SOLIVEN VS MAKASIARIn these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit.Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support.It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded.The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, 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 nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence

of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution.It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained.Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention.But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused.Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person.As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties.As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point.The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of

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jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue.WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

CRUZ VS PEOPLEThe present original action for certiorari, prohibition and mandamus seeks the reversal of the Orders issued by respondent Sandiganbayan in Criminal Case No. 14252, dated February 17, 1993 1 and May 12, 1993, 2 denying petitioner’s Omnibus Motion and Motion for Reconsideration, respectively.The facts are summarized in the Memorandum of public respondents as follows:

1. The Government Service Insurance System (the GSIS, for short) filed two separate criminal complaints against petitioner Roman A. Cruz, Jr., a former public official who used to be the President and General Manager of the GSIS and, also, the President of the Manila Hotel, for violation of Section 3(e) of Republic Act No. 3019, as amended. The first complaint against petitioner was filed with the Office of the Special Prosecutor (the OSP, for short) and docketed as OSP-88-02028 while the second, which involved the same set of facts, was filed with the Presidential Commission on Good Government (the PCGG, for short) but which was later endorsed to the Office of the Ombudsman and docketed as OMB-0-91-0986. . . .2. A preliminary investigation was conducted by the PCGG where petitioner duly submitted his counter-affidavit. As a consequence’ of said investigation, an Information was filed with the first Division of the Sandiganbayan, docketed as Criminal Case No. 14134, charging petitioner with violation of Section 3(e) of Republic Act No. 3019. . . .3. During the proceedings before the OSP, petitioner moved to dismiss the complaint. The OSP, however, denied the motion and filed with the Third Division of the Sandiganbayan an Information charging petitioner with Estafa through Falsification of Public Documents (Articles 171 and 315 of the Revised Penal Code), docketed as Criminal Case No. 14252. Petitioner was deemed by the OSP to have waived his right to submit a counter-affidavit and supporting evidence. . . .4. As a result of the filing of two informations with respondent Sandiganbayan involving the same accused (herein petitioner) and the same set of facts, Criminal Case No. 14252 was consolidated with Criminal Case No. 14134 which was pending before the First Division of respondent Sandiganbayan. . . .5. Respondent Sandiganbayan, however, remanded the consolidated cases against petitioner to the Office of the Ombudsman for reinvestigation inasmuch as:a) the Information in Criminal Case No. 14134 was ordered dismissed in compliance with the ruling of the Supreme Court in Cojuangco, Jr. vs. PCGG, et al., G.R. Nos. 92319-20, October 2, 1990, which declared null and void the preliminary investigations conducted by the PCGG in all criminal cases involving matters which were the subject matter of civil cases earlier filed; and

b) the Information in Criminal Case No. 14252 was correctly assailed by petitioner as having been filed without the proper preliminary investigation. . . .6. During the preliminary investigation conducted anew by the Office of the Ombudsman, petitioner submitted his counter-affidavit and supporting documents. After the completion of said investigation, Prosecutor Leonardo P. Tamayo of the Office of the Ombudsman prepared a Resolution dated February 11, 1992, which recommended the withdrawal of the Information in Criminal Case No. 14252. . . .7. Respondent Ombudsman, however, despite the above recommendation of the investigating prosecutor ordered the prosecution to proceed under the existing Information in Criminal Case No. 14252 on his observation, viz:

Let us not do the defending for the accused. The explanations offered are too strained to be believed. At best they are matters of defense for the accused to prove at the trial.The alleged character of the funds involved being confidential and requires no auditing is totally immaterial. It could even explain why this anomaly was committed. . . .

8. Petitioner thus filed with respondent Sandiganbayan (First Division) an Omnibus Motion to Quash the Information, dated September 17, 1992, wherein he prayed ". . . for the production of (the) record of the preliminary investigation), and that the information be quashed outright or the disapproval of the Ombudsman set aside, or in the alternative, that the Office of the Ombudsman be ordered to conduct further proceedings, particularly the handwriting analysis prayed for by the petitioner which would establish who committed the alleged falsification. . . .On February 17, 1993, respondent Sandiganbayan promulgated a Resolution dated February 15, 1993, the dispositive portion of which reads:

WHEREFORE, the Omnibus Motion of accused Roman A. Cruz, Jr. is DENIED for lack of merit. . . .

10. A Motion for Reconsideration, dated April 12, 1993, of the aforequoted Resolution was filed by petitioner . . . .11. On May 12, 1993, respondent Sandiganbayan promulgated a Resolution, the dispositive portion of which reads:WHEREFORE, the Motion for Reconsideration of accused Roman A. Cruz, Jr. of this Court’s Resolution dated February 17, 1993 is DENIED for lack of merit. . . .12. Hence, petitioner filed the instant petition. 3

Petitioner contends that respondent Sandiganbayan committed a grave abuse of discretion:

1. In not dismissing the information considering that the Ombudsman’s approval of the order dismissing the complaint did not state the factual or legal basis therefor;2. In not requiring the production of the record of the preliminary investigation in wanton disregard of petitioner’s right to due process;

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3. In not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance; and4. In not requiring the Office of the Ombudsman to conduct further proceedings.

We do not find the instant petition to be impressed with merit as to warrant the extraordinary writs prayed for.The information filed against herein petitioner charging him with estafa through falsification of public documents and for which he stands to be tried before respondent court alleges:

That on or about or during the period from March 26, 1984 to May 11, 1984, or sometime prior or subsequent thereto, at the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, Roman Cruz, Jr., then President and General Manager of the Government Service Insurance System (GSIS) and likewise President of the Manila Hotel, hence a public official having been duly appointed/elected and qualified as such, taking advantage of his position, by means of deceit, committing an offense in relation to his office, did then and there wilfully, unlawfully and feloniously falsify Manila Hotel Invoices, Transportation, Charge, Cash, Budget for Food and Drinks vouchers in the aggregate amount of P350,000.00 and then make it appear that the GSIS management and staff had a five-day coordination meeting at the Manila Hotel from March 23 to 30, 1984 at the cost of P350,000.00, for which reason the GSIS paid/issued its check with No. 039511 dated May 11, 1984 in the amount of P350,000.00 which check was deposited to the account of the Manila Hotel, and thereafter cause the Manila Hotel to issue its check with No. 007272 dated May 11, 1984 in the amount of P350,000.00 payable to Roman Cruz, Jr. or himself, when in truth and in fact, as the accused well knew that there was no such five-day GSIS management and staff coordination meeting conducted/held at the Manila Hotel; and further thereafter convert and appropriate to his own personal use and benefit/deposit the said check to his own personal account with the Far East Bank and Trust Co. the said check/amount of P350,000.00 to the damage and prejudice of the GSIS and/or Manila Hotel and/or the government in the said amount of P350,000.00. 4

I. Petitioner initially submits that respondent Sandiganbayan acted with grave abuse of discretion in not dismissing the information considering that the Ombudsman’s disapproval of the order dismissing the complaint did not state the factual or legal basis therefor, in violation of the cardinal rules set forth in Ang Tibay, et al. vs. CIR, et al. 5 The submission is premised on the theory that said rules apply to a preliminary investigation which is to be considered quasi-judicial in nature. Petitioner avers that it is the duty of the Ombudsman to assess the evidence and defenses of the respondent in deciding a case, a failure wherein constitutes a violation of one’s right to due process of law. He further claims that "while the duty to

deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support the decision. The Ombudsman in this case not only failed to decide right but has nothing at all to support his decision." 6

Respondents, on the other hand, aver that the Office of the Ombudsman is not exercising quasi-judicial or quasi-legislative powers because "it does not act as a court" when it conducts preliminary investigation of cases falling under its jurisdiction.It is settled that the conduct of a preliminary investigation, which is defined as "an inquiry or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial," 7 is, like court proceedings, subject to the requirements of both substantive and procedural due process. This is because, a preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of his functions, acts as a quasi-judicial officer. As we held in Cojuangco, Jr. vs. PCGG, et al.: 8

. . . It must be undertaken in accordance with the procedure provided in Section 3, Rule 112 of the 1985 Rules of Criminal Procedure. This procedure is to be observed in order to assure that a person undergoing such preliminary investigation will be afforded due process.As correctly pointed out by petitioner, an indispensable requisite of due process is that the person who presides and decides over a proceeding, including a preliminary investigation, must possess the cold neutrality of an impartial judge.Although such a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair. The officer conducting the same investigates or inquires into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. Indeed, a preliminary investigation is in effect a realistic judicial appraisal of the merits of the case. Sufficient proof of the guilt of the accused must be adduced so that when the case is tried, the trial court may not be bound as a matter of law to order an acquittal. A preliminary investigation has then been called a judicial inquiry. It is a judicial proceeding. An act becomes judicial when there is opportunity to be heard and for the production and weighing of evidence, and a decision is rendered thereon.The authority of a prosecutor or investigating officer duly empowered to preside or to conduct a preliminary investigation is no less than that of a municipal judge or even a regional trial court judge. While the investigating officer, strictly speaking is not a "judge," by the nature of his functions he is and must be considered to be a quasi-judicial officer.

In the present case, petitioner asserts that his right to due process was violated in that respondent Ombudsman failed to assess and consider the evidence presented by petitioner in disapproving the recommendation for dismissal of the case by the investigating prosecutor, and his ruling is not supported by the evidence on record. The argument is specious.His submission that he was deprived of his right to due process hinges on the erroneous assumption that the order of the Ombudsman for the filing of the necessary information is lacking in any factual or legal basis. Such a conclusion, however, stems from

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the fact that said order did not entail a discussion of the rationale for the Ombudsman’s action.It may seem that the ratio decidendi for the Ombudsman’s order may be wanting but this is not a case of a total absence of factual and legal bases nor a failure to appreciate the evidence presented. What is actually involved here is merely a review of the conclusion arrived at by the investigating prosecutor as a result of his study and analysis of the complaint, counter-affidavits, and the evidence submitted by the parties during the preliminary investigation. The Ombudsman here is not conducting anew another investigation but is merely determining the propriety and correctness of the recommendation given by the investigating prosecutor, that is, whether probable cause actually exists or not, on the basis of the findings of fact of the latter. Verily, it is discretionary upon the Ombudsman if he will rely mainly on the findings of fact of the investigating prosecutor in making a review of the latter’s report and recommendation, as the Ombudsman can very well make his own findings of fact. There is nothing to prevent him from acting one way or the other. As a matter of fact, Section 4, Rule 112 of the Rules of Court provides that "where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or the chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. 9

With more reason may the Ombudsman not be faulted in arriving at a conclusion different from that of the investigating prosecutor on the basis of the same set of facts. It cannot be said that the Ombudsman committed a grave abuse of discretion simply because he opines contrarily to the prosecutor that, under the facts obtaining in the case, there is probable cause to believe that herein petitioner is guilty of the offense charged.As aptly pointed out by respondent court in its resolution denying petitioner’s motion for reconsideration, "to the Ombudsman, the narration of facts by Prosecutor Tamayo, . . . demonstrated adequate cause to prosecute the accused Cruz." 10 Furthermore, public respondents, in their Memorandum, correctly observed that "(f)rom the tenor of respondent Ombudsman’s statement, it is clear that he agreed with the findings of facts of the investigating prosecutor butdisagreed with the latter’s conclusion on the import and significance of said findings. On the basis of the findings of facts of the investigating prosecutor, which were not disputed by petitioner, respondent Ombudsman believed that there was sufficient ground to engender a well-founded belief that a crime had been committed and that petitioner is probably guilty thereof." 11

Petitioner argues that the indication of disapproval by the Ombudsman which consists merely of two paragraphs fails to point out the issues and relevant facts and is consequently whimsical, capricious and arbitrary. Such proposition is fallacious. The mere fact that the order to file an information against petitioner consists only of two paragraphs is not sufficient to impute arbitariness or caprice on the part of the Ombudsman, absent a clear showing that he gravely abused his discretion in disapproving the recommendation of the investigating prosecutor. Neither is it tainted with vindictiveness or oppression. He disapproved the recommendation of the special prosecutor because he sincerely believed that there is sufficient evidence to indict the accused. This is an exercise of the Ombudsman’s power based upon constitutional mandate, and the courts should not interfere in such exercise.

The rule is based not only upon the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complaint. 12

II. Petitioner next avers that the error of respondent court in not requiring the production of the record of the preliminary investigation is two-fold. First, it was in violation of the constitutional right against arbitrary arrests because probable cause was not "personally determined by the judge," considering that the records of the preliminary investigation were not elevated to the judge for examination. Second, it was in violation of petitioner’s right to due process of law since he was deprived of the opportunity to examine the evidence against him and prepare his defense.On the first issue, petitioner relies on the ruling in Lim, Sr., et al. vs. Felix, et al. 13 which held that —

If a judge relies entirely on the certification of the prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The judge commits a grave abuse of discretion.

The conduct of a preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or one for the determination of a probable cause for the issuance of a warrant of arrest. The first aspect of preliminary investigation is executive in nature. It is part of the prosecution’s job. The second kind of preliminary investigation, which is more properly called preliminary examination, is judicial in nature and is lodged with the judge. 14

For the latter, in the exercise of the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 15

Coming now to the case at bar, contrary to petitioner’s thesis, respondent court, in its resolution promulgated on February 17, 1993 denying petitioner’s motion to quash the information, found the existence of probable cause after making a deliberate and exhaustive review of the facts obtaining in the case. Thus:

All of the above logical process, which is supported both by the finding of fact in the Resolution and by admissions in the Motion of the accused, lead to the conclusion that probable cause exists against accused Roman Cruz, Jr., for acts described in the Information in the instant case.The narration of facts culled from the record (as affirmed by both parties) support the narration of facts

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in the Information. The superficial analysis of the admissions made above indicate that the elements of Article 315 of the Revised Penal Code as well as of Articles 171 and 172 thereof may probably be established.It is true that the Manila Hotel eventually treated the P350,000.00 as a "cash advance" to him. Accused Cruz, however, does not claim that there were cash advances made by him as a consequence of which he received this sum. Nor has accused Roman Cruz said that he had obtained a loan or cash advance from the Manila Hotel for a particular purpose for which he was expected to subsequently render an accounting. All that Manila Hotel’s subsequent description of this amount as a "cash advance," in fact, says is that when it turned out that P350,000.00 could not be properly accounted for, it had to be treated as an amount which accused Cruz had to pay back; thus, accountingwise, a cash advance.For accused to have received such a large amount from a company of which he was the President required him to sign a receipt which would specify clearly what he was receiving it for. If he received the sum as a cash advance for some future expense, the Manila Hotel documents would clearly so demonstrate. If he received it as a cash advance (against his salaries or other benefits), it would appear as a loan in Manila Hotel’s books. Accused Cruz, however, has said no such thing in any of his pleadings nor apparently has he so stated during the preliminary investigation.In other words, accused Cruz as President of the Manila Hotel — and, therefore, in a position of great fiduciary nature — received P350,000.00 in 1984 either for a non-existent reason or for a false reason.He may have an explanation. As of this time, however, if the evidence on record is actually presented at trial, enough evidence would exist to put accused Roman A. Cruz, Jr. at peril of his liberty and would require him to explain his side of the matter.A case has, therefore, been demonstrated in the record and in the averment of accused Cruz himself that the crime charged has probably been committed and that the accused is probably guilty thereof.(Emphasis supplied.) 16

Petitioner would have respondent court order the production of the records of the preliminary investigation in its determination of the existence of probable cause for the issuance of the warrant of arrest. First and foremost, as hereinabove stated, in a preliminary examination for the issuance of a warrant of arrest, the court is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 17This is precisely what respondent court did. In resolving the issue of probable cause, respondent court made an in-depth analysis of the findings of fact of Prosecutor Tamayo, as well as the Omnibus Motion submitted by petitioner. The correctness of these facts was not even questioned by herein petitioner but, on the contrary was expressly affirmed in the latter’s Omnibus Motion dated September 17, 1992 wherein it was stated that "(t)he Order issued by the investigating prosecutor . . . contains a lucid narration of the relevant facts."The case of Lim cited by petitioner is not applicable to the present case because, in the former, a warrant of arrest was issued by the respondent judge therein without conducting his own personal evaluation of the case even if only on the basis of the report submitted by the fiscal. Instead, the respondent therein simply

declared: "Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor’s certification in each information . . . . This is far from what actually transpired before the Sandiganbayan as reflected by the records in this case. Hence, the ruling in Lim cannot be properly invoked.As to the second issue, petitioner relies on the provisions of Section 8, Rule 112 of the 1985 Rules on Criminal Procedure, to wit:

Sec. 8. Record of preliminary investigation. — The record of the preliminary investigation whether conducted by a judge or a fiscal, shall not form part of the record of the case in the Regional Trial Court. However, the said court, on its own initiative or that of any party, may order the production of the record or any part thereof whenever the same shall be necessary in the resolution of the case or any incident therein, or shall be introduced as evidence by the party requesting for its production.

Petitioner’s prayer for the production of the record is intended not only for proper observance of the constitutional requirement that probable cause be determined personally by the judge, but also to enable him to examine the evidence and prepare his defenses and for trial.Public respondents contend that the production of the record of the preliminary examination is not necessary since petitioner can always resort to any of the modes of discovery available to an accused under the Rules of Court, specifically citing Section 11 of Rule 116, which provides:

Sec. 11. Production or inspection of material evidence in possession of prosecution. — On motion of the accused showing good cause and with notice to all parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing, of any written statements given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or any other investigating officers, as well as of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not otherwise privileged, which constitute or contain evidence material to any matter involved in the case, and which are in the possession or under the control of the prosecution, the police, or any other law investigating agencies.

This rule refers to the right of the accused to move for production or inspection of material evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the prosecution in its possession after obtaining the permission of the court. A motion showing good reasons for the granting of the permission must be filed by the defense for this purpose, with notice to all parties. 18

It will be noted at the outset that precisely, as suggested by public respondents, herein petitioner, in asking for the production of the records of the preliminary investigation in order to enable him to prepare for his defense and for trial, is actually trying to avail of this mode of discovery. There was good cause shown for the motion to produce the records, that is, so that they may be introduced as evidence by the party requesting for their production, which is one of the grounds provided for under Section 8, Rule 112 of the Rules of Court.

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It is true that the granting of permission lies within the discretion of the court. However, respondent court in this case has failed to sufficiently justify its refusal to have the records of the preliminary investigation produced before it so that petitioner may use them for his defense, either in its resolutions denying petitioner’s Omnibus Motion and Motion for Reconsideration, or in the pleadings and Memorandum filed by herein respondents before this Court. Consequently, we find no reason to deny petitioner the right to avail of such mode of discovery. If only for the reason that petitioner should be given the opportunity to inspect the evidence presented during the preliminary investigation solely for the purpose of enabling him to prepare for his defense and for trial, this questioned resolution of respondent Sandiganbayan should be modified.III. It is likewise contended that respondent court abused its discretion in not dismissing the information considering that, as found by the investigating prosecutor, the money received by petitioner was a cash advance for which he can only be held civilly liable, but which civil liability has already been extinguished. Citing the case ofYong Chan Kim vs. People, et al., 19 which held that a cash advance is in the form of a loan and, therefore, there can be no estafa committed, petitioner argues that he only incurred civil liability for the cash advance he obtained from the Manila Hotel. However, he contends that such liability had allegedly been extinguished when his leave credits and other benefits were withheld, the total of which was more than sufficient to liquidate the advance made.Also, it is argued that petitioner was denied due process when respondent court failed to remand the case to the Ombudsman for further proceedings for the purpose of determining the persons who actually forged the questioned documents by conducting a handwriting analysis. This would have secured him from hasty and malicious prosecution, and would even have led to the discovery of the true culprit, if indeed documents had been fabricated.It must here be stressed that a preliminary investigation is merely inquisitorial, and it is often the only means of discovering the persons who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits and has no purpose except that of determining whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof, and it does not place the persons against whom it is taken in jeopardy. 20

The established rule is that a preliminary investigation is not the occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. 21

Conformably therewith, the arguments raised by herein petitioner that the cash advance is actually in the form of a loan and therefore no criminal liability attaches, and that respondent court should have remanded the case for further investigation to determine the true identity of the forgers, are all matters of defense which are best presented during the trial before respondent court for its consideration.The main function of the government prosecutor during the preliminary investigation is merely to determine the existence of probable cause, and to file the corresponding information if he finds it to be so. And, probable cause has been defined as the existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the

prosecutor, that the person charged was guilty of the crime for which he was prosecuted. 22

In the case at bar, the Ombudsman found that there was sufficient ground to believe that petitioner is guilty of the crime charged on the basis of the factual findings of Prosecutor Tamayo in the latter’s Order dated February 11, 1992 which were arrived at after taking into consideration the evidence presented by the parties. A cursory perusal of the records of this case will show that the findings of fact by the Office of the Ombudsman are supported by substantial evidence, hence the same should be considered conclusive. 23

Furthermore, the Ombudsman’s findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. 24 His arguments are anchored on the propriety of or error in the Ombudsman’s appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. 25 Insofar as this third issue is concerned, therefore, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari.WHEREFORE, the resolutions appealed from are hereby AFFIRMED, with the modification that respondent Ombudsman is DIRECTED to produce the pertinent records of the preliminary investigation before the Sandiganbayan at the proper juncture of the proceedings therein and on sufficient justification therefor.SO ORDERED.

MENDOZA VS PEOPLEWhile the determination of probable cause to charge a person of a crime is the sole function of the. prosecutor, the trial court may, in the protection of one's fundamental right to liberty, dismiss the case if, upon a personal assessment of the evidence, it finds that the evidence does not establish probable cause.This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14, 2011, which reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified theft and estafa.This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul C. Evangelista, on January 8, 2008 for qualified theft and estafa against Alfredo.3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used Car Supervisor. On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial audit of the used cars and discovered that five (5) cars had been sold and released by Alfredo without Rolando’s or the finance manager’s permission.4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit the payments totalling P886,000.00. It was further alleged that while there were 20 cars under Alfredo’s custody, only 18 were accounted for. Further investigation revealed that Alfredo failed to turn over the files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking into account the unremitted amounts and the acquisition cost of the Honda City, Alfredo pilfered a total amount of P1,046,000.00 to its prejudice and damage.5

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In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to prove ownership over the five (5) cars or its right to possess them with the purported unremitted payments. Hence, it could not have suffered damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding probable cause and recommending the filing of an information against Alfredo for qualified theft and estafa.Alfredo moved for reconsideration, but the motion was denied.8 He then filed a petition for review with the Department of Justice on May 16, 2008.9

While Alfredo’s motion for reconsideration was still pending before the Office of the City Prosecutor of Mandaluyong, two informations for qualified theft10 and estafa11 were filed before the Regional Trial Court, Branch 212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination of probable cause12 before the trial court. On April 28, 2008, he also filed a motion to defer arraignment.Several clarificatory hearings were scheduled but were not conducted.13 On February 4, 2009, the parties agreed to submit all pending incidents, including the clarificatory hearing, for resolution.14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an order15 dismissing the complaint, stating that:After conducting an independent assessment of the evidence on record which includes the assailed Resolution dated 04 March 2008, the court holds that the evidence adduced does not support a finding of probable cause for the offenses of qualified theft and estafa. x x x.16

Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.17

Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court acted without or in excess of its jurisdiction and with grave abuse of discretion when it dismissed the complaint. It argued that "the determination of probable cause and the decision whether or not to file a criminal case in court, rightfully belongs to the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial court, and reinstated the case. In its decision, the appellate court ruled that the trial court acted without or in excess of its jurisdiction "in supplanting the public prosecutor’s findings of probable cause with her own findings of insufficiency of evidence and lack of probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued that the trial court was correct in finding that there was no probable cause as shown by the evidence on record. He argued that "judicial determination of probable cause is broader than [the] executive determination of probable cause"21and that "[i]t is not correct to say that the determination of probable cause is exclusively vested on the prosecutor x x x."22

In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that were a mere rehash of those already considered and passed upon by the appellate court.The Office of the Solicitor General, arguing for public respondent, stated in its comment24 that the appellate court correctly sustained the public prosecutor in his findings of probable cause against Alfredo. Since there was no showing of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the trial court should respect his determination of probable cause.In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior faculty[,] covers a broader encompassing perspective in the disposition of the issue on the

existence of probable cause."26He argued that the findings of the trial court should be accorded greater weight than the appellate court’s. It merely reviewed the findings of the trial court.The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on the basis of its own independent finding of lack of probable cause.Time and again, this court has been confronted with the issue of the difference between the determination of probable cause by the prosecutor on one hand and the determination of probable cause by the judge on the other. We examine these two concepts again.Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under Article 315, fourth paragraph, no. 3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion perpetua, a preliminary investigation must first be conducted "to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial," in accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.At this stage, the conduct of the preliminary investigation and the subsequent determination of the existence of probable cause lie solely within the discretion of the public prosecutor.29 If upon evaluation of the evidence, the prosecutor finds sufficient basis to find probable cause, he or she shall then cause the filing of the information with the court.Once the information has been filed, the judge shall then "personally evaluate the resolution of the prosecutor and its supporting evidence"30 to determine whether there is probable cause to issue a warrant of arrest. At this stage, a judicial determination of probable cause exists.In People v. Castillo and Mejia,31 this court has stated:There are two kinds of determination of probable cause: executive and judicial. The executive determination of probable cause is one made during preliminary investigation. It is a function that properly pertains to the public prosecutor who is given a broad discretion to determine whether probable cause exists and to charge those whom he believes to have committed the crime as defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court. Whether or not that function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon.The judicial determination of probable cause, on the other hand, is one made by the judge to ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy himself that based on the evidence submitted, there is necessity for placing the accused under custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge cannot be forced to issue the arrest warrant.32

The difference is clear: The executive determination of probable cause concerns itself with whether there is enough evidence to support an Information being filed. The judicial determination of probable cause, on the other hand, determines whether a warrant of arrest should be issued. In People v. Inting:33

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the

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objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper—whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial—is the function of the Prosecutor.34 (Emphasis supplied)While it is within the trial court’s discretion to make an independent assessment of the evidence on hand, it is only for the purpose of determining whether a warrant of arrest should be issued. The judge does not act as an appellate court of the prosecutor and has no capacity to review the prosecutor’s determination of probable cause; rather, the judge makes a determination of probable cause independent of the prosecutor’s finding.People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for murder was filed against Jonathan Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a complaint-affidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a motion to amend the information, which was granted by the court. The information was then amended to include Billy Cerbo as one of the accused, and a warrant of arrest was issued against him.Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause. The trial court granted this motion, recalled the warrant, and dismissed the case against him. The Court of Appeals affirmed this dismissal. This court, however, reversed the Court of Appeals and ordered the reinstatement of the amended information against Billy Cerbo, stating that:In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for ‘want of evidence,’ because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in "the proper scheme of things" in our criminal justice system should be clearly understood.The rights of the people from what could sometimes be an "oppressive" exercise of government prosecutorial powers do need to be protected when circumstances so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutor’s duties, courts ought to refrain from interfering with such lawfully and judicially mandated duties.In any case, if there was palpable error or grave abuse of discretion in the public prosecutor’s finding of probable cause, the accused can appeal such finding to the justice secretary and move for the deferment or suspension of the proceedings until such appeal is resolved.36 (Emphasis supplied)In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts and evidence were "sufficient to warrant the indictment of [petitioner] x x x."37 There was nothing in his resolution which showed that he issued it beyond the discretion granted to him by law and jurisprudence.While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the discretion to make her own finding of whether probable cause existed to order the arrest of the accused and proceed with trial.

Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court cannot hold the accused for arraignment and trial.Article III, Section 2 of the Constitution states:The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has not personally determined the existence of probable cause. The phrase "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" allows a determination of probable cause by the judge ex parte.For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates the judge to "immediately dismiss the case if the evidence on record fails to establish probable cause." Section 6, paragraph (a) of Rule 112 reads:Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.In People v. Hon. Yadao:38

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the criminal information: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor to present additional evidence within five days from notice in case of doubt as to the existence of probable cause.But the option to order the prosecutor to present additional evidence is not mandatory.1âwphi1 The court’s first option under the above is for it to "immediately dismiss the case if the evidence on record clearly fails to establish probable cause." That is the situation here: the evidence on record clearly fails to establish probable cause against the respondents.39 (Emphasis supplied)It is also settled that "once a complaint or information is filed in court, any disposition of the case, whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound discretion of the court."40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and concluded that "the evidence adduced does not support a finding of probable cause for the offenses of qualified theft and estafa."41 Specifically, she found that Juno Cars "failed to prove by competent evidence"42 that the vehicles alleged to have been pilfered by Alfredo were lawfully possessed or owned by them, or that these vehicles were received by Alfredo, to be able

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to substantiate the charge of qualified theft. She also found that the complaint "[did] not state with particularity the exact value of the alleged office files or their valuation purportedly have been removed, concealed or destroyed by the accused,"43 which she found crucial to the prosecution of the crime of estafa under Article 315, fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to clear out essential matters pertinent to the offense charged and even directed the private complainant to bring documents relative to the same/payment as well as affidavit of witnesses/buyers with the end view of satisfying itself that indeed probable cause exists to commit the present case which private complainant failed to do.44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly dismissed the case against Alfredo.Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in dismissing cases due to lack of probable cause, considering the preliminary nature of the evidence before it. It is only when he or she finds that the evidence on hand absolutely fails to support a finding of probable cause that he or she can dismiss the case. On the other hand, if a judge finds probable cause, he or she must not hesitate to proceed with arraignment and trial in order that justice may be served.WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C. Mendoza are DISMISSED.SO ORDERED.

LIM VS FELIX 194 SCRA 292May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound.An investigation of the incident then followed.Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211.After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

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. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla aliasTidoy. (Rollo, p. 58, G.R. Nos. 94054-57)

x x x x x x x x xIn the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused.Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case.On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied.On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail.On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812, 5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate, Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment of this Honorable Court in its personal determination of the existence of a probable cause or prima facie evidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause.2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists aprima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution.On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein. The respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

x x x x x x x x xThe petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

x x x x x x x x x. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T.

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Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists.This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution which provides:

. . . 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 . . .

We ruled:. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court.Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest.Under this section, the judge must satisfy himself of the existence of probable cause before issuing a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98 Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of long-standing practice had been attached to the information filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated:

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as may be authorized by law", has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of arrest. This is not an accurate interpretation.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedures, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of

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stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his determination.And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper –– whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial –– is the function of the Prosecutor.The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function . . . (but) part of the prosecution's job, a function of the executive," (2) that whenever "there are enough his or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessary mean that it should be indiscriminately exercised.The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power –– indeed, it is as much a duty as it is a power –– has been and

remains vested in every judge by the provisions in the Bill of Rights in the 1935, the 1973 and the present [1987] Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of COMELEC to file the information by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms.There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions.

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At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person.If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion.The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest.We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge.The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case.1âwphi1 We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit:

It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these

earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause.WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT.SO ORDERED.

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BACHE VS RUIZThis is an original action of certiorari, prohibition and mandamus, with prayer for a writ of preliminary mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a corporation duly organized and existing under the laws of the Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25, 1970; to order respondents to desist from enforcing the same and/or keeping the documents, papers and effects seized by virtue thereof, as well as from enforcing the tax assessments on petitioner corporation alleged by petitioners to have been made on the basis of the said documents, papers and effects, and to order the return of the latter to petitioners. We gave due course to the petition but did not issue the writ of preliminary injunction prayed for therein.

The pertinent facts of this case, as gathered from record, are as follows:chanrob1es virtual 1aw library

On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search warrant against petitioners for violation of Section 46(a) of the National Internal Revenue Code, in relation to all other pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue Examiner Rodolfo de Leon, one of herein respondents, to make and file the application for search warrant which was attached to the letter.In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them the following papers: respondent Vera’s aforesaid letter-request; an application for search warrant already filled up but still unsigned by respondent De Leon; an affidavit of respondent Logronio subscribed before respondent De Leon; a deposition in printed form of respondent Logronio already accomplished and signed by him but not yet subscribed; and a search warrant already accomplished but still unsigned by respondent Judge.At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed his Deputy Clerk of Court to take the depositions of respondents De Leon and Logronio. After the session had adjourned, respondent Judge was informed that the depositions had already been taken. The stenographer, upon request of respondent Judge, read to him her stenographic notes; and

thereafter, respondent Judge asked respondent Logronio to take the oath and warned him that if his deposition was found to be false and without legal basis, he could be charged for perjury. Respondent Judge signed respondent de Leon’s application for search warrant and respondent Logronio’s deposition, Search Warrant No. 2-M-70 was then sign by respondent Judge and accordingly issued.Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the search warrant petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal. Petitioners’ lawyers protested the search on the ground that no formal complaint or transcript of testimony was attached to the warrant. The agents nevertheless proceeded with their search which yielded six boxes of documents.On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that the search warrant be quashed, dissolved or recalled, that preliminary prohibitory and mandatory writs of injunction be issued, that the search warrant be declared null and void, and that the respondents be ordered to pay petitioners, jointly and severally, damages and attorney’s fees. On March 18, 1970, the respondents, thru the Solicitor General, filed an answer to the petition. After hearing, the court, presided over by respondent Judge, issued on July 29, 1970, an order dismissing the petition for dissolution of the search warrant. In the meantime, or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner corporation in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized. Petitioners came to this Court.

The petition should be granted for the following reasons:chanrob1es virtual 1aw library

1. Respondent Judge failed to personally examine the complainant and his witness.

The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court are:jgc:chanrobles.com.ph

"(3) 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." (Art. III, Sec. 1, Constitution.)

"SEC. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace 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.

"No search warrant shall issue for more than one specific offense.

"SEC. 4. Examination of the applicant. — The judge or justice of the peace must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him." (Rule 126, Revised Rules of Court.)

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The examination of the complainant and the witnesses he may produce, required by Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court, should be conducted by the judge himself and not by others. The phrase "which shall be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce," appearing in the said constitutional provision, was introduced by Delegate Francisco as an amendment to the draft submitted by the Sub-Committee of Seven. The following discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine Constitutional Convention, Vol. III, pp. 755-757) is enlightening:jgc:chanrobles.com.ph

"SR. ORENSE. Vamos a dejar compañero los piropos y vamos al grano.

En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Señoria que causaria cierta demora el procedimiento apuntado en su enmienda en tal forma que podria frustrar los fines de la justicia o si Su Señoria encuentra un remedio para esto casos con el fin de compaginar los fines de la justicia con los derechos del individuo en su persona, bienes etcetera, etcetera.

"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Señoria pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona que presenta el registro puede ser el mismo denunciante o alguna persona que solicita dicho mandamiento de registro. Ahora toda la enmienda en esos casos consiste en que haya peticion de registro y el juez no se atendra solamente a sea peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin examiner a los testigos.

"SR. ORENSE. No cree Su Señoria que el tomar le declaracion de ese denunciante por escrito siempre requeriria algun tiempo?.

"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos en todo lo posible las vejaciones injustas con la expedicion arbitraria de los mandamientos de registro. Creo que entre dos males debemos escoger. el menor.

x x x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we are incorporating in our constitution something of a fundamental character. Now, before a judge could issue a search warrant, he must be under the obligation to examine personally under oath the complainant and if he has any witness, the witnesses that he may produce . . ."cralaw virtua1aw library

The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and candid, for it requires the judge, before issuing a search warrant, to "personally examine on oath or affirmation the complainant and any witnesses he may produce . . ."cralaw virtua1aw library

Personal examination by the judge of the complainant and his witnesses is necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which prohibit the issuance of warrants except "upon probable cause." The determination of whether or not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be allowed to be delegated in the absence of any rule to the contrary.

In the case at bar, no personal examination at all was conducted by respondent Judge of the complainant (respondent De Leon) and his witness (respondent Logronio). While it is true that the complainant’s application for search warrant and the witness’ printed-form deposition were subscribed and sworn to before respondent Judge, the latter did not ask either of the two any question the answer to which could possibly be the basis for determining whether or not there was probable cause against herein petitioners. Indeed, the participants seem to have attached so little significance to the matter that notes of the proceedings before respondent Judge were not even taken. At this juncture it may be well to recall the salient facts. The transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of this case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of Court, took the depositions of the complainant and his witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent Judge was at the sala hearing a case. After respondent Judge was through with the hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and witness Logronio went to respondent Judge’s chamber and informed the Judge that they had finished the depositions. Respondent Judge then requested the stenographer to read to him her stenographic notes. Special Deputy Clerk Gonzales testified as follows:jgc:chanrobles.com.ph

"A And after finishing reading the stenographic notes, the Honorable Judge requested or instructed them, requested Mr. Logronio to raise his hand and warned him if his deposition will be found to be false and without legal basis, he can be charged criminally for perjury. The Honorable Court told Mr. Logronio whether he affirms the facts contained in his deposition and the affidavit executed before Mr. Rodolfo de Leon.

"Q And thereafter?"A And thereafter, he signed the deposition of Mr. Logronio."Q Who is this he?"A The Honorable Judge."Q The deposition or the affidavit?"A The affidavit, Your Honor."cralaw virtua1aw library

Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance of Search Warrant No. 2-M-70 was thus limited to listening to the stenographer’s readings of her notes, to a few words of warning against the commission of perjury, and to administering the oath to the complainant and his witness. This cannot be consider a personal examination. If there was an examination at all of the complainant and his witness, it was the one conducted by the Deputy Clerk of Court. But, as stated, the Constitution and the rules

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require a personal examination by the judge. It was precisely on account of the intention of the delegates to the Constitutional Convention to make it a duty of the issuing judge to personally examine the complainant and his witnesses that the question of how much time would be consumed by the judge in examining them came up before the Convention, as can be seen from the record of the proceedings quoted above. The reading of the stenographic notes to respondent Judge did not constitute sufficient compliance with the constitutional mandate and the rule; for by that manner respondent Judge did not have the opportunity to observe the demeanor of the complainant and his witness, and to propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to conceive. These were important in arriving at a sound inference on the all-important question of whether or not there was probable cause.

2. The search warrant was issued for more than one specific offense.

Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National Internal Revenue Code in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73, 208 and 209." The question is: Was the said search warrant issued "in connection with one specific offense," as required by Sec. 3, Rule 126?

To arrive at the correct answer it is essential to examine closely the provisions of the Tax Code referred to above. Thus we find the following:chanrob1es virtual 1aw library

Sec. 46(a) requires the filing of income tax returns by corporations.

Sec. 53 requires the withholding of income taxes at source.

Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and fraudulent returns.

Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the information required under the Tax Code.

Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or manufactures any article subject to a specific tax, without having paid the privilege tax therefore, or who aids or abets in the conduct of illicit distilling, rectifying, compounding, or illicit manufacture of any article subject to specific tax . . .," and provides that in the case of a corporation, partnership, or association, the official and/or employee who caused the violation shall be responsible.

Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of output removed, or to pay the tax due thereon.

The search warrant in question was issued for at least four distinct offenses under the Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns), which are interrelated. The second is the violation of Sec. 53 (withholding of income taxes at source). The third is the violation of Sec. 208 (unlawful pursuit of business or occupation); and the fourth is the violation of Sec. 209 (failure to make a return of receipts, sales, business or gross value of output actually removed or to pay the tax

due thereon). Even in their classification the six above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on Business and Occupation).

Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967 (20 SCRA 383), is not applicable, because there the search warrants were issued for "violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code;" whereas, here Search Warrant No 2-M-70 was issued for violation of only one code, i.e., the National Internal Revenue Code. The distinction more apparent than real, because it was precisely on account of the Stonehill incident, which occurred sometime before the present Rules of Court took effect on January 1, 1964, that this Court amended the former rule by inserting therein the phrase "in connection with one specific offense," and adding the sentence "No search warrant shall issue for more than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in Stonehill:jgc:chanrobles.com.ph

"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 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.’"

3. The search warrant does not particularly describe the things to be seized.

The documents, papers and effects sought to be seized are described in Search Warrant No. 2-M-70 in this manner:jgc:chanrobles.com.ph

"Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books, customers ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications, accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970."cralaw virtua1aw library

The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.

In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:jgc:chanrobles.com.ph

"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:chanrob1es virtual 1aw library

‘Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or paper showing all business transactions including disbursement receipts, balance

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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."cralaw virtua1aw library

While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants, for the language used therein is so all-embracing as to include all conceivable records of petitioner corporation, which, if seized, could possibly render its business inoperative.

In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of the requirement that the warrant should particularly describe the place to be searched and the things to be seized, to wit:jgc:chanrobles.com.ph

". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that ‘unreasonable searches and seizures’ may not be made, — that abuses may not be committed. That this is the correct interpretation of this constitutional provision is borne out by American authorities."cralaw virtua1aw library

The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case.

A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People v. Rubio; 57 Phil. 384); or when the description expresses a conclusion of fact — not of law — by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

Respondents contend that certiorari does not lie because petitioners failed to file a motion for reconsideration of respondent Judge’s order of July 29, 1970. The contention is without merit. In the first place, when the questions raised before this Court are the same as those which were squarely raised in and passed upon by the court below, the filing of a motion for reconsideration in said court before certiorari can be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago, Et Al., 108 Phil., 905). In the second place, the rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. (Matutina v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of the tax assessments sought to be enforced by respondent officers of the Bureau of Internal Revenue against petitioner corporation, On account of which immediate and more direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case, the deprivation of petitioners’ fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity. (Matute v. Court of Appeals, Et Al., supra.)

It is next contended by respondents that a corporation is not entitled to protection against unreasonable search and seizures. Again, we find no merit in the contention.

"Although, for the reasons above stated, we are of the opinion that an officer of a corporation which is charged with a violation of a statute of the state of its creation, or of an act of Congress passed in the exercise of its constitutional powers, cannot refuse to produce the books and papers of such corporation, we do not wish to be understood as holding that a corporation is not entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities appropriate to such body. Its property cannot be taken without compensation. It can only be proceeded against by due process of law, and is protected, under the 14th Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)

"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule applied to a corporation, the ground that it was not privileged from producing its books and papers. But the rights of a corporation against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of America, 251 U.S. 385, 64 L. ed. 319.)

In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right of a corporation to object against unreasonable searches and seizures, thus:jgc:chanrobles.com.ph

"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 the interest of each of them in said corporations, whatever, the offices they hold therein may be.

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Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 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 . . ."cralaw virtua1aw library

In the Stonehill case only the officers of the various corporations in whose offices documents, papers and effects were searched and seized were the petitioners. In the case at bar, the corporation to whom the seized documents belong, and whose rights have thereby been impaired, is itself a petitioner. On that score, petitioner corporation here stands on a different footing from the corporations in Stonehill.

The tax assessments referred to earlier in this opinion were, if not entirely — as claimed by petitioners — at least partly — as in effect admitted by respondents — based on the documents seized by virtue of Search Warrant No. 2-M-70. Furthermore, the fact that the assessments were made some one and one-half months after the search and seizure on February 25, 1970, is a strong indication that the documents thus seized served as basis for the assessments. Those assessments should therefore not be enforced.

PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70 issued by respondent Judge is declared null and void; respondents are permanently enjoined from enforcing the said search warrant; the documents, papers and effects seized thereunder are ordered to be returned to petitioners; and respondent officials the Bureau of Internal Revenue and their representatives are permanently enjoined from enforcing the assessments mentioned in Annex "G" of the present petition, as well as other assessments based on the documents, papers and effects seized under the search warrant herein nullified, and from using the same against petitioners in any criminal or other proceeding. No pronouncement as to costs.ROAN VS GONZALESOnce again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul.One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown.That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning.That right is guaranteed in the following provisions of Article IV of the 1973 Constitution:

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.SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise.(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined.The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against the petitioner. 4

To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5

Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." As held in a long line of decisions, the probable cause must refer to only one specific offense. 7

The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8

Implementing this requirement, the Rules of Court provided in what was then Rule 126:

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SEC. 4. Examination of the applicant. — The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him.

The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar interrogation.Commenting on this matter, the respondent judge declared:

The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10

By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him.As this Court held in Mata v. Bayona: 11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false.We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid.

The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12

In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled

jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14

Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions.It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 15

A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them.The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19

One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith.The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20

We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist.The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged,

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was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant.Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets.It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing.It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27

Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle.Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. "The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain incustodia legis.Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28

WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs.SO ORDERED.ALVAREZ vs CFIThe petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of certain accounting books, documents and papers belonging to him in his residence situated in Infanta, Province of Tayabas, as well as the order of a later date, authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him.On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the petitioner kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money-lender charging usurious rates of interest in violation of the law. In his oath at the and of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit in question the Judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the petitioner's house at nay time of the day or night, the seizure of the books and documents above-mentioned and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals, two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums, three bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories, two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of copra, two packages of correspondence, one receipt book belonging to Luis Fernandez, fourteen bundles of invoices and other papers many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation. The search for and a seizure of said articles were made with the opposition of the petitioner who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Emilio L. Siongco to deposit all the articles seized within twenty-four hours from the receipt of notice thereof and giving him a period of five (5) days within which to show cause why he should not be punished for contempt of court. On June 10th, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury

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Board be authorized to retain the articles seized for a period of thirty (30) days for the necessary investigation. The attorney for the petitioner, on June 20th, filed another motion alleging that, notwithstanding the order of the 8th of said month, the officials of the Anti-Usury Board had failed to deposit the articles seized by them and praying that a search warrant be issued, that the sheriff be ordered to take all the articles into his custody and deposit of the Anti-Usury Board be punished for contempt of court. Said attorney, on June 24th, filed an ex parte petition alleging that while agent Emilio L. Siongco had deposited some documents and papers in the office of the clerk of court, he had so far failed to file an inventory duly verified by oath of all the documents seized by him, to return the search warrant together with the affidavit it presented in support thereof, or to present the report of the proceedings taken by him; and prayed that said agent be directed to filed the documents in question immediately. On the 25th of said month the court issued an order requiring agent Emilio L. Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2d of said year, the attorney for the petitioner filed another petition alleging that the search warrant issue was illegal and that it had nit yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to the petitioner, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, 1936, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Emilio L. Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show case, if any, within the unextendible period of two (2) days from the date of notice of said order, why all the articles seized appearing in the inventory, Exhibit 1, should not be returned to the petitioner. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by the petitioner. In view of the opposition of the attorney for the petitioner, the court, on September 25th, issued an order requiring the Anti-Usury Board to specify the time needed by it to examine the documents and papers seized and which of them should be retained, granting it a period of five (5) days for said purpose. On the 30th of said month the assistant chief of the Anti-Usury Board filed a motion praying that he be granted ten (10) days to comply with the order of September 25th and that the clerk of court be ordered to return to him all the documents and papers together with the inventory thereof. The court, in an order of October 2d of said year, granted him the additional period of ten(10) days and ordered the clerk of court to send him a copy of the inventory. On October 10th, said official again filed another motion alleging that he needed sixty (60) days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 1016, 23, 25, 26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, and praying that he be granted said period of sixty (60) days. In an order of October 16th, the court granted him the period of sixty (60) days to investigate said nineteen (19) documents. The petitioner alleges, and it is not denied by the respondents, that these nineteen (19)documents continue in the

possession of the court, the rest having been returned to said petitioner.

I. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (section 95, General Orders. No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others (In re Pacific Railways Commission, 32 Fed., 241; Interstate Commerce Commission vs Brimson, 38 Law. ed., 1047; Broyd vs. U. S., 29 Law. ed., 746; Caroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights or citizen, for the enforcement of no statue is of sufficient importance to justify indifference to the basis principles of government (People vs. Elias, 147 N. E., 472).II. As the protection of the citizen and the maintenance of his constitutional right is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation on, the rights secured by them(State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizure or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed., [2d], 189; Leonardvs. U. S., 6 Fed. [2d], 353; Perry vs. U. S. 14 Fed. [2d],88; Cofer vs. State, 118 So., 613).III. The petitioner claims that the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Mariano G. Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable. To the question "What are your reason for applying for this search warrant", appearing in the affidavit, the agent answered: "It has been reported to me by a person whom I consider to be reliable that there are being kept in said premises, books, documents, receipts, lists, chits, and other papers used by him in connection with his activities as a money-lender, charging a usurious rate of interest, in violation of the law" and in attesting the truth of his statements contained in the affidavit, the said agent states that he found them to be correct and true to the best of his knowledge and belief.Section 1, paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "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 top be searched, and the persons or things to be seized." Section 97 of General Orders, No. 58 provides that "A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized." It will be noted that both provisions require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant ands the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined asan outward pledge given by the person taking it that his attestation or promise is

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made under an immediate sense of his responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs.State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S.vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs.Quartier, 236 Pac., 746).It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable searches and seizure. Unreasonable searches and seizures are a menace against which the constitutional guarantee afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has been defined in general language. All illegal searches and seizure are unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence or probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S. 70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs.Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).In view of the foregoing and under the above-cited authorities, it appears that the affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, it is hereby held that the search warrant in question and the subsequent seizure of the books, documents and other papers are illegal and do not in any way warrant the deprivation to which the petitioner was subjected.IV. Another ground alleged by the petitioner in asking that the search warrant be declared illegal and cancelled is that it was not supported by other affidavits aside from that made by the applicant. In other words, it is contended that the search warrant cannot be issued unless it be supported by affidavits made by the applicant and the witnesses to be presented necessity by him. Section 1, paragraph 3, of Article III of the Constitution provides that 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. Section 98 of General Orders, No. 58 provides that the judge or justice must, before issuing the warrant, examine under oath the complainant and any witnesses he may produce and take their depositions in writing. It is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Mariano G. Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders. No. 58 provides that it is of imperative necessity to take the deposition of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the

existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant of the complaint contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exist probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the fact is necessary. We conclude, therefore, that the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.V. The petitioner alleged as another ground for the declaration of the illegality of the search warrant and the cancellation thereof, the fact that it authorized its execution at night. Section 101 of General Orders, No. 58 authorizes that the search be made at night when it is positively asserted in the affidavits that the property is on the person or in the place ordered to be searched. As we have declared the affidavits insufficient and the warrant issued exclusively upon it illegal, our conclusion is that the contention is equally well founded and that the search could not legally be made at night.VI. One of the grounds alleged by the petitioner in support of his contention that the warrant was issued illegally is the lack of an adequate description of the books and documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and section 97 of General Orders, No. 58 provide that the affidavit to be presented, which shall serve as the basis for determining whether probable cause exist and whether the warrant should be issued, must contain a particular description of the place to be searched and the person or thing to be seized. These provisions are mandatory and must be strictly complied with (Munch vs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1 Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs. Borkowski, 268 Fed., 408; In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237; People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be seized, their description must be rather generally, it is not required that a technical description be given, as this would mean that no warrant could issue (People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the articles given in the affidavit presented to the judge was as follows: "that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money-lender, charging a usurious rate of interest, in violation of the law." Taking into consideration the nature of the article so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof. The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to identify the articles, which he did.VII. The last ground alleged by the petitioner, in support of his claim that the search warrant was obtained illegally, is that the articles were seized in order that the Anti-Usury Board might provide itself with evidence to be used by it in the criminal case or cases which might be filed against him for violation of the Anti-usury Law. At the hearing of the incidents of the case raised before the court it clearly appeared that the books and documents had really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of the articles in question as evidence against the petitioner in the criminal cases that may be filed against him. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in

22

whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886; Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs.Madden, 297 Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132). Therefore, it appearing that at least nineteen of the documents in question were seized for the purpose of using them as evidence against the petitioner in the criminal proceeding or proceedings for violation against him, we hold that the search warrant issued is illegal and that the documents should be returned to him.

The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity of the search warrant or the proceedings had subsequent to the issuance thereof, because he has waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the opinion that there was no such waiver, first, because the petitioner has emphatically denied the offer of compromise and, second, because if there was a compromise it reffered but to the institution of criminal proceedings fro violation of the Anti-Usury Law. The waiver would have been a good defense for the respondents had the petitioner voluntarily consented to the search and seizure of the articles in question, but such was not the case because the petitioner protested from the beginning and stated his protest in writing in the insufficient inventory furnished him by the agents.Said board alleges as another defense that the remedy sought by the petitioner does not lie because he can appeal from the orders which prejudiced him and are the subject matter of his petition. Section 222 of the Code of Civil Procedure in fact provides that mandamus will not issue when there is another plain, speedy and adequate remedy in the ordinary course of law. We are of the opinion, however, that an appeal from said orders would have to lapse before he recovers possession of the documents and before the rights, of which he has been unlawfully deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps, 22 Phil., 456).Summarizing the foregoing conclusions, we hold:

1. That the provisions of the Constitution and General Orders, No. 58, relative to search and seizure, should be given a liberal construction in favor of the individual in order to maintain the constitutional guaranties whole and in their full force;2. That since the provisions in question are drastic in their form and fundamentally restrict the enjoyment of the ownership, possession and use of the personal property of the individual, they should be strictly construed;3. That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of the facts of probable cause, and (b) because the warrant was issued for the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be instituted against the petitioner, for violation of the Anti-Usury Law;4. That as the warrant had been issued unreasonably, and as it does not appear positively in the affidavit that the articles were in the possession of the petitioner and in the place indicated, neither could the search and seizure be made at night;5. That although it is not mandatory to present affidavits of witnesses to corroborate the applicant or a complainant in cases where the latter has personal knowledge of the facts, when the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the judge to require affidavits of other

witnesses so that he may determine whether probable cause exists;6. That a detailed description of the person and place to be searched and the articles to be seized is necessary, but whereby, by the nature of the articles to be seized, their description must be rather general, but is not required that a technical description be given, as this would mean that no warrant could issue;7. That the petitioner did not waive his constitutional rights because the offer of compromise or settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search and seizure; and8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the petition for mandamusfiled by him, lies.

For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the orders of the respondent court authorizing the relation of the books and documents, are declared illegal and are set aside, and it is ordered that the judge presiding over the Court of First Instance of Tayabas direct the immediate return to the petitioner of the nineteen (19) documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So ordered.

MICROSOFT 438 SCRA 224The Case

This petition for review on certiorari[1] seeks to reverse the Court of Appeals Decision[2] dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777. The Court of Appeals reversed the Order[3] of the Regional Trial Court, Branch 23, Manila (RTC), denying respondent Maxicorp, Inc.s (Maxicorp) motion to quash the search warrant that the RTC issued against Maxicorp. Petitioners are the private complainants against Maxicorp for copyright infringement under Section 29 of Presidential Decree No. 49 (Section 29 of PD 49)[4]and for unfair competition under Article 189 of the Revised Penal Code (RPC).[5]

Antecedent Facts

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On 25 July 1996, National Bureau of Investigation (NBI) Agent Dominador Samiano, Jr. (NBI Agent Samiano) filed several applications for search warrants in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and Article 189 of the RPC. After conducting a preliminary examination of the applicant and his witnesses, Judge William M. Bayhon issued Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against Maxicorp.

Armed with the search warrants, NBI agents conducted on 25 July 1996 a search of Maxicorps premises and seized property fitting the description stated in the search warrants.

On 2 September 1996, Maxicorp filed a motion to quash the search warrants alleging that there was no probable cause for their issuance and that the warrants are in the form of general warrants. The RTC denied Maxicorps motion on 22 January 1997. The RTC also denied Maxicorps motion for reconsideration.

The RTC found probable cause to issue the search warrants after examining NBI Agent Samiano, John Benedict Sacriz (Sacriz), and computer technician Felixberto Pante (Pante). The three testified on what they discovered during their respective visits to Maxicorp. NBI Agent Samiano also presented certifications from petitioners that they have not authorized Maxicorp to perform the witnessed activities using petitioners products.

On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of Appeals seeking to set aside the RTCs order. On 23 December 1998, the Court of Appeals reversed the RTCs order denying Maxicorps motion to quash the search warrants. Petitioners moved for reconsideration. The Court of Appeals denied petitioners motion on 29 November 1999.

The Court of Appeals held that NBI Agent Samiano failed to present during the preliminary examination conclusive evidence that Maxicorp produced or sold the counterfeit products. The Court of Appeals pointed out that the sales receipt NBI Agent Samiano presented as evidence that he bought the products from Maxicorp was in the name of a certain Joel Diaz.

Hence, this petition.The Issues

Petitioners seek a reversal and raise the following issues for resolution:

1. WHETHER THE PETITION RAISES QUESTIONS OF LAW;2. WHETHER PETITIONERS HAVE LEGAL PERSONALITY TO

FILE THE PETITION;3. WHETHER THERE WAS PROBABLE CAUSE TO ISSUE

THE SEARCH WARRANTS;4. WHETHER THE SEARCH WARRANTS ARE GENERAL

WARRANTS.The Ruling of the Court

The petition has merit.On Whether the Petition Raises Questions of LawMaxicorp assails this petition as defective since it failed to

raise questions of law. Maxicorp insists that the arguments petitioners presented are questions of fact, which this Court should not consider in a Rule 45 petition for review. Petitioners counter that all the issues they presented in this petition involve questions of law. Petitioners point out that the facts are not in dispute.

A petition for review under Rule 45 of the Rules of Court should cover questions of law.[6] Questions of fact are not reviewable. As a rule, the findings of fact of the Court of Appeals are final and conclusive and this Court will not review them on appeal,[7] subject to exceptions as when the findings of the appellate court conflict with the findings of the trial court.[8]

The distinction between questions of law and questions of fact is settled. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts. A question of fact exists if the doubt centers on the truth or falsity of the alleged facts. Though this delineation seems simple, determining the true nature and extent of the distinction is sometimes problematic. For example, it is incorrect to presume that all cases where the facts are not in dispute automatically involve purely questions of law.

There is a question of law if the issue raised is capable of being resolved without need of reviewing the probative value of the evidence.[9] The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.[10] If the query requires a re-evaluation of the credibility of witnesses, or the existence or relevance of surrounding circumstances and their relation to each other, the issue in that query is factual.[11] Our ruling inPaterno v. Paterno[12] is illustrative on this point:Such questions as whether certain items of evidence should be accorded probative value or weight, or rejected as feeble or spurious, or whether or not the proofs on one side or the other are clear and convincing and adequate to establish a proposition in issue, are without doubt questions of fact. Whether or not the body of proofs presented by a party, weighed and analyzed in relation to contrary evidence submitted by adverse party, may be said to be strong, clear and convincing; whether or not certain documents presented by one side should be accorded full faith and credit in the face of protests as to their spurious character by the other side; whether or not inconsistencies in the body of proofs of a party are of such gravity as to justify refusing to give said proofs weight all these are issues of fact.

It is true that Maxicorp did not contest the facts alleged by petitioners. But this situation does not automatically transform all issues raised in the petition into questions of law. The issues must meet the tests outlined in Paterno.

Of the three main issues raised in this petition the legal personality of the petitioners, the nature of the warrants issued and the presence of probable cause only the first two qualify as questions of law. The pivotal issue of whether there was probable cause to issue the search warrants is a question of fact. At first glance, this issue appears to involve a question of law since it does not concern itself with the truth or falsity of certain facts. Still, the resolution of this issue would require this Court to inquire into the probative value of the evidence presented before the RTC. For a question to be one of law, it must not involve an examination of the probative value of the evidence presented by the litigants or any of them.[13]

Yet, this is precisely what the petitioners ask us to do by raising arguments requiring an examination of the TSNs and the documentary evidence presented during the search warrant proceedings. In short, petitioners would have us substitute our own judgment to that of the RTC and the Court of Appeals by conducting our own evaluation of the evidence. This is exactly the situation which Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise only questions of law. This Court is not a trier of facts. It is not the function of this court to analyze or weigh evidence.[14] When we give due course to such situations, it is solely by way of exception. Such exceptions apply only in the presence of extremely meritorious circumstances.[15]

Indeed, this case falls under one of the exceptions because the findings of the Court of Appeals conflict with the findings of the RTC.

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[16] Since petitioners properly raised the conflicting findings of the lower courts, it is proper for this Court to resolve such contradiction.On Whether Petitioners have the Legal Personality to File this Petition

Maxicorp argues that petitioners have no legal personality to file this petition since the proper party to do so in a criminal case is the Office of the Solicitor General as representative of the People of the Philippines. Maxicorp states the general rule but the exception governs this case.[17] We ruled in Columbia Pictures Entertainment, Inc. v. Court of Appeals [18] that the petitioner-complainant in a petition for review under Rule 45 could argue its case before this Court in lieu of the Solicitor General if there is grave error committed by the lower court or lack of due process. This avoids a situation where a complainant who actively participated in the prosecution of a case would suddenly find itself powerless to pursue a remedy due to circumstances beyond its control. The circumstances in Columbia Pictures Entertainment are sufficiently similar to the present case to warrant the application of this doctrine.On Whether there was Probable Cause to Issue the Search Warrants

Petitioners argue that the Court of Appeals erred in reversing the RTC based on the fact that the sales receipt was not in the name of NBI Agent Samiano. Petitioners point out that the Court of Appeals disregarded the overwhelming evidence that the RTC considered in determining the existence of probable cause. Maxicorp counters that the Court of Appeals did not err in reversing the RTC. Maxicorp maintains that the entire preliminary examination that the RTC conducted was defective.

The Court of Appeals based its reversal on two factual findings of the RTC. First, the fact that the sales receipt presented by NBI Agent Samiano as proof that he bought counterfeit goods from Maxicorp was in the name of a certain Joel Diaz. Second, the fact that petitioners other witness, John Benedict Sacriz, admitted that he did not buy counterfeit goods from Maxicorp.

We rule that the Court of Appeals erred in reversing the RTCs findings.

Probable cause means such reasons, supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.[19] Thus, probable cause for a search warrant requires such facts and circumstances that would lead a reasonably prudent man to believe that an offense has been committed and the objects sought in connection with that offense are in the place to be searched.[20]

The judge determining probable cause must do so only after personally examining under oath the complainant and his witnesses. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.[21] The applicant must have personal knowledge of the circumstances. Reliable information is insufficient.[22] Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses.[23]

The Court of Appeals reversal of the findings of the RTC centers on the fact that the two witnesses for petitioners during the preliminary examination failed to prove conclusively that they bought counterfeit software from Maxicorp. The Court of Appeals ruled that this amounted to a failure to prove the existence of a connection between the offense charged and the place searched.

The offense charged against Maxicorp is copyright infringement under Section 29 of PD 49 and unfair competition under Article 189 of the RPC. To support these charges, petitioners presented the testimonies of NBI Agent Samiano, computer technician Pante, and Sacriz, a civilian. The offenses that petitioners charged Maxicorp contemplate several overt acts. The sale of counterfeit products is but one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how they personally saw Maxicorp commit acts of infringement and unfair competition.

During the preliminary examination, the RTC subjected the testimonies of the witnesses to the requisite examination. NBI Agent Samiano testified that he saw Maxicorp display and offer for sale counterfeit software in its premises. He also saw how the counterfeit software were produced and packaged within Maxicorps premises. NBI Agent Samiano categorically stated that he was certain the products were counterfeit because Maxicorp sold them to its customers without giving the accompanying ownership manuals, license agreements and certificates of authenticity.

Sacriz testified that during his visits to Maxicorp, he witnessed several instances when Maxicorp installed petitioners software into computers it had assembled. Sacriz also testified that he saw the sale of petitioners software within Maxicorps premises. Petitioners never authorized Maxicorp to install or sell their software.

The testimonies of these two witnesses, coupled with the object and documentary evidence they presented, are sufficient to establish the existence of probable cause. From what they have witnessed, there is reason to believe that Maxicorp engaged in copyright infringement and unfair competition to the prejudice of petitioners. Both NBI Agent Samiano and Sacriz were clear and insistent that the counterfeit software were not only displayed and sold within Maxicorps premises, they were also produced, packaged and in some cases, installed there.

The determination of probable cause does not call for the application of rules and standards of proof that a judgment of conviction requires after trial on the merits. As implied by the words themselves, probable cause is concerned with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond reasonable doubt. The standards of judgment are those of a reasonably prudent man,[24] not the exacting calibrations of a judge after a full-blown trial.

No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its determination exists.[25] Probable cause is determined in the light of conditions obtaining in a given situation.[26] Thus, it was improper for the Court of Appeals to reverse the RTCs findings simply because the sales receipt evidencing NBI Agent Samianos purchase of counterfeit goods is not in his name.

For purposes of determining probable cause, the sales receipt is not the only proof that the sale of petitioners software occurred. During the search warrant application proceedings, NBI Agent Samiano presented to the judge the computer unit that he purchased from Maxicorp, in which computer unit Maxicorp had pre-installed petitioners software.[27] Sacriz, who was present when NBI Agent Samiano purchased the computer unit, affirmed that NBI Agent Samiano purchased the computer unit.[28] Pante, the computer technician, demonstrated to the judge the presence of petitioners software on the same computer unit.[29] There was a comparison between petitioners genuine software and Maxicorps software pre-installed in the computer unit that NBI Agent Sambiano purchased.[30] Even if we disregard the sales receipt issued in the name of Joel Diaz, which petitioners explained was the alias NBI

25

Agent Samiano used in the operation, there still remains more than sufficient evidence to establish probable cause for the issuance of the search warrants.

This also applies to the Court of Appeals ruling on Sacrizs testimony. The fact that Sacriz did not actually purchase counterfeit software from Maxicorp does not eliminate the existence of probable cause. Copyright infringement and unfair competition are not limited to the act of selling counterfeit goods. They cover a whole range of acts, from copying, assembling, packaging to marketing, including the mere offering for sale of the counterfeit goods. The clear and firm testimonies of petitioners witnesses on such other acts stand untarnished. The Constitution and the Rules of Court only require that the judge examine personally and thoroughly the applicant for the warrant and his witnesses to determine probable cause. The RTC complied adequately with the requirement of the Constitution and the Rules of Court.

Probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity to question the applicant and his witnesses. [31] For this reason, the findings of the judge deserve great weight. The reviewing court should overturn such findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason.[32] Nothing in the records of the preliminary examination proceedings reveal any impropriety on the part of the judge in this case. As one can readily see, here the judge examined thoroughly the applicant and his witnesses. To demand a higher degree of proof is unnecessary and untimely. The prosecution would be placed in a compromising situation if it were required to present all its evidence at such preliminary stage. Proof beyond reasonable doubt is best left for trial.On Whether the Search Warrants are in the Nature of General Warrants

A search warrant must state particularly the place to be searched and the objects to be seized. The evident purpose for this requirement is to limit the articles to be seized only to those particularly described in the search warrant. This is a protection against potential abuse. It is necessary to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that no unreasonable searches and seizures be committed.[33]

In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a search warrant shall issue in connection with one specific offense. The articles described must bear a direct relation to the offense for which the warrant is issued.[34] Thus, this rule requires that the warrant must state that the articles subject of the search and seizure are used or intended for use in the commission of a specific offense.

Maxicorp argues that the warrants issued against it are too broad in scope and lack the specificity required with respect to the objects to be seized. After examining the wording of the warrants issued, the Court of Appeals ruled in favor of Maxicorp and reversed the RTCs Order thus:Under the foregoing language, almost any item in the petitioners store can be seized on the ground that it is used or intended to be used in the illegal or unauthorized copying or reproduction of the private respondents software and their manuals.[35]

The Court of Appeals based its reversal on its perceived infirmity of paragraph (e) of the search warrants the RTC issued. The appellate court found that similarly worded warrants, all of which noticeably employ the phrase used or intended to be used, were previously held void by this Court.[36] The disputed text of the search warrants in this case states:

a) Complete or partially complete reproductions or copies of Microsoft software bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION contained in CD-ROMs, diskettes and hard disks;

b) Complete or partially complete reproductions or copies of Microsoft instruction manuals and/or literature bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION;

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION;

d) Sales invoices, delivery receipts, official receipts, ledgers, journals, purchase orders and all other books of accounts and documents used in the recording of the reproduction and/or assembly, distribution and sales, and other transactions in connection with fake or counterfeit products bearing the Microsoft copyrights and/or trademarks owned by MICROSOFT CORPORATION;

e) Computer hardware, including central processing units including hard disks, CD-ROM drives, keyboards, monitor screens and diskettes, photocopying machines and other equipment or paraphernalia used or intended to be used in the illegal and unauthorized copying or reproduction of Microsoft software and their manuals, or which contain, display or otherwise exhibit, without the authority of MICROSOFT CORPORATION, any and all Microsoft trademarks and copyrights; and

f) Documents relating to any passwords or protocols in order to access all computer hard drives, data bases and other information storage devices containing unauthorized Microsoft software.[37](Emphasis supplied)

It is only required that a search warrant be specific as far as the circumstances will ordinarily allow.[38] The description of the property to be seized need not be technically accurate or precise. The nature of the description should vary according to whether the identity of the property or its character is a matter of concern.[39] Measured against this standard we find that paragraph (e) is not a general warrant. The articles to be seized were not only sufficiently identified physically, they were also specifically identified by stating their relation to the offense charged. Paragraph (e) specifically refers to those articles used or intended for use in the illegal and unauthorized copying of petitioners software. This language meets the test of specificity.[40]

The cases cited by the Court of Appeals are inapplicable. In those cases, the Court found the warrants too broad because of particular circumstances, not because of the mere use of the phrase used or intended to be used. In Columbia Pictures, Inc. v. Flores, the warrants ordering the seizure of television sets, video cassette recorders, rewinders and tape cleaners x x x were found too broad since the defendant there was a licensed distributor of video tapes.[41] The mere presence of counterfeit video tapes in the defendants store does not mean that the machines were used to produce the counterfeit tapes. The situation in this case is different. Maxicorp is not a licensed distributor of petitioners. In Bache & Co. (Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided the warrants because they authorized the seizure of records pertaining to all business

26

transactions of the defendant.[42] And in 20th Century Fox Film Corp. v. Court of Appeals, the Court quashed the warrant because it merely gave a list of articles to be seized, aggravated by the fact that such appliances are generally connected with the legitimate business of renting out betamax tapes.[43]

However, we find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states:

c) Sundry items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION;

The scope of this description is all-embracing since it covers property used for personal or other purposes not related to copyright infringement or unfair competition. Moreover, the description covers property that Maxicorp may have bought legitimately from Microsoft or its licensed distributors. Paragraph (c) simply calls for the seizure of all items bearing the Microsoft logo, whether legitimately possessed or not. Neither does it limit the seizure to products used in copyright infringement or unfair competition.

Still, no provision of law exists which requires that a warrant, partially defective in specifying some items sought to be seized yet particular with respect to the other items, should be nullified as a whole. A partially defective warrant remains valid as to the items specifically described in the warrant.[44] A search warrant is severable, the items not sufficiently described may be cut off without destroying the whole warrant.[45] The exclusionary rule found in Section 3(2) of Article III of the Constitution renders inadmissible in any proceeding all evidence obtained through unreasonable searches and seizure. Thus, all items seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned to Maxicorp.

WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of the Court of Appeals dated 23 December 1998 and its Resolution dated 29 November 1999 in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE except with respect to articles seized under paragraph (c) of Search Warrants Nos. 96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to Maxicorp, Inc. immediately.

SO ORDERED.

27

PEOPLE vs TEEFor automatic review is the consolidated judgment[1] of the

Regional Trial Court (RTC) of Baguio City, Branch 6, dated September 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of the Dangerous Drugs Law.[2] Since appellant was acquitted in the second case, we focus on the first case, where appellant has been found guilty and sentenced to death and fined one million pesos.

The decretal portion of the trial courts decision reads:WHEREFORE, judgment is hereby rendered, as follows:1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of the offense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant and sentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiary imprisonment in case of insolvency.The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U-27) are ordered forfeited in favor of the State to be destroyed immediately in accordance with law.2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused Modesto Tee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violation of Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since the marijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure.The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts) although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless ordered forfeited in favor of the State to be destroyed immediately in accordance with law considering that they are prohibited articles.The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. Case No. 15822-R unless held on other charges.COST(S) DE OFFICIO.SO ORDERED.[3]

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNP NARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana.

On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBI had not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however, did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed as Criminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias Estoy Tee, with illegal possession of marijuana, allegedly committed as follows:That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellow sack, weighing 591.81 kilograms,all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.CONTRARY TO LAW.[4]

On August 7, 1998, the prosecution moved to amend the foregoing charge sheet considering that subject marijuana were seized in two (2) different places.[5]

As a result, the information in Criminal Case No. 15800-R was amended to read as follows:That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:- Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and a yellow sack, weighing 591.81 kilogramsa prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.CONTRARY TO LAW.[6]

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion of which reads:That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowingly have in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and

2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering tops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms;

a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.CONTRARY TO LAW.[7]

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellants arraignment.

When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered a plea of not guilty for him.[8] Trial on the merits then ensued.

The facts of this case, as gleaned from the records, are as follows:

Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquainted with each other, since Abratiques wife is the sister of Tees sister-in-law.[9]

Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggled cigarettes. [10] Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, Baguio City. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant.

28

Appellant then brought several boxes of purported blue seal cigarettes to the leased premises.

Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not blue seal cigarettes but marijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to remove them from the premises.[11]

Appellant then hired Abratiques taxi and transported the boxes of cannabis from the Ballesteros place to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City.[12]

On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transporting strawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, where appellant proceeded to load several sacks of marijuana in Abratiques taxi. He then asked Abratique to find him a place where he could store the contraband.[13]

Abratique brought appellant to his grandmothers house at No. 27 Dr. Cario St., QM Subdivision, Baguio City, which was being managed by Abratiques aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique and appellant unloaded and stored there the sacks of marijuana brought from Sablan.[14] Abratique was aware that they were transporting marijuana as some of the articles in the sacks became exposed in the process of loading.[15]

Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided to her daughter, Alice Abreau Fianza, about their predicament. As Alice Fianzas brother-in-law, Edwin Fianza, was an NBI agent, Alice and Abratique phoned him and disclosed what had transpired.[16]

On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day, Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cario St. While the NBI agents were conducting their surveillance, they noticed that several PNP NARCOM personnel were also watching the place.[17] The NBI then learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a huge amount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation.

As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation could be jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded and allowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks of marijuana, totaling 336.93 kilograms.[18]

Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTC Judge Antonio Reyes at his residence.[19] Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, Atty. Delilah Muoz, so the proceedings could be properly recorded. After Atty. Muoz arrived, Judge Reyes questioned Lising and Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellants residence at Km. 6, Dontogan, Green Valley, Baguio City for marijuana.[20]

The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellants residence where they served the warrant upon appellant himself.[21] The search was witnessed by appellant, members of his family, barangay officials, and members of the media.[22] Photographs were taken during the actual search.[23] The law enforcers found 26 boxes and a sack of dried

marijuana[24] in the water tank, garage, and storeroom of appellants residence.[25] The total weight of the haul was 591.81 kilograms.[26] Appellant was arrested for illegal possession of marijuana.

The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigal conducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellants rented room at No. 27, Dr. Cario St., as well as those from his residence at Green Valley, showed these to be marijuana.[27]

In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being the products of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and the process by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid search warrant. Moreover, Abratiques testimony, which was heavily relied upon by the judge who issued the warrant, was hearsay.

In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuana was the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordingly acquitted of the charge. However, the trial court found that the prosecutions evidence was more than ample to prove appellants guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana and sentenced him to death.

Hence, this automatic review.Before us, appellant submits that the trial court erred in:1UPHOLDING THE LEGALITY OF THE SEARCH WARRANT

DESPITE LACK OF COMPLIANCE OF (sic) SEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND ITBEING A GENERAL WARRANT;

2.GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE TO TESTIFY AGAINST APPELLANT;

3GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND

SENTENCING HIM TO DEATH DESPITE THE ILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.[28]

We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at the appellants residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecution witness, on appellants right to speedy trial; (3) the sufficiency of the prosecutions evidence to sustain a finding of guilt with moral certainty; and (4) the propriety of the penalty imposed.1. On the Validity of the Search Warrant; Its Obtention and Execution

Appellant initially contends that the warrant, which directed the peace officers to search for and seize an undetermined amount of marijuana, was too general and hence, void for vagueness. He insists that Abratique could already estimate the amount of marijuana supposed to be found at appellants residence since Abratique helped to transport the same.

For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge finds probable cause that the place to be searched contains prohibited drugs, and not that he believes the place contains a specific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine the exact amount of prohibited drugs that a person has on himself.

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Appellant avers that the phrase an undetermined amount of marijuana as used in the search warrant fails to satisfy the requirement of Article III, Section 2[29] of the Constitution that the things to be seized must be particularly described. Appellants contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity of description of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readily identify the properties to be seized and thus prevent them from seizing the wrong items;[30] and (2) leave said peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.[31] What the Constitution seeks to avoid are search warrants of broad or general characterization or sweeping descriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to an offense.[32] However, it is not required that technical precision of description be required,[33] particularly, where by the nature of the goods to be seized, their description must be rather general, since the requirement of a technical description would mean that no warrant could issue.[34]

Thus, it has been held that term narcotics paraphernalia is not so wanting in particularity as to create a general warrant.[35] Nor is the description any and all narcotics and all implements, paraphernalia, articles, papers and records pertaining to the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional.[36] A search warrant commanding peace officers to seize a quantity of loose heroin has been held sufficiently particular.[37]

Tested against the foregoing precedents, the description an undetermined amount of marijuana must be held to satisfy the requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of a specified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to such character, the place, and the circumstances.[38] Thus, this Court has held that the description illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalia particularizes the things to be seized.[39]

The search warrant in the present case, given its nearly similar wording, undetermined amount of marijuana or Indian hemp, in our view, has satisfied the Constitutions requirements on particularity of description. The description therein is: (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact not of law by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which bear direct relation to the offense for which the warrant is being issued.[40] Said warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights.

Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation of Republic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses with respect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional.

For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and control marijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425.

We have carefully scrutinized Search Warrant No. 415 (7-98),[41] and we find that it is captioned For Violation of R.A. 6425, as amended.[42] It is clearly stated in the body of the warrant that there is probable cause to believe that a case for violation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A. 7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., Green Valley, Sto. Tomas, Baguio City by having in his possession and control an UNDETERMINED AMOUNT OF MARIJUANA or INDIAN HEMP in violation of the aforementioned law.[43] In an earlier case, we held that though the specific section of the Dangerous Drugs Law is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause.[44] Appellants averment is, therefore, baseless. Search Warrant No. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana.

Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine the applicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratiques statements hook, line, and sinker. He points out that since Abratique consented to assist in the transport of the marijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive for squealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant is merely hearsay and should not have been given credit at all by Judge Reyes.

