the possession of such considerable
quantity as three plastic bags of marijuana leaves and seeds coupled with the fact that he is not a user of prohibited
drugs cannot indicate anything except the intention of the accused to sell, distribute and deliver said marijuana.

The accused next contends the warrantless search, seizure and apprehension as unlawful.

The applicable provisions on this issue are found in the 1985 Rules on Criminal Procedure.

Rule 113, Sec. 5(a) of the said Rules provides:

.. A peace officer or a private person may, without a warrant, arrest a person:

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

xxx xxx xxx

Meanwhile, its Rule 126, Sec. 12 provides:

Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a search warrant. (12a)

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel Obia did not need a warrant to arrest Claudio
as the latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful.
(Nolasco v. Pano, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.

The accused takes inconsistent positions in her appellant's brief. At first, she does not deny having had with her
marijuana at the time of her arrest. Instead, she claims that she should just be guilty of possession. In a complete
turnabout, in the latter portion of said brief, she claims that the evidence against her were mere fabrications and the
marijuana allegedly found in her possession was only planted.

We have carefully examined the records of the case and we find no ground to alter the trial court's findings and
appreciation of the evidence presented.

Credence is accorded to the prosecution's evidence, more so as it consisted mainly of testimonies of policemen. Law
enforcers are presumed to have regularly performed their duty in the absence of proof to the contrary (People v. De
Jesus, 145 SCRA 521). We also find no reason from the records why the prosecution witnesses should fabricate their
testimonies and implicate appellant in such a serious crime (See People v. Bautista, 147 SCRA 500).

The accused testified that she was not on that bus that came from Baguio City but rather she was in Olongapo City all
that time. She alleged that she was arrested by Pat. Obia for no reason at all.

In the case at bar, alibi does not deserve much credit as it was established only by the accused herself (People v. De la
Cruz, 148 SCRA 582).

Moreover, it is a well-established rule that alibi cannot prevail over positive testimony (People v. De La Cruz, supra).

WHEREFORE, the judgment appealed from is AFFIRMED.

SO ORDERED.
G.R. No. 96177 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MARI MUSA y HANTATALU, accused-appellant.

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990,1 of the Regional
Trial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4
of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable
Court, the

above-named accused, not being authorized by law, did then and there, wilfully, unlawfully and feloniously sell to one
SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowing the same to be a prohibited drug.

CONTRARY TO LAW.2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty.3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics
Command (NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the
appellant; (2) T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team
leader of the buy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-
INP Crime Laboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial
court as follows:

Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of a NARCOTICS
COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and
test buy on a certain Mari Musa of Suterville, Zamboanga City. Information received from civilian informer was that this
Mari Musa was engaged in selling marijuana in said place. So Sgt. Amado Ani, another NARCOM agent, proceeded to
Suterville, in company with a NARCOM civilian informer, to the house of Mari Musa to which house the civilian informer
had guided him. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani was
able to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to the NARCOM office and
turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. Sgt. Belarga inspected the stuff turned over to
him and found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani was assigned as the poseur
buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga. The

buy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief of Investigation Section,
and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt. Foncargas was assigned as back-up
security. A pre-arranged signal was arranged consisting of Sgt. Ani's raising his right hand, after he had succeeded to buy
the marijuana. The two NARCOM teams proceeded to the target site in two civilian vehicles. Belarga's team was
composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.

Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOM group
positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt. Belarga could see
what went on between Ani and suspect Mari Musa from where he was. Ani approached Mari Musa, who came out of his
house, and asked Ani what he wanted. Ani said he wanted some more stuff. Ani gave Mari Musa the P20.00 marked
money. After receiving the money, Mari Musa went back to his house and came back and gave Amado Ani two
newspaper wrappers containing dried marijuana. Ani opened the two wrappers and inspected the contents. Convinced
that the contents were marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM
teams, riding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to the house.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musa, another boy, and
two women, one of whom Ani and Belarga later came to know to be Mari Musa's wife. The second time, Ani with the
NARCOM team returned to Mari Musa's house, the woman, who was later known as Mari Musa's wife, slipped away
from the house. Sgt. Belarga frisked Mari Musa but could not find the P20.00 marked money with him. Mari Musa was
then asked where the P20.00 was and he told the NARCOM team he has given the money to his wife (who had slipped
away). Sgt. Belarga also found a plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa
was then placed under arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga the
two newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his true name Mari
Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought at the buy-bust), the one
newspaper-wrapped marijuana (bought at the test-buy) and the plastic bag containing more marijuana (which had been
taken by Sgt. Lego inside the kitchen of Mari Musa) to the PC Crime Laboratory, Zamboanga City, for laboratory
examination. The turnover of the marijuana specimen to the PC Crime Laboratory was by way of a letter-request, dated
December 14, 1989 (Exh. "B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined the marijuana specimens
subjecting the same to her three tests. All submitted specimens she examined gave positive results for the presence of
marijuana. Mrs. Anderson reported the results of her examination in her Chemistry Report D-100-89, dated December
14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5"). Mrs. Anderson identified in court the two newspaper wrapped
marijuana bought at the

buy-bust on December 14, 1989, through her initial and the weight of each specimen written with red ink on each
wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped marijuana bought at the test-buy on
December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson also identified her Chemistry Report (Exh. "J" &
sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words "buy-bust" and
the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga also identified the receipt of the P20
marked money (with SN GA955883) (Exh. "L"), dated December 14, 1989, and his signature thereon (Exh.