Again, the lack of factual basis for appellants contention is apparent. The OSG points out that Abratique personally assisted appellant in loading and transporting the marijuana to the latters house and to appellants rented room at No. 27 Dr. Cario St., Baguio City. Definitely, this indicates personal knowledge on Abratiques part. Law enforcers cannot themselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In this case, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information in applying for a search warrant but on personal knowledge of the witness, Abratique.

Before a valid search warrant is issued, both the Constitution[45] and the 2000 Revised Rules of Criminal Procedure[46] require that the judge must personally examine the complainant and his witnesses under oath or affirmation. The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive.[47] In the instant case, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, the applicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by Atty. Delilah Muoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In the letter of transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is made of notes at pages 7-11.[48] We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere find said notes. The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required by the Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is to satisfy the examining magistrate as to the existence of probable cause.[49] The Bill of Rights does not make it an imperative necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is not necessarily fatal, for as long as there is evidence on the record showing what testimony was presented.[50] In the testimony of

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witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit;[51] there were instances when Judge Reyes questioned him extensively.[52] It is presumed that a judicial function has been regularly performed,[53] absent a showing to the contrary. A magistrates determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, [54] as long as there was substantial basis for that determination.[55] Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched.

On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his motion to quash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searching questions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examined said witness.[56] But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available, existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they are deemed waived.[57]

In this case, NBI Special Investigator Lisings knowledge of the illicit drugs stored in appellants house was indeed hearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particular location. Abratiques statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBIs witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellants activities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was not depending on casual rumor circulating in the underworld, but on personal knowledge Abratique possessed.

In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused.[58]

Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. The OSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketch of the premises prepared by Abratique, thus ensuring that there would be no mistake.

A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort, ascertain and identify the place intended[59] and distinguish it from other places in the community.[60] A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it, satisfies the constitutional requirement of definiteness.

Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant fails, however, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee, appellants mother, testified on the search conducted but she said nothing that indicated the use of force on the part of the NBI operatives who conducted the search and seizure.[61] What the record discloses is that the warrant was served on appellant,[62] who was given time to read it,[63] and the search was witnessed by the barangay officials, police

operatives, members of the media, and appellants kith and kin.[64] No breakage or other damage to the place searched is shown. No injuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has been orderly and peaceably performed.

2. On The Alleged Violation of Appellants Substantive RightsAppellant insists that the prosecutions unjustified and willful

delay in presenting witness Abratique unduly delayed the resolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willful refusal of Abratique to testify against him. Appellant insists that said lapse on the prosecutions part violated Supreme Court Circular No. 38-98.[65] Appellant now alleges that the prosecution deliberately resorted to delaying the case to cause him untold miseries.

For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amount to a violation of appellants right to a speedy trial. A trial is always subject to reasonable delays or postponements, but absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonable opportunity to prosecute the criminal action.

On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18) hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in 1999. [66] No less than four (4) warrants of arrest were issued against him to compel him to testify.[67] The NBI agent who supposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and sanctioned.[68] The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regarding the failure of the Bureaus agents to bring Abratique to court.[69] Nothing on record discloses the reason for Abratiques aforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to again order his arrest for the fifth time.[70] He also failed to show up at the hearing of June 8, 1999.[71]

Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellants constitutional[72] and statutory right to a speedy trial.

A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free from vexatious, capricious, and oppressive delays.[73] In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court held that where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to obtain his freedom.

The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves the weighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution and the accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused to the accused.[74]

The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180) days.[75] However, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case.[76] The right to a speedy trial is deemed violated only when: (1) the

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proceedings are attended by vexatious, capricious, and oppressive delays;[77] or (2) when unjustified postponements are asked for and secured;[78] or (3) when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried.[79]

In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is no showing whatsoever that prosecution capriciously caused Abratiques absences so as to vex or oppress appellant and deny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecution went to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. The prosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureaus custody, but to no avail. Eventually, the trial court ordered the prosecution to waive its right to present Abratique and rest its case on the evidence already offered.[80]

Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two months has been found, in fact, to be not an unreasonably lengthy period of time.[81]

Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce its witness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensure that the latter would testify when required.[82] Appellant could have moved to have Abratique found in contempt and duly sanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial.

No persuasive reason supports appellants claim that his constitutional right to speedy trial was violated. One must take into account that a trial is always subject to postponements and other causes of delay. But in the absence of a showing that delays were unreasonable and capricious, the State should not be deprived of a reasonable opportunity of prosecuting an accused.[83]

Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed the reopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to rest its case. Appellant stresses that the lower courts order to reopen the case to receive Abratiques further testimony is an indication that the trial court favored the prosecution and unduly prejudiced appellant.

On appellees behalf, the Solicitor General points out that the trial courts order was in the interest of substantial justice and hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally rested its case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the same witness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony. Furthermore, appellant did not properly oppose the prosecutions motion to reopen the case.

At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were in effect. There was no specific provision at that time governing motions to reopen.[84] Nonetheless, long and established usage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific procedural rule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, the matter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case is within the discretion of the trial court. [85] However, a

concession to a reopening must not prejudice the accused or deny him the opportunity to introduce counter evidence.[86]

Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen may properly be presented only after either or both parties have formally offered and closed their evidence, but before judgment.[87] In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its evidence and given 15 days to make its formal offer of evidence.[88] This order apparently arose from the manifestation of the prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next scheduled hearing the prosecution would rest its case.[89] On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratique was absent notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the prosecution had formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trial court pointed out that the prosecution could move to reopen the case for the taking of Abratiques testimony.[90] On May 7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rights of the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed no opposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as the prosecution had not formally rested its case. Moreover, the taking of Abratiques testimony was not for the purpose of presenting additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base,[91] we held that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and the case submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judges mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witness to complete his testimony, which is what happened in this case. It is but proper that the judges mind be satisfied on any and all questions presented during the trial, in order to serve the cause of justice.

Appellants claim that the trial courts concession to reopen the case unduly prejudiced him is not well taken. We note that appellant had every opportunity to present his evidence to support his case or to refute the prosecutions evidence point-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A day in court is the touchstone of the right to due process in criminal justice.[92] Thus, we are unable to hold that a grave abuse of discretion was committed by the trial court when it ordered the so-called reopening in order to complete the testimony of a prosecution witness.

3. On the Sufficiency of the Prosecutions EvidenceIn bidding for acquittal, appellant assails the credibility of

Abratique as a witness. Appellant insists that Abratiques testimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasive from the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained in particular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellant questions Abratiques motive in informing the NBI about his activities related to the marijuana taking, transfer, and warehousing.

The OSG contends that Abratiques testimony, taken as a whole, is credible. It points out that Abratique testified in a straightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two different places. His

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testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuana found by law enforcers at appellants residence, inexorably leads to the inculpation of appellant.

It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made to suffer the unusually severe penalties meted out for drug offenses.[93] Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thin line between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, his whole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part and disbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case. But it is accepted, as a matter of common sense, that if certain parts of a witness testimony are found true, his testimony cannot be disregarded entirely.[94]

Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport huge amounts of marijuana to appellants rented room at No. 27 Dr. Cario St., Baguio City and to appellants residence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of being involved, he decided to divulge his knowledge of appellants possession of large caches of marijuana to the NBI. When the places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found and seized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratiques testimony on material points.

Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique should likewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Nor would Abratiques prosecution mean appellants absolution.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) that the accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.[95]

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt.

In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellants residence served to prove appellants possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved the seized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissible in evidence.

In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all persons and proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrine is equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes the possession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possess said articles, without authority of law.

Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge of the accused or that animus possidendi existed together with the possession or control of said articles.[96] Nonetheless, this dictum

must be read in consonance with our ruling that possession of a prohibited drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession.[97] In effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi[98] in this situation.

Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, who testified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of the evidence on the possession of prohibited drug, appellants guilt in Criminal Case No. 15800-R was established beyond reasonable doubt.

3. On The Proper PenaltyUnder Republic Act No. 6425 as amended by Republic Act No.

7659, the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00)[99] shall be imposed if the quantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more.[100]

In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750 grams, as stressed by the trial court:The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were first brought to the court, it took hours to load them on the truck and hours also to unload them prompting the court to direct that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification of said marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically cumbersome and inconvenient to keep bringing them to the court during every trial.[101]

In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also the acts of accused of hiding them in different placesand transferring them from place to place and making them appear as boxes of cigarettes to avoid and evade apprehension and detection. They showed his being a big supplier, said the trial court, [whose] criminal perversity and craft that deserve the supreme penalty of death.[102]

We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that where the quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shall automatically be imposed.[103] The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, the penalty to be imposed must conform with Article 63[104] of the Revised Penal Code. As already held, the death penalty law, Republic Act No. 7659 did not amend Article 63 of the Revised Penal Code. [105] The rules in Article 63 apply although the prohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425.[106] Thus, finding neither mitigating nor aggravating circumstances in the present case, appellants possession of 591.81 kilograms of marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua.

The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiary imprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of illegal drugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions might not remedy all the havoc wrought by prohibited drugs on the moral fiber of our society, especially the

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youth.[107] But these penalties should warn peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity.

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-R, convicting appellant MODESTO TEE alias ESTOY TEE of violation of Section 8 of Republic Act No. 6425, as amended, is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay the costs of suit.

SO ORDERED.

TAMBASEN VS PEOPLE 246 SCRA 184This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the Order dated July 20, 1989 of the Regional Trial Court (RTC), Branch 44, Bacolod City in Civil Case No. 5331, which nullified the order earlier issued by the Municipal

Trial Circuit Court (MTCC) of the City of Bacolod. The MTCC Order directed the return to petitioner of the amount of P14,000.00 which had been seized by the police.

IOn August 31, 1988, P/Sgt. Flumar Natuel applied for the issuance of a search warrant from the MTCC, alleging that he received information that petitioner had in his possession at his house at the North Capitol Road, Bacolod City, "M-16 Armalite Rifles (Mags & Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite Sticks and Subversive Documents," which articles were "used or intended to be used" for illegal purposes (Rollo, p. 14). On the same day, the application was granted by the MTCC with the issuance of Search Warrant No. 365, which allowed the seizure of the items specified in the application (Rollo, p. 15).At around 6:30 P.M. of September 9, 1988, a police team searched the house of petitioner and seized the following articles:

(1) Two (2) envelopes containing cash in the total amount of P14,000.00 (one envelope P10,000.00 and another P4,000.00);(2) one (1) AR 280 handset w/antenae (sic) SN-00485;(3) one (1) YAESU FM Transceiver FT 23R w/Antenae (sic);(4) one (1) ALINCO ELH 230D Base;(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP — 128 VAC;(6) one (1) brown Academy Notebook & Assorted papers; and(7) Four (4) handsets battery pack (Rollo, p. 16).

On September 19, 1988, the MTCC, acting on petitioner's urgent motion for the return of the seized articles, issued an order directing Sgt. Natuel to make a return of the search warrant. The following day, Sgt. Natuel submitted a report to the court. Not considering the report as a "return in contemplation of law," petitioner filed another motion praying that Sgt. Natuel be required to submit a complete and verified inventory of the seized articles. Thereafter, Sgt. Natuel manifested that although he was the applicant for the issuance of the search warrant, he was not present when it was served.On October 7, 1988, petitioner filed before the MTCC a motion praying that the search and seizure be declared illegal and that the seized articles be returned to him. In his answer to the motion, Lt. Col. Nicolas Torres, the station commander of the Bacolod City Police, said that the amount of P14,000.00 had been earmarked for the payment of the allowance of the Armed City Partisan (ACP) and other "known NPA personalities" operating in the City of Bacolod.On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return the money seized to petitioner. The court opined that in the implementation of the search warrant, any seizure should be limited to the specific items covered thereby. It said that the money could not be considered as "subversive documents"; it was neither stolen nor the effects of gambling.Three months later, the Solicitor General filed before the RTC, Branch 44, Bacolod City a petition for certiorariseeking the annulment of the order of the MTCC (Civil Case No. 5331). The petition alleged that assuming that the seizure of the money had been invalid, petitioner was not entitled to its return citing the rulings in Alih v. Castro, 151 SCRA 279 (1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those cases, the Court held that pending the determination of the legality of the seizure of the articles, they should remain in custodia legis. The petition also averred that a criminal complaint for "any of the crimes against public order as

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provided under Chapter I, Title III of the Revised Penal Code" had been filed with the City Fiscal (BC I.S. No. 88-1239) and therefore, should the money be found as having been earmarked for subversive activities, it should be confiscated pursuant to Article 45 of the Revised Penal Code.On July 20, 1989, RTC, Branch 44 issued an order granting the petition for certiorari and directing the clerk of court to return to the MTCC the money pending the resolution of the preliminary investigation being conducted by the city prosecutor on the criminal complaint. In said order, the RTC held:

The Court observed that private respondent Leon Tambasen never questioned the validity of the search warrant issued by respondent Judge Demosthenes L. Magallanes. A perusal of private respondent's "Motion to Declare Search and Seizure Illegal and to Return Seized Properties" dated October 7, 1988 shows that respondent Tambasen questions not the validity of the search warrant issued by respondent Judge Demosthenes Magallanes, but rather, the execution or implementation of the said warrant principally on the ground that the articles seized are not allegedly mentioned in the search warrant. However, the question thus raised involves matters determinative of the admissibility in evidence and the legality of the articles seized. These matters, it is submitted, go beyond the immediate and limited jurisdiction of the respondent Judge to inquire into the validity of the search warrant he issued. These issues which relate exclusively or principally with the intrinsic and substantive merits of the case or cases which are being prepared against respondent Tambasen, and insofar as Tambasen is concerned involve matters of defense which should be properly raised at the criminal action or actions that may be filed against respondent Leon Tambasen (see DOH v. Sy Chi Siong Co., Inc. et. al., G.R. No. 85289, Feb. 20, 1989). They cannot be addressed to the respondent Judge because the respondent Judge has no jurisdiction over the said issue. It is clear therefore that respondent Judge has transcended the boundaries of his limited jurisdiction and had in effect encroached upon the jurisdiction of the appropriate trial court or courts that will try the criminal case or cases against respondent Leon Tambasen, in issuing the assailed order dated December 23, 1988. Ostensibly, the assailed order, if not corrected, will unduly deprive the prosecution of its right to present the evidence in question and, consequently, will improperly oust the trial court, which will try the criminal case or cases against private respondent Leon Tambasen of its original and exclusive jurisdiction to rule on the admissibility and legality of the said evidence. This order of respondent court is tantamount to a denial of due process. It may be considered as a grave abuse of discretion reviewable by certiorari (Esparagoza v. Tan, 94 Phil. 749)

(Rollo, pp.47-48).

Consequently, petitioner filed the instant petition for certiorari and prohibition praying for the issuance of a temporary restraining order commanding the city prosecutor to cease and desist from continuing with the preliminary investigation in BC I.S. No. 88-1239 and the RTC from taking any step with respect to Civil Case No. 5331. He also prayed that Search Warrant No. 365 and the seizure of his personal effects be declared illegal and that the Order of July 20, 1989 be reversed and annulled.Petitioner contended that the search warrant covered three offenses: "(1) illegal possession of armalite rifle and .45 cal. pistol; (2) illegal possession of hand grenade and dynamite sticks; and (3) illegal possession of subversive documents" (Rollo, pp. 3-4) in violation of Section 3 of Rule 126 of the Revised Rules of Court. He assailed the legality of the seizure of the articles which were not mentioned in the search warrant. Moreover, since a complaint against him was filed only after his house had been searched, petitioner claimed that the police were "on a fishing expedition."During the pendency of the instant petition, a series of events related to the questioned search and seizure transpired. At around 10:30 P.M. of March 1, 1990, petitioner, who was then on board a passenger vehicle, was arrested by intelligence operatives in Barangay Mandalagan, Bacolod City and forthwith detained. On the strength of sworn statements of two rebel returnees, the police filed a complaint for subversion against petitioner with the Office of the City Prosecutor. The following day, the City Prosecutor filed an information for violation of the Anti-Subversion Law against petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517). An order for the arrest of petitioner was issued on March 2, 1990.On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case No. 8517.On March 15, 1990, RTC, Branch 42 granted petitioner's motion to quash and recalled the warrant of arrest. The court also directed the City Prosecutor to resolve BC-I.S. Case No. 88-1239.On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos manifested before RTC, Branch 42 that petitioner had been "dropped" from BC-I.S. No. 88-1239. However, the City Prosecutor had, by then, filed a motion for the reconsideration of said Resolution of March 15, 1990. The motion was denied.Under this factual matrix, this Court is confronted with the question of whether RTC, Branch 44 gravely abused its discretion in directing that the money seized from petitioner's house, specifically the amount of P14,000.00, be retained and kept in custodia legis.On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules of Court, which prohibits the issuance of a search warrant for more than one specific offense. The caption of Search Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunition and explosives; and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a "scatter-shot warrant" and totally null and void (People v. Court of Appeals, 216 SCRA 101 [1992]).Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. "The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they

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should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.] Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).Clearly then, the money which was not indicated in the search warrant, had been illegally seized from petitioner. The fact that the members of the police team were doing their task of pursuing subversives is not a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official duty cannot by itself prevail against the constitutionally protected rights of an individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation of the power to search and seize, such power must be exercised and the law enforced without transgressing the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it inBagalihog v. Fernandez, 198 SCRA 614 (1991), "[z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors."For the retention of the money seized by the police officers, approval of the court which issued the search warrant is necessary (People v. Gesmundo, 219 SCRA 743 [1993]). In like manner, only the court which issued the search warrant may order their release (Temple v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21 SCRA 1275 [1967]).Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in violation of the right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.The information in Criminal Case No. 8517, with petitioner as the sole accused, was ordered quashed by the trial court and the prosecution's motion for the reconsideration of the quashal order had been denied. Even in BC I.S. Case No. 88-1239, which was being investigated by Assistant Provincial Prosecutor Marcos, petitioner was dropped as a respondent. Hence, there appears to be no criminal prosecution which can justify the retention of the seized articles in custodia legis.A subsequent legal development added another reason for the return to him of all the seized articles: R.A. No. 1700, the Anti-Subversion Law, was repealed by R.A. No. 7636 and, therefore, the crimes defined in the repealed law no longer exist.WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDERED to RETURN the money seized to petitioner.SO ORDERED.

PEOPLE VS VELOSOThis is an appeal from a judgment of the Court of First Instance of Manila finding the accused, Jose Ma. Veloso, guilty of the crime of resistance of the agents of the authority, in violation of article 252 of the Penal Code, and sentencing him to four months and one day imprisonment, arresto mayor, with the accessory penalties, to pay a fine of P200, with the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. The errors assigned by counsel for the accused as appellant, go to the proposition that the resistance of the police was justifiable on account of the illegality of the John Doe search warrant.In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the House of Representative of the Philippine Legislature. He was also the manager of the club.The police of Manila had reliable information that the so-called Parliamentary Club was nothing more than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad, had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge Garduño of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a little after three in the afternoon of the date above- mentioned. They found the doors to the premises closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke in the outer door.Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not John Doe, and that the police had no right to search the house. Townsend answered that Veloso was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend required Veloso to show him the evidence of the game. About five minutes was consumed in conversation between the policemen and the accused the policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit to the search.At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another part of the body, which injured the policeman quite severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper,

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of reglas de monte, cards, cardboards, and chips were taken from his pockets.All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again refused to obey and shouted offensive epithets against the police department. It was necessary for the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three policemen were needed to place him in the patrol wagon. 1awph!l.netIn the municipal court of the City of Manila, the persons arrest in the raid were accused of gambling. All of them were eventually acquitted in the Court of First Instance for lack of proof, with the sole exception of Veloso, who was found guilty of maintaining a gambling house. This case reached the appellate court where the accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )The foregoing are the principal facts taken mainly from the findings of the trial judge, the Honorable Vicente Nepomuceno. Counsel for the appellant makes no effort to impugn these findings, except that he stresses certain points as more favorable to the case of his client. The defense, as previously indicated, is planted squarely on the contention that since the name of Veloso did not appear in the search warrant, but instead the pseudonym John Doe was used, Veloso had a legal right to resist the police by force. The nature of this defense makes it advisable to set forth further facts, relating particularly to the search warrant, before passing to the law.There are found in the record the application for search warrant, the affidavit for search warrant, and the search warrant. The application reads:

UNITED STATES OF AMERICAPHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILATHE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant.APPLICATION FOR (G)SEARCH WARRANTTestimony taken before Hon. L. Garduño, Judge, Municipal Court, Manila.Andres Geronimo, being duly sworn, testifies as follows:

Q. What is your name, residence and occupation? — A. Andres Geronimo, No. 47 Revellin, detective.Q. Are you the applicant of this search warrant? — A. Yes, sir.Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of W. C., City of Manila? — A. Yes. sir.Q. Do you know who occupies said premises? — A. I do not know. According to the best of my information the house is occupied by John Doe.Q . What are your reasons for applying for this search warrant? — A. It has been reported to me by a person whom I consider to be reliable that in said premises there are instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games kept. It has been reported to me by a person whom I consider to be reliable that there are or there will be gambling conducted in said premises. The aforesaid premises are known as gambling house. I have watched the foregoing premises and believed it to be a gambling house and a place where instruments and devices used in gambling games, such as cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited games are kept.

I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing questions and answers and that I find the same to correct and true to the best of my knowledge and belief.

(Sgd.) ANDRES GERONIMO Subscribed and sworn to before me this 25th day of May, 1923.

(Sgd.) L. GARDUÑO Judge, Municipal Court The affidavit and the search warrant are so nearly alike that it will suffice to copy the search warrant alone. This document reads:

UNITED STATES OF AMERICAPHILIPPINE ISLANDS

IN THE MUNICIPAL COURT OF THE CITY OF MANILATHE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff,vs.JOHN DOE, Defendant.SEARCH WARRANT (G)The People of the Philippine Islands, to any member of thePolice Force of the City of Manila.GREETING:Proof by affidavit having this day been made before me by Andres Geronimo that he has good reason to believe and does believe that John Doe has illegally in his possession in the building occupied by him and which is under his control, namely in the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in violation of the Gambling Law, to wit: money, cards, chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte and that the said John Doe keeps and conceals said devices and effects with the illegal and criminal intention of using them in violation of the Gambling Law.Now therefore, you are hereby commanded that at any time in the day or night within ten (10) days on or after this date to make a search on the person of said John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the above described devices and effects and if you find the same or any part thereof, you are commanded to bring it forthwith before me as provided for by law.Given under my hand, this 25th day of May, 1923.

(Sgd.) L. GARDUÑO Judge, Municipal Court

Coming now to the legal aspects of the case it is first worthy of mention that by reason of the Fourth Amendment to the United States Constitution and the eleventh and eighteenth paragraphs of the Philippine Bill of Rights, as found in the present Organic Act, the security of the dwelling and the person is guaranteed. The organic act provides "that the right to be secured against unreasonable searches and seizures shall not be violated." It further provides "that no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized."In the Philippine Code of Criminal Procedure are found provisions of the same import although naturally entering more into detail. It is therein provided, among other things, that "a search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person of thing to be seized." (Section 97.) After the judge or justice shall have examined on oath the complainant and any witnesses he may produce, and shall have taken their depositions in writing (section 98), and after the judge or justice is satisfied of the existence of facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant which must be substantially in the following form:

. . . You are, therefore, commanded, . . . to make immediate search on the person of ............................, or in the house situated ...................................... (describing it or any other place to be searched with reasonable particularity, as the case may be) for the following property: . . . ." (Section 99.) It is finally provided that "a person charged with a crime may be searched for

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dangerous weapons or anything which may be used as proof of the commission of the crime. (Section 105).

A search warrant must conform strictly to the requirements of the constitutional and statutory provisions under which it is issued. Otherwise it has rightly been held, must be absolutely legal, "for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect." The warrant will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.; Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72 Ore., 276; Ann. Cas. 1916 D, 947.)The search warrant has been likened to a warrant of arrest. Although apprehending that there are material differences between the two, in view of the paucity of authority pertaining to John Doe search warrants we propose to take into consideration the authorities relied upon by the appellant, thus following the precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of the issuance of the search warrant was also questioned.In the lower court, and again in this court, the attorneys for the defense quoted from Wharton's Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1 of the Tenth Edition, is found the following:

Form and Sufficiency of Warrant. Technical accuracy is not required. . . .

x x x x x x x x xName and description of the accused should be inserted in the body of the warrant and where the name is unknown there must be such a description of the person accused as will enable the officer to identify him when found.

x x x x x x x x xWarrant for apprehension of unnamed party, or containing a wrong name for the party to be apprehended is void, except in those cases where it contains a descriptio personae such as will enable the officer to identify the accused.

x x x x x x x x xJohn Doe' Warrants. It follows, on principle, from what has already been said regarding the essential requirements of warrants for the apprehension of persons accused, and about blank warrants, that a warrant for the apprehension of a person whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in unknown," is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such a warrant must, in addition, contain the best descriptio personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified.Person apprehended in act of committing a crime, under a "John Doe" warrant, on the other hand, the apprehension will not be illegal, or the officer liable, because under such

circumstances it is not necessary that a warrant should have been issued.

The authority most often cited to sustain the text, and quoted with approval by the United States Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10 Allen [Mass.], 403). It there appeared that one Peaslee had made a complaint to the police court Lee, charging that "John Doe or Richard Roe, whose other or true name is to your complainant unknown," had committed an assault and battery upon him; upon which complaint a warrant was issued against "John Doe or Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing complaint." Neither the complaint nor the warrant contained any further description or means of identification of the person to be arrested. Crotty resisted the arrest upon the ground that the warrant was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court of Massachusetts, said:

We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of the defendant at the time of the alleged riot was insufficient, illegal and void. It did not contain the name of the defendant, nor any description or designation by which he could be known and identified as the person against whom it was issued. It was in effect a general warrant, upon which any other individual might as well have been arrested, as being included in the description, as the defendant himself. Such a warrant was contrary to elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights, article 14, which declares that every subject has a right to be secure from all unreasonable searches and seizures of his person, and that all warrants, therefore, are contrary to this right, if the order in the warrant to a civil officer to arrest one or more suspected persons or to seize their property be not accompanied with a special designation of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an ancient common law right. It was always necessary to express the name or give some description of a party to be arrested on a warrant; and if one was granted with the name in blank, and without other designation of the person to be arrested, it was void. (1 Hale P. C. 577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow., 332, and cases cited.)This rule or principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such case the best description possible of the person to be arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence, or other circumstances by which he can be identified. (1 Chit. Crim. Law, 39, 40.)The warrant being defective and void on its face, the officer had no right to arrest the person on whom he attempted to serve it. He acted without warrant and was a trespasser. The defendant whom he sought to arrest had a right to resist by force, using no more than was necessary to resist the unlawful acts of the officer . . .The defendants, therefore, in resisting the officer in making an arrest under the warrant in question, if they were guilty of no improper or excessive force or violence, did not do an unlawful act by lawful means, or a lawful act by unlawful means, and so could not be convicted of the misdemeanor of a riot, with which they are charged in the indictment.

Appellant's argument, as based on these authorities, runs something like this. The law, constitutional and statutory, requires that the search warrant shall not issue unless the application "particularly" describe the person to be seized. A failure thus to name the person is fatal to the validity of the search warrant. To justify search and

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arrest, the process must be legal. Illegal official action may be forcibly resisted.For the prosecution, however, as the arguments are advanced by the Attorney-General, and as the law was summarized by the trial judge, there is much to be said. Careful and logical reflection brings forth certain points of paramount force and exercising a decisive influence. We will now make mention of them by correlating the facts and the law.In the first place, the affidavit for the search warrant and the search warrant itself described the building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the premises to be searched. It is the prevailing rule that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly authorized to break down the door and enter the premises of the building occupied by the so-called Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been held that an 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 may furnish the person arrested with the means of committing violence or of escaping, or which may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago Chi [1909], 12 Phil., 439.)Proceeding along a different line of approach, it is undeniable that the application for the search warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso as the person to be seized. But the affidavit and the search warrant did state that "John Doe has illegally in his possession in the building occupied by him, and which is under his control, namely, in the building numbered 124 Calle Arzobispo, City of Manila, Philippine Islands, certain devices and effects used in violation of the Gambling Law." Now, in this connection, it must not be forgotten that the Organic Act requires a particular description of the place to be searched, and the person or things to be seized, and that the warrant in this case sufficiently described the place and the gambling apparatus, and, in addition, contained a description of the person to be seized. Under the authorities cited by the appellant, it is invariably recognized that the warrant for the apprehension of an unnamed party is void, "except in those cases where it contains a description personae such as will enable the officer to identify the accused." The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty.Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used for club purposes. It was not the home of Veloso; not the place of abode of the family, which the law carefully protects in all of its sanctity. It was a club partially public in nature. It was, moreover, a camouflaged club with a high sounding name calculated to mislead the police, but intended for nefarious practices. In a club of such a character, unlike in the home, there would commonly be varying occupancy, a number of John Does and Richard Roes whose names would be unknown to the police.

It is also borne out by the authorities that, in defense of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence. But even in the home, and much less so in a club or public place, the person sought to be arrested or to be searched should use no more force than is necessary to repel the unlawful act of the officers. To authorize resistance to the agents of the authority, the illegality of the invasion must be clearly manifest. Here, there was possibly a proper case for protest. There was no case for excessive violence to enforce the defendant's idea of a debatable legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42 Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)The trial judge deduced from the searched warrant that the accused Veloso was sufficiently identified therein. Mention was made by his Honor of the code provision relating to a complaint or information, permitting a fictitious name to be inserted in the complaint or information, in lieu of the true name. The Attorney-General adds to this the argument that the police were authorized to arrest without a warrant since a crime was being committed. We find it unnecessary to comment on this contention.John Doe search warrants should be the exception and not the rule. The police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. The police should not be hindered in the performance of their duties, which are difficult enough of performance under the best of conditions, by superficial adherence to technicality or far fetched judicial interference.We agree with the trial judge and with the Attorney-General in their conclusions to the effect that the search warrant was valid, and that the defendant has been proved guilty beyond a reasonable doubt, of the crime of resistance of the agents of the authority.The information alleges that at the time of the commission of the crime, the accused was a member of the House of Representatives. The trial court was led to consider this allegation in relation with the facts as an aggravating circumstance, and to sentence the accused accordingly. We doubt, however, that advantage was taken by the offender of his public position when he resisted the officers of the law. The offender did not necessarily make use of the prestige of his office as a means to commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted the police just as stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls within the medium of that provided by the Penal Code.Finding present no reversible error, agreeing in all respects with the findings of facts as made by the trial judge, and concurring with the trial judge in his legal conclusion, with one exception, it results that the judgment appealed from must be, as it is hereby, affirmed, with the sole modification that the defendant and appellant shall be sentenced to two months and one day imprisonment, arresto mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment into effect issue.

YOUSEF AL GHOUL VS CAPetitioners assail the decision[1] dated September 30, 1996, of

the Court of Appeals, which affirmed the orders of the Regional Trial Court of Kalookan City, Branch 123, thereby dismissing petitioners special civil action for certiorari.[2]

The facts leading to the present petition under Rule 65 are as follows:

On March 31, 1995, Judge Geronimo S. Mangay, presiding judge of the Regional Trial Court, National Capital Judicial Region,

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Branch 125, Kalookan City, issued search warrants 54-95 [3] and 55-95[4]for the search and seizure of certain items in Apartment No. 2 at 154 Obiniana Compound, Deparo Road, Kalookan City.

On April 1, 1995, the police searched Apartment No. 8, in the same compound and found one (1) .45 caliber pistol. Found in Apartment No. 2 were:2 M-16 rifles with 2 magazines and 20 live M-16 ammunitions1 Bar of demolition charge1 Caliber Pistol with no. 634 and other nos. were placed with magazine of Caliber .45 and 3 live 45 ammunitions1 22 Caliber handgun with 5 live ammunitions in its cylinder1 Box containing 40 pieces of .25 caliber ammunitions2 pieces of fragmentation grenade1 roll of detonating cord color yellow2 big bags of ammonium nitrate suspected to be explosives substance22 detonating cords with blasting capsand pound of high explosives TNT1 timer alarm clock2 bags of suspected gun powder2 small plastic bag of suspected explosive substance1 small box of plastic bag of suspected dynamitesOne weighing scaleTwo (2) batteries 9 volts with blasting caps and detonating cord.[5]

The firearms, ammunitions, explosives and other incendiary devices seized at the apartments were acknowledged in the receipt signed by SPO2 Melanio de la Cruz.

Petitioners were charged before the Regional Trial Court of Kalookan City, Branch 123, in informations docketed as Criminal Cases Nos. C-48666-67, accusing them with illegal possession of firearms, ammunitions and explosives, pursuant to Presidential Decree No. 1866.[6] Thereafter, petitioners were arrested and detained.

Petitioners filed a motion for bail on May 24, 1995, the resolution of which was held in abeyance by the RTC pending the presentation of evidence from the prosecution to determine whether or not the evidence presented is strong.[7]

On February 7, 1996, at the hearing for bail, the RTC admitted all exhibits being offered for whatever purpose that they maybe worth after the prosecution had finished adducing its evidence despite the objection by the petitioners on the admissibility of said evidence.

On February 19, 1996, the RTC denied petitioners motion for bail earlier filed, giving as reasons the following:To begin with, the accused are being charged of two criminal offenses and both offenses under Presidential Decree 1866, Sections 1 and 3 thereof prescribe the penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua. Under Rule 114 of the Rules on Criminal Procedure as amended by Supreme Court Administrative Circular No. 12-94, particularly Section 7 thereof, no person charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong shall be admitted to bail regardless of the stage of the criminal prosecution.[8]

As petitioners action before respondent appellate court also proved futile, petitioners filed the instant petition on the ground that it had acted with grave abuse of discretion tantamount to lack or in excess of jurisdiction. They present for our consideration the following issues:

I. WHETHER OR NOT THE EVIDENCE OFFERED BY THE PROSECUTION ARE ADMISSIBLE;

II. WHETHER OR NOT ACCUSED HAVE THE RIGHT TO BAIL.[9]

The issue on bail has been resolved in our resolution dated November 24, 1998, where this Court ruled:Consequent to the enactment of RA 8294, the penalty prescribed in Section 1 and 3 of P.D. 1866 for illegal possession of firearms, ammunitions and explosives under which petitioners were charged, has now been reduced to prision mayor in its minimum period and prision mayor in its maximum period to reclusion temporal, respectively. Evidently, petitioners are now entitled to bail as a matter of right prior to their conviction by the trial court pursuant to Section 4 of SC Administrative Circular No. 12-94 [10]

x x xWHEREFORE, the petitioners motion is hereby GRANTED. The Temporary Restraining Order issued by this Court in the Resolution of November 20, 1996 is hereby PARTIALLY LIFTED in so far as petitioners pending motion for bail before the RTC of Kalookan City, Branch 123 is concerned. The trial court is hereby ordered to proceed with the hearing of the motion for bail and resolve the same with dispatch.[11]

The issue that remains is whether the respondent court erred and gravely abused its discretion when it ruled that the search and seizure orders in question are valid and the objects seized admissible in evidence.

Petitioners contend that the search and seizure orders violated Sections 2 and 3 of the Bill of Rights [12] as well as Section 3 of Rule 126 of the Rules of Court on Criminal Procedure [13] because the place searched and articles seized were not described with particularity. They argue that the two-witness requirement under Section 10 of Rule 126[14] was ignored when only one witness signed the receipt for the properties seized during the search, and said witness was not presented at the trial. Petitioners also aver that the presumption of regularity of the implementation of the search warrant was rebutted by the defense during cross-examination of prosecution witnesses. According to petitioners, respondent court failed to appreciate the fact that the items seized were not turned over to the police evidence custodian as required under Section 18 of the Department of Justice Circular No. 61 dated September 21, 1993. Finally, they fault the lower courts finding that petitioners were in possession of the items allegedly confiscated from them.[15]

For the State, the Office of the Solicitor General avers that the search of Apartment 2 was legal, and the items seized therein are admissible in evidence. However, the OSG agrees with petitioners that the search warrants issued by the RTC, Branch 125, Kalookan City on March 31, 1995, namely search warrant 54-95 [16] and search warrant 55-95,[17] specified the place to be searched, namely Apartment No. 2, 154 Obiniana Compound, Deparo Road, Kalookan City. There was no mention of Apartment No. 8. Thus, we find that the search conducted at Apartment No. 8 clearly violated Sections 2 and 3 (2) of the Bill of Rights, in relation to Section 3 of Rule 126 of the Rules of Court.

As held in PICOP v. Asuncion,[18] the place to be searched cannot be changed, enlarged nor amplified by the police. Policemen may not be restrained from pursuing their task with vigor, but in doing so, care must be taken that constitutional and legal safeguards are not disregarded. Exclusion of unlawfully seized evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. Hence, we are constrained to declare that the search made at Apartment No. 8 is illegal and the .45 caliber pistol taken thereat is inadmissible in evidence against petitioners.

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Now, in contrast, the search conducted at Apartment No. 2 could not be similarly faulted. The search warrants in question specifically mentioned Apartment No. 2. The search was done in the presence of its occupants, herein petitioners,[19] in accordance with Section 7 of Rule 126, Revised Rules of Court.[20]

Petitioners allege lack of particularity in the description of objects to be seized pursuant to the warrants. Hence, they also question the seizure of the following articles from Apartment No. 2, namely:One M16 rifles, Colt AR-15 with 2 magazines and 20 rds ammo liveOne (1) bar demolition chargeOne (1) .45 caliber pistol numbers were defaced with magazine and with three (3) live .45 cal ammosOne (1) .22 caliber handgun with live ammos in its cylinderOne (1) box containing (40) forty pieces of .22 cal. live ammos (magnum)Two (2) pieces fragmentation grenadeTwo (2) magazines of M16 rifles with live ammos.[21]

To appreciate them fully, we quote the search warrants in question:

Search Warrant 54-95It appearing to the satisfaction of the undersigned, after examining under oath P/Sr Insp Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following:

1. One (1) 45 Caliber PistolYou are hereby commanded to make an immediate search anytime of the DAY and NIGHT of the premises above-mentioned and forthwith, seize and take possession of the foregoing property, to wit:1. One (1) .45 Caliber Pistoland bring to this Court to be dealt with as the law may direct.[22]

Search Warrant 55-95It appearing to the satisfaction of the undersigned after examining under oath P/Sr. Insp. Joel D. Pagdilao, Chief, DPIU, OADDI NPDC, Applicant and his witness SPO1 Cesar R. Rivera of District Police Intelligence Unit, Northern Police District Command with postal address c/o NPIU, NPDC, PNP, Langaray St., Kaunlaran Village, Kalookan City that a.k.a. AL, a.k.a. GHUL a.k.a. NADI, a.k.a. NABIL and several John Does of Apartment Nr. 2, Nr. 154 Obiniana Compound, Deparo Road, Kalookan City have in their possession and control the following:1. One (1) 5.56 M16 Rifle with corresponding

ammunitions2. One (1) 9MM Pistol with corresponding ammunitions3. Three (3) boxes of explosives4. More or less ten (10) sticks of dymanites (sic)5. More or less thirty (30) pieces of blasting caps pieces

of detonating cordsYou are hereby commanded to make an immediate search anytime of the DAY or NIGHT of the premises above-mentioned and forthwith seize and take possession of the foregoing properties, to wit:1. One (1) 5.56 M16 Rifle with corresponding

ammunitions2. One (1) 9MM Pistol with corresponding ammunitions

3. Three (3) boxes of explosives4. More or less ten (10) sticks of dymanites (sic)5. More or less thirty (30) pieces of blasting caps pieces

of detonating cordsand bring to this Court to be dealt with as the law may direct.[23]

That the articles seized during the search of Apartment No. 2 are of the same kind and nature as those items enumerated in the search warrant above-quoted appears to us beyond cavil. The items seized from Apartment No. 2 were described with specificity in the warrants in question. The nature of the items ordered to be seized did not require, in our view, a technical description. Moreover, the law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities, otherwise, it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for.[24] Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance, in our view, between those seized and those described in the warrant. Substantial similarity of those articles described as a class or species would suffice.

In People v. Rubio, 57 Phil. 384, 389 (1932), this Court said, While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow. Where by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. As a corollary, however, we could not logically conclude that where the description of those goods to be seized have been expressed technically, all others of a similar nature but not bearing the exact technical descriptions could not be lawfully subject to seizure. Otherwise, the reasonable purpose of the warrant issued would be defeated by mere technicalities.

The case of Bache and Co. (Phil.), Inc. v. Ruiz, 37 SCRA 823, 835 (1971), pointed out that one of the tests to determine the particularity in the description of objects to be seized under a search warrant is when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. A careful examination of Search Warrant Nos. 54-95[25] and 55-95[26] shows that they were worded in such a manner that the enumerated items to be seized could bear a direct relation to the offense of violation of Section 1[27] and 3[28] of Presidential Decree No. 1866, as amended, penalizing illegal possession of firearms, ammunitions and explosives. What the warrants authorized was the seizure of articles proscribed by that decree, and no other.

Lastly, on this score, we note that the Court of Appeals ruled that petitioners waived their right to raise any attack on the validity of the search warrants at issue by their failure to file a motion to quash.[29]But, in conducting the search at Apartment No. 8, not just Apartment No. 2 as ordered specifically in the search warrants, the police committed a gross violation we cannot condone. Thus, we conclude that the gun seized in Apartment No. 8 cannot be used in evidence, but those articles including guns, ammunitions, and explosives seized in Apartment No. 2 are admissible in evidence.

Coming now to the two-witness requirement under Section 10, Rule 126 of the Revised Rules of Court, petitioners claim the rule was violated because only one witness signed the receipt for the properties seized. For clarity, let us reproduce the pertinent section:

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SEC. 10. Receipt for the property seized.The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.

Clearly, the two-witness rule applies only in the absence of the lawful occupants of the premises searched. In the case at bar, petitioners were present when the search and seizure operation was conducted by the police at Apartment No. 2. More importantly, petitioner Nabeel Al-Riyami y Nasser admitted being an actual occupant/resident of Apartment No. 2.[30] Hence, we find here no violation of Section 10, Rule 126 of the Revised Rules of Court.

Petitioners contend that they could not be charged with violation of P.D. 1866 because the seized items were not taken actually from their possession. This contention, however, cannot prosper in the light of the settled rule that actual possession of firearms and ammunitions is not an indispensable element for prosecution under P.D. No. 1866. In People v. Dela Rosa, 284 SCRA 158, 168-169 (1998), we clarified that the kind of possession punishable under P.D. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intent to possess said firearm.Whether or not the evidence would show all the elements of P.D. 1866 in this case is a different matter altogether. We shall not preempt issues properly still within the cognizance of courts below.

Likewise, whether or not the articles seized were planted by the police, as claimed by the petitioners, is a matter that must be brought before the trial court. In the same vein, petitioners claim that the properties seized were not turned over to the proper police custodian is a question of fact best ventilated during trial.

WHEREFORE, the petition is PARTIALLY GRANTED. The search conducted at Apartment No. 8 is hereby declared illegal and the item (.45 caliber pistol) seized therein inadmissible in evidence.However, the search at Apartment No. 2 pursuant to Search Warrant 55-95 is hereby declared valid and legal, and the articles seized from Apartment No. 2 are found admissible in evidence. Let this case be remanded to the Regional Trial Court of Kalookan City, Branch 123, for trial on the merits of Criminal Cases Nos. C-48666-67 with dispatch.

No pronouncement as to costs.SO ORDERED.

UY VS BIRPetitioners assail the validity of the warrants issued for the

search of the premises of the Unifish Packing Corporation, and pray for the return of the items seized by virtue thereof.

On 30 September 1993, a certain Rodrigo Abos reported to the Bureau of Internal Revenue (BIR) that petitioners Unifish Packing Corporation and Uy Chin Ho alias Frank Uy were engaged in activities constituting violations of the National Internal Revenue Code. Abos, who claimed to be a former employee of Unifish, executed an Affidavit[1] stating:1. He has personal knowledge that UNIFISH PACKING CORPORATION (hereinafter referred to as UNIFISH), a canning factory located at

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Hernan Cortes Street, under the active management of UY CHIN HO alias Frank Uy [,] is selling by the thousands of [sic] cartons of canned sardines without issuing receipt. This is in violation of Sections 253 and 263 of the Internal Revenue Code.2. This grand scale tax fraud is perpetrated through the following scheme:

(1) Uy Chin Ho a director of UNIFISH buys in bulk from the company;

(2) Being a director, Uy Chin Ho has a lot of clout in the distribution of the canned sardines processed by UNIFISH;

(3) Uy Chin Ho dictates the value of canned sardines that he orders and buys from UNIFISH without any receipt of his purchases;

(4) The moment he has the quantity he wants, UNIFISH through Uy Chin Ho delivers to the different supermarkets such as White Gold, Gaisano, etc.;

(5) Payments made by these tax evading establishments are made by checks drawn payable to cash and delivered to Uy Chin Ho; These payments are also not receipted (sic);

(6) Uy Chin Ho will then pay UNIFISH for the quantity of sardines he had withdrawn from the corporation;

3. Another fraudulent practice perpetrated by UNIFISH through Uy Chin Hos direction is the sale of imported oil locally to different customers. This is a case of smuggling in the sense that UNIFISH, being an export company registered with the Board of Investments, is enjoying certain exemptions in their importation of oil as one of the raw materials in its processing of canned tuna for export. These tax exemptions are granted by the government on the condition that the oil is to be used only in the processing of tuna for export and that it is not to be sold unprocessed as is to local customers.4. Another fraudulent practice involves the sales of unused cans; UNIFISH also enjoys tax exemptions in its purchases of tin cans subject to the condition that these are to be used as containers for its processed tuna for export. These cans are never intended to be sold locally to other food processing companies.5. Prior to 1990, that is from 1980 to 1990, the factory of the UNIFISH PACKING CORPORATION was then run by the PREMIER INDUSTRIAL & DEVELOPMENT CORPORATION (hereinafter referred to as PREMIER) [,] which corporation was being controlled by the same majority stockholders as those now running and controlling UNIFISH; [a]t that time, PREMIER was also committing the same fraudulent acts as what is being perpetrated by UNIFISH at present.6. The records containing entries of actual volume of production and sales, of both UNIFISH AND PREMIER, are found in the office of the corporation at its factory site at H. Cortes Street, Mandaue City.The particular place or spot where these records [official receipts, sales invoices, delivery receipts, sales records or sales books, stock cards, accounting records (such as ledgers, journals, cash receipts books, and check disbursements books)] are kept and may be found is best described in the herein attached sketch of the arrangement of the offices furniture and fixture of the corporation which is made an integral part hereof and marked as Annex A,7. He is executing this affidavit to attest under oath the veracity of the foregoing allegations and he is reserving his right to claim for reward under the provisions of Republic Act No. 2338.

On 1 October 1993, Nestor N. Labaria, Assistant Chief of the Special Investigation Branch of the BIR, applied for search warrants from Branch 28 of the Regional Trial Court of Cebu.The application sought permission to search the premises of Unifish.

After hearing the depositions of Labaria and Abos, Judge Mercedes Gozo-Dadole issued the disputed search warrants. The first[2] is docketed as SEARCH WARRANT NO. 93-10-79 FOR: VIOLATION OF SECTION 253 ("Search Warrant A-1"), and consists of two pages. A verbatim reproduction of Search Warrant A-1 appears below:

REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT OF CEBU

7th Judicial RegionBranch 28

Mandaue CityTHE PEOPLE OF THE PHILIPPINES,Plaintiff,- versus - SEARCH WARRANT NO. 93-10-79FOR: VIOLATION OF SEC. 253UY CHIN HO alias FRANK UY,Unifish Packing CorporationHernan Cortes St., Cebu Cityx - - - - - - - - - - - - - - - - - - - - - - - - - /(with sketch)

SEARCH WARRANTTO ANY PEACE OFFICER:G R E E T I N G S:It appearing to the satisfaction of the undersigned, after examination underoath (sic), Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a (sic) probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho c/o Unifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following:

1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

3. Unregistered Delivery Receipts;4. Unregistered Purchase & Sales Invoices;5. Sales Records, Job Order;6. Corporate Financial Records; and7. Bank Statements/Cancelled Checks

You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs.WITNESS MY HAND this 1st day of October, 1993.(sgd.)MERCEDES GOZO-DADOLEJudge

The second warrant[3]is similarly docketed as SEARCH WARRANT 93-10-79 FOR: VIOLATION OF SEC. 253 ("Search Warrant A-2"). Search Warrant A-2, reproduced below, is almost identical in content to Search Warrant A-1, save for the portions indicated in bold print. It consisted of only one page.

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REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT OF CEBU

7th Judicial RegionBranch 28

Mandaue CityTHE PEOPLE OF THE PHILIPPINES,Plaintiff,- versus - SEARCH WARRANT NO. 93-10-79FOR: VIOLATION OF SEC. 253UY CHIN HO alias FRANK UY, andUnifish Packing CorporationHernan Cortes St., Mandaue Cityx - - - - - - - - - - - - - - - - - - - - - - - - - /(with sketch)

SEARCH WARRANTTO ANY PEACE OFFICER:G R E E T I N G S:It appearing to the satisfaction of the undersigned, after examination underoath [sic], Nestor N. Labaria, Asst. Chief, Special Investigation Branch, BIR and witness Rodrigo Abos that there is a [sic] probable cause to believe that the crime of violation of Section 253 - attempt to evade or defeat the tax has been committed and there is good and sufficient reason to believe that Uy Chin Ho alias Frank Uy andUnifish Packing Corporation, Hernan Cortes St., Mandaue City has in his possession, care and control, the following:

1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

3. Unregistered Delivery Receipts;4. Unregistered Purchase & Sales Invoices;5. Sales Records, Job Order;6. Corporate Financial Records; and7. Bank Statements/Cancelled Checks

You are hereby commanded to make an immediate search at any time of day or night of said premises and its immediate vicinity and to forthwith seize and take possession of the articles above-mentioned and other properties relative to such violation and bring said properties to the undersigned to be dealt with as the law directs.WITNESS MY HAND this 1 st day of October, 1993.(sgd.)MERCEDES GOZO-DADOLEJudge

Judge Gozo-Dadole issued a third warrant,[4] which was docketed as SEARCH WARRANT 93-10-80 FOR: VIOLATION OF SEC. 238 in relation to SEC. 263 (hereinafter, "Search Warrant B"). Except for the docket number and the designation of the crime in the body of the warrant (Section 238 in relation to Sec. 263 - non-issuance of sales invoice and use and possession of unregistered delivery receipts and/or sales invoices), Search Warrant B is a verbatim reproduction of Search Warrant A-2.

On the strength of these warrants, agents of the BIR, accompanied by members of the Philippine National Police, on 2 October 1993, searched the premises of the Unifish Packing Corporation. They seized, among other things, the records and documents of petitioner corporation. A return of said search was duly made by Nestor Labaria with the RTC of Cebu , Branch 28.

On 8 February 1995, the BIR filed against petitioners a case before the Department of Justice. The records, however, do not reveal the nature of this case.

On 31 March 1995, petitioners filed motions to quash the subject search warrants with Branch 28 of the Cebu RTC.

The RTC, however, denied petitioners' motions to quash as well as their subsequent motion for reconsideration, prompting petitioners to file a petition for certiorari with the Court of Appeals (CA). The CA dismissed their petition, holding that petitioners failed to comply with Section 2(a), Rule 6 of the Revised Internal Rules of the Court of Appeals (RIRCA), which states:a. What Should be Filed. - The petition shall be filed in seven (7) legible copies and a copy thereof shall be served on each of the respondents, and must be accompanied by a certified true copy of the decision or order complained of and true copies of the pleadings and other pertinent documents and papers. (As amended by S.Ct. Res., dated November 24, 1992).The CA found that petitioners did not submit certified true copies of (1) the Motions to Quash, (2) the Motion for Reconsideration, and (3) the Affidavit of Rodrigo Abos.

The CA also held that certiorari was not the proper remedy to question the resolution denying the motion to quash.In this case now before us, the available remedies to the petitioners, assuming that the Department of Justice will eventually file the case, are: a petition for reinvestigation; the right to post bail; a Motion to Quash the Information; and in case of denial, an appeal, after judgment on the merits, or after the case shall have been tried. This brings us to the case of Lai vs. Intermediate 220 SCRA 149 and the pronouncement, thus:Criminal Procedure: Certiorari: Certiorari should not be allowed where petitioner has other remedies available. -- Anent the remedy resorted to by petitioners (referring to the petition for certiorari) from the Regional Trial Court of Negros Oriental presided by Judge Diez, the same should not have been granted. Petitioners were not without plain, speedy and adequate remedies in the ordinary course of law against Judge Lomeda's order for their arrest. These remedies are as enumerated by respondent appellate court in its decision: "1. they can post bail for their provisional release; 2. They can ask the Provincial Fiscal for a reinvestigation of the charge against them. If unsatisfied with the fiscal's resolution they can ask for a review by the Minister of Justice; (Sec. 1(), RA 5180 as amended by P.D. 911); 3. if their petitionfor review does not prosper, they can file a motion to quash the information in the trial court. (Rule 117, Rules of Court). 4. If the motion is denied, they can appeal the judgment of the court after the caseshall have been tried on the merits.x x x Where motion to quash is denied, remedy is not certiorari, but to go to trial.-- Moreover, in the case of Acharon vs. Purisima, this Court held that when a motion to quash a criminal case is denied, theremedy is not certiorari but to go to trial without prejudice to reiterating the special defenses involved in said Motion. In the event that an adverse decision is rendered after trial on the merits, an appealtherefrom should be the next legal step.

xxxIn this case now before Us, there is no pretention [sic] that the Court issued the Search Warrants without jurisdiction. On the contrary, it had jurisdiction. The argument therefore that the Court committed an error in not describing the persons or things to be searched; that the Search Warrants did not describe with particularity the things to be seized/taken; the absence of probable cause; and for having

44

allegedly condoned the discriminating manner in which the properties were taken, to us, are merely errors in the Court's finding, certainly not correctible by certiorari, but instead thru an appeal.[5]

In any event, the CA ruled, no grave abuse of discretion amounting to lack of jurisdiction was committed by the RTC in the issuance of the warrants.

As petitioners' motion for reconsideration proved futile, petitioners filed the instant petition for review.

Petitioners claim that they did submit to the CA certified true copies of the pleadings and documents listed above along with their Petition, as well as in their Motion for Reconsideration.An examination of the CA Rollo, however, reveals that petitioners first submitted the same in their Reply, after respondents, in their Comment, pointed out petitioners failure to attach them to the Petition.

Nevertheless, the CA should not have dismissed the petition on this ground although, to its credit, it did touch upon the merits of the case. First, it appears that the case could have been decided without these pleadings and documents. Second, even if the CA deemed them essential to the resolution of the case, it could have asked for the records from the RTC. Third, in a similar case,[6] we held that the submission of a document together with the motion for reconsideration constitutes substantial compliance with Section 3, Rule 46 of the Rules of Court, requiring the submission of a certified true copy of material portions of the record as are referred to [in the petition], and other documents relevant or pertinent thereto along with the petition.So should it be in this case, especially considering that it involves an alleged violation of a constitutionally guaranteed right. The rules of procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is made, their aim could be defeated.[7]

The CA likewise erred in holding that petitioners cannot avail of certiorari to question the resolution denying their motions to quash the subject search warrants. We note that the case of Lai vs. Intermediate, cited by the appellate court as authority for its ruling does not appear in 220 SCRA 149. The excerpt of the syllabus quoted by the court, as observed by petitioners,[8]appears to have been taken from the case of Yap vs. Intermediate Appellate Court, 220 SCRA 245 (1993). Yap, however, is inapplicable since that case involved a motion to quash acomplaint for qualified theft, not a motion to quash a search warrant.

The applicable case is Marcelo vs. De Guzman,[9] where we held that the issuing judges disregard of the requirements for the issuance of a search warrant constitutes grave abuse of discretion, which may be remedied by certiorari:Expressly announced in Section 1, Rule 65 of the Rules of Court is the general rule that certiorari is available where a tribunal or officer exercising judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.In the light of the findings of the lower court, herein above quoted, it is indisputable that Judge de Guzman gravely abused his discretion in issuing the said search warrant. Indeed, he acted whimsically and capriciously when he ignored the explicit mandate of Section 3, Rule 126 of the Rules of Court that a search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the municipal or city 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; and that no search warrant shall issue for more than one specific offense.The utter disregard by Judge de Guzman of the requirements laid down by the said rule renders the warrant in question absolutely null and void. It has been held that where the order complained of is a patent nullity, a petition for certiorari and mandamus may properly be entertained despite the existence of the remedy of appeal.Moreover, an appeal from the order of Judge de Guzman would neither be an adequate nor speedy remedy to relieve appellee of the injurious effects of the warrant. The seizure of her personal property had resulted in the total paralization of the articles and documents which had been improperly seized. Where the remedy of appeal cannot afford an adequate and expeditious relief, certiorari can be allowed as a mode of redress to prevent irreparable damage and injury to a party.

This Court had occasion to reiterate the above pronouncement in Silva vs. Presiding Judge, RTC of Negros Oriental, Br. XXXIII,[10] which also involved a special civil action forcertiorari:[11]

Thus, in issuing a search warrant, the judge must strictly comply with the constitutional requirement that he must determine the existence of probable cause by examining the applicant and his witnesses in the form of searching questions and answers. His failure to comply with this requirement constitutes grave abuse of discretion. As declared in Marcelo vs. De Guzman, G.R. No. L-29077, June 29, 1982, 114 SCRA 657, the capricious disregard by the judge in not complying with the requirements before issuance of search warrants constitutes grave abuse of discretion.

In this case, petitioners alleged in their petition before the CA that the issuing judge violated the pertinent provisions of the Constitution and the Rules of Court in issuing the disputed search warrants, which, if true, would have constituted grave abuse of discretion. Petitioners also alleged that the enforcers of the warrants seized almost all the records and documents of the corporation thus resulting in the paralysis of its business. Appeal, therefore, would not be an adequate remedy that would afford petitioners expeditious relief.

We now proceed to the merits of the case.Section 2, Article III of the Constitution guarantees the right of

the people against unreasonable searches and seizures: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 relation to the above provision, Rule 126 of the Rules of Court provides:SEC. 3. Requisite for issuing search warrant. - A search warrant shall not issue but upon probable cause in connection with one specific offense 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 things to be seized.SEC. 4. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to

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them and attach to the record their sworn statements together with any affidavits submitted.

A search warrant must conform strictly to the requirements of the foregoing constitutional and statutory provisions. These requirements, in outline form, are:

(1) the warrant must be issued upon probable cause;(2) the probable cause must be determined by the judge

himself and not by the applicant or any other person;

(3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and

(4) the warrant issued must particularly describe the place to be searched and persons or things to be seized.[12]

The absence of any of these requisites will cause the downright nullification of the search warrants.[13] The proceedings upon search warrants must be absolutely legal, for there is not a description of process known to the law, the execution of which is more distressing to the citizen. Perhaps there is none which excites such intense feeling in consequence of its humiliating and degrading effect. The warrants will always be construed strictly without, however, going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it.[14]

Petitioners contend that there are several defects in the subject warrants that command their nullification. They point out inconsistencies in the description of the place to be searched in Search Warrant A-1, as well as inconsistencies in the names of the persons against whom Search Warrants A-1 and A-2 were issued. That two search warrants (Search Warrants A-1 and A-2) were issued for the same crime, for the same place, at a single occasion is cited as another irregularity. Petitioners also dispute the existence of probable cause that would justify the issuance of the warrants. Finally, they claim that the things to be seized were not described with particularity. These defects, according to petitioners, render the objects seized inadmissible in evidence.[15]

Inconsistencies in the

description of the place to be searched

Petitioners observe that the caption of Search Warrant A-1 indicates the address of Uy Chin Ho alias Frank Uy as Hernan Cortes St., Cebu City while the body of the same warrant states the address as Hernan Cortes St., Mandaue City. Parenthetically, Search Warrants A-2 and B consistently state the address of petitioner as Hernan Cortes St., Mandaue City.

The Constitution requires, for the validity of a search warrant, that there be a particular description of the place to be searched and the persons of things to be seized.[16] The rule is that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended[17]and distinguish it from other places in the community.[18] Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.[19] Thus, in Castro vs. Pabalan,[20] where the search warrant mistakenly identified the residence of the petitioners therein as Barrio Padasil instead of the adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in the writ is not of sufficient gravity to call for its invalidation."

In this case, it was not shown that a street similarly named Hernan Cortes could be found in Cebu City. Nor was it established

46

that the enforcing officers had any difficulty in locating the premises of petitioner corporation. That Search Warrant A-1, therefore, inconsistently identified the city where the premises to be searched is not a defect that would spell the warrants invalidation in this case.Inconsistencies in the description of the persons named i

n the two warrants

Petitioners also find fault in the description of the names of the persons in Search Warrants A-1 and A-2. Search Warrant A-1 was issued solely against Uy Chin Ho alias Frank Uy. Search Warrant A-2, on the other hand, was directed against UY CHIN HO alias FRANK UY, and Unifish Packing Corporation.

These discrepancies are hardly relevant.In Miller v. Sigler,[21] it was held that the Fourth Amendment of

the United States Constitution, from which Section 2, Article III of our own Constitution is historically derived, does not require the warrant to name the person who occupies the described premises. Where the search warrant is issued for the search of specifically described premises only and not for the search of a person, the failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate the warrant; and where the name of the owner of the premises sought to be searched is incorrectly inserted in the search warrant, it is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched.[22]

Since, in the case at bar, the warrant was issued not for search of the persons owning or occupying the premises, but only a search of the premises occupied by them, the search could not be declared unlawful or in violation of the constitutional rights of the owner or occupants of the premises, because of inconsistencies in stating their names.[23]

Two warrants issue

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d at one time for one crime and one place

In any event, Search Warrant A-1 should be deemed superseded by Search Warrant A-2.

Two warrants, Search Warrants A-1 and A-2, were actually issued by the trial court for the same crime (violation of SEC. 253 of the National Internal Revenue Code). It appears, however, that Search Warrant A-2 was issued merely to correct the inconsistencies in the address in Search Warrant A-1, as well as to include Unifish Packing Corporation as a party against whom the warrant was issued. Search Warrant A-2 was evidently an attempt by the issuing judge to be more precise in the names of the persons against whom the warrant was issued and in the description of the place to be searched. Indeed, it would be absurd for the judge to issue on a single occasion two warrants authorizing the search of a single place for a single offense. Inasmuch as the apparent intent in issuing Search Warrant A-2 was to supersede Search Warrant A-1, the latter should be deemed revoked by the former.The

alleged absence of probable cause

Petitioners claim there was no probable cause for Judge Gozo-Dadole to issue the subject search warrants.

Probable cause is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.[24]

In the determination of probable cause, the Constitution and the Rules of Court require an examination of the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro forma. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application.[25] Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant.[26]

The witnesses, in turn, must testify under oath to facts of their own personal knowledge. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause.[27] Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief.[28]

It may be recalled that before issuing the warrants, the judge deposed two witnesses, namely, Nestor Labaria of the BIR, and Rodrigo Abos, who claimed to be an old employee of Unifish. Petitioners claim that the testimonies of Labaria and Abos

48

are hearsay. We agree with this contention, but only as to the testimony of Labaria, who stated during the examination:

Q. Do you know of a certain Uy Chin Ho alias Frank Uy?A. No.Q. Do you know his establishment known as Unifish Packing

Corporation?A. I have only heard of that thru the affidavit of our informer,

Mr. Abos.Q. Why are you applying for search warrant in the premises of

Unifish Packing Corporation?A. Because of that information we received that they are using

only delivery receipts instead of the legal sales invoices. It is highly indicative of fraud.

Q. From where did you get that information?A. From our informer, the former employee of that

establishment.[29]

The above portion of the transcript shows that Labarias knowledge of the alleged illegal activities of petitioners was acquired not through his own perception but was merely supplied by Abos. Therefore, the deposition of Labaria, which is based on hearsay, standing alone, cannot justify the issuance of the search warrants.[30]

The application for the warrants, however, is not based solely on Labarias deposition but is supported by that of Abos, whose knowledge of petitioners alleged illegal practices was apparently obtained during his employment with Unifish. In his deposition, Abos detailed the schemes employed by Frank Uy and Unifish to evade the payment of taxes, and described the place where the documents supposedly evidencing these schemes were located:

Q Do you know Frank Uy?A Yes.Q Why do you know him?A Because I were (sic) an employee of his from 1980 until August

of 1993.Q Where is this Unifish Packing Corporation located?A Hernan Cortes St.Q What is it being engaged of?A It is engaged in canning of fish.Q You have executed an affidavit here to the effect that it seems

that in his business dealings that he is actually doing something that perpetrated tax evasion. Is that correct?

A Yes.Q How is it done?A As an officer, he is an active member of the corporation who is

at the same time making his authority as appointing himself as the distributor of the company's products. He sells these products thru supermarkets in Visayas and Mindanao, in fact, the whole Philippines. He makes it appear that it is the company which is selling when actually it is him selling the goods and he does not issue any invoices.

Q Since he does not issue any invoices, how is it done?A Thru delivery receipts.Q Is the delivery receipt official?A No. It is unregistered.Q For how long has this been going on?A As far as I know, it is still in 1986 since we started producing

the sardines.Q When was the last time that you observed that that is what he

is doing?A August, 1993, last month.

Q How did you happen to know about this last month?A Because he delivered to certain supermarkets and the

payments of that supermarket did not go directly to the company. It went to him and he is the one who paid the company for the goods that he sold.

Q Can you tell this Court the name of that certain supermarkets?A White Gold and Gaisano.Q How did you know this fact?A As a manager of the company I have access to all the records

of that company for the last three years. I was the Operating Chief.

Q Until now?A No. I was separated already.Q When?A August, 1993.Q How does he do this manipulation?A He sells the goods to the supermarkets afterwhich the

company, Unifish will deliver to his customers, then his customers will pay directly to him and in turn, he pays to the company.

Q And these transactions, were they reflected in their books of account or ledger or whatever?

A It is written but it is supposed to be a secret transaction. It is not for the public, not for the BIR but it is only for the purpose of keeping the transactions between the company and him. It is not made to be shown to the BIR.

Q In that books of account, is it reflected that they have made some deliveries to certain supermarkets?

A Yes.Q For the consumption of the BIR what are the papers that they

show?A It is the private accounting firm that prepares everything.Q Based on what?A Based on some fictitious records just as they wish to declare.Q In your affidavit you stated that there are sales invoices,

official receipts, delivery receipts, sales records, etc. These documents are records that you have stated, in your affidavit, which are only for the consumption of the company?

A Yes, not for the BIR.Q Where are they kept now?A They are kept on the table which I have drawn in the

sketch. This is the bird's eyeview (sic) of the whole office. When you enter thru the door this Gina Tan is the one recording all the confidential transactions of the company. In this table you can find all the ledgers and notebooks.

Q This sketch is a blow-up of this portion, Exh. "A"?A Yes. Exh. "B" is the blow-up of Exh. "A" inside the office.In this blow-up there are four personnel plus one new

personnel. Gina Tan collects all the records from this girl and this girl makes the statements. This first girl delivers the receipts. The second girl prepares the bill of lading. The third girl keeps the inventory of all the stocks.

This sketch here is the bodega where the records are kept. The records from these people are stored in this place which is marked as "C".

Q So what you want to impress on that now is that only current records are kept by Gina because according to you the whole records are already placed in the bodega?

A Yes.

49

Q But how can you enter the bodega?A Here, from the main entrance there is a door which will lead to

this part here. If you go straight there is a bodega there and there is also a guard from this exit right after opening the door.

Q The problem is that, when actually in August have you seen the current records kept by Gina?

A I cannot exactly recall but I have the xerox copies of the records.

Q Where are they now?A They are in my possession (witness handling [sic] to the Court

a bunch of records).Q The transactions that are reflected in these xerox copies that

you have given me, especially this one which seems to be pages of a ledger, they show that these are for the months of January, February, March, April and May. Are these transactions reflected in these xerox copies which appear in the ledger being shown to the BIR?

A As far as I know, it did not appear.Q What about this one which says Columnar Book Cash Receipt

for the month of January, what does it show?A It shows that Frank Uy is the one purchasing from the

company and these are his customers.Q Do these entries appear in the columnar books which are the

basis for the report to the BIR?A As far as I know, it does not reflect.Q What are these xerox copies of checks?A I think we cannot trace it up. These ones are the memos

received by Unifish for payment of sardines. This is the statement of the company given to Uy Chin Ho for collection.

Q It is also stated in your affidavit that the company imported soya oil. How is it done?

A The company imports soya oil to be used as a component in the processing of canned tuna for export. The company enjoys certain BOI privilege and so it is tax free. As far as I know, they profit more to dispose the product locally. Whatever excess of this soya oil are sold to another company.

Q Is that fact reflected in the xerox copies?A No. I have the actual delivery receipt.Q In other words, the company imports soya oil supposedly to

be used as a raw material but instead they are selling it locally?

A Yes. ([W]itness showing DR No. 3053 dated November 13, 1991.) This delivery receipt was the delivery receipt to Celebes Canning Corp. of the 90 grams soya oil.

Q In other words, this soya oil should have to be used by Unifish but instead they are seeling (sic) it?

A Yes, at a profit.Q You also said that there is tax evasion in the selling of

cans. What do you mean by this?A There is another privileged [sic] by the BOI for a special price

given to packaging materials. When you export the product there is a 50% price difference. Now, taking that advantage of that exemption, they sold it to certain company here, again to Virginia Farms.

Q Do you have proof to that effect?A No, but we can get it there.Q Will that fact be shown in any listed articles in the application

for search warrant since according to you, you have seen

this manipulation reflected on the books of account kept by Gina? Are you sure that these documents are still there?

A Yes. I have received information.COURT: Alright.[31]

Abos stated that, as former Operating Chief of Unifish, he had access to the company records, and even showed the issuing judge photocopies thereof. Thus, we reject the contention that this witness did not have personal knowledge of the facts to which he testified. The contents of the deposition clearly demonstrate otherwise.

The deposition also shows that, contrary to petitioners submission, the inquiries made by the judge were far from leading or being a rehash of the witness affidavit. We find such inquiries to be sufficiently probing.Alleged lack of particularity in the descripti

50

on of the things seized

Petitioners note the similarities in the description of the things to be seized in the subject warrants and those in Stonehill vs. Diokno,[32] Bache & Co. (Phil.), Inc. vs. Ruiz,[33] and Asian Surety & Insurance Co., Inc. vs. Herrera.[34]

In Stonehill, the effects to be searched and seized were described as: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.

This Court found that the foregoing description failed to conform to the requirements set forth by the Constitution since:x x x 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 object: the elimination of general warrants.

In Bache & Co., this Court struck down a warrant containing a similar description as those in Stonehill:The documents, papers, and effects sought to be seized are described in Search Warrant No. 2-M-70 in this manner:Unregistered and private books of accounts (ledgers, journals, columnars, receipts and disbursements books, customers' ledgers); receipts for payments received; certificates of stocks and securities; contracts, promissory notes and deeds of sale; telex and coded messages; business communications; accounting and business records; checks and check stubs; records of bank deposits and withdrawals; and records of foreign remittances, covering the years 1966 to 1970.The description does not meet the requirement in Art. III, Sec. 1, of the Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the things to be seized.

x x x

In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain the purpose of the requirement that the warrant should particularly describe the place to be searched and the things to be seized, to wit:x x x Both the Jones Law (sec. 3) and General Orders No. 68 (sec. 97) specifically require that a search warrant should particularly describe the place to be searched and the things to be seized. The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant - to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made, - that abuses may not be committed. That is the correct interpretation of this constitutional provision borne out by the American authorities.The purpose as thus explained could, surely and effectively, be defeated under the search warrant issued in this case.A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio, 57 Phil, 384); or when the description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant does not conform to any of the foregoing tests. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles subject of search and seizure should come in handy merely to strengthen such evidence. In this event, the description contained in the herein disputed warrant should have mentioned, at least, the dates, amounts, persons, and other pertinent data regarding the receipts of payments, certificates of stocks and securities, contracts, promissory notes, deeds of sale, messages and communications, checks, bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the warrant.

In Asian Surety & Insurance Co., Inc. vs. Herrera, the description of the things to be seized, i.e., Fire Registers, Loss, Bordereau, Adjusters' Report, including subrogation receipts and proof of loss, Loss Registers, Book of Accounts including cash receipts and disbursements and general ledger, etc. was held to be an omnibus description and, therefore, invalid:x x x Because of this all embracing description which includes all conceivable records of petitioner corporation, which if seized x x x, could paralyze its business, petitioner in several motions filed for early resolution of this case, manifested that the seizure of TWO carloads of their papers has paralyzed their business to the grave prejudice of not only the company, its workers, agents, employees but also of its numerous insured and beneficiaries of bonds issued by it, including the government itself, and of the general public. And correlating the same to the charges for which the warrant was issued, We have before Us the infamous general warrants of old.

In the case at bar, the things to be seized were described in the following manner:

1. Multiple sets of Books of Accounts; Ledgers, Journals, Columnar Books, Cash Register Books, Sales Books or Records; Provisional & Official Receipts;

2. Production Record Books/Inventory Lists [,] Stock Cards;

3. Unregistered Delivery Receipts;

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4. Unregistered Purchase & Sales Invoices;5. Sales Records, Job Order;6. Corporate Financial Records; and7. Bank Statements/Cancelled ChecksWe agree that most of the items listed in the warrants fail to

meet the test of particularity, especially since witness Abos had furnished the judge photocopies of the documents sought to be seized. The issuing judge could have formed a more specific description of these documents from said photocopies instead of merely employing a generic description thereof. The use of a generic term or a general description in a warrant is acceptable only when a more specific description of the things to be seized is unavailable. The failure to employ the specificity available will invalidate a general description in a warrant.[35] The use by the issuing judge of the terms multiple sets of books of accounts, ledgers, journals, columnar books, cash register books, sales books or records, provisional & official receipts, production record books/inventory lists, stock cards, sales records, job order, corporate financial records, and bank statements/cancelled checks is therefore unacceptable considering the circumstances of this case.

As regards the terms unregistered delivery receipts and unregistered purchase & sales invoices, however, we hold otherwise. The Solicitor General correctly argues that the serial markings of these documents need not be specified as it is not possible to do so precisely because they are unregistered.[36] Where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, as this would mean that no warrant could issue. Taking into consideration the nature of the articles so described, it is clear that no other more adequate and detailed description could have been given, particularly because it is difficult to give a particular description of the contents thereof.[37] Although it appears that photocopies of these unregistered documents were among those handed by Abos to the issuing judge, it would be impractical to require the latter to specify each and every receipt and invoice, and the contents thereof, to the minutest detail.

The general description of most of the documents listed in the warrants does not render the entire warrant void. Insofar as the warrants authorize the search and seizure of unregistered delivery receipts and unregistered purchase and sales invoices, the warrants remain valid. The search warrant is severable, and those items not particularly described may be cut off without destroying the whole warrant. In United States v. Cook,[38] the United States Court of Appeals (Fifth Circuit) made the following pronouncement:x x x. The leading decision is Aday v. Superior Court, 53 Cal.2d 789, 362 P.2d 47, 13 Cal.Rptr. 415 (1961). In Aday, a warrant was issued authorizing the seizure of two particularly described books and myriad other generally described items. On appeal, the California Supreme Court held that only the books were particularly described in the warrant and lawfully seized. The court acknowledged that the warrant was flawed, but rather than suppress everything seized, the court chose to sever the defective portions of the warrant and suppress only those items that were not particularly described.Although the warrant was defective x x x it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books x x x. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles.

x x xx x x We agree with the reasoning of the Supreme Court of California and the majority of state courts that have considered this question and hold that in the usual case the district judge should sever the infirm portion of the search warrant as passes constitutional muster. See United States v. Giresi, 488 F.Supp. 445, 459-60 (D.N.J.1980). Items that were not described with the requisite particularity in the warrant should be suppressed, but suppression of all of the fruits of the search is hardly consistent with the purposes underlying exclusion. Suppression of only the items improperly described prohibits the Government from profiting from its own wrong and removes the court from considering illegally obtained evidence. Moreover, suppression of only those items that were not particularly described serves as an effective deterrent to those in the Government who would be tempted to secure a warrant without the necessary description. As the leading commentator has observed, it would be harsh medicine indeed if a warrant which was issued on probable cause and which did particularly describe certain items were to be invalidated in toto merely because the affiant and the magistrate erred in seeking and permitting a search for other items as well. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.6(f) (1978).Accordingly, the items not particularly described in the warrants ought to be returned to petitioners.

Petitioners allege that the following articles, though not listed in the warrants, were also taken by the enforcing officers:1. One (1) composition notebook containing Chinese characters,2. Two (2) pages writing with Chinese characters,3. Two (2) pages Chinese character writing,4. Two (2) packs of chemicals,5. One (1) bound gate pass,6. Surety Agreement.[39]

In addition, the searching party also seized items belonging to the Premier Industrial and Development Corporation (PIDC), which shares an office with petitioner Unifish.

The things belonging to petitioner not specifically mentioned in the warrants, like those not particularly described, must be ordered returned to petitioners. In order to comply with the constitutional provisions regulating the issuance of search warrants, the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder.[40] In Tambasen vs. People,[41] it was held:Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant should particularly describe the things to be seized. The evident purpose and intent of the requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant, to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional provision is also aimed at preventing violations of security in person and property and unlawful invasions of the sanctity of the home, and giving remedy against such usurpations when attempted (People v. Damaso, 212 SCRA 547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]).Clearly then, the money which was not indicated in the search warrant, had been illegally seized from petitioner. The fact that the

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members of the police team were doing their task of pursuing subversives is not a valid excuse for the illegal seizure. The presumption juris tantum of regularity in the performance of official duty cannot by itself prevail against the constitutionally protected right of an individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso, 48 Phil. 169, 176 [1925]). Although public welfare is the foundation of the power to search and seize, such power must be exercised and the law enforced without transgressing the constitutional rights of the citizens (People v. Damaso, supra, citing Rodriguez v. Evangelista, 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagahilog v. Fernandez, 198 SCRA 614 (1991), [z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors.

The seizure of the items not specified in the warrants cannot be justified by the directive in the penultimate paragraph thereof to "seize and take possession of other properties relative to such violation," which in no way can be characterized as a particular description of the things to be seized.