"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC Crime Laboratory (Exh. "B")
and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratory marked "RECEIVED" (Exh. "B-1").4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, his
wife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at Suterville, Zamboanga City. With
him were his wife, Ahara Musa, known as Ara, his one-year old child, a woman manicurist, and a male cousin named
Abdul Musa. About 1:30 that afternoon, while he was being manicured at one hand, his wife was inside the one room of
their house, putting their child to sleep. Three NARCOM agents, who introduced themselves as NARCOM agents,
dressed in civilian clothes, got inside Mari Musa's house whose door was open. The NARCOM agents did not ask
permission to enter the house but simply announced that they were NARCOM agents. The NARCOM agents searched
Mari Musa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just silent. The
NARCOM agents found a red plastic bag whose contents, Mari Musa said, he did not know. He also did not know if the
plastic bag belonged to his brother, Faisal, who was living with him, or his father, who was living in another house about
ten arms-length away. Mari Musa, then, was handcuffed and when Mari Musa asked why, the NARCOM agents told him
for clarification.

Mari Musa was brought in a pick-up, his wife joining him to the NARCOM Office at Calarian, Zamboanga City. Inside the
NARCOM Office, Mari Musa was investigated by one NARCOM agent which investigation was reduced into writing. The
writing or document was interpreted to Mari Musa in Tagalog. The document stated that the marijuana belonged to
Mari Musa and Mari Musa was asked to sign it. But Mari Musa refused to sign because the marijuana did not belong to
him. Mari Musa said he was not told that he was entitled to the assistance of counsel, although he himself told the
NARCOM agents he wanted to be assisted by counsel.

Mari Musa said four bullets were then placed between the fingers of his right hand and his fingers were pressed which
felt very painful. The NARCOM agents boxed him and Mari Musa lost consciousness. While Mari Musa was maltreated,
he said his wife was outside the NARCOM building. The very day he was arrested (on cross-examination Mari Musa said
it was on the next day), Mari Musa was brought to the Fiscal's Office by three NARCOM agents. The fiscal asked him if
the marijuana was owned by him and he said "not." After that single question, Mari Musa was brought to the City Jail.
Mari Musa said he did not tell the fiscal that he had been maltreated by the NARCOM agents because he was afraid he
might be maltreated in the fiscal's office.
Mari Musa denied the NARCOM agents' charge that he had sold two wrappers of marijuana to them; that he had
received from them a P20.00 bill which he had given to his wife. He did not sell marijuana because he was afraid that
was against the law and that the person selling marijuana was caught by the authorities; and he had a wife and a very
small child to support. Mari Musa said he had not been arrested for selling marijuana before.5

After trial, the trial court rendered the assailed decision with the following disposition:

WHEREFORE, finding accused Mari Musa y Hantatalu guilty beyond reasonable doubt of selling marijuana and pursuant
to Sec. 4, Art II of Rep. Act No. 6425, he is sentenced to life imprisonment and to pay the fine of P20,000.00, the latter
imposed without subsidiary imprisonment.6

In this appeal, the appellant contends that his guilt was not proved beyond reasonable doubt and impugns the credibility
of the prosecution witnesses.

The appellant claims that the testimony of Sgt. Ani, the poseur-buyer, is not credible because: (1) prior to the buy-bust
operation, neither Sgt. Ani nor the other NARCOM agents were personally known by the appellant or vice-versa; and (2)
there was no witness to the alleged giving of the two wrappers of marijuana by the appellant to Sgt. Ani.

Sgt. Ani testified that on December 13, 1989, upon instruction by T/Sgt. Jesus Belarga, he conducted a test-buy
operation on the appellant whereby he bought one wrapper of marijuana for P15.00 from the latter.7 He reported the
successful operation to T/Sgt. Belarga on the same day.8 Whereupon, T/Sgt. Belarga conducted a conference to organize
a buy-bust operation for the following day.9

On December 14, 1989, at 1:30 p.m., two NARCOM teams in separate vehicles headed by T/Sgt. Belarga and a certain
Sgt. Foncardas went to the place of operation, which was the appellant's house located in Laquian Compound, Suterville,
Zamboanga City. Sgt. Ani was with the team of T/Sgt. Belarga, whose other members were Sgts. Lego and Biong. 10 Sgt.
Ani was given a marked P20.00 bill by T/Sgt. Belarga, which was to be used in the operation.

Upon reaching the place, the NARCOM agents positioned themselves at strategic places.11 Sgt. Ani approached the
house. Outside the house, the appellant asked Sgt. Ani what he wanted. Sgt. Ani asked him for some more marijuana.12
Sgt. Ani gave him the marked P20.00 bill and the appellant went inside the house and brought back two paper wrappers
containing marijuana which he handed to Sgt. Ani.13 From his position, Sgt. Ani could see that there were other people
in the house.14

After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his right
hand.15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agents
searched the appellant and unable to find the marked money, they asked him where it was. The appellant said that he
gave it to his wife.16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, which
resulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright.
Being totally untainted by contradictions in any of the material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is
without merit. The day before the

buy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the
appellant. Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell
more marijuana to Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what
matters is not an existing familiarity between the buyer and the seller, for quite often, the parties to the transaction may
be strangers, but their agreement and the acts constituting the sale and delivery of the marijuana.17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sell
marijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of selling
prohibited drugs has been held to be not crucial18 and the presence of other people apart from the buyer and seller will
not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco,19 these factors
may sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside the
appellant's house are known to the appellant may have given him some assurance that these people will not report him
to the authorities.
The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellant
submits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he could
not have possibly witnessed the sale. The appellant invokes People v.