As regards the articles supposedly belonging to PIDC, we cannot order their return in the present proceedings. The legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties.[42]

WHEREFORE, the Resolutions of respondent Court of Appeals dated 27 June 1996 and 14 May 1987, affirming the Order of the Regional Trial Court dated 17 July 1995, are hereby AFFIRMED insofar as said Resolutions upheld the validity of the subject Search Warrants authorizing the seizure of the unregistered delivery receipts and unregistered purchase and sales invoices, but REVERSED with respect to the rest of the articles subject of said warrants. The respondent Bureau of Internal Revenue is hereby ordered to return to petitioners all items seized from the subject premises and belonging to petitioners, except the unregistered delivery receipts and unregistered purchase and sales invoices.

SO ORDERED.

GO VS CA1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; NATURE OF BAIL PROCEEDINGS. — Respondent judge is correct in appreciating the nature of the bail proceedings. "[T]he hearing of an application for bail should be summary or otherwise in the discretion of the court. By 'summary hearing' [is] meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail. In such a hearing, the court 'does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome

of the trial or on what further evidence may be therein offered is admitted.' . . . The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing."2. ID.; ID.; ID.; PROCEDURE IN GRANT OF BAIL IS SIMILAR TO PROCEDURE IN CANCELLATION OF BAIL. — Although the proceedings conducted by respondent judge were not for an application for bail but to cancel that which was issued to petitioner, the principles and procedure governing hearings on an application for bail were correctly applied by respondent judge in the cancellation of bail proceedings since the bail was issued by this Court in G.R. No. 101837 without prejudice to any lawful order which the trial court may issue in case the Provincial Prosecutor moves for the cancellation of the bail. The grant of bail was made without prejudice because where bail is not a matter of right, as in this case, the prosecution must be given the opportunity to prove that there is a strong evidence of guilt. In the cancellation of bail proceedings before him, the judge was confronted with the same issue as in an application for bail, i.e., whether the evidence of guilt is so strong as to convince the court that the accused is not entitled to bail. Hence, the similarity of the nature and procedure of the hearings for an application for bail and the cancellation of the same.3. LEGAL AND JUDICIAL ETHICS; DISQUALIFICATION OF JUDGES; ESSENCE OF RULE ON DISQUALIFICATION OF JUDGES. — The Constitution commands that in all criminal prosecutions, the accused shall enjoy the right to have "a speedy, impartial, and public trial." This right is a derivation and elaboration of the more fundamental right to due process of law. The rule on the disqualification of judges is a mechanism for enforcing the requirements of due process.4. ID.; ID.; REASON FOR REQUIREMENT OF IMPARTIALITY ON PART OF JUDGE. — "It is now beyond dispute that due process cannot be satisfied in the absence of that degree of objectivity on the part of a judge sufficient to reassure litigants of his being fair and being just. Thereby there is the legitimate expectation that the decision arrived at would be the application of the law to the facts as found by a judge who does not play favorites." The "cold neutrality of an impartial judge," although required primarily for the benefit of the litigants, is also designed to preserve the integrity of the judiciary and more fundamentally, to gain and maintain the people's faith in the institutions they have erected when they adopted our Constitution. The notion that "justice must satisfy the appearance of justice" is an imposition by the citizenry, as the final judge of the conduct of public business, including trials, upon the courts of a high and uncompromising standard in the proper dispensation of justice.5. ID.; ID.; EFFECT OF MOTION FOR INHIBITION, DENIAL OF MOTION FOR INHIBITION, AND PETITION CHALLENGING DENIAL OF MOTION FOR INHIBITION. — Hence, if the trial judge decides to deny a motion for inhibition based on Rule 137, Sec. 1, par. 2, he shall proceed with the trial, unless of course restrained by either the Court of Appeals or by this Court. The mere filing of a motion for inhibition before the trial court or a petition before either the Court of Appeals or the Supreme Court challenging an order of the trial judge denying a motion for inhibition will not deprive the judge of authority to proceed with the case. Otherwise, by the expedient of filing such motion or petition, although the same be lacking in merit, a party can unduly delay the trial.

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6. ID.; ID.; EVIDENCE REQUIRED IN DISQUALIFICATION OF JUDGE; BIAS AND PREJUDICE NOT PRESUMED. — While bias and prejudice, which are relied upon by petitioner, have been recognized as valid reasons for the voluntary inhibition of the judge under Rule 137, Sec. 1, par. 2, the established rule is that mere suspicion that a judge is partial is not enough. There should be clear and convincing evidence to prove the charge. Bare allegations of partiality and prejudgment will not suffice. Bias and prejudice cannot be presumed especially if weighed against a judge's sacred obligation under his oath of office to administer justice without respect to person and do equal right to the poor and the rich.7. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF NOT SUSPENDING HEARING OF CASE AFTER DENIAL OF PETITIONER'S MOTION FOR RECUSATION AND DURING PENDENCY OF PETITION CHALLENGING HIS ORDERS DENYING THE MOTION FOR RECUSATION AND THE MOTION TO SUSPEND PROCEEDINGS AND TRANSFER VENUE OUTSIDE METRO MANILA NOT PROOF OF PARTIALITY. — In the case at hand, respondent judge acted in accordance with the Rules and prevailing jurisprudence when he proceeded with the trial after denying petitioner's Motion for Recusation. Petitioner cannot, therefore, cite the fact that respondent judge did not suspend hearing the case during the pendency of this petition as proof of his claim that the judge is partial.8. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF OVERRULING PETITIONER'S OBJECTION TO THE ADMISSIBILITY OF THE EXTRAJUDICIAL STATEMENT OF A PROSECUTION WITNESS WHO DID NOT TESTIFY THEREON, NOT PROOF OF BIAS; REASON. — The first of these allegedly "palpably biased and hostile orders" was that issued by respondent judge on August 14, 1992 overruling petitioner's objection to the admissibility of an affidavit of Geronimo Gonzaga offered by the prosecution. Petitioner contends that respondent judge should not have admitted the extrajudicial statements of Gonzaga because the latter did not take the witness stand to affirm the statements contained in the document presented by the prosecution. Petitioner suspected that respondent judge was trying to bolster the evidence for the prosecution. This contention is without merit. The mere fact that the trial judge overruled petitioner's objection to the admissibility of a particular piece of evidence is not proof of bias. In Jandionco v. Peñaranda, it was held that "[d]ivergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case on the ground of bias and manifest partiality." If petitioner disagrees with the judge's ruling, he may still question the admissibility of the evidence when he files an appeal, in case a judgment of conviction is rendered. To conclude, however, that respondent judge, by overruling the objection raised by petitioner's counsel, was trying to strengthen the prosecution's evidence is not only baseless because there was no evidence given to support this conclusion, but also premature because at that stage, the judge was not yet appreciating the merits and weight of the particular piece of evidence in question but was merely ruling on its admissibility. Petitioner's conclusion that "the offer and admission of Gonzaga's hearsay 'eyewitness' statement suggest a sinister concert to simulate evidential strength" is, if not suggestive of paranoia, at the very least, an overreaction.9. ID.; ID.; IN CASE AT BAR, THE ACT OF RESPONDENT JUDGE OF CONSIDERING THE CANCELLATION OF BAIL PROCEEDINGS RIPE FOR RESOLUTION AND REFUSING TO ALLOW PETITIONER'S COUNSEL TO PRESENT ANYMORE WITNESSES, NOT MOTIVATED BY BIAS; REASON. — The other supervening event allegedly demonstrating the judge's

partiality occurred during one of the hearings concerning the prosecution's motion for the cancellation of petitioner's bail. On September 28, 1992, after eleven (11) witnesses had been presented for the prosecution and two (2) for the defense, respondent judge considered the cancellation of bail proceedings ripe for resolution and refused to allow petitioner's counsel to present anymore witnesses. The reasons given by respondent judge for his ruling were: (1) the proceeding in the cancellation of bail is summary and different from the hearing on the merits; (2) the court need not receive exactly the same number of witnesses from both the prosecution and the defense; and (3) the counsel for petitioner previously limited himself to two (2) witnesses as borne out by the record of the case . . . Having determined that respondent judge made a proper appreciation of the nature of the bail proceedings before him, we likewise hold that it was within his discretion to limit the number of witnesses for petitioner. The power of the court in the bail proceedings to make a determination as to whether or not the evidence of guilt is strong "implies a full exercise of judicial discretion." If the trial judge believes that the evidence before him is sufficient for him to rule on the bail issue, after giving both parties their opportunity to present evidence, it is within his authority to consider the bail proceedings ripe for resolution. In any case, respondent judge acceded to petitioner's request and allowed him to present more witnesses in the bail proceedings. In fine, the Court holds that the respondent judge's ruling on September 28, 1992 considering the prosecution's motion for cancellation of bail ripe for resolution on the basis of the evidence already presented was not motivated by bias or prejudice.10. ID.; ID.; IN CASE AT BAR, RESPONDENT JUDGE'S ORDER ALLOWING PETITIONER'S ARRAIGNMENT AND TRIAL WITHOUT BENEFIT OF PRELIMINARY INVESTIGATION, NOT NECESSARILY PROOF OF PARTIALITY. — Petitioner, in this Motion for Reconsideration, restates his argument in the Petition that the respondent judge is biased, as evidenced by his Order dated July 17, 1991 which in effect allowed petitioner's arraignment and trial without the benefit of a preliminary investigation. It is true that in Go v. Court of Appeals, et al., G.R. No. 101837, February 11, 1992, a divided Court nullified respondent judge's July 17, 1991 Order and ordered that a preliminary investigation be conducted. But the erroneous Order of respondent judge is not necessarily proof of partiality. In People v. Lacson, we held that erroneous rulings do not always constitute evidence of bias. In Luciano v. Mariano, we made the pronouncement that "[t]he mere fact that the judge has erroneously ruled against the same litigant on two or more occasions does not create in our minds a decisive pattern of malice on the part of the judge against that particular litigant. This is not an unusual occurrence on our courts . . ." Moreover, the fact that the erroneous order issued by a judge can be remedied and was actually corrected, as in this case, militates against the disqualification of the judge on the ground of bias or partiality.11. ID.; ID.; IN CASE AT BAR, MOTION FOR RECUSATION IS ANOTHER DILATORY MOVE. — In the case at hand, the Motion for Recusation filed by petitioner must be viewed in the light of his lawyers' many attempts to suspend the proceedings before the respondent judge. Before the trial court, petitioner tried at least eight (8) times, not merely to reset the scheduled hearings, but to suspend the trial of the case itself. The following pleadings filed by petitioner before respondent judge all prayed either to suspend the proceedings entirely or for the respondent judge to delay the disposition of a particular issue . . . Before this Court, petitioner has already filed three (3) petitions assailing various orders of respondent judge in

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connection with the single murder case pending against him. Apart from the present petition which is docketed as G.R. No. 106087, petitioner has previously filed two (2) other petitions docketed as G.R. Nos. 101837 and 105424. In all three (3) petitions, petitioner applied for a temporary restraining order to have the proceedings before the trial court held in abeyance. The murder case involving only one accused, the petitioner, has become unnecessarily complicated and the proceedings before the trial court protracted, as can be gleaned from the fact that between the filing of the information on July 11, 1991 and the end of last year or December 31, 1992, the records of the case now consist of four (4) volumes and the transcript of stenographic notes have reached a total of one thousand five hundred and twenty three (1523) pages. Hearings are still being conducted. When taken in the light of petitioner's repeated attempts to have the proceedings in the murder case suspended and his lawyers' transparent maneuvers for the needless protraction of the case, the Motion for Recusation can only be viewed as another dilatory move and the present Motion for Reconsideration a further ploy to stall hearings.12. ID.; CONDUCT REQUIRED OF A LAWYER BEFORE COURTS AND JUDICIAL OFFICERS. — The Rules of Court commands members of the bar "[t]o observe and maintain the respect due to the courts of justice and judicial officers." Reinforcing this rule of conduct is the Code of Professional Responsibility which states in Canon 11 the following: "A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others." Rule 11.03 of the Code further states: "A lawyer shall abstain from scandalous, offensive or menacing language or behaviour before the courts." The next succeeding rule, Rule 11.03 adds: "A lawyer shall not attribute to a judge motives not supported by the record or having materiality to the case."13. ID.; ID.; REASON FOR THE REQUIREMENT. — To be sure, the adversarial nature of our legal system has tempted members of the bar, in pursuing their duty to advance the interests of their clients, to use strong language. But this privilege is not a license to malign our courts of justice. Irreverent behavior towards the courts by members of the bar is proscribed, not so much for the sake of the temporary incumbent of the judicial office, but more importantly, for the maintenance of respect for our judicial system, so necessary for the country's stability. "Time and again, this Court has admonished and punished, in varying degrees, members of the bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this Court or the lower courts . . . To be sure, lawyers may come up with various methods, perhaps more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive."14. ID.; ID.; AN INSTANCE OF HIGHLY DEROGATORY, OFFENSIVE AND CONTEMPTUOUS LANGUAGE TOWARD A JUDGE. — Indeed, in the Motion for Reconsideration, counsels for petitioner describe as "unparalleled for sheer malevolence" respondent judge's allegedly erroneous assumptions. Petitioner's lawyers further stated: "Petitioner's counsel, citing the above proceedings, contested the trial judge's baseless, nay despotic attempt to muzzle his right to be heard in his defense. . ." The trial judge's actions were also branded as an "obviously unholy rush to do petitioner in . . ." In the Urgent Motion filed by petitioner on December 16, 1992, respondent judge is alleged to have: (a) "generated belief of his being under contract to do the prosecution's bidding;" (2) "evinced contempt for Supreme Court case law;" and (3) "dishonored his judicial oath and duty to hear before he condemns, proceed upon inquiry, and render

judgment on a man's liberty only after a full trial of the facts." . . . In light of the above doctrines and jurisprudence, as well as the inherent power and authority of this Court to cite members of the Bar in contempt and to discipline them, we are of the opinion that the language used by petitioner's lawyers is highly derogatory, offensive and contemptuous.R E S O L U T I O NROMERO, J p:This is a Motion for Reconsideration of this Court's Resolution dated September 23, 1992 denying petitioner's Petition and affirming the Decision and Resolution promulgated on March 9, 1992 and June 26, 1992, respectively, of the Court of Appeals in CA-G.R. SP No. 26305. 1 The CA Decision and Resolution upheld the following: (1) respondent Judge Benjamin V. Pelayo's Order dated September 4, 1991 which denied petitioner's Motion for Recusation; and (2) respondent judge's Order dated September 17, 1991 denying petitioner's Motion to Suspend Proceedings and to Transfer Venue Outside Metro Manila.A review of the antecedent facts of this case, particularly those wherein respondent Judge participated, is in order to arrive at a just and correct assessment of his acts vis-a-vis the petitioner.On July 2, 1991, Eldon Maguan was shot inside his car along Wilson Street, San Juan, Metro Manila. After conducting an investigation of the shooting incident, the police identified petitioner Rolito Go as the prime suspect in the commission of the crime. On July 8, 1991, petitioner, accompanied by two lawyers, presented himself before the San Juan Police Station. He was arrested and booked for the shooting of Maguan. The police filed a complaint for frustrated homicide with the Office of the Provincial Prosecutor of Rizal.On July 11, 1991, an information for murder was filed against petitioner before the Regional Trial Court, Pasig, Metro Manila, the victim Eldon Maguan having died on July 9, 1991.On the same day, July 11, 1991, counsel for petitioner filed with the Prosecutor an omnibus motion praying for petitioner's immediate release and for a preliminary investigation. Provincial Prosecutor Mauro Castro interposed no objection to petitioner's being granted provisional liberty on a cash bond of P100,000.00.The case was raffled to the sala of respondent judge, the Hon. Benjamin V. Pelayo, who, on July 12, 1991, approved the cash bond posted by petitioner and ordered his release.On July 16, 1991, respondent judge issued an Order granting leave for the Provincial Prosecutor of Rizal to conduct a preliminary investigation.However, on July 17, 1991, respondent judge motu proprio issued an Order 2 which: (a) recalled the July 12, 1991 Order granting bail; (b) directed petitioner to surrender within 48 hours from notice; (c) cancelled the July 16, 1991 Order granting leave for the Provincial Prosecutor to conduct a preliminary investigation; (d) treated petitioner's omnibus motion for immediate release and preliminary investigation dated July 11, 1991 as a petition for bail.On July 19, 1991, petitioner filed a petition for certiorari, prohibition and mandamus questioning the July 17, 1991 Order of respondent judge. On the same day, petitioner filed before the trial court a motion to suspend all the proceedings pending the resolution of the petition filed before the Supreme Court. 3 This motion was denied by respondent judge. 4On July 23, 1991, petitioner voluntarily surrendered to the CAPCOM. Upon motion 5 by petitioner, the respondent judge issued an Order 6 directing "the accused's continued detention at the CAPCOM until such time as the Court shall have properly determined the place where accused should be detained."

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On July 29, 1991, the National Bureau of Investigation wrote a letter 7 to the trial court requesting that custody of petitioner be transferred to the Bureau in view of an investigation for illegal possession of firearms involving petitioner.On the same date, July 29, 1991, the trial court issued an Order 8 granting the NBI temporary custody of petitioner subject to the following conditions: (a) the petitioner is to be accorded his constitutional rights during the investigation; (b) the NBI investigation is to be conducted only during office hours and petitioner is to be returned to the custody of the CAPCOM at the end of each day; and (c) the NBI should report to the trial court the status of the investigation.On July 30, 1991, petitioner filed a motion 9 before the trial court praying that the Order dated July 29, 1991 be nullified and recalled.The following day, July 31, 1991, the NBI filed a motion 10 praying that it be granted full custody of petitioner pending the investigation of the case involving illegal possession of firearms.An Order 11 was issued by the trial Court dated August 1, 1991 setting for hearing the issue concerning the proper venue of petitioner's detention.After the hearing on petitioner's custody, the trial court issued an Order 12 dated August 2, 1991 ordering the CAPCOM to bring the person of petitioner to the court not later than August 5, 1991 so that a commitment order for his detention at the Rizal Provincial Jail could be issued. The Commitment Order 13 ordering the Provincial Warden of the Provincial Jail of Pasig to take custody of petitioner was issued on August 5, 1991.On August 8, 1991, petitioner filed a Motion for Recusation 14 praying that respondent judge inhibit himself from hearing the case. The motion was denied by respondent judge in his Order dated September 4, 1991. 15On August 22, 1991, petitioner filed a Motion to Suspend Proceedings and Transfer Venue Outside Metro Manila which was denied by respondent judge on September 17, 1991. 16Petitioner was arraigned on August 23, 1991. In view of his refusal to enter a plea, a plea of "Not Guilty" was entered for him by the trial court. 17In the meantime, this Court, by Resolution dated July 24, 1991, remanded to the Court of Appeals the petition filed by petitioner assailing the July 17, 1991 Order of the trial court.On August 27, 1991, petitioner filed a petition for habeas corpus before the Court of Appeals.On September 23, 1991, the Court of Appeals rendered a consolidated decision dismissing the two petitions. However, upon petition by petitioner, this Court by an 8-6 vote in G.R. No. 101837 issued a decision reversing the, CA decision and ordering (a) the Provincial Prosecutor to conduct a preliminary investigation; and (b) the release of petitioner without prejudice to any order that the trial court may issue, should the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.After conducting a preliminary investigation pursuant to this Court's decision in G.R. No. 101837, the Assistant Provincial Prosecutor issued a Resolution dated February 27, 1992 finding probable cause to charge petitioner with the crime of murder. The Resolution was approved by the Provincial Prosecutor who filed with the trial court a motion to cancel the bail of petitioner and a motion to set the criminal case for resumption of the trial on the merits.Petitioner attempted to have the Resolution of the Prosecutor reversed by appealing to the Department of Justice, and filing petitions with the Court of Appeals (CA, G.R. SP No. 27738) and

finally to this Court (G.R. No. 105424), but his efforts did not meet with success.On October 1, 1991, petitioner filed another petition for certiorari, prohibition and mandamus before this Court seeking to annul: (1) the Order of the trial court dated September 4, 1991 denying petitioner's Motion for Recusation; and (2) the Order dated September 17, 1991 denying petitioner's Motion to Suspend Proceedings and Transfer Venue Outside Metro Manila. The petition, docketed as G.R. No. 101772, was remanded to the Court of Appeals.On March 9, 1992, the Court of Appeals (13th Division) rendered a decision dismissing the petition. As to the denial of petitioner's Motion for Recusation, the Court of Appeals held in part:"On the basis of the allegation of the petition, the Court is not inclined to strike down the denial of petitioner's motion for recusation as a grave abuse of discretion on the part of the respondent judge absent any clear showing of such grave abuse of his discretion. The allegation of petitioner in support of his motion for recusation are conclusions based on his own fears and are therefore speculations than anything else.In order to warrant a finding of 'prejudicial' publicity as urged by the petitioner, there must be allegation and proof that the judge has been unduly influenced, not simply that he might be, by the "barrage" of publicity (Martelino vs. Alejandro, 32 SCRA 106; emphasis supplied). While there is such allegation in the petition, the Court has however found no proof so far adduced sufficient to accept the petitioner's claim that the respondent judge has been unduly influenced by the alleged publicity.Additionally, We quote hereunder the pronouncement of the Supreme Court in the case of Aparicio vs. Andal, 175 SCRA 569 where, citing the case of Pimentel vs. Salanga, 21 SCRA 160, it said:Efforts to attain fair, just and impartial trial and decision, have a natural and alluring appeal. But, we are not licensed to indulge in unjustified assumptions, or make a speculative approval to this ideal. It ill behooves this Court to tar and feather a judge as biased or prejudiced, simply because counsel for a party litigant happens to complain against him. As applied here, respondent judge has not as yet crossed the line that divides partiality and impartiality. He has not thus far stepped to one side of the fulcrum. No act or conduct of his would show arbitrariness or prejudice. Therefore, we are not to assume what respondent judge, not otherwise legally disqualified, will do in a case before him. We have had occasion to rule in a criminal case that a charge made before trial that a party 'will not be given a fair, impartial and just hearing' is 'premature.' Prejudice is not to be presumed. Especially if weighed against a judge's legal obligation under his oath to administer justice without respect to person and to equal right to the poor and the rich.' To disqualify or not to disqualify himself then, as far as respondent judge is concerned, is a matter of conscience." 18The Court of Appeals also sustained the trial court's denial of petitioner's Motion to Suspend Proceedings and Transfer Venue Outside Metro Manila with the following pronouncement:"On the question of the denial by the respondent court of petitioner's motion to suspend proceedings and transfer venue outside of Metro Manila, suffice it to say that the respondent court was correct in denying petitioner's motion. For indeed, the authority to order a change of venue or place of trial to avoid a miscarriage of justice is vested in the Supreme Court by Article VIII, Section 5, paragraph 4 of the Constitution. Neither the respondent court nor this Court has the authority to grant petitioner's motion for transfer of venue. The cases cited by petitioner in support of this issue were

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all decided by the Supreme Court before the advent of the 1973 Constitution where the provision on transfer of venue was first adopted, hence not applicable to the instant case." 19Petitioner's Motion for Reconsideration of the CA decision having been denied, 20 a petition under Rule 45 was filed before this Court on July 29, 1992 assailing the decision of the Court of Appeals. On September 9, 1992, the Office of the Solicitor General (OSG), representing respondent People of the Philippines, filed a Comment on the Petition.On September 23, 1992, the Court, after considering the allegations contained, issues raised and the arguments adduced in the Petition, as well as the Comment filed by the OSG, issued a Resolution denying the Petition on the ground that the respondent Court of Appeals committed no reversible error in its assailed decision.On October 12, 1992, the present Motion for Reconsideration 21 was filed in which petitioner reiterates his position that respondent judge should inhibit himself from the case.On December 16, 1992, petitioner filed a pleading captioned "Urgent Motion (for preliminary mandatory injunction)." In said Motion, petitioner questioned the Order of the trial court dated December 9, 1992 denying petitioner's Motion to Reopen Hearing (of the cancellation of bail proceedings) and to Present Last Witness. It appears that after the presentation of eleven (11) witnesses by the prosecution and six (6) by the defense, the trial court considered the question concerning the cancellation of petitioner's bail ripe for resolution. Thereafter, petitioner filed a Motion to Reopen and Present Last Witness. 22 But the trial court issued an Order 23 dated December 9, 1992 which, among other things, denied the Motion. In the Urgent Motion filed with this Court on December 16, 1992, petitioner prayed "for the issuance forthwith and ex parte of a writ of preliminary mandatory injunction directing respondent judge to allow petitioner to complete his defense evidence by presenting his last witness on the bail issue . . ." 24On December 29, 1992, the Court passed a Resolution 25 issuing a temporary restraining order (TRO) restraining respondent judge from resolving the bail issue and directing him to allow petitioner to present his last witness. This Resolution was clarified and the TRO confirmed in another Resolution issued by the Court on January 11, 1993. 26On January 8, 1993, the OSG filed a Comment on petitioner's Motion for Reconsideration.At the outset, it is noteworthy to observe that petitioner in this Motion for Reconsideration no longer raises the question of change of venue. Moreover, the Motion for Reconsideration is predicated on what petitioner alleges are "the supervening events demonstrating partiality to the prosecution, on one hand, and hostility against petitioner, on the other." 27 Perforce, this Resolution shall only consider the allegations and issues raised in this Motion for Reconsideration and in the Comment thereon filed by the OSG.Petitioner's Motion for Recusation filed before the trial court is based on Rule 137, sec. 1, par. 2 of the Rules of Court on disqualification of judges.The Constitution commands that in all criminal prosecutions, the accused shall enjoy the right to have "a speedy, impartial, and public trial." 28 (Emphasis supplied) This right is a derivation and elaboration of the more fundamental right to due process of law. 29 The rule on the disqualification of judges is a mechanism for enforcing the requirements of due process. "It is now beyond dispute that due process cannot be satisfied in the absence of that degree of objectivity on the part of a judge sufficient to reassure

litigants of his being fair and being just. Thereby there is the legitimate expectation that the decision arrived at would be the application of the law to the facts as found by a judge who does not play favorites." 30The "cold neutrality of an impartial judge," 31 although required primarily for the benefit of the litigants, is also designed to preserve the integrity of the judiciary and more fundamentally, to gain and maintain the people's faith in the institutions they have erected when they adopted our Constitution. The notion that "justice must satisfy the appearance of justice" 32 is an imposition by the citizenry, as the final judge of the conduct of public business, including trials, upon the courts of a high and uncompromising standard in the proper dispensation of justice.While bias and prejudice, which are relied upon by petitioner, have been recognized as valid reasons for the voluntary inhibition 33 of the judge under Rule 137, sec. 1, par. 2, 34 the established rule is that mere suspicion that a judge is partial is not enough. There should be clear and convincing evidence to prove the charge. 35 Bare allegations of partiality and prejudgment will not suffice. 36 Bias and prejudice cannot be presumed especially if weighed against a judge's sacred obligation under his oath of office to administer justice without respect to person and do equal right to the poor and the rich. 37In the Motion for Reconsideration now before the Court, petitioner, to prove his allegation of bias on the part of respondent judge, takes the latter to task for continuing with the trial during the pendency of this petition stating that:"Even as the instant petition for the trial judge's recusation pends, the latter did not see fit to suspend the hearings. Indeed the trial judge has been conducting marathon hearings which, in the context of his questioned fairness and impartiality, roars out as a railroad rush to make official a pre-determined verdict of guilt." 38The Court draws the attention of petitioner and his counsels 39 to the procedure to be followed by the judge before whom a motion for disqualification has been filed. Rule 137, sec. 2 provides:"If it be claimed that an official is disqualified from sitting as above provided, the party objecting to his competency may, in writing, file with the official his objection, stating the grounds therefor, and the official shall thereupon proceed with the trial, or withdraw therefrom, in accordance with his determination of the question of his disqualification . . ." (Emphasis supplied)In People v. Moreno, 40 we stated that if a judge denies the motion for disqualification and rules favorably on his competency to try the case, it becomes a matter of official duty for him to proceed with the trial and decision of the case. He cannot shirk the responsibility without the risk of being called upon to account for his dereliction. Although this case was decided prior to the introduction of par. 2 of Rule 137, sec. 1, there is no reason why the procedure laid down in Rule 137, sec. 2 and applied in People v. Moreno should not likewise apply to a motion for inhibition filed pursuant to Rule 137, sec. 1, par. 2. 41 In fact, in Genoblazo v. Court of Appeals, 42 the Court applied the procedure prescribed in Rule 137, sec. 2 when the trial judge denied a party's motion for inhibition under Rule 137, sec. 1, par. 2, thus:"Moreover, the trial judge acted correctly in proceeding with the case by setting it for pre-trial since it is within her sound discretion, after her decision in favor of her own competency, to either proceed with the trial or refrain from acting on the case until determination of the issue of her disqualification by the appellate court [Section 2 of Rule 137 of the Revised Rules of Court; De la Paz v. Intermediate Appellate Court, supra, at 76]. 43

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Hence, if the trial judge decides to deny a motion for inhibition based on Rule 137, sec. 1, par. 2, he shall proceed with the trial, unless of course restrained by either the Court of Appeals or by this Court. The mere filing of a motion for inhibition before the trial court or a petition before either the Court of Appeals or the Supreme Court challenging an order of the trial judge denying a motion for inhibition will not deprive the judge of authority to proceed with the case. Otherwise, by the expedient of filing such motion or petition, although the same be lacking in merit, a party can unduly delay the trial.In the case at hand, respondent judge acted in accordance with the Rules and prevailing jurisprudence when he proceeded with the trial after denying petitioner's Motion for Recusation. Petitioner cannot, therefore, cite the fact that respondent judge did not suspend hearing the case during the pendency of this petition as proof of his claim that the judge is partial. This Court has not, in connection with the petition, issued a temporary restraining order (TRO) enjoining respondent judge from further hearing the case. The TRO which this Court issued on December 29, 1992 after the petition was denied and pending this Motion for Reconsideration ordered the judge to desist from resolving the question on the cancellation of bail until the last witness of petitioner was heard. The TRO did not restrain the judge from hearing the case. On the contrary, the judge was ordered to hear petitioner's last witness in the cancellation of bail proceedings. 44 Because it was his duty to continue trying the case and there was no order from this Court not to do so, respondent judge committed no impropriety evincing partiality when he continued hearing the case during the pendency of the petition before this Court.Petitioner, in this Motion for Reconsideration, claims that since the issuance of the Court Resolution dated September 23, 1992 denying his Petition, there have been "supervening events demonstrating partiality to the prosecution on one hand, and hostility against petitioner, on the other hand." 45 Petitioner alleges:"Pursuing his unconstitutional bent first evinced when, without benefit of preliminary investigation, petitioner's arraignment and trial, then arrest and detention for almost a year was peremptorily ordered — which this Court reversed and rebuked (G.R. no. 101837, promulgated 11 February 1992) — the unchastened trial judge let out yet with two palpably biased and hostile orders, infra, clearly and unmistakably demonstrating an unconstitutional prejudgment of petitioner's culpability." 46The first of these allegedly "palpably biased and hostile orders" was that issued by respondent judge on August 14, 1992 overruling petitioner's objection to the admissibility of an affidavit of Geronimo Gonzaga offered by the prosecution. Petitioner contends that respondent judge should not have admitted the extrajudicial statements of Gonzaga because the latter did not take the witness stand to affirm the statements contained in the document presented by the prosecution. Petitioner suspected that respondent judge was trying to bolster the evidence for the prosecution.This contention is without merit. The mere fact that the trial judge overruled petitioner's objection to the admissibility of a particular piece of evidence is not proof of bias. In Jandionco v. Peñaranda, 47 it was held that "[d]ivergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case on the ground of bias and manifest partiality." 48 If petitioner disagrees with the judge's ruling, he may still question the admissibility of the evidence when he files an appeal, in case a judgment of conviction is rendered. To conclude, however, that

respondent judge, by overruling the objection raised by petitioner's counsel, was trying to strengthen the prosecution's evidence is not only baseless because there was no evidence given to support this conclusion, but also premature because at that stage, the judge was not yet appreciating the merits and weight of the particular piece of evidence in question but was merely ruling on its admissibility. Petitioner's conclusion that "the offer and admission of Gonzaga's hearsay 'eyewitness' statement suggest a sinister concert to simulate evidential strength" 49 is, if not suggestive of paranoia, at the very least, an overreaction.The other supervening event allegedly demonstrating the judge's partiality occurred during one of the hearings concerning the prosecution's motion for the cancellation of petitioner's bail. On September 28, 1992, after eleven (11) witnesses had been presented for the prosecution and two (2) for the defense, respondent judge considered the cancellation of bail proceedings ripe for resolution and refused to allow petitioner's counsel to present anymore witnesses. The reasons given by respondent judge for his ruling were: (1) the proceeding in the cancellation of bail is summary and different from the hearing on the merits; (2) the court need not receive exactly the same number of witnesses from both the prosecution and the defense; and (3) the counsel for petitioner previously limited himself to two (2) witnesses as borne out by the record of the case. 50Respondent judge is correct in appreciating the nature of the bail proceedings. "[T]he hearing of an application for bail should be summary or otherwise in the discretion of the court. By 'summary hearing' [is] meant such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of the evidence for the purpose of bail. In such a hearing, the court 'does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered is admitted.' . . . The course of the inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters avoiding unnecessary thoroughness in the examination and cross-examination of witnesses and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing." 51Although the proceedings conducted by respondent judge were not for an application for bail but to cancel that which was issued to petitioner, the principles and procedure governing hearings on an application for bail were correctly applied by respondent judge in the cancellation of bail proceedings since the bail was issued by this Court in G.R. No. 101837 without prejudice to any lawful order which the trial court may issue in case the Provincial Prosecutor moves for the cancellation of the bail. 52 The grant of bail was made without prejudice because where bail is not a matter of right, as in this case, the prosecution must be given the opportunity to prove that there is a strong evidence of guilt. 53 In the cancellation of bail proceedings before him, the judge was confronted with the same issue as in an application for bail, i.e., whether the evidence of guilt is so strong as to convince the court that the accused is not entitled to bail. Hence, the similarity of the nature and procedure of the hearings for an application for bail and the cancellation of the same.Having determined that respondent judge made a proper appreciation of the nature of the bail proceedings before him, we likewise hold that it was within his discretion to limit the number of witnesses for petitioner. The power of the court in the bail

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proceedings to make a determination as to whether or not the evidence of guilt is strong "implies a full exercise of judicial discretion." 54 If the trial judge believes that the evidence before him is sufficient for him to rule on the bail issue, after giving both parties their opportunity to present evidence, it is within his authority to consider the bail proceedings ripe for resolution. In any case, respondent judge acceded to petitioner's request and allowed him to present more witnesses in the bail proceedings.In fine, the Court holds that the respondent judge's ruling on September 28, 1992 considering the prosecution's motion for cancellation of bail ripe for resolution on the basis of the evidence already presented was not motivated by bias or prejudice.Finally, petitioner, in this Motion for Reconsideration, restates his argument in the Petition that the respondent judge is biased, as evidenced by his Order dated July 17, 1991 55 which in effect allowed petitioner's arraignment and trial without the benefit of a preliminary investigation.It is true that in Go v. Court of Appeals, et al., G.R. No. 101837, February 11, 1992, a divided Court nullified respondent judge's July 17, 1991 Order and ordered that a preliminary investigation be conducted. But the erroneous Order of respondent judge is not necessarily proof of partiality. In People v. Lacson, 56 we held that erroneous rulings do not always constitute evidence of bias. 57 In Luciano v. Mariano, 58 we made the pronouncement that "[t]he mere fact that the judge has erroneously ruled against the same litigant on two or more occasions does not create in our minds a decisive pattern of malice on the part of the judge against that particular litigant. This is not an unusual occurrence in our courts . . ." Moreover, the fact that the erroneous order issued by a judge can be remedied and was actually corrected, as in this case, militates against the disqualification of the judge on the ground of bias or partiality. 59We have earlier underscored the importance of the rule of disqualification of judges, not only in safeguarding the rights of litigants to due process of law but also in earning for the judiciary the people's confidence, an element so essential in the effective administration of justice. The rule should, therefore, not be used cavalierly to suit a litigant's personal designs or to defeat the ends of justice. "While We are exacting on the conduct of judges confronted with motions for disqualification's, We cannot, however, tolerate acts of litigants who, for any conceivable reason, seek to disqualify a judge for their own purpose, under a plea of bias, hostility, prejudice or prejudgment . . . [T]his Court does not approve the tactic of some litigants of filing of baseless motion for disqualification of the judge as a means of delaying the case and/or of forum-shopping for a more friendly judge." 60In the case at hand, the Motion for Recusation filed by petitioner must be viewed in the light of his lawyers' many attempts to suspend the proceedings before the respondent judge. Before the trial court, petitioner tried at least eight (8) times, not merely to reset the scheduled hearings, 61 but to suspend the trial of the case itself. The following pleadings filed by petitioner before respondent judge all prayed either to suspend the proceedings entirely or for the respondent judge to delay the disposition of a particular issue:CAPTION OF PLEADING DATE OF FILING1. Urgent Ex-Parte Motion July 19, 19912. Motion to Hold in Abeyance August 2, 19913. Motion for Recusation August 8, 19914. Motion to Suspend Proceedingsand Transfer Venue OutsideMetro Manila August 22, 1991

5. Motion to Suspend Proceedings March 4, 19916. Second Motion to Inhibit March 2, 19927. Motion to Suspend Action onFormal Offer of Evidence and onSubmission of Memorandum Dec. 21, 19928. Motion to Reopen Hearing andPresent Last Witness Dec. 1, 1992Before this Court, petitioner has already filed three (3) petitions assailing various orders of respondent judge in connection with the single murder case pending against him. Apart from the present petition which is docketed as G.R. No. 106087, petitioner has previously filed two (2) other petitions docketed as G.R. Nos. 101837 and 105424. In all three (3) petitions, petitioner applied for a temporary restraining order to have the proceedings before the trial court held in abeyance.The murder case involving only one accused, the petitioner, has become unnecessarily complicated and the proceedings before the trial court protracted, as can be gleaned from the fact that between the filing of the information on July 11, 1991 and the end of last year or December 31, 1992, the records of the case now consist of four (4) volumes and the transcript of stenographic notes have reached a total of one thousand five hundred and twenty three (1523) pages. Hearings are still being conducted.When taken in the light of petitioner's repeated attempts to have the proceedings in the murder case suspended and his lawyers' transparent maneuvers for the needless protraction of the case, the Motion for Recusation can only be viewed as another dilatory move and the present Motion for Reconsideration a further ploy to stall hearings.In sum, after a careful examination of the records of the case, including the transcript of stenographic notes, and considering the applicable law, the pertinent rules and prevailing jurisprudence, we reiterate our holding in the Court Resolution dated September 23, 1992 that the Court of Appeals committed no reversible error in affirming the respondent judge's Order which denied petitioner's Motion for Recusation. This extended Resolution should put an end to petitioner's obvious attempts at deferring the trial of his principal case by dwelling on incidental matters. The motion for reconsideration must, perforce, be denied with finality.In the Comment on the petitioner's Motion for Recusation, the Solicitor General prays that Attys. Raymundo A. Armovit, Miguel R. Armovit and Rafael R. Armovit, be disciplinarily dealt with by this Court for allegedly using abusive and intemperate language against respondent judge which betrays disrespect to the trial court.Indeed, in the Motion for Reconsideration, counsels for petitioner describe as "unparalleled for sheer malevolence" 62 respondent judge's allegedly erroneous assumptions. Petitioner's lawyers further stated: "Petitioner's counsel, citing the above proceedings, contested the trial judge's baseless, nay despotic attempt to muzzle his right to be heard in his defense . . ." 63 The trial judge's actions were also branded as an "obviously unholy rush to do petitioner in . . ." 64In the Urgent Motion filed by petitioner on December 16, 1992, respondent judge is alleged to have: (1) "generated belief of his being under contract to do the prosecution's bidding;" (2) "evinced contempt for Supreme Court case law;" and (3) "dishonored his judicial oath and duty to hear before he condemns, proceed upon inquiry, and render judgment on a man's liberty only after a full trial of the facts." 65The Rules of Court commands members of the bar "[t]o observe and maintain the respect due to the courts of justice and judicial

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officers." 66 Reinforcing this rule of conduct is the Code of Professional Responsibility which states in Canon 11 the following: "A lawyer shall observe and maintain the respect due to the courts and to judicial officers and should insist on similar conduct by others." Rule 11.03 of the Code further states: "A lawyer shall abstain from scandalous, offensive or menacing language or behaviour before the courts." The next succeeding rule, Rule 11.03 adds: "A lawyer shall not attribute to a judge motives not supported by the record or having materiality to the case."To be sure, the adversarial nature of our legal system has tempted members of the bar, in pursuing their duty to advance the interests of their clients, to use strong language. But this privilege is not a license to malign our courts of justice. Irreverent behavior towards the courts by members of the bar is proscribed, not so much for the sake of the temporary incumbent of the judicial office, but more importantly, for the maintenance of respect for our judicial system, so necessary for the country's stability. "Time and again, this Court has admonished and punished, in varying degrees, members of the bar for statements, disrespectful or irreverent, acrimonious or defamatory, of this Court or the lower courts . . . To be sure, lawyers may come up with various methods, perhaps more effective, in calling the Court's attention to the issues involved. The language vehicle does not run short of expressions, emphatic but respectful, convincing but not derogatory, illuminating but not offensive." 67In light of the above doctrines and jurisprudence, as well as the inherent power and authority of this Court to cite members of the Bar in contempt and to discipline them, we are of the opinion that the language used by petitioner's lawyers is highly derogatory, offensive and contemptuous.WHEREFORE, in view of the foregoing, the motion for reconsideration is DENIED with FINALITY. Attys. Raymundo A. Armovit, Miguel R. Armovit and Rafael R. Armovit are hereby ordered to pay a FINE of P500.00 each with a stern WARNING that a repetition of this or similar act and language will be dealt with more severely. Let a copy of this Resolution be attached to their records.SO ORDERED.

PADILLA VS CAOn October 26, 1992, high-powered firearms with live

ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:

"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions;

"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions;

"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and"(4) Six additional live double action ammunitions of .38 caliber revolver."[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866[2] thru the following Information:[3]

"That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have

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in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same.ALL CONTRARY TO LAW."[4]

The lower court then ordered the arrest of petitioner,[5] but granted his application for bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused,[7] upon advice of counsel,[8] to make any plea.[9] Petitioner waived in writing his right to be present in any and all stages of the case.[10]

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his notice of appeal on April 28, 1994.[12] Pending the appeal in the respondent Court of Appeals,[13] the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction,[14] the dispositive portion of which reads:

"WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith.SO ORDERED."[15]

Petitioner received a copy of this decision on July 26, 1995. [16] On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the same was denied by respondent court in its September 20, 1995 Resolution,[18] copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a "second supplemental petition"[21] and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor-General[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996.[23] The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply.[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.[25]

The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows:[26]

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo, Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid)."Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid)."Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid)."He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid).

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"Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid)."In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge."Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid)."SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12,ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be

shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid)."While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29,ibid)."The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994)."On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives

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Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)."Petitioner's defenses are as follows: (1) that his arrest was

illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution.

After a careful review of the records[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart.

Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal.

Warrantless arrests are sanctioned in the following instances:[28]

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

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person.[29] Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene."[30] As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2

Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner.[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at the scene of the hit and run. [32] We beg to disagree.That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes.

It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action.[33] The exigent circumstances of - hot pursuit,[34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay improvident. [35] The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity.[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer.[37]

Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof.[39]These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information.[40]

Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea.[41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.[42]Likewise, by applying for bail, petitioner patently waived such irregularities and defects.[43]

We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold.

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The five (5) well-settled instances when a warrantless search and seizure of property is valid,[44] are as follows:

1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46],

2. Seizure of evidence in "plain view", the elements of which are:[47]

(a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(b). the evidence was inadvertently discovered by the police who had the right to be where they are;(c). the evidence must be immediately apparent, and(d). "plain view" justified mere seizure of evidence without further search.[48]

3. search of a moving vehicle.[49] Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.[50]

4. consented warrantless search, and5. customs search.In conformity with respondent court's observation, it indeed

appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed.[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat.[52] Thus it has been held that:

"(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."[53]

"Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."[54]

With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police.[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure[56], and that his failure to quash the information estopped him from assailing any purported defect.[57]

Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful

arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective search[58] of the passenger compartment and containers in the vehicle[59] which are within petitioner's grabbing distance regardless of the nature of the offense.[60] This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control[61] and (ii) the search was contemporaneous with the arrest.[62] The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.[63]

Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order [64] and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit.

In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.[65] The first element is beyond dispute as the subject firearms and ammunitions[66] were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution.Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus:

"Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992."Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could

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have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms."Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms."At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."[67]

The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension.Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that:

"VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding."IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation."[68]

which directive petitioner failed to heed without cogent explanation.The authenticity and validity of the Mission Order and

Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.[69] His surname thereon, we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters"[73] which is absent in this case. The Memorandum

Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that:

"No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority."

Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well.

What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:

"No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agencyinvolved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency. Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."[75]

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows:

"If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering."

That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner.[76] Thus:

"Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any?

"A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina.

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"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?

"A. Yes, sir."Q. And the firearms that were the subject of this case

are not listed in the names of the accused in this case?

"A. Yes, sir.[77]

xxx xxx xxxAnd the certification which provides as follows:Republic of the Philippines

Department of the Interior and Local GovernmentGENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICEFIREARMS AND EXPLOSIVES OFFICE

Camp Crame, Quezon City"PNPFEO5 28 November 1992"C E R T I F I C A T I O N"TO WHOM IT MAY CONCERN:"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687."Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date:M16 Baby Armalite SN-RP131120

Revolver Cal 357 SN-3219Pistol Cal 380 Pietro Beretta SN-35723"However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License."This certification is issued pursuant to Subpoena from City of Angeles."FOR THE CHIEF, FEO:

(Sgd.)

JOSE MARIO M. ESPINO

Sr. Inspector, PNP

Chief, Records Branch" [78]

In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm.[79] In People vs. Tobias,[80] we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in the light of the evidence[81] that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,[82] as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality.[83]

Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.[85]

The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones.[86] Indeed, it is the duty of judicial officers to respect and apply the law as it stands.[87] And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner.

Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive."It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community' "[88]

It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.[89]

Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,[90] as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any provision of the Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws.

With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. Lian[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20)

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of reclusion temporal, as maximum. This is discernible from the following explanation by the Court:"In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years."This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.[95]

WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum.

SO ORDERED

ESPANO VS CAThis is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convincing petitioner Rodolfo Espano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act.Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control twelve (12) plastic cellophane (bags) containing crushed flowering tops, marijuana weighing 5.5 grams which is a prohibited drug.Contrary to law. 2

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of the Western Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane tea bags of marijuana. When asked if he had more marijuana, he replied that there was more in his house. The policemen went to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the police headquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and the trial court issued his order of release on July 29, 1991. 4

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested positive for marijuana, with a total weight of 5.5 grams.By way of defense, petitioner testified that on said evening, he was sleeping in his house and was awakened only when the policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when they could not find the latter, he was instead brought to the police station for investigation and later indicted for possession of prohibited drugs. His wife Myrna corroborated his story.The trial court rejected petitioner's, defense as a "mere afterthought" and found the version of the prosecution "more credible and trustworthy."Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the dispositive portion of which reads:

WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y Valeria guilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No. 6425 as amended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment of six (6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment in case of default plus costs.The marijuana is declared forfeited in favor of government and shall be turned over to the Dangerous Drugs Board without delay.SO ORDERED. 5

Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of the trial court in toto.Hence, this petition.Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the pieces of

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evidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over the doctrine of presumption of regularity, (c) he was denied the constitutional right of confrontation and to compulsory process; and (d) his conviction was based on evidence which was irrelevant and not properly identified.After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse the decisions of the trial and appellate courts.First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing that he had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could have altered the conviction of the appellants. 6

In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defense must stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other than his duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibited drugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail.In People v. Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance of official duty which provides:

. . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are policemen engaged in mulcting or other unscrupulous activities who were motivated either by the desire to extort money or exact personal vengeance, or by sheer whim and caprice, when they entrapped her. And in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against appellant, as in this case, the presumption of regularity in the performance of official duty, . . . , must prevail over the self-serving and uncorroborated claim of appellant that she had been framed. 8

Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he was in his house sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all defenses; and for it to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of its commission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult to prove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was presented by petitioner to prove his defense of alibi.Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a reasonable doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the informant in court is of no moment especially when he is not even the best witness to establish the fact that a buy-bust operation had indeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner,

testified on the actual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reason for us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for the prosecution, was straightforward spontaneous and convincing. The testimony of a sole witness, if credible and positive and satisfies the court beyond reasonable doubt, is sufficient to convict. 10

Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed committed the crime charged; consequently, the finding of conviction was proper.Lastly, the issue on the admissibility of the marijuana seized should likewise be ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:

A peace officer or a private person may, without a warrant, arrest a person:a. when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

xxx xxx xxxPetitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-bust operation conducted by police officers on the basis of information received regarding the illegal trade of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing over something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were admissible in evidence, being the fruits of the crime.As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same are inadmissible in evidence.The 1987 Constitution guarantees freedom against unreasonable searches and seizures under Article III, Section 2 which provides:

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

An exception to the said rule is a warrantless search incidental to a lawful arrest for dangerous weapons or anything which may be used as proof of the commission of an offense. 11 It may extend beyond the person of the one arrested to include the premises or surroundings under his immediate control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not fall under the said exceptions.In the case of People v. Lua, 12 this Court held:

As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful, the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful arrest," the

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same being limited to body search and to that point within reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping. In the case at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that the inner portion of his house was within his reach or control.

The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags of marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, it was beyond the reach and control of petitioner.In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of Republic Act No. 6425, as amended. Under the said provision, the penalty imposed is six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos. With the passage of Republic Act No. 7659, which took effect on December 31, 1993, the imposable penalty shall now depend on the quantity of drugs recovered. Under the provisions of Republic Act No. 7629, Section 20, and as interpreted in People v. Simon 13 and People v. Lara, 14 if the quantity of marijuana involved is less than 750 grams, the imposable penalty ranges from prision correccional to reclusion temporal. Taking into consideration that petitioner is not a habitual delinquent, the amendatory provision is favorable to him and the quantity of marijuana involved is less than 750 grams, the penalty imposed under Republic Act No. 7659 should be applied. There being no mitigating nor aggravating circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period of prision correccional, which is two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor.WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor, as minimum to TWO (2) years, FOUR (4) months and ONE (1) day of prision correccional, as maximum.SO ORDERED.

PEOPLE VS MENGOTEAccused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant.The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accused-appellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division.On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila:

The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows:That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit:

one (1) cal. 38 "S & W" bearingSerial No. 8720-T

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

Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3

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The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusionperpetua. 4

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

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows:

Sec. 5. Arrest without warrant when lawful. — A peace officer or private person may, without a warrant, arrest a person;(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution.Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We

therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section.Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence.The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken?These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime.In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established.The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence.This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had

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not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed.The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it.Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house.In the landmark case of People v. Burgos, 9 this Court declared:

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

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

This doctrine was affirmed in Alih v. Castro, 10 thus:If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied)

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

There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him.We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable.The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized.This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it.WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs.SO ORDERED.CABALLES VS CAThis is an appeal by certiorari from the decision1 of respondent Court of Appeals dated September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taiño, guilty beyond reasonable doubt of the crime of theft, and the resolution2 dated November 9, 1998 which denied petitioner's motion for reconsideration.In an Information3 dated October 16, 1989, petitioner was charged with the crime of theft committed as follows:

"That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, and without the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take, steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00, belonging to and to the damage and prejudice of said owner National Power Corp., in the aforesaid amount.CONTRARY TO LAW."

During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued.The facts are summarized by the appellate court as follows:

"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with "kakawati" leaves.Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on

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the jeep, he did not answer; he appeared pale and nervous.With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from and appellant answered that they came from Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days in the Municipal jail.In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in Pagsanjan.After receiving those instructions, he went back to see Resty. Although Resty had his own vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was done by about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The police officers did not believe him and instead locked him up in jail for a week."4

On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which reads:

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of property worthP55,244.45, the Court hereby sentences him to suffer imprisonment from TWO (2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay the costs."

On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the ground that the stolen materials were recovered and modified the penalty imposed, to wit:

"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs."6

Petitioner comes before us and raises the following issues:"(a) Whether or not the constitutional right of petitioner was violated when the police officers searched his vehicle and seized the wires found therein without a search warrant and when samples of the wires and references to them were admitted in evidence as basis for his conviction;(b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged in an entrapment operation and in indulging in speculation and conjecture in rejecting said defense; and(c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to presumption of innocence."

The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search and seizure made by the police officers, and the admissibility of the evidence obtained by virtue thereof.In holding that the warrantless search and seizure is valid, the trial court ruled that:

"As his last straw of argument, the accused questions the constitutionality of the search and validity of his arrest on the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case of People v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before a warrant can be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge - a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of a moving vehicle is justified on grounds of practicability.' The doctrine is not of recent vintage. In the case of Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on Motion for Reconsideration, September 29, 1989), it was ruled that 'automobiles because of their mobility may be searched without a warrant upon facts not justifying warrantless search of a resident or office. x x x To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme Court held that a search may be made even without a warrant where the accused is caught in flagrante. Under the circumstances, the police officers are not only authorized but are also under obligation to arrest the accused even without a warrant."7

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Petitioner contends that the flagging down of his vehicle by police officers who were on routine patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute probable cause that will justify a warrantless search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did not give any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right against unreasonable search and seizure shall be deemed inadmissible.Enshrined in our Constitution is the inviolable right of the people to be secure in their persons and properties against unreasonable searches and seizures, as defined under Section 2, Article III thereof, which reads:

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

The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of evidence obtained in violation of such right.The constitutional proscription against warrantless searches and seizures is not absolute but admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;8 (2) seizure of evidence in plain view;9 (3) search of moving vehicles;10 (4) consented warrantless search;11 (5) customs search; (6) stop and frisk situations (Terry search);12 and (7) exigent and emergency circumstances.13

In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in the Rules of Court must be complied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when the latter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched and the character of the articles procured.14

It is not controverted that the search and seizure conducted by the police officers in the case at bar was not authorized by a search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against the appellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonable doubt.1âwphi1.nêtI. Search of moving vehicleHighly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.15 Thus, the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the

issuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search of a moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.16 Searches without warrant of automobiles is also allowed for the purpose of preventing violations of smuggling or immigration laws, provided such searches are made at borders or 'constructive borders' like checkpoints near the boundary lines of the State.17

The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause.18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case.Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.19 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.20

One such form of search of moving vehicles is the "stop-and-search" without warrant at military or police checkpoints which has been declared to be not illegal per se,21 for as long as it is warranted by the exigencies of public order22 and conducted in a way least intrusive to motorists.23 A checkpoint may either be a mere routine inspection or it may involve an extensive search.Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which is normally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds;24 (2) simply looks into a vehicle;25 (3) flashes a light therein without opening the car's doors;26 (4) where the occupants are not subjected to a physical or body search;27 (5) where the inspection of the vehicles is limited to a visual search or visual inspection;28 and (6) where the routine check is conducted in a fixed area.29

None of the foregoing circumstances is obtaining in the case at bar. The police officers did not merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able to see the cable wires. It cannot be considered a simple routine check.In the case of United States vs. Pierre,30 the Court held that the physical intrusion of a part of the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment, to wit:

"The Agent . . . stuck his head through the driver's side window. The agent thus effected a physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did not conduct a search when he physically intruded part of his body into a space in which the suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see and to

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smell things he could not see or smell from outside the vehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourth amendment, just as much as if he had stuck his head inside the open window of a home."

On the other hand, when a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.31

This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of moving vehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report from informers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so; (4) Narcom agents had received confidential information that a woman having the same physical appearance as that of the accused would be transporting marijuana;32 (5) the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate to which the accused belonged - that said accused were bringing prohibited drugs into the country.33

In the case at bar, the vehicle of the petitioner was flagged down because the police officers who were on routine patrol became suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according to them, was unusual and uncommon.Pat. Alex de Castro recounted the incident as follows:

"ATTY. SANTOSQ Now on said date and time do you remember of any unusual incident while you were performing your duty?A Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we found out (sic) these conductor wires.Q You mentioned about the fact that when you saw the jeepney you became suspicious, why did you become suspicious?A Because the cargo was covered with leaves and branches, sir.Q When you became suspicious upon seeing those leaves on top of the load what did you do next, if any?A We stopped the jeepney and searched the contents thereof, sir."34

The testimony of Victorino Noceja did not fare any better:"ATTY SANTOSQ When you saw the accused driving the said vehicle, what did you do?

A Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I became suspicious since such vehicle should not be covered by those and I flagged him, sir."35

We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a search without a warrant.In People vs. Chua Ho San,36 we held that the fact that the watercraft used by the accused was different in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of the accused when he attempted to flee from the police authorities do not sufficiently establish probable cause. Thus:

"In the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause - persistent reports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of Philippine laws.This Court, however, finds that these do not constitute "probable cause." None of the telltale clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positive identification by informers of courier of prohibited drug and/or the time and place where they will transport/deliver the same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the process of perpetrating an offense. x x x." (emphasis supplied)

In addition, the police authorities do not claim to have received any confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where tipped information has become a sufficient probable cause to effect a warrantless search and seizure.37 Unfortunately, none exists in this case.II. Plain view doctrineIt cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantless seizure valid.Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an observer, then the contents are in plain view and may be seized. In other words, if the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view. It must be

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immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or otherwise subject to seizure.38

It is clear from the records of this case that the cable wires were not exposed to sight because they were placed in sacks39 and covered with leaves. The articles were neither transparent nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which could have justified mere seizure of the articles without further search.40

III. Consented searchPetitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with the consent of the accused" is too vague to prove that petitioner consented to the search. He claims that there is no specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within the purview of the constitutional guarantee.Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence.42 The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances.43 Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on;44 (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found;45 (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting.46 It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.47

In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was conducted in this wise:

"WITNESSQ On June 28, 1989, where were you?A We were conducting patrol at the poblacion and some barangays, sir.

x x x x x x x x xQ After conducting the patrol operation, do you remember of any unusual incident on said date and time?A Yes, sir.Q What is that incident?A While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a vehicle and the vehicle contained aluminum wires, sir.

x x x x x x x x xQ When you saw the accused driving the said vehicle, what did you do?A Because I saw that the vehicle being driven by Caballes was covered by kakawati leaves, I became

suspicious since such vehicle should not be covered by those and I flagged him, sir.Q Did the vehicle stop?A Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so doing, I saw the aluminum wires.Q Before you saw the aluminum wires, did you talk to the accused?A Yes, sir, I asked him what his load was.Q What was the answer of Caballes?A He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will look at the contents of his vehicle and he answered in the positive.Q And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?A I asked him where those wires came from and he answered those came from the Cavinti area, sir."48

This Court is not unmindful of cases upholding the validity of consented warrantless searches and seizure. But in these cases, the police officers' request to search personnel effects was orally articulated to the accused and in such language that left no room for doubt that the latter fully understood what was requested. In some instance, the accused even verbally replied to the request demonstrating that he also understood the nature and consequences of such request.49

In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna,51 the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was "urbanized in mannerism and speech" expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon,52 the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu. In People vs. Montilla,53 it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right. In People vs. Omaweng,54 the police officers asked the accused if they could see the contents of his bag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if they could open and see it, and accused answered "you can see it." The Court said there was a valid consented search.1âwphi1.nêtIn case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right.55

In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believe that by uttering those words, the police officers were asking

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or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they wereinforming, nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be noted that the police authorities expressly asked, in no uncertain terms, for the consent of the accused to be searched. And the consent of the accused was established by clear and positive proof. In the case of herein petitioner, the statements of the police officers were not asking for his consent; they were declaring to him that they will look inside his vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja was asked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed the cover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he added that he told petitioner he will inspect the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was asked twice in his direct examination what they did when they stopped the jeepney, his consistent answer was that they searched the vehicle. He never testified that he asked petitioner for permission to conduct the search.56

Neither can petitioner's passive submission be construed as an implied acquiescence to the warrantless search. In People vs. Barros,57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos,58 to wit:

"As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law."

Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to sustain petitioner's conviction. His guilt can only be established without violating the constitutional right of the accused against unreasonable search and seizure.WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio.SO ORDERED.

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MANALILI VS CAWhen dealing with a rapidly unfolding and potentially criminal

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

The CaseThis rule is reiterated as we resolve this petition for review

on certiorari under Rule 45 of the Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled People of the Philippines vs. Alain Manalili y Dizon.

In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as follows:[2]

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

Upon his arraignment on April 21, 1988, appellant pleaded not guilty to the charge.[3] With the agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond.[4] After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision[5] convicting appellant of illegal possession of marijuana residue. The dispositive portion of the decision reads:[6]

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

xxx xxx xxx.Appellant remained on provisional liberty.[7] Atty. Benjamin

Razon, counsel for the defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19, 1993, Respondent Court[9]promulgated its assailed Decision, denying the appeal and affirming the trial court:[10]

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

Respondent Court[11] denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:ACCORDINGLY, accused-appellants motion for reconsideration is, as is hereby DENIED.

The FactsVersion of the Prosecution

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

At about 2:10 oclock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of

the Police Station of Kalookan City. The surveillance was being made because of information that drug addicts were roaming the area in front of the Kalookan City Cemetery.Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon a male person in front of the cemetery who appeared high on drugs. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, the latter approached him and introduced themselves as police officers. The policemen then asked the male person what he was holding in his hands. The male person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet and its marijuana contents.The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON.Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on which he wrote Evidence A 4/11/88 Alain Manalili. The white sheet of paper was marked as Exhibit E-3. The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit E-4).Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section requesting a chemical analysis of the subject marijuana residue (Exhibit D). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit A). Pat. Angel Lumabas handcarried the referral slip (Exhibit D) to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysis. The signature of Pat. Lumabas appears on the left bottom corner of Exhibit D.The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject marijuana residue at 7:40 oclock in the evening of April 11, 1988 as shown on the stamped portion of Exhibit D.

It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen which she identified. (Exhibit E)[13] Mrs. Pascual referred to the subject specimen as crushed marijuana leaves in her Certification dated April 11, 1988 (Exhibit F).[14] These crushed marijuana leaves gave positive results for marijuana, according to the Certificate.Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also found that the crushed marijuana leaves gave positive results for marijuana. She then prepared a Final Report of her examinations (Exhibit G).After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and sealed it. (Exhibit E). She then wrote identification notes on this letter-envelope. (Exhibit E-1).Pat. Lumabas carried the Certification marked as Exhibit F from the NBI Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit C)

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when he was apprehended.[15]

Version of the Defense

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The trial court summarized the testimonies of the defense witnesses as follows:[16]

At about 2:00 oclock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence of marijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemen were riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the accused asked the policemen why he was being searched and the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the persons of the accused and the driver. The policemen allowed the tricycle driver to go while they brought the accused to the police headquarters at Kalookan City where they said they would again search the accused.On the way to the police headquarters, the accused saw a neighbor and signaled the latter to follow him. The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accused was asked to remove his pants in the presence of said neighbor and another companion. The policemen turned over the pants of the accused over a piece of bond paper trying to look for marijuana. However, nothing was found, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell the policemen to release the accused. The accused was led to a cell.The policemen later told the accused that they found marijuana inside the pockets of his pants.At about 5:00 oclock in the afternoon on the same day, the accused was brought outside the cell and was led to the Ford Fiera. The accused was told by the policemen to call his parents in order to settle the case. The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the accused to call his parents. The accused did not call his parents and he told the policemen that his parents did not have any telephone.At about 5:30 oclock in the afternoon of the same day, the accused was brought in the office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused not to say anything. The accused was then brought back to the Kalookan City Jail.Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothing either on his person or on the person of the accused when both were searched on April 11, 1988.Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City Police Headquarters on April 11, 1988. He said that the police searched the accused who was made to take off his pants at the police headquarters but no marijuana was found on the body of the accused.

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that tricycles were allowed to ply in front of the Caloocan Cemetery.[17]

The Rulings of the Trial and the Appellate CourtsThe trial court convicted petitioner of illegal possession of

marijuana residue largely on the strength of the arresting officers testimony. Patrolmen Espiritu and Lumabas were neutral and disinterested witnesses, testifying only on what transpired during the performance of their duties. Substantially, they asserted that the

appellant was found to be in possession of a substance which was later identified as crushed marijuana residue.

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

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

IssuesPetitioner assigns the following errors on the part of

Respondent Court:I

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

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

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

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

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

VIThe Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible in evidence.Restated more concisely, petitioner questions (1) the

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

The Courts RulingThe petition has no merit.

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

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

We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark case of Terry vs.

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Ohio,[18] a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):x x x (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken.[19]

In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention and detection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitioner and his companion whom he observed to have hovered alternately about a street corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30 years experience to have failed to investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified the limited search was the more immediate interest of the police officer in taking steps to assure himself that the person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used against him.

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

In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge.[20] Section 2, Article III of the 1987 Constitution, gives this guarantee:SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a fruit of the poisonous tree, falling under the exclusionary rule:SEC. 3. x x x(2) Any evidence obtained in violation of x x x the preceding section shall be inadmissible for any purpose in any proceeding.

This right, however, is not absolute.[21] The recent case of People vs. Lacerna enumerated five recognized exceptions to the

rule against warrantless search and seizure, viz.: (1) search incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right against unreasonable search and seizure.[22] In People vs. Encinada,[23] the Court further explained that [i]n these cases, the search and seizure may be made only with probable cause as the essential requirement.Although the term eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.

Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the Court held that there are many instances where a search and seizure can be effected without necessarily being preceded by an arrest, one of which is stop-and-frisk. In said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside petitioners bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to search the bag only after they had obtained a search warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were high. The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana in petitioners possession:[25]

FISCAL RALAR:Q And why were you conducting surveillance in front of the

Caloocan Cemetery, Sangandaan, Caloocan City?A Because there were some informations that some drug

dependents were roaming around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City.

xxx xxx xxxQ While you were conducting your surveillance, together with

Pat. Angel Lumabas and one Arnold Enriquez, what happened, if any?

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

xxx xxx xxxQ Could you describe to us the appearance of that person when

you chanced upon him?A That person seems like he is high on drug.Q How were you able to say Mr. Witness that that person that

you chanced upon was high on drug?

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

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

A He was roaming around, sir.Q You said that he avoided you, what did you do when he

avoided you?A We approached him and introduced ourselves as police

officers in a polite manner, sir.Q How did you introduce yourselves?A In a polite manner, sir.Q What did you say when you introduced yourselves?A We asked him what he was holding in his hands, sir.Q And what was the reaction of the person when you asked him

what he was holding in his hands?A He tried to resist, sir.Q When he tried to resist, what did you do?A I requested him if I can see what was he was(sic) holding in

his hands.Q What was the answer of the person upon your request?A He allowed me to examine that something in his hands, sir.xxx xxx xxxQ What was he holding?A He was holding his wallet and when we opened it, there was a

marijuana (sic) crushed residue.Furthermore, we concur with the Solicitor Generals contention

that petitioner effectively waived the inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during the trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the right.[26] Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on appeal.[27]

Second Issue: Assessment of EvidencePetitioner also contends that the two arresting officers

testimony contained polluted, irreconcilable and unexplained contradictions which did not support petitioners conviction.

We disagree. Time and again, this Court has ruled that the trial courts assessment of the credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts and circumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect the result of the case, we will not countenance a departure from this rule.[28]

We concur with Respondent Courts ruling:(e)ven assuming as contended by appellant that there had been some inconsistencies in the prosecution witnesses testimonies, We do not find them substantial enough to impair the essential veracity of their narration. In People vs. Avila, it was held that As long as the witnesses concur on the material points, slight differences in their remembrance of the details, do not reflect on the essential veracity of their statements.

However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full credence on Pat. Espiritus testimony is justified by tangible evidence on record. Despite Pat. Lumabas contradictory testimony, that of Espiritu is supported by the Joint Affidavit[29] signed by both arresting policemen. The question of whether the marijuana was found inside petitioners wallet or inside a plastic bag is immaterial, considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found in petitioners possession. This shows that such contradiction is minor, and does not destroy Espiritus credibility.[30]

Third Issue: Sufficiency of EvidenceThe elements of illegal possession of marijuana are: (a) the

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

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

Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present any evidence, other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering that he was released on bail and continued to be on bail as early as April 26, 1988.[32] Since then, he could have made the charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and fabricate.[33]

The Proper PenaltyThe trial and the appellate courts overlooked the

Indeterminate Sentence Law (Act No. 4103, as amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the imposition of an indeterminate penalty:SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225.)SEC. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-imprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of

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imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 hereof. (Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession of marijuana:Sec. 8. x x x xThe penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shall possess or use Indian hemp.

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

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

SO ORDERED.

PEOPLE VS COGAEDThe mantle of protection upon one's person and one's effects through Article III, Section 2 of the Constitution is essential to allow citizens to evolve their autonomy and, hence, to avail themselves of their right to privacy. The alleged compromise with the battle against dangerous drugs is more apparent than real. Often, the compromise is there because law enforcers neglect to perform what could have been done to uphold the Constitution as they pursue those who traffic this scourge of society.Squarely raised in· this appeal1 is the admissibility of the evidence seized as a result of a warrantless arrest. The police officers identified the alleged perpetrator through facts that were not based on their personal knowledge. The information as to the accused’s whereabouts was sent through a text message. The accusedwho never acted suspicious was identified by a driver. The bag that allegedly contained the contraband was required to be opened under intimidating circumstances and without the accused having been fully apprised of his rights. This was not a reasonable search within the meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate "stop and frisk" action. The alleged waiver of rights by the accused was not done intelligently, knowingly, and without improper pressure or coercion.The evidence, therefore, used against the accused should be excluded consistent with Article III, Section 3 (2) of the Constitution. There being no possible admissible evidence, the accused should be acquitted.

IAccording to the prosecution, at about 6:00 a.m. of November 25, 2005, Police Senior Inspector Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel,La Union, "received a text message from an unidentified civilian informer"2 that one Marvin Buya (also known as Marvin Bugat) "[would]be transporting marijuana"3 from Barangay LunOy, San Gabriel, La Union to the Poblacion of San Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to intercept the suspect."5 PSI Bayan ordered SPO1 Jaime Taracatac, Jr. (SPO1

Taracatac), a member of the San Gabriel Police, to set up a checkpoint in the waiting area of passengers from San Gabriel bound for San Fernando City.6 A passenger jeepney from Barangay Lun-Oy arrived at SPO1 Taracatac’s checkpoint.7 The jeepney driver disembarked and signalled to SPO1 Taracatac indicating the two male passengers who were carrying marijuana.8 SPO1 Taracatac approached the two male passengers who were later identified as Victor RomanaCogaed and Santiago Sacpa Dayao.9 Cogaed was carrying a blue bag and a sack while Dayao was holding a yellow bag.10

SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags.11 Cogaed and Dayao told SPO1 Taracatac that they did not know since they were transporting the bags as a favor for their barriomatenamed Marvin.12 After this exchange, Cogaed opened the blue bag, revealing three bricks of what looked like marijuana.13 Cogaed then muttered, "nagloko daytoy nga Marvinen, kastoymet gayam ti nagyanna,"which translates to "Marvin is a fool, this is what [is] contained in the bag."14 "SPO1 Taracatac arrested [Cogaed] and . . . Dayao and brought them to the police station."15 Cogaed and Dayao "were still carrying their respective bags"16inside the station.17

While at the police station, the Chief of Police and Investigator PO3 Stanley Campit (PO3 Campit) requested Cogaed and Dayao to empty their bags.18 Inside Cogaed’s sack was "four (4) rolled pieces of suspected marijuana fruiting tops,"19 and inside Dayao’s yellow bag was a brick of suspected marijuana.20

PO3 Campit prepared the suspected marijuana for laboratory testing.21 PSI Bayan personally delivered the suspected marijuana to the PNP Crime Laboratory.22 Forensic Chemical Officer Police Inspector Valeriano Panem Laya II performed the tests and found that the objects obtained were indeed marijuana.23 The marijuana collected from Cogaed’s blue bag had a total weight of 8,091.5 grams.24 The marijuana from Cogaed’s sack weighed 4,246.1 grams.25 The marijuana collected from Dayao’s bag weighed 5,092 grams.26 A total of 17,429.6 grams werecollected from Cogaed’s and Dayao’s bags.27

According to Cogaed’s testimony during trial, he was at Balbalayan, La Union, "waiting for a jeepney to take him"28to the Poblacion of San Gabriel so he could buy pesticide.29 He boarded a jeepney and recognized Dayao, his younger brother’s friend.30 Upon arrival at the Poblacion of San Gabriel, Dayao and Cogaed alighted from the jeepney.31 Dayao allegedly "asked for [Cogaed’s] help in carrying his things, which included a travelling bag and a sack."32 Cogaed agreed because they were both going to the market.33 This was when SPO1 Taracatac approached them, and when SPO1 Taracatac asked Cogaed what was inside the bags, Cogaed replied that he did not know.34 SPO1 Taracatac then talked to Dayao, however, Cogaed was not privy to their conversation.35Thereafter, SPO1 Taracatac arrested Dayao and Cogaed and brought them to the police station.36 These facts were corroborated by an eyewitness,Teodoro Nalpu-ot, who was standing across the parking lot where Cogaed was apprehended.37

At the police station, Cogaed said that "SPO1 Taracatac hit [him] on the head."38 The bags were also opened, but Cogaed never knew what was inside.39

It was only later when Cogaed learned that it was marijuana when he and Dayao were charged with illegal possession of dangerous drugs under Republic Act No. 9165.40 The information against them states:That on or about the 25th day of November, 2005, in the Municipality of San Gabriel, Province of La Union, and within the

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jurisdiction of this Honorable Court, the above-named accused VICTOR COGAED Y ROMANA and SANTIAGO DAYAO Y SACPA (who acted with discernment) and JOHN DOE,conspiring, confederating and mutually helping one another, did then there wilfully, unlawfully, feloniously and knowingly, without being authorized by law, have in their control, custody and possession dried marijuana, a dangerous drug, with a total weight of seventeen thousand,four hundred twenty-nine and sixtenths (17, 429.6) grams.CONTRARY TO Section 11 (Possession of Dangerous Drugs), Article II, of Republic Act No. 9165 (otherwise known as the "Comprehensive Dangerous Drugs Act of 2002").41

The case was raffled to Regional Trial Court, Branch 28 of San Fernando City, La Union.42 Cogaed and Dayao pleaded not guilty.43 The case was dismissed against Dayao because he was only 14 years old at that time and was exempt from criminal liability under the Juvenile Justice and Welfare Act of 2006 or Republic Act No. 9344.44Trial against Cogaed ensued. In a decision45 dated May 21, 2008, the Regional Trial Court found Cogaed guilty. The dispositive portion of the decision states:WHEREFORE, the Court finds accused Victor Cogaed y Romana GUILTY beyond reasonable doubt for Violation of Section 11, Article II of Republic Act No. 9165 (otherwise known as the "Comprehensive Dangerous Drugs Act of 2002") and sentences him to suffer life imprisonment, and to pay a fine of one million pesos (Php 1,000,000.00).46

The trial court judge initiallyfound Cogaed’s arrest illegal considering that "Cogaed at that time was not, at the moment of his arrest, committing a crime nor was shown that hewas about to do so or that had just done so. He just alighted from the passenger jeepney and there was no outward indication that called for his arrest."47 Since the arrest was illegal, the warrantless search should also be considered illegal.48 However, the trial court stated that notwithstanding the illegality of the arrest, Cogaed "waived his right to object to such irregularity"49 when "he did not protest when SPO1 Taracatac, after identifying himself, asked him to open his bag."50

Cogaed appealed51 the trial court’s decision.However, the Court of Appeals denied his appeal and affirmed the trial court’s decision.52 The Court of Appeals found that Cogaed waived his right against warrantless searches when "[w]ithout any prompting from SPO1 Taracatac, [he] voluntarily opened his bag."53 Hence, this appeal was filed.The following errors were assigned by Cogaed in his appellant’s brief:

ITHE TRIAL COURT GRAVELY ERRED IN ADMITTING THE SEIZED DANGEROUS DRUGS AS EVIDENCE AGAINST THE ACCUSED-APPELLANT DESPITE BEING THE RESULT OF AN UNLAWFUL WARRANTLESS SEARCH AND SEIZURE.

IITHE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICER’S NON-COMPLIANCE WITH THE REQUIREMENTS FOR THE PROPER CUSTODY OF SEIZED DANGEROUS DRUGS UNDER REPUBLIC ACT NO. 9165.