Ale20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between
marijuana cigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga
allegedly did not see the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as
basis for his conviction.

People v. Ale does not apply here because the policeman in that case testified that he and his companion were certain
that the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarette
sticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are with contradictions
and tainted with inaccuracies.

Bian testified that they were able to tell that the four cigarettes were marijuana cigarettes because according to him,
the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn, November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from the distance
where they were observing the alleged sale of more or less 10 to 15 meters.21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt.
Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/Sgt.
Belarga's testimony reads:22

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?

A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong were boarded, I saw that Sgt. Ani
proceeded to the house near the road and he was met by one person and later known as Mari Musa who was at the
time wearing short pants and later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musa
and went inside the house and came back later and handed something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-
100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellant
was marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Court
earlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt.
Ani to conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 13,
1989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over
to T/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation
the following day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville,
Zamboanga City;26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-bust
operation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the house
of the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places;28 the
appellant met Sgt. Ani and an exchange of articles took place.29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Court
has ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what the
appellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case30
provided there exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient
to prove the consummation of the sale of the prohibited drug
The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which the
NARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the other
NARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve the
marked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to his
wife.31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a
"cellophane colored white and stripe hanging at the corner of the kitchen."32 They asked the appellant about its
contents but failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant
questioned the admissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling
that these are admissible in evidence.33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and
seizures by providing in Article III, Section 2, the following:

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

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares
inadmissible, any evidence obtained in violation of the freedom from unreasonable searches and seizures.35

While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this rule
are recognized. Thus, in Alvero v. Dizon,36 the Court stated that. "[t]he most important exception to the necessity for a
search warrant is the right of search and seizure as an incident to a lawful arrest."37

Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawful
arrest, thus:

Sec. 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an offense, without a search warrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a
search upon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest
may take from the person arrested any money or property found upon his person which was used in the commission of
the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing

violence or of escaping, or which may be used as evidence in the trial of the cause . . . "38 Hence, in a buy-bust operation
conducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the person

of the pusher immediately after the arrest even without arrest and search warrants.39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but found
nothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the one
arrested to include the premises or surroundings under his immediate control.40 Objects in the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.41

In Ker v. California42 police officers, without securing a search warrant but having information that the defendant
husband was selling marijuana from his apartment, obtained from the building manager a passkey to defendants'
apartment, and entered it. There they found the defendant husband in the living room. The defendant wife emerged
from the kitchen, and one of the officers, after identifying himself, observed through the open doorway of the kitchen, a
small scale atop the kitchen sink, upon which lay a brick-shaped package containing green leafy substance which he
recognized as marijuana. The package of marijuana was used as evidence in prosecuting defendants for violation of the
Narcotic Law. The admissibility of the package was challenged before the U.S. Supreme Court, which held, after
observing that it was not unreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the
defendant wife emerge therefrom, that "the discovery of the brick of marijuana did not constitute a search, since the
officer merely saw what was placed before him in full view.43 The U.S. Supreme Court ruled that the warrantless seizure
of the marijuana was legal on the basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as
part of the prosecution's evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to
extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is
usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object.45 Furthermore, the U.S. Supreme Court stated the following limitations on the
application of the doctrine:

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an
intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The
doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search
incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against
the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may
not be used to extend a general exploratory search from one object to another until something incriminating at last
emerges.46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify the
seizure of the object where the incriminating nature of the object is not apparent from the "plain view" of the object.47
Stated differently, it must be immediately apparent to the police that the items that they observe may be evidence of a
crime, contraband, or otherwise subject to seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the marked
money which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the
kitchen. The plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its
seizure. The NARCOM agents had to move from one portion of the house to another before they sighted the plastic bag.
Unlike Ker vs. California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from
which position he saw the marijuana, the NARCOM agents in this case went from room to room with the obvious
intention of fishing for more evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana. Unlike Ker v. California, where the marijuana was visible to the police officer's eyes, the
NARCOM agents in this case could not have discovered the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not the
marijuana. The incriminating nature of the contents of the plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic bag clearly betrayed its contents, whether by its distinctive
configuration, its transprarency, or otherwise, that its contents are obvious to an observer.48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the
marijuana contained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III,
Section 3(2) of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other
pieces of evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II,
Section 4 of the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga
and the two wrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the
appellant of the crime charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.

SO ORDERED.
G.R.No. 74869 July 6, 1988
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.

The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty
of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced
him to life imprisonment plus a fine of P20,000.00. 1

Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the
evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and
finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect
articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information
was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the
charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough
investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually
convicted .6

According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-
appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting
on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the
gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was
found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who
testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.

In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a
jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His
bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he
was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried
the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his
business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have
been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC
headquarters. 14

The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo
City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00
for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket
below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were
they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the
other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the
injuries sustained by him. 19

There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate
access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of
tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the
lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact
amidst the falsities.

The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really
beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or
realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC
authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been
allowed for his release.
There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and
searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him
under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this
after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of
the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest.

It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant
when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with
marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20
another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief
of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows:

Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25,
1984?

A Yes, sir.

Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable sources.

Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date?

A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June
25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin.

Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9?

A Yes, sir.

Q Did you receive any other report aside from this intelligence report?

A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal
gambling operation.

COURT:

Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report
regarding the activities of Idel Aminnudin

A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.

Q What were those activities?

A Purely marijuana trafficking.

Q From whom did you get that information?

A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot
Identify the person.

Q But you received it from your regular informer?