IIITHE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE ARRESTING OFFICER’S FAILURE TO PRESERVE THE INTEGRITY AND EVIDENTIARY VALUE OF THE SEIZED DANGEROUS DRUGS.54

For our consideration are the following issues: (1) whether there was a valid search and seizure of marijuana as against the appellant; (2) whether the evidence obtained through the search should be

admitted; and (3) whether there was enough evidence to sustain the conviction of the accused.In view of the disposition of this case, we deem that a discussion with respect to the requirements on the chain of custody of dangerous drugs unnecessary.55

We find for the accused.II

The right to privacy is a fundamental right enshrined by implication in our Constitution. It has many dimensions. One of its dimensions is its protection through the prohibition of unreasonable searches and seizures in Article III, Section 2 of the Constitution: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 determinedpersonally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.This provision requires that the court examine with care and diligence whether searches and seizures are "reasonable." As a general rule, searches conducted with a warrant that meets all the requirements of this provision are reasonable. This warrant requires the existence of probable cause that can only be determined by a judge.56 The existence of probable cause must be established by the judge after asking searching questions and answers.57 Probable cause at this stage can only exist if there is an offense alleged to be committed. Also, the warrant frames the searches done by the law enforcers. There must be a particular description of the place and the things to be searched.58

However, there are instances when searches are reasonable even when warrantless.59 In the Rules of Court, searchesincidental to lawful arrests are allowed even without a separate warrant.60 This court has taken into account the "uniqueness of circumstances involved including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured."61 The known jurisprudential instances of reasonable warrantless searches and seizures are:

1. Warrantless search incidental to a lawful arrest. . . ;2. Seizure of evidence in "plain view," . . . ;3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;4. Consentedwarrantless search;5. Customs search;6. Stop and frisk; and7. Exigent and emergency circumstances.62 (Citations omitted)

IIIOne of these jurisprudential exceptionsto search warrants is "stop and frisk". "Stop and frisk" searches are often confused with searches incidental to lawful arrests under the Rules of Court.63 Searches incidental to a lawful arrest require that a crime be committed in flagrante delicto, and the search conducted within the vicinity and withinreach by the person arrested is done to ensure that there are no weapons, as well as to preserve the evidence.64

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On the other hand, "stop and frisk"searches are conducted to prevent the occurrence of a crime. For instance, the search in Posadas v. Court of Appeals65 was similar "to a ‘stop and frisk’ situation whose object is either to determine the identity of a suspicious individual or to maintain the status quomomentarily while the police officer seeks to obtain more information."66 This court stated that the "stop and frisk" search should be used "[w]hen dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is no time to secure . . . a search warrant."67

The search involved in this case was initially a "stop and frisk" search, but it did not comply with all the requirements of reasonability required by the Constitution."Stop and frisk" searches (sometimes referred to as Terrysearches68) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution.The balance lies in the concept of"suspiciousness" present in the situation where the police officer finds himself or herself in. This may be undoubtedly based on the experience ofthe police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern — based on facts that they themselves observe — whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.In Manalili v. Court of Appeals,69 the police officers were initially informed about a place frequented by people abusing drugs.70 When they arrived, one of the police officers saw a man with "reddish eyes and [who was] walking in a swaying manner."71 The suspicion increased when the man avoided the police officers.72 These observations led the police officers to conclude that the man was high on drugs.73 These were sufficient facts observed by the police officers "to stop[the] petitioner [and] investigate."74

In People v. Solayao,75 police officers noticed a man who appeared drunk.76 This man was also "wearing a camouflage uniform or a jungle suit."77 Upon seeing the police, the man fled.78 His flight added to the suspicion.79After stopping him, the police officers found an unlicensed "homemade firearm"80 in his possession.81 This court ruled that "[u]nder the circumstances, the government agents could not possibly have procured a search warrant first."82 This was also a valid search.In these cases, the police officers using their senses observed facts that led to the suspicion. Seeing a man with reddish eyes and walking in a swaying manner, based on their experience, is indicative of a person who uses dangerous and illicit drugs. A drunk civilian in guerrilla wear is probably hiding something as well.The case of Cogaed was different. He was simply a passenger carrying a bag and traveling aboarda jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag. The assessment of suspicion was not made by the police officer but by the jeepney driver. It was the driver who signalled to the police that Cogaed was "suspicious."This is supported by the testimony of SPO1 Taracatac himself:COURT:Q So you don’t know what was the content while it was still being carried by him in the passenger jeep?WITNESS:

A Not yet, Your Honor.83

SPO1 Taracatac likewise stated:COURT:Q If the driver did not make a gesture pointing to the accused, did you have reason to believe that the accused were carrying marijuana?WITNESS:A No, Your Honor.84

The jeepney driver had to point toCogaed. He would not have been identified by the police officers otherwise.It is the police officer who should observe facts that would lead to a reasonable degree of suspicion of a person. The police officer should not adopt the suspicion initiated by another person. This is necessary to justify that the person suspected be stopped and reasonably searched.85 Anything less than this would be an infringementupon one’s basic right to security of one’s person and effects.

IVNormally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge to determine probable cause. In Posadas v. Court of Appeals,86 one of the earliest cases adopting the "stop and frisk" doctrine in Philippine jurisprudence, this court approximatedthe suspicious circumstances as probable cause:The probable causeis that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same.87 (Emphasis supplied)For warrantless searches, probable cause was defined as "a reasonable ground of suspicionsupported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged."88

Malacat v. Court of Appeals89 clarifies the requirement further. It does not have to be probable cause,but it cannot be mere suspicion.90 It has to be a "genuine reason"91 to serve the purposes of the "stop and frisk" exception:92

Other notable points of Terryare that while probable cause is not required to conduct a "stop and frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.93 (Emphasis supplied, footnotes omitted)In his dissent for Esquillo v. People,94 Justice Bersamin reminds us that police officers must not rely on a single suspicious circumstance.95 There should be "presence of more than oneseemingly innocent activity, which, taken together, warranted a reasonable inference of criminal activity."96 The Constitution prohibits "unreasonable searches and seizures."97 Certainly, reliance on only one suspicious circumstance or none at all will not result in a reasonable search.98

There was not a single suspicious circumstance in this case, and there was no approximation for the probable cause requirement for warrantless arrest. The person searched was noteven the person mentioned by the informant. The informant gave the name of Marvin Buya, and the person searched was Victor Cogaed. Even if it was true that Cogaed responded by saying that he was transporting the bag to Marvin Buya, this still remained only as one circumstance. This should not have been enough reason to search Cogaed and his belongings without a valid search warrant.

VPolice officers cannot justify unbridled searches and be shielded by this exception, unless there is compliance with the "genuine reason"

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requirement and that the search serves the purpose of protecting the public. As stated in Malacat:[A] "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservationwhich permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.99 (Emphasis supplied)The "stop and frisk" searchwas originally limited to outer clothing and for the purpose of detecting dangerous weapons.100 As in Manalili,101 jurisprudence also allows "stop and frisk" for cases involving dangerous drugs.The circumstances of thiscase are analogous to People v. Aruta.102 In that case, an informant told the police that a certain "Aling Rosa" would be bringing in drugs from Baguio City by bus.103 At the bus terminal, the police officers prepared themselves.104 The informant pointed at a woman crossing the street105 and identified her as "Aling Rosa."106 The police apprehended "Aling Rosa," and they alleged that she allowed them to look inside her bag.107 The bag contained marijuana leaves.108

In Aruta, this court found that the search and seizure conducted was illegal.109 There were no suspicious circumstances that preceded Aruta’s arrest and the subsequent search and seizure.110 It was only the informant that prompted the police to apprehend her.111 The evidence obtained was not admissible because of the illegal search.112 Consequently, Aruta was acquitted.113

Arutais almost identical to this case, except that it was the jeepney driver, not the police’s informant, who informed the police that Cogaed was "suspicious."The facts in Arutaare also similar to the facts in People v. Aminnudin.114 Here, the National Bureau ofInvestigation (NBI) acted upon a tip, naming Aminnudin as somebody possessing drugs.115 The NBI waited for the vessel to arrive and accosted Aminnudin while he was disembarking from a boat.116 Like in the case at bar, the NBI inspected Aminnudin’s bag and found bundles of what turnedout to be marijuana leaves.117 The court declared that the searchand seizure was illegal.118 Aminnudin was acquitted.119

People v. Chua120 also presents almost the same circumstances. In this case, the police had been receiving information that the accused was distributing drugs in "different karaoke bars in Angeles City."121 One night, the police received information that thisdrug dealer would be dealing drugs at the Thunder Inn Hotel so they conducted a stakeout.122 A car "arrived and parked"123 at the hotel.124The informant told the police that the man parked at the hotel was dealing drugs.125 The man alighted from his car.126 He was carrying a juice box.127 The police immediately apprehended him and discovered live ammunition and drugs in his person and in the juice box he was holding.128

Like in Aruta, this court did not find anything unusual or suspicious about Chua’s situation when the police apprehended him and ruled that "[t]here was no valid‘stop-and-frisk’."129

VINone of the other exceptions to warrantless searches exist to allow the evidence to be admissible.The facts of this case do not qualify as a search incidental to a lawful arrest.Rule 126, Section 13 of the Rules of Court allows for searches incidental to a lawful arrest. For there to be a lawful arrest, there

should be either a warrant of arrest or a lawful warrantless arrest as enumerated in Rule 113, Section 5 of the Rules of Court:Section 5. Arrest without warrant; when lawful. – A peace officer or a private person may, withouta warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

The apprehension of Cogaed was not effected with a warrant of arrest. None of the instances enumerated in Rule 113, Section 5 of the Rules of Court were present whenthe arrest was made. At the time of his apprehension, Cogaed has not committed, was not committing, or was about to commit a crime. As in People v. Chua, for a warrantless arrest of in flagrante delictoto be affected, "two elements must concur: (1) the person to bearrested must execute anovert act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done inthe presence or within the view of the arresting officer."130 Both elements were missing when Cogaed was arrested.131 There were no overt acts within plain view of the police officers that suggested that Cogaed was in possession of drugs at that time.Also, Cogaed was not an escapee prisoner that time; hence, he could not have qualified for the last allowable warrantless arrest.

VIIThere can be no valid waiver of Cogaed’s constitutional rights even if we assume that he did not object when the police asked him to open his bags. As this court previously stated:Appellant’s silence should not be lightly taken as consent to such search. The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.132(Citations omitted) Cogaed’s silence or lack of aggressive objection was a natural reaction to a coercive environment brought about by the police officer’s excessive intrusion into his private space. The prosecution and the police carry the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be presumed.The coercive atmosphere created by the presence of the police officer can be discerned again from the testimony of SPO1 Taracatac during cross-examination:ATTY. BINWAG:Q Now, Mr. witness, you claimed that you only asked them what are the contents of their bags, is it not?WITNESS:A Yes, ma’am.Q And then without hesitation and voluntarily they just opened their bags, is it not?A Yes, ma’am.Q So that there was not any order from you for them to open the bags?A None, ma’am.

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Q Now, Mr. witness when you went near them and asked them what were the contents ofthe bag, you have not seen any signs of hesitation or fright from them, is it not?A It seems they were frightened, ma’am.Q But you actually [claimed] that there was not any hesitation from them in opening the bags, is it not?A Yes, ma’am but when I went near them it seems that they were surprised.133 (Emphasis supplied)The state of mind of Cogaed was further clarified with SPO1 Taracatac’s responses to Judge Florendo’s questions:COURT:. . . .Q Did you have eye contact with Cogaed?A When I [sic] was alighting from the jeepney, Your Honor I observed that he was somewhat frightened.1âwphi1 He was a little apprehensive and when he was already stepping down and he put down the bag I asked him, "what’s that," and he answered, "I don’t know because Marvin only asked me to carry."134

For a valid waiver by the accused of his or her constitutional right, it is not sufficient that the police officerintroduce himself or herself, or be known as a police officer.1âwphi1 The police officer must also inform the person to be searched that any inaction on his orher part will amount to a waiver of any of his or her objections that the circumstances do not amount to a reasonable search. The police officer must communicate this clearly and in a language known to the person who is about to waive his or her constitutional rights. There must be anassurance given to the police officer that the accused fully understands his or her rights. The fundamental nature of a person’s constitutional right to privacy requires no less.

VIIIThe Constitution provides:

Any evidence obtained in violation of [the right against unreasonable searches and seizures] shall be inadmissible for any purpose in any proceeding.135

Otherwise known as the exclusionary rule or the fruit of the poisonous tree doctrine, this constitutional provision originated from Stonehill v. Diokno.136 This rule prohibits the issuance of general warrants that encourage law enforcers to go on fishing expeditions. Evidence obtained through unlawful seizures should be excluded as evidence because it is "the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures."137 It ensures that the fundamental rights to one’s person, houses, papers, and effects are not lightly infringed upon and are upheld.Considering that the prosecution and conviction of Cogaed were founded on the search of his bags, a pronouncement of the illegality of that search means that there is no evidence left to convict Cogaed.Drugs and its illegal traffic are a scourgeto our society. In the fight to eradicate this menace, law enforcers should be equipped with the resources to be able to perform their duties better. However, we cannot, in any way, compromise our society’s fundamental values enshrined in our Constitution. Otherwise, we will be seen as slowlydismantling the very foundations of the society that we seek to protect.WHEREFORE, the decisions of the Regional Trial Court, Branch 28, San Fernando City, La Union and of the Court of Appeals in CA-G.R. CR-HC No. 03394 are hereby REVERSEDand SET ASIDE. For lack of evidence to establish his guilt beyond reasonable doubt, accused-appellant VICTOR COGAED Y ROMANA is hereby ACQUITTED and ordered RELEASED from confinement unless he is being heldfor some other legal grounds. No costs.SO ORDERED.

FAJARDO VS PEOPLEAt bar is a Petition for Review on Certiorari under Rule 45

of the Rules of Court, seeking the reversal of the February 10, 2009 Decision[1] of the Court of Appeals (CA), which affirmed with modification the August 29, 2006 decision[2] of the Regional Trial Court (RTC), Branch 5, Kalibo, Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No. 1866, as amended. The facts: Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D. No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows: That on or about the 28th day of August, 2002, in the

morning, in Barangay Andagao, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, without authority of law, permit or license, did then and there, knowingly, willfully, unlawfully and feloniously have in their possession, custody and control two (2) receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.] M1911A1 US with defaced serial number, two (2) pieces short magazine of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition, which items were confiscated and recovered from their possession during a search conducted by members of the Provincial Intelligence Special Operation Group, Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan.[3]

When arraigned on March 25, 2004, both pleaded not guilty to the offense charged.[4] During pre-trial, they agreed to the following stipulation of facts:

1. The search warrant subject of this case exists;

2. Accused Elenita Fajardo is the same person subject of the search warrant in this case who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;

3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27, 2002 but does not live therein;

4. Both accused were not duly licensed firearm holders;

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5. The search warrant was served in the house of accused Elenita Fajardo in the morning of August 28, 2002; and

6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival of the military personnel despite the fact that the latter allegedly saw them in possession of a firearm in the evening of August 27, 2002.[5]

As culled from the similar factual findings of the RTC and

the CA,[6] these are the chain of events that led to the filing of the information:

In the evening of August 27, 2002, members of the

Provincial Intelligence Special Operations Group (PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza (P/Supt. Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang and Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that armed men drinking liquor at the residence of petitioner were indiscriminately firing guns.

Along with the members of the Aklan Police Provincial

Office, the elements of the PISOG proceeded to the area. Upon arrival thereat, they noticed that several persons scampered and ran in different directions. The responding team saw Valerio holding two .45 caliber pistols. He fired shots at the policemen before entering the house of petitioner.

Petitioner was seen tucking a .45 caliber handgun between

her waist and the waistband of her shorts, after which, she entered the house and locked the main door.To prevent any violent commotion, the policemen desisted from entering petitioners house but, in order to deter Valerio from evading apprehension, they cordoned the perimeter of the house as they waited for further instructions from P/Supt. Mendoza. A few minutes later, petitioner went out of the house and negotiated for the pull-out of the police troops. No agreement materialized.

At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava (SPO2 Nava), who was posted at the back portion of the house, saw Valerio emerge twice on top of the house and throw something. The discarded objects landed near the wall of petitioners house and inside the compound of a neighboring residence. SPO2 Nava, together with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN DYKR, as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45 caliber pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no. M1911A1 US, with a defaced serial number. The recovered items were then surrendered to SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in applying for and obtaining a search warrant.

The warrant was served on petitioner at 9:30 a.m. Together with a barangay captain, barangay kagawad, and members of the media, as witnesses, the police team proceeded to search petitioners house. The team found and was able to confiscate the following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;

2. Thirty five (35) pieces of live M16 ammos 5.56 Caliber; and

3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any

documents showing their authority to possess the confiscated firearms and the two recovered receivers, a criminal information for violation of P.D. No. 1866, as amended by Republic Act (R.A.) No. 8294, was filed against them.

For their exoneration, petitioner and Valerio argued that the issuance of the search warrant was defective because the allegation contained in the application filed and signed by SPO1 Tan was not based on his personal knowledge. They quoted this pertinent portion of the application:

That this application was founded on

confidential information received by the Provincial Director, Police Supt. Edgardo Mendoza.[7]

They further asserted that the execution of the search

warrant was infirm since petitioner, who was inside the house at the time of the search, was not asked to accompany the policemen as they explored the place, but was instead ordered to remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to

sign the inventory/receipt prepared by the raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a staff sergeant of the Philippine Army.

Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding team arrived. She averred that such situation was implausible because she was wearing garterized shorts and a spaghetti-strapped hanging blouse.[8]

Ruling of the RTCThe RTC rejected the defenses advanced by accused,

holding that the same were already denied in the Orders dated December 31, 2002 and April 20, 2005, respectively denying the Motion to Quash Search Warrant and Demurrer to Evidence. The said Orders were not appealed and have thus attained finality. The RTC also ruled that petitioner and Valerio were estopped from assailing the legality of their arrest since they participated in the trial by presenting evidence for their defense. Likewise, by applying for bail, they have effectively waived such irregularities and defects.

In finding the accused liable for illegal possession of

firearms, the RTC explained:

Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the Philippine Army prior to his separation from his service for going on absence without leave (AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with and knowledgeable about different types of firearms and ammunitions. As a former soldier,

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undoubtedly, he can assemble and disassemble firearms.

It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of the Philippine army, the fact remains that it is a government property. If it is so, the residence of Elenita Fajardo is not the proper place to store those items. The logical explanation is that those items are stolen property.

x x x x The rule is that ownership is not an

essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to ones control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law[,] the proprietary concept of the possession can have no bearing whatsoever.

x x x x x x x. [I]n order that one may be found

guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent.

x x x x To convict an accused for illegal

possession of firearms and explosive under P.D. 1866, as amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of the subject firearm ammunition or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the accused has no license or permit to own or possess the firearm, ammunition or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive (Exhibit G).

The judicial admission of the accused

that they do not have permit or license on the

two (2) receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16 Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces live caliber .45 ammunition confiscated and recovered from their possession during the search conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court.[9]

Consequently, petitioner and Valerio were convicted

of illegal possession of firearms and explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, which provides:

The penalty of prision mayor in its

minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. Both were sentenced to suffer the penalty of

imprisonment of six (6) years and one (1) day to twelve (12) years of prision mayor, and to pay a fine of P30,000.00.

On September 1, 2006, only petitioner filed a Motion for

Reconsideration, which was denied in an Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.

Ruling of the CAThe CA concurred with the factual findings of the RTC, but

disagreed with its conclusions of law, and held that the search warrant was void based on the following observations:

[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal knowledge of the fact that appellants had no license to possess firearms as required by law. For one, he failed to make a categorical statement on that point during the application. Also, he failed to attach to the application a certification to that effect from the Firearms and Explosives Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to prove that appellant indeed has no license or permit to possess a firearm. There was also no explanation given why said certification was not presented, or even deemed no longer necessary, during the application for the warrant. Such vital evidence was simply ignored.[10]

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Resultantly, all firearms and explosives seized inside petitioners residence were declared inadmissible in evidence. However, the 2 receivers recovered by the policemen outside the house of petitioner before the warrant was served were admitted as evidence, pursuant to the plain view doctrine.

Accordingly, petitioner and Valerio were convicted

of illegal possession of a part of a firearm, punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to an indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5) years, four (4) months, and twenty (20) days of prision correccional, and ordered to pay a P20,000.00 fine.

Petitioner moved for reconsideration,[11] but the motion

was denied in the CA Resolution dated December 3, 2009.[12] Hence, the present recourse.

At the onset, it must be emphasized that the information

filed against petitioner and Valerio charged duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal Procedure, viz.:

Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses.

A reading of the information clearly shows that possession of the enumerated articles confiscated from Valerio and petitioner are punishable under separate provisions of Section 1, P.D. No. 1866, as amended by R.A. No. 8294.[13] Illegal possession of two (2) pieces of short magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of the said section, viz.:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, 41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.[14]

On the other hand, illegal possession of the two (2)

receivers of a .45 caliber pistol, model no. M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is penalized under paragraph 1, which states:

Sec. 1. Unlawful manufacture, sale,

acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or

ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.[15]

This is the necessary consequence of the amendment

introduced by R.A. No. 8294, which categorized the kinds of firearms proscribed from being possessed without a license, according to their firing power and caliber. R.A. No. 8294 likewise mandated different penalties for illegal possession of firearm according to the above classification, unlike in the old P.D. No. 1866 which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the old law reads:

Section 1. Unlawful Manufacture, Sale,

Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose, or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis ours.) By virtue of such changes, an information for illegal

possession of firearm should now particularly refer to the paragraph of Section 1 under which the seized firearm is classified, and should there be numerous guns confiscated, each must be sorted and then grouped according to the categories stated in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer suffice to lump all of the seized firearms in one information, and state Section 1, P.D. No. 1866 as the violated provision, as in the instant case,[16]because different penalties are imposed by the law, depending on the caliber of the weapon. To do so would result in duplicitous charges.

Ordinarily, an information that charges multiple offenses

merits a quashal, but petitioner and Valerio failed to raise this issue during arraignment. Their failure constitutes a waiver, and they could be convicted of as many offenses as there were charged in the information.[17] This accords propriety to the diverse convictions handed down by the courts a quo.Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant that led to their confiscation, is now beyond the province of our review since, by virtue of the CAs Decision, petitioner and Valerio have been effectively acquitted from the said charges. The present review is consequently only with regard to the conviction for illegal possession of a part of a firearm.

The Issues

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Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not come within the purview of the plain view doctrine. She argues that no valid intrusion was attendant and that no evidence was adduced to prove that she was with Valerio when he threw the receivers. Likewise absent is a positive showing that any of the two receivers recovered by the policemen matched the .45 caliber pistol allegedly seen tucked in the waistband of her shorts when the police elements arrived. Neither is there any proof that petitioner had knowledge of or consented to the alleged throwing of the receivers.

Our Ruling We find merit in the petition. First, we rule on the admissibility of the receivers. We hold that the receivers were seized in plain view, hence, admissible. No less than our Constitution recognizes the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. This right is encapsulated in Article III, Section 2, of the Constitution, which states:

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.

Complementing this provision is the exclusionary rule

embodied in Section 3(2) of the same article (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

There are, however, several well-recognized exceptions to the foregoing rule. Thus, evidence obtained through a warrantless search and seizure may be admissible under any of the following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of custom laws; (4) seizure of evidence in plain view; and (5) when the accused himself waives his right against unreasonable searches and seizures.[18]

Under the plain view doctrine, objects falling in the plain view of an officer, who has a right to be in the position to have that view, are subject to seizure and may be presented as evidence.[19] It applies when the following requisites concur: (a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence

incriminating the accused. The object must be open to eye and hand, and its discovery inadvertent.[20]

Tested against these standards, we find that the seizure of the two receivers of the .45 caliber pistol outside petitioners house falls within the purview of the plain view doctrine.

First, the presence of SPO2 Nava at the back of the house and of the other law enforcers around the premises was justified by the fact that petitioner and Valerio were earlier seen respectively holding .45 caliber pistols before they ran inside the structure and sought refuge. The attendant circumstances and the evasive actions of petitioner and Valerio when the law enforcers arrived engendered a reasonable ground for the latter to believe that a crime was being committed. There was thus sufficient probable cause for the policemen to cordon off the house as they waited for daybreak to apply for a search warrant. Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances, Valerio emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering the earlier sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that the things thrown might be contraband items, or evidence of the offense they were then suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2) receivers of .45 caliber pistol.

The pertinent portions of SPO2 Navas testimony are elucidating:

Q When you arrived in that place, you saw policemen?A Yes, sir. Q What were they doing?A They were cordoning the house.Q You said that you asked your assistant team leader Deluso about that incident. What did he tell you?A Deluso told me that a person ran inside the house carrying with him a gun.Q And this house you are referring to is the house which you mentioned is the police officers were surrounding?A Yes, sir. Q Now, how long did you stay in that place, Mr. Witness?A I stayed there when I arrived at past 10:00 oclock up to 12:00 oclock the following day.Q At about 2:00 oclock in the early morning of August 28, 2002, can you recall where were you?A Yes, sir.Q Where were you?A I was at the back of the house that is being cordoned by the police.Q While you were at the back of this house, do you recall any unusual incident?A Yes, sir. Q Can you tell the Honorable Court what was that incident?A Yes, sir. A person went out at the top of the house and threw something.Q And did you see the person who threw something out of this house?A Yes, sir.x x x xQ Can you tell the Honorable Court who was that person who threw that something outside the house?A It was Zaldy Valerio.COURT: (to witness)Q Before the incident, you know this person Zaldy Valerio?A Yes, sir.Q Why do you know him?

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A Because we were formerly members of the Armed Forces of the Philippines. x x x xPROS. PERALTA:Q When you saw something thrown out at the top of the house, did you do something if any?A I shouted to seek cover.x x x xQ So, what else did you do if any after you shouted, take cover?A I took hold of a flashlight after five minutes and focused the beam of the flashlight on the place where something was thrown. Q What did you see if any?A I saw there the lower [part] of the receiver of cal. 45.x x x xQ Mr. Witness, at around 4:00 oclock that early morning of August 28, 2002, do you recall another unusual incident?A Yes, sir.Q And can you tell us what was that incident?A I saw a person throwing something there and the one that was thrown fell on top of the roof of another house.Q And you saw that person who again threw something from the rooftop of the house?A Yes, sir.Q Did you recognize him?A Yes, sir.Q Who was that person?A Zaldy Valerio again.x x x xQ Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?A I was on the road in front of the house.Q Where was Zaldy Valerio when you saw him thr[o]w something out of the house?A He was on top of the house.x x x xQ Later on, were you able to know what was that something thrown out?A Yes, sir.Q What was that?A Another lower receiver of a cal. 45.x x x xQ And what did he tell you?A It [was] on the wall of another house and it [could] be seen right away.x x x xQ What did you do if any?A We waited for the owner of the house to wake up.x x x xQ Who opened the fence for you?A It was a lady who is the owner of the house. Q When you entered the premises of the house of the lady, what did you find?A We saw the lower receiver of this .45 cal. (sic)[21]

The ensuing recovery of the receivers may have been deliberate;

nonetheless, their initial discovery was indubitably inadvertent. It is not crucial that at initial sighting the seized contraband be identified and known to be so. The law merely requires that the law enforcer observes that the seized item may be evidence of a crime, contraband, or otherwise subject to seizure. Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The liability for their possession, however, should fall only on Valerio and not on petitioner. The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal possession of part of a firearm.

In dissecting how and when liability for illegal possession of firearms attaches, the following disquisitions in People v. De Gracia[22] are instructive:

The rule is that ownership is not an essential element of

illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever.But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if

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such possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.[23]

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when the holder thereof:

(1) possesses a firearm or a part thereof(2) lacks the authority or license to possess the

firearm.[24]

We find that petitioner was neither in physical nor

constructive possession of the subject receivers. The testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the house when the receivers were thrown. None of the witnesses saw petitioner holding the receivers, before or during their disposal. At the very least, petitioners possession of the receivers was merely incidental because Valerio, the one in actual physical possession, was seen at the rooftop of petitioners house. Absent any evidence pointing to petitioners participation, knowledge or consent in Valerios actions, she cannot be held liable for illegal possession of the receivers. Petitioners apparent liability for illegal possession of part of a firearm can only proceed from the assumption that one of the thrown receivers matches the gun seen tucked in the waistband of her shorts earlier that night. Unfortunately, the prosecution failed to convert such assumption into concrete evidence.

Mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. The rule is the same whether the offenses are punishable under the Revised Penal Code, which are mala in se, or in crimes, which are malum prohibitum by virtue of special law.[25] The quantum of proof required by law was not adequately met in this case in so far as petitioner is concerned.

The gun allegedly seen tucked in petitioners waistband was not identified with sufficient particularity; as such, it is impossible to match the same with any of the seized receivers. Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the rest of the PISOG arrived in petitioners house. It is not unlikely then that the receivers later on discarded were components of the two (2) pistols seen with Valerio.

These findings also debunk the allegation in the

information that petitioner conspired with Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably proving that petitioner participated in the decision to commit the criminal act committed by Valerio.

Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The constitutional presumption of innocence in her favor was not adequately overcome by the evidence adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of

part of a firearm. In illegal possession of a firearm, two (2) things must be shown

to exist: (a) the existence of the subject firearm; and (b) the fact that the accused who possessed the same does not have the corresponding license for it.[26]

By analogy then, a successful conviction for illegal

possession of part of a firearm must yield these requisites: (a) the existence of the part of the firearm; and(b) the accused who possessed the same does not have

the license for the firearm to which the seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the

elements of the crime. The subject receivers - one with the markings United States Property and the other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-1, respectively. They were also identified by SPO2 Nava as the firearm parts he retrieved af ter Valerio discarded them. [27] His testimony was corroborated by DYKR radio announcer Vega, who witnessed the recovery of the receivers.[28]

Anent the lack of authority, SPO1 Tan testified that, upon

verification, it was ascertained that Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms.[29] To substantiate his statement, he submitted a certification[30] to that effect and identified the same in court.[31] The testimony of SPO1 Tan, or the certification, would suffice to prove beyond reasonable doubt the second element.[32]

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable doubt.

SO ORDERED.

MALACAT VS CAIn an Information[1] filed on 30 August 1990, in Criminal Case

No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866,[2] as follows:

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That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities.

At arraignment[3] on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits A, A-1, and A-2,[4] while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner.[5]

At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.

Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with [t]heir eyes moving very fast.[6]

Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioners front waist line.[7] Yus companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an X mark at the bottom of the grenade and thereafter gave it to his commander.[8]

On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner.[9]

Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla[10] for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapios advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioners uncounselled confession (Exh. E), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared

the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordnance Disposal Unit for examination.[11]

On cross-examination, Serapio admitted that he took petitioners confession knowing it was inadmissible in evidence.[12]

Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he [f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present, and concluded that the grenade was [l]ive and capable of exploding. On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991.[13]

Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner [i]to ang tama mo sa akin. This officer then inserted the muzzle of his gun into petitioners mouth and said, [y]ou are the one who shot me. Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented.[14]

The trial court ruled that the warrantless search and seizure of petitioner was akin to a stop and frisk, where a warrant and seizure can be effected without necessarily being preceded by an arrest and whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information. [15] Probable cause was not required as it was not certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been premature.[16] The RTC emphasized that Yu and his companions were [c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence[17] and the officers [h]ad to act in haste, as petitioner and his companions were acting suspiciously, considering the time, place and reported cases of bombing. Further, petitioners group suddenly ran away in different directions as they saw the arresting officers approach, thus [i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.[18]

The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner [l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store, concluded that sufficient evidence existed to establish petitioners guilt beyond reasonable doubt.

In its decision[19] dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the

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crime of illegal possession of explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer:[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

On 18 February 1994, petitioner filed a notice of appeal[20] indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs.[21]

In his Appellants Brief [22] filed with the Court of Appeals, petitioner asserted that:

1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM WAS AN APPROPRIATE INCIDENT TO HIS ARREST.

2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH.

In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote.[23] As such, the search was illegal, and the hand grenade seized, inadmissible in evidence.

In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto.[24]

In its decision of 24 January 1996,[25] the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was planted by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioners possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit D, the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was attempting to commit an offense, thus:We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacats posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioners failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latters arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the accumulation of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed:

The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act.

Finally, the Court of Appeals held that the rule laid down in People v. Mengote,[26] which petitioner relied upon, was inapplicable in light of [c]rucial differences, to wit:[In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:

1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTLESS ARREST OF PETITIONER WAS VALID AND LEGAL.

2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE.

In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was attempting to commit a crime, as the evidence for the prosecution merely disclosed that he was standing at the corner of Plaza Miranda and Quezon Boulevard with his eyes moving very fast and looking at every person that come (sic) nearer (sic) to them. Finally, petitioner points out the factual similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter.

In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.

For being impressed with merit, we resolved to give due course to the petition.

The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was:

[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum.

The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua.

For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken

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into account. Since the maximum of the penalty isreclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129),[27] in relation to Section 17 of the Judiciary Act of 1948,[28] Section 5(2) of Article VIII of the Constitution[29] and Section 3(c) of Rule 122 of the Rules of Court.[30] The term life imprisonment as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.

Petitioners Notice of Appeal indicated that he was appealing from the trial courts decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.

We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioners Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs.

Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioners guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioners possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an X mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioners arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these.

Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioners eyes moving very fast.

Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows:SEC. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel,

he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

x x x(3) Any confession or admission obtained in violation of

this or Section 17 hereof shall be inadmissible in evidence against him.

Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below.

The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. [31] The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant,[32] subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:Sec. 5. -- Arrest, without warrant; when lawful -- A peace officer or a private person may, without a warrant, arrest a person:

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

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

(c) When the person to be arrested is a prisoner who has escaped ***

A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.

Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches;[33] (5) a search incidental to a lawful arrest;[34] and (6) a "stop and frisk."[35]

In the instant petition, the trial court validated the warrantless search as a stop and frisk with the seizure of the grenade from the accused [as] an appropriate incident to his arrest, hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement.

At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search.[36] In this instance, the law requires that there first be a lawful arrest before a search can be made -- the process cannot be reversed.[37] At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of

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the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence.[38]

Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.

Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest.

We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment ***[39]

Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk,"[40] it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[41]Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.

Here, here are at least three (3) reasons why the stop-and-frisk was invalid:

First, we harbor grave doubts as to Yus claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared."

Second, there was nothing in petitioners behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were moving very fast an observation which

leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination:

Q And what were they doing?A They were merely standing.Q You are sure of that?A Yes, sir.Q And when you saw them standing, there were nothing

or they did not create any commotion?A None, sir.Q Neither did you see them create commotion?A None, sir.[42]

Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was discovered inside the front waistline of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court:When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic] his person.[43]

What is unequivocal then in this case are blatant violations of petitioners rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.

WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause.

Costs de oficio.SO ORDERED.

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PEOPLE VS MUSAThe 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, theabove-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. Thebuy-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.

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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 thebuy-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

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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 thebuy-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 crucial 18 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.Ale 20 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.Biñan 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

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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 case 30 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 drugThe 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 committingviolence 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 personof 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. California 42 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-

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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.

PEOPLE VS SALANGUITThis is an appeal from the decision,[1] dated January 27, 1998,

of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of violation of 16 of Republic Act No. 6425, as amended, and sentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, and of 8 of the same law and sentencing him for such violation to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00.

Charges against accused-appellant for violations of R.A. No. 6425 were filed on December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused, did then and there willfully, unlawfully and knowingly possess and/or use 11.14 grams of Methamphetamine Hydrochloride (Shabu) a regulated drug, without the necessary license and/or prescription therefor, in violation of said law.CONTRARY TO LAW.[2]

In Criminal Case No. Q-95-64358, the information charged:That on or about the 26th day of December 1995, in Quezon City, Philippines, the said accused not being authorized by law to possess or use any prohibited drug, did, then and there willfully, unlawfully and knowingly have in his possession and under his custody and control 1,254 grams of Marijuana, a prohibited drug.CONTRARY TO LAW.[3]

When arraigned on May 21, 1996, accused-appellant pleaded not guilty,[4] whereupon he was tried.

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Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief of the Physical Science Branch of the Philippine National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence established the following:

On December 26, 1995, Sr. Insp. Aguilar applied for a warrant[5] in the Regional Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accused-appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He presented as his witness SPO1 Edmund Badua, who testified that as a poseur-buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The sale took place in accused-appellants room, and Badua saw that the shabu was taken by accused-appellant from a cabinet inside his room. The application was granted, and a search warrant was later issued by Presiding Judge Dolores L. Espaol.

At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along with one civilian informer, went to the residence of accused-appellant to serve the warrant.[6]

The police operatives knocked on accused-appellants door, but nobody opened it. They heard people inside the house, apparently panicking. The police operatives then forced the door open and entered the house.[7]

After showing the search warrant to the occupants of the house, Lt. Cortes and his group started searching the house. [8] They found 12 small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clip box also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrapped in newsprint[9] having a total weight of approximately 1,255 grams.[10] A receipt of the items seized was prepared, but the accused-appellant refused to sign it.[11]

After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning, Quezon City, along with the items they had seized.[12]

PO3 Duazo requested a laboratory examination of the confiscated evidence.[13] The white crystalline substance with a total weight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive for methamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and the other 850 grams, were found to be marijuana.[14]

For the defense, accused-appellant testified in his own behalf. His testimony was corroborated by his mother-in-law, Soledad Arcano.

Accused-appellant testified that on the night of December 26, 1995, as they were about to leave their house, they heard a commotion at the gate and on the roof of their house. Suddenly, about 20 men in civilian attire, brandishing long firearms, climbed over the gate and descended through an opening in the roof.[15]

When accused-appellant demanded to be shown a search warrant, a piece of paper inside a folder was waved in front of him. As accused-appellant fumbled for his glasses, however, the paper was withdrawn and he had no chance to read it.[16]

Accused-appellant claimed that he was ordered to stay in one place of the house while the policemen conducted a search, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliber firearm, jewelry, and canned goods.[17]

The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-appellant, took him

with them to the NARCOM on EDSA, Quezon City, where accused-appellant was detained.[18]

Accused-appellants mother-in law, Soledad Arcano, corroborated his testimony. Arcano testified that the policemen ransacked their house, ate their food, and took away canned goods and other valuables.[19]

After hearing, the trial court rendered its decision, the dispositive portion of which reads:WHEREFORE, judgment is hereby rendered:1. In Criminal Case No. Q-95-64357, for violation of Sec. 16, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer an indeterminate sentence with a minimum of six (6) months of arresto mayor and a maximum of four (4) years and two (2) months of prision correccional; and,2. In Criminal Case No. Q-95-64358, for violation of Sec. 8, Republic Act No. 6425, as amended, finding the accused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is hereby accordingly sentenced to suffer reclusion perpetua and to pay a fine of P700,000.00.The accused shall further pay the costs of suit.The 11.14 grams of methamphetamine hydrochloride and the 1,254 grams of marijuana bricks are hereby confiscated and condemned for disposition according to law. The evidence custodian of this Court is hereby directed to turn such substances over to the National Bureau of Investigation pursuant to law.SO ORDERED.[20]

Hence this appeal. Accused-appellant contends that -THE COURT A QUO GRAVELY ERRED IN DECLARING THE SEARCH WARRANT VALIDTHE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT FOR ILLEGAL POSSESSION OF METHAMPHETAMINE HYDRO-CHLORIDE (SHABU)THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT FOR VIOLATION 8, R.A. NO. 6425THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE THE TWO (2) BRICKS OF MARIJUANATHE COURT A QUO ERRED IN NOT FINDING THAT THE POLICEMEN USED EXCESSIVE FORCE IN ENFORCING THE SEARCH WARRANT.Accused-appellant is contesting his conviction on three

grounds. First, the admissibility of the shabu allegedly recovered from his residence as evidence against him on the ground that the warrant used in obtaining it was invalid. Second, the admissibility in evidence of the marijuana allegedly seized from accused-appellant pursuant to the plain view doctrine. Third, the employment of unnecessary force by the police in the execution of the warrant.

First. Rule 126, 4 of the Revised Rules on Criminal Procedure[21] provides that a search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.

In issuing a search warrant, judges must comply strictly with the requirements of the Constitution and the Rules of Criminal Procedure. No presumption of regularity can be invoked in aid of the process when an officer undertakes to justify its issuance. [22] Nothing can justify the issuance of the search warrant unless all the legal requisites are fulfilled.