A Yes, sir.

ATTY. LLARIZA:

Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs?

A Marijuana, sir.

Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days
before you received the intelligence report in writing?
A Not a report of the particular coming of Aminnudin but his activities.

Q You only knew that he was coming on June 25,1984 two days before?

A Yes, sir.

Q You mean that before June 23, 1984 you did not know that minnudin was coming?

A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when
I received the information that he was coming. Regarding the reports on his activities, we have reports that he was
already consummated the act of selling and shipping marijuana stuff.

COURT:

Q And as a result of that report, you put him under surveillance?

A Yes, sir.

Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

A Yes, sir.

Q Are you sure of that?

A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23, 1984, you had already gathered information to
the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984?

A Only on the 23rd of June.

Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence
report?

A No, more.

Q Why not?

A Because we were very very sure that our operation will yield positive result.

Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore?

A Search warrant is not necessary. 23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme
Court cannot countenance such a statement. This is still a government of laws and not of men.

The mandate of the Bill of Rights is clear:

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

In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by
him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of
the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to
warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of
the locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they
had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."

In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has
always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of
the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act
of selling the prohibited drug.

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon
9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other
passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that
authorized them to pounce upon Aminnudin and immediately arrest him.

Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship,
when any one could be picked up at will, detained without charges and punished without trial, we will have only
ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution
and the individual liberties its Bill of Rights guarantees.

While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying,
that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he
will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him.

Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That
evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the
marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search
was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come
under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our
law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible
youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the
protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with
the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the
authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of
order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some
criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free
society to violate a law to enforce another, especially if the law violated is the Constitution itself.

We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has
not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is
innocent.

ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.
Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his bag at
the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a
crime, his arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his
bag (which yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.

Separate Opinions

AQUINO, J., dissenting:

I respectfully dissent. I hold that the accused was caught in flagrante, for he was carrying marijuana leaves in his bag at
the moment of his arrest. He was not "innocently disembarking from the vessel." The unauthorized transportation of
marijuana (Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425). Since he was committing a
crime, his arrest could be lawfully effected without a warrant (Sec. 6a, Rule 113, Rules of Court), and the search of his
bag (which yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12, Rule 126, Rules of Court). I
vote to affirm the judgment of the trial court finding him guilty of illegally transporting marijuana.
G.R. No. L-63630 April 6, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at San Fernando,
Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond reasonable doubt of violating
Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and sentencing him to life
imprisonment, to pay a fine of P20,000 and to pay the costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province of Pampanga, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused MEDEL TANGLIBEN y BERNARDINO,
knowing fully well that Marijuana is a prohibited drug, did then and there willfully, unlawfully and feloniously have his
possession, control and custody one (1) bag of dried marijuana leaves with an approximate weight of one (1) kilo and to
transport (sic) the same to Olongapo City, without authority of law to do so. (At p. 6, Rollo)

The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is narrated by the trial
court as follows:

It appears from the evidence presented by the prosecution that in the late evening of March 2, 1982, Patrolmen Silverio
Quevedo and Romeo L. Punzalan of the San Fernando Police Station, together with Barangay Tanod Macario Sacdalan,
were conducting surveillance mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San
Fernando, Pampanga; that the surveillance was aimed not only against persons who may commit misdemeanors at the
said place but also on persons who may be engaging in the traffic of dangerous drugs based on informations supplied by
informers; that it was around 9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G)
who was acting suspiciously and they confronted him; that the person was requested by Patrolmen Quevedo and
Punzalan to open the red traveling bag but the person refused, only to accede later on when the patrolmen identified
themselves; that found inside the bag were marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one
kilo, more or less; that the person was asked of his name and the reason why he was at the said place and he gave his
name as Medel Tangliben and explained that he was waiting for a ride to Olongapo City to deliver the marijuana leaves;
that the accused was taken to the police headquarters at San Fernando, Pampanga, for further investigation; and that
Pat. Silverio Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F).

It appears also from the prosecution's evidence that in the following morning or on March 3, 1982, Pat. Silverio Quevedo
asked his co-policeman Pat. Roberto Quevedo, who happens to be his brother and who has had special training on
narcotics, to conduct a field test on a little portion of the marijuana leaves and to have the remaining portion examined
by the PCCL at Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test (Exhibit H) on
the marijuana leaves and found positive result for marijuana (Exhibit E); that the remaining bigger quantity of the
marijuana leaves were taken to the PCCL at Camp Olivas by Pat. Roberto Quevedo that same day of March 3, 1982
(Exhibit A and A-1) and when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-10,
Rollo)

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

The accused declared that he got married on October 25, 1981 and his wife begot a child on June 10, 1982; that he was
formerly employed in the poultry farm of his uncle Alejandro Caluma in Antipolo, Rizal; that he is engaged in the
business of selling poultry medicine and feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he
goes to Subic at times in connection with his business and whenever he is in Subic, he used to buy C-rations from one
Nena Ballon and dispose the same in Manila; that he never left his residence at Antipolo, Rizal, on March 2, 1982; that
on March 3, 1982, he went to Subic to collect a balance of P100.00 from a customer thereat and to buy C-rations; that
he was able to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00 o'clock because
he had a drinking spree with Nena's son; that he tried to catch the 8:00 o'clock trip to Manila from Olongapo City but he
failed and was able to take the bus only by 9:00 o'clock that evening that it was a Victory Liner Bus that he rode and
because he was tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that upon alighting at
the Victory Liner Compound at San Fernando, Pampanga he crossed the street to wait for a bus going to Manila; that
while thus waiting for a bus, a man whom he came to know later as Pat. Punzalan, approached him and asked him if he
has any residence certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the money
inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken to the municipal building for
verification as he may be an NPA member; that at the municipal building, he saw a policeman, identified by him later as
Pat. Silverio Quevedo, sleeping but was awakened when he arrived that Pat. Quevedo took him upstairs and told him to
take out everything from his pocket saying that the prisoners inside the jail may get the same from him; that inside his
pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him that it shall be returned to him but that it was
never returned to him; that he was thereafter placed under detention and somebody told him that he is being charged
with possession of marijuana and if he would like to be bailed out, somebody is willing to help him; and, that when he
was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away all his money but he told his wife not
to complain anymore as it would be useless. (Rollo, pp. 10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND FINDING HIM GUILTY OF THE CRIME
CHARGED ON INSUFFICIENT AND DOUBTFUL EVIDENCE. (At p. 48, Rollo)

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.

However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan died. Thereafter, this
court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto, the Deputy Clerk of Court, in behalf of
the Clerk of Court, required the new counsel to file her appellant's brief. The latter complied and, in her brief, raised the
following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF MARIJUANA ALLEGEDLY SEIZED
FROM DEFENDANT-APPELLANT AS IT WAS A PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.

II. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE OF MARIJUANA LEAVES AS
THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS NEVER AUTHENTICATED.

III. THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO PROVE THE GUILT OF
DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful search without a
warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful arrest. Thus, Section
12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched for dangerous weapons
or anything which may be used as proof of the commission of an offense, without a search warrant.

Meanwhile, Rule 113, Sec. 5(a) provides:

. . . A peace officer or a private person may, without a warrant, arrest a person:

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

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception. The warrantless search was incident to a lawful arrest and is consequently valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue, held that:

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a warrant to arrest Claudio as the
latter was caught in flagrante delicto. The warrantless search being an incident to a lawful arrest is in itself lawful.
(Nolasco V. Pao, 147 SCRA 509). Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.
We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In that case the PC
officers had earlier received a tip from an informer that accused-appellant. was on board a vessel bound for Iloilo City
and was carrying marijuana. Acting on this tip, they waited for him one evening, approached him as he descended from
the gangplank, detained him and inspected the bag he was carrying. Said bag contained marijuana leaves. The Court
held that the marijuana could not be admitted in evidence since it was seized illegally. The records show, however, that
there were certain facts, not sing in the case before us, which led the Court to declare the seizure as invalid. As stated
therein:

The present case presented no such urgency From the conflicting declarations of the PC witnesses, it is clear that they
had at react two days within which they could have obtained a warrant of arrest and search Aminnudin who was coming
to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified. The date of its arrival was certain. And
from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was
ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."

In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the transcript of
stenographic notes reveals that there was an informer who pointed to the accused-appellant as carrying marijuana.
(TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had to act quickly. There was not enough
time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers
of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain the crimes with which
these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from him was never
authenticated and therefore should not have been admitted as evidence. He capitalizes on the fact that the marijuana
package brought by patrolman Roberto Quevedo to the PC Crime Laboratory for examination did not contain a tag
bearing the name of the accused. We rule, however, that since Patrolman Quevedo testified that he gave the marijuana
package together with a letter-request for examination, and the forensic chemist Marilene Salangad likewise testified
that she received the marijuana together with the letter-request and said letter-request bore the name of the accused,
then the requirements of proper authentication of evidence were sufficiently complied with. The marijuana package
examined by the forensic checklist was satisfactorily identified as the one seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly authenticated, still, we
cannot discount the separate field test conducted by witness Roberto Quevedo which yielded positive results for
marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and doubtful and that the
prosecution failed to prove his guilt.

In attacking the sufficiency of evidence, the appellant avers that the informer should have been presented before the
lower court. We discard this argument as a futile attempt to revive an already settled issue. This Court has ruled in
several cases that non-presentation of the informer, where his testimony would be merely corroborative or cumulative,
is not fatal to the prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No.
64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of credibility of
witnesses and their testimonies are entitled to great respect and accorded the highest consideration by the appellate
court. Since credibility is a matter that is peculiarly within the province of the trial judge, who had first hand opportunity
to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense at the time of
their testimony (People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason
to disturb the following findings:

The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan are positive and sufficiently
clean to show the commission by the accused of the offense herein chatted. These prosecution witnesses have no
motive to fabricate the facts and to foist a very serious offense against the accused. The knowledge on what these
witnesses testified to were (sic) acquired by them in the official performance of their duties and then, (sic) being no
showing that they are prejudiced against the accused, their testimonies deserve full credit.
The testimonies of the afore-mentioned petitioner that what they found in the possession of the accused were
marijuana leaves were corroborated by the examination findings conducted by Pat. October to Salangad of the PCCL,
with station at camp Olivas, San Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got all the money from his
wallet when he was accosted at the Victory Liner Terminal and was told just to keep quiet otherwise he will be
"salvaged" why will Pat. Punzalan still bring the accused to the municipal Building for interrogation and/or verification?
Would not Pat. Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on the testimony
to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never returned the same to him. If the policemen
really got any money from the accused and that the marijuana leaves do not belong to the accused, why will the two
policemen still produce in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the accused
and which contained the marijuana in question if the instant case is a mere fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in this case were all based on
personal knowledge acquired by the prosecution witnesses in the regular performance of their official duties and there
is nothing in their testimonies to show that they are bias (sic) or that they have any prejudice against the herein accused.
Between the testimonies of these prosecution witnesses and that of the uncorroborated and self-serving testimony of
the accused, the former should prevail. (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed himself through
compulsory court processes of several witnesses to buttress his defense. Since not one other witness was presented nor
was any justification for the non-appearance given, the inadequacy of his lone and uncorroborated testimony remains. It
cannot prevail vis-a-vis the positive testimonies given by the prosecution witnesses.

Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the lower court, is an
added circumstance tending to establish his guilt.

We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more or less. The intent to
transport the same is clear from the testimony of Pat. Silverio Quevedo who declared, among other things, that when he
confronted the accused that night, the latter told him that he (accused) is bringing the marijuana leaves to Olongapo
City. Moreover, considering the quantity of the marijuana leaves found in the possession of the accused and the place
he was arrested which is at San Fernando, Pampanga, a place where the accused is not residing, it can be said that the
intent to transport the marijuana leaves has been clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically denied in court, that he is
transporting the marijuana leaves to Olongapo City cannot be relied upon. Even assuming it to be true, the extrajudicial
confession cannot be admitted because it does not appear in the records that the accused, during custodial
investigation, was apprised of his rights to remain silent and to counsel and to be informed of such rights. In People v.
Duero 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero
made his alleged oral confession he was informed of his rights to remain silent and to have counsel and because there is
no proof that he knowingly and intelligently waived those rights, his confession is inadmissible in evidence. This ruling
was reiterated in People v. Tolentino, 145 SCRA 597 [1986], where the Court added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts relative to admissibility of
statements taken during in-custody interrogation but likewise dispelled any doubt as to the full adoption of the Miranda
doctrine in this jurisdiction. It is now incumbent upon the prosecution to prove during a trial that prior to questioning,
the confessant was warned of his constitutionally protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding extracted a clear
intent to transport the marijuana leaves. It may be pointed out, however, that although the information stated the
weight to be approximately one kilo, the forensic chemist who examined the marijuana leaves testified that the
marijuana weighed only 600 grams Such amount is not a considerable quantity as to conclusively confer upon the
accused an intent to transport the marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was arrested at San
Fernando, Pampanga, a place which is not his residence. Conviction of a crime with an extremely severe penalty must be
based on evidence which is clearer and more convincing than the inferences in this case.
What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana leaves but his actual
session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act No. 6425 (Dangerous
Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED. The appellant is
sentenced to suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and fine
of Six Thousand (P6,000.00) Pesos.

SO ORDERED.
G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF JUSTICE SPECIAL TASK FORCE, respondents.

PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition) the following resolutions of the
Commission on Elections: Resolution No. 2327 dated 26 December 1991 for being unconstitutional, and Resolution No.
92-0829 dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of legal and factual bases.

The factual backdrop: In preparation for the synchronized national and local elections scheduled on 11 May 1992, the
Commission on Elections (COMELEC) issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the
"Gun Ban," promulgating rules and regulations on bearing, carrying and transporting of firearms or other deadly
weapons, on security personnel or bodyguards, on bearing arms by members of security agencies or police
organizations, and organization or maintenance of reaction forces during the election period.1 Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for the summary disqualification of candidates engaged
in gunrunning, using and transporting of firearms, organizing special strike forces, and establishing spot checkpoints.2

On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-Arms, House of Representatives,
wrote petitioner who was then Congressman of the 1st District of Bulacan requesting the return of the two (2) firearms3
issued to him by the House of Representatives. Upon being advised of the request on 13 January 1992 by his staff,
petitioner immediately instructed his driver, Ernesto Arellano, to pick up the firearms from petitioner's house at Valle
Verde and return them to Congress.

Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine National Police (PNP) headed by Senior
Superintendent Danilo Cordero set up a checkpoint outside the Batasan Complex some twenty (20) meters away from
its entrance. About thirty minutes later, the policemen manning the outpost flagged down the car driven by Arellano as
it approached the checkpoint. They searched the car and found the firearms neatly packed in their gun cases and placed
in a bag in the trunk of the car. Arellano was then apprehended and detained. He explained that he was ordered by
petitioner to get the firearms from the house and return them to Sergeant-at-Arms Taccad of the House of
Representatives.

Thereafter, the police referred Arellano's case to the Office of the City Prosecutor for inquest. The referral did not
include petitioner as among those charged with an election offense. On 15 January 1992, the City Prosecutor ordered
the release of Arellano after finding the latter's sworn explanation meritorious.4

On 28 January 1992, the City Prosecutor invited petitioner to shed light on the circumstances mentioned in Arellano's
sworn explanation. Petitioner not only appeared at the preliminary investigation to confirm Arellano's statement but
also wrote the City Prosecutor urging him to exonerate Arellano. He explained that Arellano did not violate the firearms
ban as he in fact was complying with it when apprehended by returning the firearms to Congress; and, that he was
petitioner's driver, not a security officer nor a bodyguard.5

On 6 March 1992, the Office of the City Prosecutor issued a resolution which, among other matters, recommended that
the case against Arellano be dismissed and that the "unofficial" charge against petitioner be also dismissed.6

Nevertheless, on 6 April 1992, upon recommendation of its Law Department, COMELEC issued Resolution No. 92-0829
directing the filing of information against petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881
otherwise known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166;7 and petitioner to show cause
why he should not be disqualified from running for an elective position, pursuant to COMELEC Resolution No. 2327, in
relation to Sec. 32, 33 and 35 of R.A. 7166, and

Sec. 52, par. (c), of B.P. Blg. 881.8

On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the administrative proceedings as well
as the filing of the information in court.9 On 23 April 1992, the COMELEC denied petitioner's motion for
reconsideration.10 Hence, this recourse.

Petitioner questions the constitutionality of Resolution No. 2327. He argues that the rules and regulations of an
administrative body must respect the limits defined by law; that the Omnibus Election Code provides for the
disqualification of any person/candidate from running for or holding a public office, i.e., any person who has either been
declared by competent authority as insane or incompetent or has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude; that gunrunning, using or transporting firearms or similar weapons and other acts
mentioned in the resolution are not within the letter or spirit of the provisions of the Code; that the resolution did away
with the requirement of final conviction before the commission of certain offenses; that instead, it created a
presumption of guilt as a candidate may be disqualified from office in situations (a) where the criminal charge is still
pending, (b) where there is no pending criminal case, and (c) where the accused has already been acquitted, all contrary
to the requisite quantum of proof for one to be disqualified from running or holding public office under the Omnibus
Election Code, i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.

But, the issue on the disqualification of petitioner from running in the

11 May 1992 synchronized elections was rendered moot when he lost his bid for a seat in Congress in the elections that
ensued. Consequently, it is now futile to discuss the implications of the charge against him on his qualification to run for
public office.

However, there still remains an important question to be resolved, i.e., whether he can be validly prosecuted for
instructing his driver to return to the Sergeant-at-Arms of the House of Representatives the two firearms issued to him
on the basis of the evidence gathered from the warrantless search of his car.

Petitioner strongly protests against the manner by which the PNP conducted the search. According to him, without a
warrant and without informing the driver of his fundamental rights the policemen searched his car. The firearms were
not tucked in the waist nor within the immediate reach of Arellano but were neatly packed in their gun cases and
wrapped in a bag kept in the trunk of the car. Thus, the search of his car that yielded the evidence for the prosecution
was clearly violative of Secs. 2 and 3, par. (2), Art. III, of the Constitution. 11

Petitioner further maintains that he was neither impleaded as party respondent in the preliminary investigation before
the Office of the City Prosecutor nor included in the charge sheet. Consequently, making him a respondent in the
criminal information would violate his constitutional right to due process.

Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits any candidate for public office
during the election period from employing or availing himself or engaging the services of security personnel or
bodyguards since, admittedly, Arellano was not a security officer or bodyguard but a civilian employee assigned to him
as driver by the House of Representatives. Specifically, petitioner further argues, Arellano was instructed to return to
Congress, as he did, the firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the "Gun Ban,"
thus, no law was in fact violated. 12

On 25 June 1992, we required COMELEC to file its own comment on the

petition13 upon manifestation of the Solicitor General that it could not take the position of COMELEC and prayed
instead to be excused from filing the required comment. 14

COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in relation to Sec. 263, of B.P. Blg. 881
which provides that "the principals, accomplices and accessories, as defined in the Revised Penal Code, shall be
criminally liable for election offenses." It points out that it was upon petitioner's instruction that Arellano brought the
firearms in question outside petitioner's residence, submitting that his right to be heard was not violated as he was
invited by the City Prosecutor to explain the circumstances regarding Arellano's possession of the firearms. Petitioner
also filed a sworn written explanation about the incident. Finally, COMELEC claims that violation of

the "Gun Ban" is mala prohibita, hence, the intention of the offender is immaterial. 15

Be that as it may, we find no need to delve into the alleged constitutional infirmity of Resolution No. 2327 since this
petition may be resolved without passing upon this particular issue. 16

As a rule, a valid search must be authorized by a search warrant duly issued by an appropriate authority. However, this is
not absolute. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of moving
vehicles and the seizure of evidence in plain view,17 as well as the search conducted at police or military checkpoints
which we declared are not illegal per se, and stressed that the warrantless search is not violative of the Constitution for
as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle
is merely limited to a visual search. 18

Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that they were
neatly packed in gun cases and placed inside a bag at the back of the car. Significantly, COMELEC did not rebut this claim.
The records do not show that the manner by which the package was bundled led the PNP to suspect that it contained
firearms. There was no mention either of any report regarding any nervous, suspicious or unnatural reaction from
Arellano when the car was stopped and searched. Given these circumstances and relying on its visual observation, the
PNP could not thoroughly search the car lawfully as well as the package without violating the constitutional injunction.

An extensive search without warrant could only be resorted to if the officers conducting the search had reasonable or
probable cause to believe before the search that either the motorist was a law offender or that they would find the
instrumentality or evidence pertaining to the commission of a crime in the vehicle to be searched.19 The existence of
probable cause justifying the warrantless search is determined by the facts of each case.20 Thus, we upheld the validity
of the warrantless search in situations where the smell of marijuana emanated from a plastic bag owned by the accused,
or where the accused was acting suspiciously, and attempted to flee. 21

We also recognize the stop-and-search without warrant conducted by police officers on the basis of prior confidential
information which were reasonably corroborated by other attendant matters, e.g., where a confidential report that a
sizeable volume of marijuana would be transported along the route where the search was conducted and appellants
were caught in flagrante delicto transporting drugs at the time of their arrest; 22 where apart from the intelligence
information, there were reports by an undercover "deep penetration" agent that appellants were bringing prohibited
drugs into the country; 23 where the information that a Caucasian coming from Sagada bringing prohibited drugs was
strengthened by the conspicuous bulge in accused's waistline, and his suspicious failure to produce his passport and
other identification papers;24 where the physical appearance of the accused fitted the description given in the
confidential information about a woman transporting marijuana;25 where the accused carrying a bulging black leather
bag were suspiciously quiet and nervous when queried about its contents;26 or where the identity of the drug courier
was already established by police authorities who received confidential information about the probable arrival of
accused on board one of the vessels arriving in Dumaguete City. 27

In the case at bench, we find that the checkpoint was set up twenty (20) meters from the entrance to the Batasan
Complex to enforce Resolution

No. 2327. There was no evidence to show that the policemen were impelled to do so because of a confidential report
leading them to reasonably believe that certain motorists matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing special strike forces. Nor, as adverted to earlier, was there
any indication from the package or behavior of Arellano that could have triggered the suspicion of the policemen.
Absent such justifying circumstances specifically pointing to the culpability of petitioner and Arellano, the search could
not be valid. The action then of the policemen unreasonably intruded into petitioner's privacy and the security of his
property, in violation of Sec. 2, Art. III, of the Constitution. Consequently, the firearms obtained in violation of
petitioner's right against warrantless search cannot be admitted for any purpose in any proceeding.

It may be argued that the seeming acquiescence of Arellano to the search constitutes an implied waiver of petitioner's
right to question the reasonableness of the search of the vehicle and the seizure of the firearms.

While Resolution No. 2327 authorized the setting up of checkpoints, it however stressed that "guidelines shall be made
to ensure that no infringement of civil and political rights results from the implementation of this authority," and that
"the places and manner of setting up of checkpoints shall be determined in consultation with the Committee on
Firearms Ban and Security Personnel created under Sec. 5, Resolution No. 2323."28 The facts show that PNP installed
the checkpoint at about five o'clock in the afternoon of 13 January 1992. The search was made soon thereafter, or thirty
minutes later. It was not shown that news of impending checkpoints without necessarily giving their locations, and the
reason for the same have been announced in the media to forewarn the citizens. Nor did the informal checkpoint that
afternoon carry signs informing the public of the purpose of its operation. As a result, motorists passing that place did
not have any inkling whatsoever about the reason behind the instant exercise. With the authorities in control to stop
and search passing vehicles, the motorists did not have any choice but to submit to the PNP's scrutiny. Otherwise, any
attempt to turnabout albeit innocent would raise suspicion and provide probable cause for the police to arrest the
motorist and to conduct an extensive search of his vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped for inspection. As conceded by
COMELEC, driver Arellano did not know the purpose of the checkpoint. In the face of fourteen (14) armed policemen
conducting the operation,29 driver Arellano being alone and a mere employee of petitioner could not have marshalled
the strength and the courage to protest against the extensive search conducted in the vehicle. In such scenario, the
"implied acquiescence," if there was any, could not be more than a mere passive conformity on Arellano's part to the
search, and "consent" given under intimidating or coercive circumstances is no consent within the purview of the
constitutional guaranty.

Moreover, the manner by which COMELEC proceeded against petitioner runs counter to the due process clause of the
Constitution. The facts show that petitioner was not among those charged by the PNP with violation of the Omnibus
Election Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for such offense. The non-
disclosure by the City Prosecutor to the petitioner that he was a respondent in the preliminary investigation is violative
of due process which requires that the procedure established by law should be obeyed. 30

COMELEC argues that petitioner was given the change to be heard because he was invited to enlighten the City
Prosecutor regarding the circumstances leading to the arrest of his driver, and that petitioner in fact submitted a sworn
letter of explanation regarding the incident. This does not satisfy the requirement of due process the essence of which is
the reasonable opportunity to be heard and to submit any evidence one may have in support of his defense.31 Due
process guarantees the observance of both substantive and procedural rights, whatever the source of such rights, be it
the Constitution itself or only a statute or a rule of court. 32 In Go v. Court of Appeals,33 we held

that

While the right to preliminary investigation is statutory rather than constitutional in its fundament, since it has in fact
been established by statute, it is a component part of due process in criminal justice. The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty is not a mere formal or technical right; it is a substantive right . . . . [T]he right to an
opportunity to avoid a process painful to anyone save, perhaps, to hardened criminals is a valuable right. To deny
petitioner's claim to a preliminary investigation would be to deprive him of the full measure of his right to due process.

Apparently, petitioner was merely invited during the preliminary investigation of Arellano to corroborate the latter's
explanation. Petitioner then was made to believe that he was not a party respondent in the case, so that his written
explanation on the incident was only intended to exculpate Arellano, not petitioner himself. Hence, it cannot be
seriously contended that petitioner was fully given the opportunity to meet the accusation against him as he was not
apprised that he was himself a respondent when he appeared before the City Prosecutor.

Finally, it must be pointed out too that petitioner's filing of a motion for reconsideration with COMELEC cannot be
considered as a waiver of his claim to a separate preliminary investigation for himself. The motion itself expresses
petitioner's vigorous insistence on his right. Petitioner's protestation started as soon as he learned of his inclusion in the
charge, and did not ease up even after COMELEC's denial of his motion for reconsideration. This is understandably so
since the prohibition against carrying firearms bears the penalty of imprisonment of not less than one (1) year nor more
than six (6) years without probation and with disqualification from holding public office, and deprivation of the right to
suffrage. Against such strong stance, petitioner clearly did not waive his right to a preliminary investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless search conducted by the Philippine National Police on 13
January 1992 is declared illegal and the firearms seized during the warrantless search cannot be used as evidence in any
proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829 dated 6 April 1992 being violative of the
Constitution is SET ASIDE.

The temporary restraining order we issued on 5 May 1992 is made permanent.

SO ORDERED.

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