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In this case, the search warrant issued against accused-appellant reads:

SEARCH WARRANT NO. 160

For: Violation of RA 6425

SEARCH WARRANTTO ANY PEACE OFFICER:G R E E T I N G S :It appearing to the satisfaction of the undersigned after examining under oath SR. INSP. RODOLFO V. AGUILAR, PNP and his witness SPO1 EDMUND M. BADUA, PNP that there is probable cause to believe that ROBERT SALANGUIT has in his possession and control in his premises Binhagan St., San Jose, Quezon City as shown in Annex A, the properties to wit:UNDETERMINED QUANTITY OF SHABU AND DRUG PARAPHERNALIA

which should be seized and brought to the undersigned.You are hereby commanded to make an immediate search anytime of the day/night of the premises above-described and forthwith seize and take possession of the above-stated properties and bring said properties to the undersigned to be dealt with as the law directs.GIVEN UNDER MY HAND this 26th day of December 1995 at Imus, Cavite, Philippines.

(SGD.) DOLORES L. ESPAOL

J u d g e

Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search for drug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to be searched was not described with sufficient particularity.Existence of Probable Cause

The warrant authorized the seizure of undetermined quantity of shabu and drug paraphernalia. Evidence was presented showing probable cause of the existence of methamphetamine hydrochloride orshabu. Accused-appellant contends, however, that the search warrant issued is void because no evidence was presented showing the existence of drug paraphernalia and the same should not have been ordered to be seized by the trial court.[23]

The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence officer who acted as a poseur-buyer, did not testify in the proceedings for the issuance of a search warrant on anything about drug paraphernalia. He stated:

Q - Being a member of the Intelligence and Operation Section, NMDU, NARCOM, do you remember if you were assigned into a monitoring or surveillance work?

A - Yes, sir.Q - Of what particular assignment or area were you assigned for

monitoring or surveillance?A - Its within the Quezon City area particularly a house without a

number located at Binhagan St., San Jose, Quezon City, sir.Q - Do you know the person who occupies the specific place?A - Yes, sir, he is ROBERT SALANGUIT @ Robert.Q - Are you familiar with that place?A - Yes, sir, as part of my surveillance, I was able to penetrate

inside the area and established contract with ROBERT SALANGUIT alias Robert through my friend who introduced me to the former.

Q - In what particular occasion did you meet ROBERT SALANGUIT alias Robert?

A - When I was introduced by my friend as a good buyer and drug pusher of shabu, sir.

Q - Were you able to buy at that time?A - Yes, sir.Q - How much if you can still remember the amount involved?A - I was able to buy two point twelve (2.12) grams of shabu in

the amount of Two Thousand Seven Hundred Fifty (P2,750.00) pesos, sir.

Q - Having established contact with ROBERT SALANGUIT @ Robert, do you know where the stuff (shabu) were being kept?

A - Yes, sir, inside a cabinet inside his room.Q - How were you able to know the place where he kept the

stuff?A - When I first bought the 2.12 grams of shabu from him, it was

done inside his room and I saw that the shabu was taken by him inside his cabinet.

Q - Do you know who is in control of the premises?A - Yes, sir, it was ROBERT SALANGUIT @ Robert.Q - How sure are you, that the shabu that you bought from

ROBERT SALANGUIT @ Robert is genuine shabu?A - After I left the house of ROBERT SALANGUIT @ Robert, I

proceeded back to our office and reported the progress of my mission to our Chief and presented to him the 2.12 grams of shabu I bought from the subject.Then afterwards, our Chief formally requested the Chief PNP Central Crime Laboratory Services, NPDC, for Technical Analysis which yielded positive result for shabu, a regulated drug as shown in the attached certification of PNP CLS result No. D-414-95 dated 19 Dec. 95.

Q - Do you have anything more to add or retract from your statement?

A - Yes, sir, I was offered by him (ROBERT SALANGUIT @ Robert) that anything I wish to buy bigger quantity of shabu, he is willing to transact to me on cash basis at his price of One Thousand Seven Hundred Fifty (P1,750.00) pesos per gram.

Q - Are you willing to sign your statement freely and voluntarily?A - Yes, sir.[24]

However, the fact that there was no probable cause to support the application for the seizure of drug paraphernalia does not warrant the conclusion that the search warrant is void. This fact would be material only if drug paraphernalia was in fact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, the search warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure of methamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Thus, in Aday v. Superior Court,[25] the warrant properly described two obscene books but improperly described other articles. It was held:

Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The search for and seizure of these books, if otherwise

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valid, were not rendered illegal by the defects concerning other articles. . . . In so holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated.

It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence.[26] Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellants house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not.Specificity of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use of methamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions of R.A. No. 6425.[27] It will suffice to quote what this Court said in a similar case to dispose of this contention:While it is true that the caption of the search warrant states that it is in connection with Violation of R.A. 6425, otherwise known as the Dangerous Drugs Act of 1972, it is clearly recited in the text thereof that There is probable cause to believe that Adolfo Olaes alias Debie and alias Baby of No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their session and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above. Although the specific section of the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding of probable cause. The search warrant also satisfies the requirement in the Bill of Rights of the particularity of the description to be made of the place to be searched and the persons or things to be seized. [28]

Indeed, in People v. Dichoso[29] the search warrant was also for Violation of R.A. 6425, without specifying what provisions of the law were violated, and it authorized the search and seizure of dried marijuana leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic). This Court, however, upheld the validity of the warrant:Appellants contention that the search warrant in question was issued for more than (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into prohibited and regulated drugs and defines and penalizes categories of offenses which are closely related or which belong to the same

class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.[30]

Similarly, in another case,[31] the search warrant was captioned: For Violation of P.D. No. 1866 (Illegal Possession of Firearms, etc.). The validity of the warrant was questioned on the ground that it was issued without reference to any particular provision in P.D. No. 1866, which punished several offenses. We held, however, that while illegal possession of firearms is penalized under 1 of P.D. No. 1866 and illegal possession of explosives is penalized under 3 thereof, the decree is a codification of the various laws on illegal possession of firearms, ammunitions, and explosives which offenses are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. Thus, only one warrant was necessary to cover the violations under the various provisions of the said law.Particularity of the Place

Accused-appellant contends that the search warrant failed to indicate the place to be searched with sufficient particularity.

This contention is without merit. As the Solicitor General states:. . . While the address stated in the warrant is merely Binhagan St., San Jose, Quezon City, the trial court took note of the fact that the records of Search Warrant Case No. 160 contained several documents which identified the premises to be searched, to wit: 1) the application for search warrant which stated that the premises to be searched was located in between No. 7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition of witness which described the premises as a house without a number located at Binhagan St., San Jose, Quezon City; and 3) the pencil sketch of the location of the premises to be searched. In fact, the police officers who raided appellants house under the leadership of Police Senior Inspector Rodolfo Aguilar could not have been mistaken as Inspector Aguilar resides in the same neighborhood in Binhagan where appellant lives and in fact Aguilars place is at the end of appellants place in Binhagan. Moreover, the house raided by Aguilars team is undeniably appellants house and it was really appellant who was the target. The raiding team even first ascertained through their informant that appellant was inside his residence before they actually started their operation.[32]

The rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched.[33] For example, a search warrant authorized a search of Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were five apartments in the basement and six apartments on both the ground and top floors and that there was an Apartment Number 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting the warrant that the apartment was occupied by the accused Morris Ferrante of 83 Pleasant Street, Malboro Mass. [34] In this case, the location of accused-appellants house being indicated by the evidence on record, there can be no doubt that the warrant described the place to be searched with sufficient particularity.

In sum, we hold that with respect to the seizure of shabu from accused-appellants residence, Search Warrant No. 160 was properly issued, such warrant being founded on probable cause personally determined by the judge under oath or affirmation of the deposing witness and particularly describing the place to be searched and the things to be seized.

Second. The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not

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marijuana. However, seizure of the latter drug is being justified on the ground that the drug was seized within the plain view of the searching party. This is contested by accused-appellant.

Under the plain view doctrine, unlawful objects within 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 in evidence.[35] For this doctrine to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c) immediate apparent illegality of the evidence before the police.[36] The question is whether these requisites were complied with by the authorities in seizing the marijuana in this case.Prior Justification and Discovery by Inadvertence

Because the location of the shabu was indicated in the warrant and thus known to the police operatives, it is reasonable to assume that the police found the packets of the shabu first. Once the valid portion of the search warrant has been executed, the plain view doctrine can no longer provide any basis for admitting the other items subsequently found. As has been explained: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.[37]

The only other possible justification for an intrusion by the police is the conduct of a search pursuant to accused-appellants lawful arrest for possession of shabu. However, a search incident to a lawful arrest is limited to the person of the one arrested and the premises within his immediate control.[38] The rationale for permitting such a search is to prevent the person arrested from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it.

The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-appellants person or in an area within his immediate control. Its recovery, therefore, presumably during the search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in his depostion, was invalid.Apparent Illegality of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure. This case is similar to People. v. Musa[39] in which we declared inadmissible the marijuana recovered by NARCOM agents because the said drugs were contained in a plastic bag which gave no indication of its contents. We explained: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 officers 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, is transparency, or otherwise, that its contents are obvious to an observer.[40]

No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to justify an encroachment of rights secured by the Constitution.[41] In this case, the marijuana allegedly found in the possession of accused-appellant was in the form of two bricks wrapped in newsprint. Not being in a transparent container, the contents wrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or manner these items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without a warrant was conducted in accordance with the plain view doctrine, we hold that the marijuana is inadmissible in evidence against accused-appellant. However, the confiscation of the drug must be upheld.

Third. Accused-appellant claims that undue and unnecessary force was employed by the searching party in effecting the raid.

Rule 126, 7 of the Revised Rules on Criminal Procedure[42] provides:Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

Accused-appellants claim that the policemen had clambered up the roof of his house to gain entry and had broken doors and windows in the process is unsupported by reliable and competent proof. No affidavit or sworn statement of disinterested persons, like the barangay officials or neighbors, has been presented by accused-appellant to attest to the truth of his claim.

In contrast, Aguilar and Duanos claim that they had to use some force in order to gain entry cannot be doubted. The occupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching party knocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside the house. These circumstances justified the searching partys forcible entry into the house, founded as it is on the apprehension that the execution of their mission would be frustrated unless they do so.

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit y Ko guilty of possession of illegal drugs under 16 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a prison term ranging from six (6) months of arresto mayor, as minimum, and four (4) years and two (2) months of prision correccional, as maximum, and ordering the confiscation of 11.14 grams of methamphetamine hydrochloride is AFFIRMED.

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-appellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under 8 of R.A. No. 6425, as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of P700,000.00 is hereby REVERSED and SET ASIDE and accused-appellant is ACQUITTED of the crime

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charged. However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14 grams of methamphetamine hydrochloride, and its disposition as ordered by the trial court is AFFIRMED.

SO ORDERED.

PEOPLE VS AMINNUDINThe 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. 2Later, 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 AminnudinA Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin.

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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

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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.

PEOPLE VS MARIACOSBefore this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02718, which affirmed the decision2 of the Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.The facts of the case, as summarized by the CA, are as follows:Accused-appellant Belen Mariacos was charged in an Information, dated November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as follows:"That on or about the 27th day of October, 2005, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the necessary permit or authority from the proper government agency or office.CONTRARY TO LAW."When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the pre-trial, the following were stipulated upon:

"1. Accused admits that she is the same person identified in the information as Belen Mariacos;2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union;3. That at the time of the arrest of the accused, accused had just alighted from a passenger jeepney;4. That the marijuana allegedly taken from the possession of the accused contained in two (2) bags were submitted for examination to the Crime Lab;5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for examination gave positive result for the presence of marijuana;6. That the drugs allegedly obtained from the accused contained (sic) and submitted for examination weighed 7,030.3 grams;7. The Prosecutor admits the existence of a counter-affidavit executed by the accused; and8. The existence of the affidavits executed by the witnesses of the accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino."

During the trial, the prosecution established the following evidence:On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La Union, conducted a checkpoint near the police

station at the poblacion to intercept a suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2 Pallayoc"), the Chief of Police, and other policemen. When the checkpoint did not yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay Balbalayang to conduct surveillance operation (sic).At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret agent of the Barangay Intelligence Network who informed him that a baggage of marijuana had been loaded on a passenger jeepney that was about to leave for the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc then boarded the said jeepney and positioned himself on top thereof. While the vehicle was in motion, he found the black backpack with an "O.K." marking and peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then asked the other passengers on top of the jeepney about the owner of the bag, but no one knew.When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other passengers. Unfortunately, he did not notice who took the black backpack from atop the jeepney. He only realized a few moments later that the said bag and three (3) other bags, including a blue plastic bag, were already being carried away by two (2) women. He caught up with the women and introduced himself as a policeman. He told them that they were under arrest, but one of the women got away.PO2 Pallayoc brought the woman, who was later identified as herein accused-appellant Belen Mariacos, and the bags to the police station. At the police station, the investigators contacted the Mayor of San Gabriel to witness the opening of the bags. When the Mayor arrived about fifteen (15) minutes later, the bags were opened and three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper, were recovered.Thereafter, the investigators marked, inventoried and forwarded the confiscated marijuana to the crime laboratory for examination. The laboratory examination showed that the stuff found in the bags all tested positive for marijuana, a dangerous drug.When it was accused-appellant’s turn to present evidence, she testified that:On October 27, 2005, at around 7:00 in the morning, accused-appellant, together with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang ("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded on top of the jeepney. At first, accused-appellant refused, but she was persuaded later when she was told that she would only be carrying the bags. When they reached the poblacion, Lao-ang handed accused-appellant and her companion, Lani Herbacio, the bags, and then Lao-ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them, arresting them. Without explanation, they were brought to the police station. When they were at the police station, Lani Herbacio disappeared. It was also at the police station that accused-appellant discovered the true contents of the bags which she was asked to carry. She maintained that she was not the owner of the bags and that she did not know what were contained in the bags. At the police station (sic) she executed a Counter-Affidavit.3

On January 31, 2007, the RTC promulgated a decision, the dispositive portion of which states:

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WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.The 7,030.3 grams of marijuana are ordered confiscated and turned over to the Philippine Drug Enforcement Agency for destruction in the presence of the Court personnel and media.SO ORDERED.4

Appellant appealed her conviction to the CA. She argued that the trial court erred in considering the evidence of the prosecution despite its inadmissibility.5 She claimed that her right against an unreasonable search was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a search warrant and with no permission from her. She averred that PO2 Pallayoc’s purpose for apprehending her was to verify if the bag she was carrying was the same one he had illegally searched earlier. Moreover, appellant contended that there was no probable cause for her arrest.6

Further, appellant claimed that the prosecution failed to prove the corpus delicti of the crime.7 She alleged that the apprehending police officers violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. The said regulation directs the apprehending team having initial custody and control of the drugs and/or paraphernalia, immediately after seizure or confiscation, to have the same physically inventoried and photographed in the presence of appellant or her representative, who shall be required to sign copies of the inventory. The failure to comply with this directive, appellant claimed, casts a serious doubt on the identity of the items allegedly confiscated from her. She, likewise, averred that the prosecution failed to prove that the items allegedly confiscated were indeed prohibited drugs, and to establish the chain of custody over the same.On the other hand, the People, through the Office of the Solicitor General (OSG), argued that the warrantless arrest of appellant and the warrantless seizure of marijuana were valid and legal,8 justified as a search of a moving vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that appellant had committed the crime of delivering dangerous drugs based on reliable information from their agent, which was confirmed when he peeked into the bags and smelled the distinctive odor of marijuana.9 The OSG also argued that appellant was now estopped from questioning the illegality of her arrest since she voluntarily entered a plea of "not guilty" upon arraignment and participated in the trial and presented her evidence.10 The OSG brushed aside appellant’s argument that the bricks of marijuana were not photographed and inventoried in her presence or that of her counsel immediately after confiscation, positing that physical inventory may be done at the nearest police station or at the nearest office of the apprehending team, whichever was practicable.11

In a Decision dated January 19, 2009, the CA dismissed appellant’s appeal and affirmed the RTC decision in toto.12 It held that the prosecution had successfully proven that appellant carried away from the jeepney a number of bags which, when inspected by the police, contained dangerous drugs. The CA ruled that appellant was caught in flagrante delicto of "carrying and conveying" the bag that contained the illegal drugs, and thus held that appellant’s warrantless arrest was valid. The appellate court ratiocinated:It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags when he was aboard the jeep. He saw the

bricks of marijuana wrapped in newspaper. That said marijuana was on board the jeepney to be delivered to a specified destination was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of accused-appellant.x x x xFirstly, this Court opines that the invocation of Section 2, Article III of the Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of the suspicious bags, there was no identified owner. He asked the other passengers atop the jeepney but no one knew who owned the bags. Thus, there could be no violation of the right when no one was entitled thereto at that time.Secondly, the facts of the case show the urgency of the situation. The local police has been trying to intercept the transport of the illegal drugs for more than a day, to no avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as possible the tip and check the contents of the bags.Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of a moving vehicle has been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of the locality or jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to secure a search warrant in order to check the contents of the bags which were loaded on top of the moving jeepney. Otherwise, a search warrant would have been of no use because the motor vehicle had already left the locality.13

Appellant is now before this Court, appealing her conviction.Once again, we are asked to determine the limits of the powers of the State’s agents to conduct searches and seizures. Over the years, this Court had laid down the rules on searches and seizures, providing, more or less, clear parameters in determining which are proper and which are not.1avvphi1Appellant’s main argument before the CA centered on the inadmissibility of the evidence used against her. She claims that her constitutional right against unreasonable searches was flagrantly violated by the apprehending officer.Thus, we must determine if the search was lawful. If it was, then there would have been probable cause for the warrantless arrest of appellant.Article III, Section 2 of the Philippine Constitution provides:Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.Law and jurisprudence have laid down the instances when a warrantless search is valid. These are:

1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence;2. Seizure of evidence in "plain view," the elements of which are:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(b) the evidence was inadvertently discovered by the police who had the right to be where they are;(c) the evidence must be immediately apparent[;] and;

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(d) "plain view" justified mere seizure of evidence without further search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;4. Consented warrantless search;5. Customs search;6. Stop and Frisk; and7. Exigent and Emergency Circumstances.14

Both the trial court and the CA anchored their respective decisions on the fact that the search was conducted on a moving vehicle to justify the validity of the search.Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions to the Constitutional mandate that no search or seizure shall be made except by virtue of a warrant issued by a judge after personally determining the existence of probable cause.15

In People v. Bagista,16 the Court said:The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.It is well to remember that in the instances we have recognized as exceptions to the requirement of a judicial warrant, it is necessary that the officer effecting the arrest or seizure must have been impelled to do so because of probable cause. The essential requisite of probable cause must be satisfied before a warrantless search and seizure can be lawfully conducted.17 Without probable cause, the articles seized cannot be admitted in evidence against the person arrested.18

Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched.19

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.20

Over the years, the rules governing search and seizure have been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before

a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge – a requirement which borders on the impossible in instances where moving vehicle is used to transport contraband from one place to another with impunity.21

This exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.22

Given the discussion above, it is readily apparent that the search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination.It is well to remember that on October 26, 2005, the night before appellant’s arrest, the police received information that marijuana was to be transported from Barangay Balbalayang, and had set up a checkpoint around the area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay Intelligence Network, who informed him that a baggage of marijuana was loaded on a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages allegedly containing illegal drugs.This Court has also, time and again, upheld as valid a warrantless search incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides:SEC. 13. Search incident to lawful arrest.—A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.23

For this rule to apply, it is imperative that there be a prior valid arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of Court provides the exceptions therefor, to wit:SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.24

Be that as it may, we have held that a search substantially contemporaneous with an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search.25

Given that the search was valid, appellant’s arrest based on that search is also valid.

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Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states:SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.In her defense, appellant averred that the packages she was carrying did not belong to her but to a neighbor who had asked her to carry the same for him. This contention, however, is of no consequence.When an accused is charged with illegal possession or transportation of prohibited drugs, the ownership thereof is immaterial. Consequently, proof of ownership of the confiscated marijuana is not necessary.26

Appellant’s alleged lack of knowledge does not constitute a valid defense. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum, as in this case.27 Mere possession and/or delivery of a prohibited drug, without legal authority, is punishable under the Dangerous Drugs Act.28

Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against particular individuals, but against public order.29

Jurisprudence defines "transport" as "to carry or convey from one place to another."30 There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act.31 The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is immaterial whether or not the place of destination is reached.32

Moreover, appellant’s possession of the packages containing illegal drugs gave rise to the disputable presumption33 that she is the owner of the packages and their contents.34 Appellant failed to rebut this presumption. Her uncorroborated claim of lack of knowledge that she had prohibited drug in her possession is insufficient.Appellant’s narration of facts deserves little credence. If it is true that Bennie Lao-ang merely asked her and her companion to carry some baggages, it is but logical to first ask what the packages contained and where these would be taken. Likewise, if, as appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant and her companion should have ran after him to give him

the bags he had left with them, and not to continue on their journey without knowing where they were taking the bags.Next, appellant argues that the prosecution failed to prove the corpus delicti of the crime. In particular, she alleged that the apprehending police officers failed to follow the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles.In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of that crime.35

Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and disposition of seized dangerous drugs, to wit:Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides:SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.PO2 Pallayoc testified that after apprehending appellant, he immediately brought her to the police station. At the station, the police requested the Mayor to witness the opening of the bags seized from appellant. When the Mayor arrived, he opened the bag in front of appellant and the other police officers. The black bag

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yielded three bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles of marijuana and two bricks of marijuana fruiting tops.36 PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then marked the same. Then the seized items were brought to the PNP Crime Laboratory for examination.It is admitted that there were no photographs taken of the drugs seized, that appellant was not accompanied by counsel, and that no representative from the media and the DOJ were present. However, this Court has already previously held that non-compliance with Section 21 is not fatal and will not render an accused’s arrest illegal, or make the items seized inadmissible. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items.37

Based on the testimony of PO2 Pallayoc, after appellant’s arrest, she was immediately brought to the police station where she stayed while waiting for the Mayor. It was the Mayor who opened the packages, revealing the illegal drugs, which were thereafter marked and sent to the police crime laboratory the following day. Contrary to appellant’s claim, the prosecution’s evidence establishes the chain of custody from the time of appellant’s arrest until the prohibited drugs were tested at the police crime laboratory.While it is true that the arresting officer failed to state explicitly the justifiable ground for non-compliance with Section 21, this does not necessarily mean that appellant’s arrest was illegal or that the items seized are inadmissible. The justifiable ground will remain unknown because appellant did not question the custody and disposition of the items taken from her during the trial.38 Even assuming that the police officers failed to abide by Section 21, appellant should have raised this issue before the trial court. She could have moved for the quashal of the information at the first instance. But she did not. Hence, she is deemed to have waived any objection on the matter.Further, the actions of the police officers, in relation to the procedural rules on the chain of custody, enjoyed the presumption of regularity in the performance of official functions. Courts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties regularly, absent any convincing proof to the contrary.39

In sum, the prosecution successfully established appellant’s guilt. Thus, her conviction must be affirmed.WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.SO ORDERED.

PEOPLE VS ARUTAWith the pervasive proliferation of illegal drugs and its pernicious effects on our society, our law enforcers tend at times to overreach themselves in apprehending drug offenders to the extent of failing to observe well-entrenched constitutional guarantees against illegal searches and arrests. Consequently, drug offenders manage to evade the clutches of the law on mere technicalities.Accused-appellant Rosa Aruta y Menguin was arrested and charged with violating Section 4, Article II of Republic Act No. 6425 or the Dangerous Drugs Act. The information reads:That on or about the fourteenth (14th) day of December, 1988, 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 willfully, unlawfully and knowingly

engage in transporting approximately eight (8) kilos and five hundred (500) grams of dried marijuana packed in plastic bag marked “Cash Katutak” placed in a traveling bag, which are prohibited drugs.Upon arraignment, she pleaded “not guilty.” After trial on the merits, the Regional Trial Court of Olongapo City convicted and sentenced her to suffer the penalty of life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos. 1

The prosecution substantially relied on the testimonies of P/Lt. Ernesto Abello, Officer-in-Charge of the Narcotics Command (NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on their testimonies, the court a quo found the following:On December 13, 1988, P/Lt. Abello was tipped off by his informant, known only as Benjie, that a certain “Aling Rosa” would be arriving from Baguio City the following day, December 14, 1988, with a large volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the afternoon of December 14, 1988 and deployed themselves near the Philippine National Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the PNB building while the other group waited near the Caltex gasoline station.While thus positioned, a Victory Liner Bus with body number 474 and the letters BGO printed on its front and back bumpers stopped in front of the PNB building at around 6:30 in the evening of the same day from where two females and a male got off. It was at this stage that the informant pointed out to the team “Aling Rosa” who was then carrying a traveling bag.Having ascertained that accused-appellant was “Aling Rosa,” the team approached her and introduced themselves as NARCOM agents. When P/Lt. Abello asked “Aling Rosa” about the contents of her bag, the latter handed it to the former.Upon inspection, the bag was found to contain dried marijuana leaves packed in a plastic bag marked “Cash Katutak.” The team confiscated the bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his signature. Accused-appellant was then brought to the NARCOM office for investigation where a Receipt of Property Seized was prepared for the confiscated marijuana leaves.Upon examination of the seized marijuana specimen at the PC/INP Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic Chemist, prepared a Technical Report stating that said specimen yielded positive results for marijuana, a prohibited drug.After the presentation of the testimonies of the arresting officers and of the above technical report, the prosecution rested its case.Instead of presenting its evidence, the defense filed a “Demurrer to Evidence” alleging the illegality of the search and seizure of the items thereby violating accused-appellant’s constitutional right against unreasonable search and seizure as well as their inadmissibility in evidence.The said “Demurrer to Evidence” was, however, denied without the trial court ruling on the alleged illegality of the search and seizure and the inadmissibility in evidence of the items seized to avoid pre-judgment. Instead, the trial court continued to hear the case.In view of said denial, accused-appellant testified on her behalf. As expected, her version of the incident differed from that of the prosecution. She claimed that immediately prior to her arrest, she had just come from Choice Theater where she watched the movie

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“Balweg.” While about to cross the road, an old woman asked her help in carrying a shoulder bag. In the middle of the road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them to the NARCOM Office.During investigation at said office, she disclaimed any knowledge as to the identity of the woman and averred that the old woman was nowhere to be found after she was arrested. Moreover, she added that no search warrant was shown to her by the arresting officers.After the prosecution made a formal offer of evidence, the defense filed a “Comment and/or Objection to Prosecution’s Formal Offer of Evidence” contesting the admissibility of the items seized as they were allegedly a product of an unreasonable search and seizure.Not convinced with her version of the incident, the Regional Trial Court of Olongapo City convicted accused-appellant of transporting eight (8) kilos and five hundred (500) grams of marijuana from Baguio City to Olongapo City in violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972 and sentenced her to life imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos without subsidiary imprisonment in case of insolvency. 2

In this appeal, accused-appellant submits the following:1. The trial court erred in holding that the NARCOM agents could not apply for a warrant for the search of a bus or a passenger who boarded a bus because one of the requirements for applying a search warrant is that the place to be searched must be specifically designated and described.2. The trial court erred in holding or assuming that if a search warrant was applied for by the NARCOM agents, still no court would issue a search warrant for the reason that the same would be considered a general search warrant which may be quashed.3. The trial court erred in not finding that the warrantless search resulting to the arrest of accused-appellant violated the latter’s constitutional rights.4. The trial court erred in not holding that although the defense of denial is weak yet the evidence of the prosecution is even weaker.These submissions are impressed with merit.In People v. Ramos, 3 this Court held that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the Constitution which provides:Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.This constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against “unreasonable” searches and seizures. The plain import of the language of the Constitution, which in one sentence prohibits unreasonable searches and seizures and at the same time prescribes the requisites for a valid warrant, is that searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. 4

Further, articles which are the product of unreasonable searches and seizures are inadmissible as evidence pursuant to the doctrine

pronounced in Stonehill v. Diokno. 5 This exclusionary rule was later enshrined in Article III, Section 3(2) of the Constitution, thus:Sec. 3(2). Any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding.From the foregoing, it can be said that the State cannot simply intrude indiscriminately into the houses, papers, effects, and most importantly, on the person of an individual. The constitutional provision guaranteed an impenetrable shield against unreasonable searches and seizures. As such, it protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint. 6

Therewithal, the right of a person to be secured against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. A statute, rule or situation which allows exceptions to the requirement of a warrant of arrest or search warrant must perforce be strictly construed and their application limited only to cases specifically provided or allowed by law. To do otherwise is an infringement upon personal liberty and would set back a right so basic and deserving of full protection and vindication yet often violated. 7

The following cases are specifically provided or allowed by law:1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court 8 and by prevailing jurisprudence;2. Seizure of evidence in “plain view,” the elements of which are:(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(b) the evidence was inadvertently discovered by the police who had the right to be where they are;(c) the evidence must be immediately apparent, and(d) “plain view” justified mere seizure of evidence without further search;3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;4. Consented warrantless search;5. Customs search; 9

6. Stop and Frisk; 10and7. Exigent and Emergency Circumstances. 11

The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted.Although probable cause eludes exact and concrete definition, it generally signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged. It likewise refers to the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. 12

It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to

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the calibrations of our rules of evidence of which his knowledge is technically nil. Rather, he relies on the calculus of common sense which all reasonable men have in abundance. The same quantum of evidence is required in determining probable cause relative to search. Before a search warrant can be issued, it must be shown by substantial evidence that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. 13

In searches and seizures effected without a warrant, it is necessary for probable cause to be present. Absent any probable cause, the article(s) seized could not be admitted and used as evidence against the person arrested. Probable cause, in these cases, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed.In our jurisprudence, there are instances where information has become a sufficient probable cause to effect a warrantless search and seizure.In People v. Tangliben, 14 acting on information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red traveling bag who was acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.In instant case, the apprehending officers already had prior knowledge from their informant regarding Aruta’s alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug traffickers as their “business address”. More significantly, Tangliben was acting suspiciously. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant case, there is no single indication that Aruta was acting suspiciously.In People v. Malmstedt, 15 the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of the officers conducting the operation. The Court held that in light of such circumstances, to deprive the agents of the ability and facility to act promptly, including a search without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers had reasonable time within which to secure a search warrant. Second, Aruta’s identity was priorly ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched while about to cross a street.In People v. Bagista, 16 the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential information they received from their regular informant that a woman having the same appearance as that of accused-appellant would be bringing marijuana from up north. They likewise had probable cause to search accused-

appellant’s belongings since she fitted the description given by the NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant.In Manalili v. Court of Appeals and People, 17 the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be “high” on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually “high” on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts.In all the abovecited cases, there was information received which became the bases for conducting the warrantless search. Furthermore, additional factors and circumstances were present which, when taken together with the information, constituted probable causes which justified the warrantless searches and seizures in each of the cases.In the instant case, the determination of the absence or existence of probable cause necessitates a reexamination of the facts. The following have been established: (1) In the morning of December 13, 1988, the law enforcement officers received information from an informant named “Benjie” that a certain “Aling Rosa” would be leaving for Baguio City on December 14, 1988 and would be back in the afternoon of the same day carrying with her a large volume of marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory Liner Bus carrying a traveling bag even as the informant pointed her out to the law enforcement officers; (3) The law enforcement officers approached her and introduced themselves as NARCOM agents; (4) When asked by Lt. Abello about the contents of her traveling bag, she gave the same to him; (5) When they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then brought to the NARCOM office for investigation.This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him.Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit’s identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19,

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series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada’s constitutional right.In the instant case, the NARCOM agents were admittedly not armed with a warrant of arrest. To legitimize the warrantless search and seizure of accused-appellant’s bag, accused-appellant must have been validly arrested under Section 5 of Rule 113 which provides inter alia:Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:(a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;xxx xxx xxxAccused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests.Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant’s bag, there being no probable cause and the accused-appellant not having been lawfully arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles seized could not be used as evidence against accused-appellant for these are “fruits of a poisoned tree” and, therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the Constitution.Emphasis is to be laid on the fact that the law requires that the search be incidental to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Where a search is first undertaken, and an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law. 18

As previously discussed, the case in point is People v. Aminnudin 19 where, this Court observed that:. . . 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.In the absence of probable cause to effect a valid and legal warrantless arrest, the search and seizure of accused-appellant’s bag would also not be justified as seizure of evidence in “plain view” under the second exception. The marijuana was obviously not immediately apparent as shown by the fact that the NARCOM agents still had to request accused-appellant to open the bag to ascertain its contents.Neither would the search and seizure of accused-appellant’s bag be justified as a search of a moving vehicle. There was no moving vehicle to speak of in the instant case as accused-appellant was apprehended several minutes after alighting from the Victory Liner bus. In fact, she was accosted in the middle of the street and not while inside the vehicle.People v. Solayao, 20 applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. 21 In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to “stop and frisk” accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime.The warrantless search and seizure could not likewise be categorized under exigent and emergency circumstances, as applied in People v. De Gracia. 22 In said case, there were intelligence reports that the building was being used as headquarters by the RAM during a coup d’ etat. A surveillance team was fired at by a group of armed men coming out of the building and the occupants of said building refused to open the door despite repeated requests. There were large quantities of explosives and ammunitions inside the building. Nearby courts were closed and general chaos and disorder prevailed. The existing circumstances sufficiently showed that a crime was being committed. In short, there was probable cause to effect a warrantless search of the building. The same could not be said in the instant case.The only other exception that could possibly legitimize the warrantless search and seizure would be consent given by the accused-appellant to the warrantless search as to amount to a waiver of her constitutional right. The Solicitor General argues that accused-appellant voluntarily submitted herself to search and inspection citing People v. Malasugui 23 where this Court ruled:When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from complaining later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.In support of said argument, the Solicitor General cited the testimony of Lt. Abello, thus:Q When this informant by the name of alias Benjie pointed to Aling Rosa, what happened after that?A We followed her and introduced ourselves as NARCOM agents and confronted her with our informant and asked her what she was carrying and if we can see the bag she was carrying.Q What was her reaction?A She gave her bag to me.Q So what happened after she gave the bag to you?

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A I opened it and found out plastic bags of marijuana inside. 24

This Court cannot agree with the Solicitor General’s contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. 25 On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her.Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada, 26 where this Court held:[T]he Republic’s counsel avers that appellant voluntarily handed the chairs containing the package of marijuana to the arresting officer and thus effectively waived his right against the warrantless search. This he gleaned from Bolonia’s testimony.Q: After Roel Encinada alighted from the motor tricycle, what happened next?A: I requested to him to see his chairs that he carried.Q: Are you referring to the two plastic chairs?A: Yes, sir.Q: By the way, when Roel Encinada agreed to allow you to examine the two chairs that he carried, what did you do next?A: I examined the chairs and I noticed that something inside in between the two chairs.We are not convinced. While in principle we agree that consent will validate an otherwise illegal search, we believe that appellant — based on the transcript quoted above — did not voluntarily consent to Bolonia’s search of his belongings. Appellant’s silence should not be lightly taken as consent to such search. The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. Furthermore, considering that the search was conducted irregularly, i.e., without a warrant, we cannot appreciate consent based merely on the presumption of regularity of the performance of duty.” (Emphasis supplied)Thus, accused-appellant’s lack of objection to the search is not tantamount to a waiver of her constitutional rights or a voluntary submission to the warrantless search. As this Court held in People v. Barros: 27

. . . [T]he accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest “simply because he failed to object” —. . . To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v. Locsin (supra):xxx xxx xxx. . . As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law. (Citation omitted).We apply the rule that: “courts indulge every reasonable presumption against waiver of fundamental constitutional rights and

that we do not presume acquiescence in the loss of fundamental rights.” 28(Emphasis supplied)To repeat, to constitute a waiver, there should be an actual intention to relinquish the right. As clearly illustrated in People v. Omaweng, 29 where prosecution witness Joseph Layong testified thus:PROSECUTOR AYOCHOK:Q — When you and David Fomocod saw the travelling bag, what did you do?A — When we saw that traveling bag, we asked the driver if we could see the contents.Q — And what did or what was the reply of the driver, if there was any?A — He said “you can see the contents but those are only clothings” (sic).Q — When he said that, what did you do?A — We asked him if we could open and see it.Q — When you said that, what did he tell you?A — He said “you can see it”.Q — And when he said “you can see and open it,” what did you do?A — When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag.Q — And when you saw that it was not clothings (sic), what did you do?A — When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana. (Emphasis supplied)In the above-mentioned case, accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. If one had been made, this Court would be the first to condemn it “as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court.” He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and traveling bag, which is not the case with Aruta.In an attempt to further justify the warrantless search, the Solicitor General next argues that the police officers would have encountered difficulty in securing a search warrant as it could be secured only if accused-appellant’s name was known, the vehicle identified and the date of its arrival certain, as in the Aminnudin case where the arresting officers had forty-eight hours within which to act.This argument is untenable.Article IV, Section 3 of the Constitution provides:. . . [N]o 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. (Emphasis supplied)Search warrants to be valid must particularly describe the place to be searched and the persons or things to be seized. The purpose of this rule is to limit the things to be seized to those and only those, particularly described in the warrant so as to leave the officers of the law with no discretion regarding what articles they shall seize to the end that unreasonable searches and seizures may not be made. 30

Had the NARCOM agents only applied for a search warrant, they could have secured one without too much difficulty, contrary to the assertions of the Solicitor General. The person intended to be searched has been particularized and the thing to be seized specified. The time was also sufficiently ascertained to be in the afternoon of December 14, 1988. “Aling Rosa” turned out to be accused-appellant and the thing to be seized was marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the NARCOM agents purposely positioned themselves near the spot where Victory Liner buses normally unload their passengers. Assuming that the NARCOM agents failed to particularize the vehicle, this would not in

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any way hinder them from securing a search warrant. The above particulars would have already sufficed. In any case, this Court has held that the police should particularly describe the place to be searched and the person or things to be seized, wherever and whenever it is feasible. 31 (Emphasis supplied)While it may be argued that by entering a plea during arraignment and by actively participating in the trial, accused-appellant may be deemed to have waived objections to the illegality of the warrantless search and to the inadmissibility of the evidence obtained thereby, the same may not apply in the instant case for the following reasons:1. The waiver would only apply to objections pertaining to the illegality of the arrest as her plea of “not guilty” and participation in the trial are indications of her voluntary submission to the court’s jurisdiction. 32 The plea and active participation in the trial would not cure the illegality of the search and transform the inadmissible evidence into objects of proof. The waiver simply does not extend this far.2. Granting that evidence obtained through a warrantless search becomes admissible upon failure to object thereto during the trial of the case, records show that accused-appellant filed a Demurrer to Evidence and objected and opposed the prosecution’s Formal Offer of Evidence.It is apropos to quote the case of People v. Barros, 33 which stated:It might be supposed that the non-admissibility of evidence secured through an invalid warrantless arrest or a warrantless search and seizure may be waived by an accused person. The a priori argument is that the invalidity of an unjustified warrantless arrest, or an arrest effected with a defective warrant of arrest may be waived by applying for and posting of bail for provisional liberty, so as to estop an accused from questioning the legality or constitutionality of his detention or the failure to accord him a preliminary investigation. We do not believe, however, that waiver of the latter necessarily constitutes, or carries with it, waiver of the former — an argument that the Solicitor General appears to be making impliedly. Waiver of the non-admissibility of the “fruits” of an invalid warrantless arrest and of a warrantless search and seizure is not casually to be presumed, if the constitutional right against unlawful searches and seizures is to retain its vitality for the protection of our people . In the case at bar, defense counsel had expressly objected on constitutional grounds to the admission of the carton box and the four (4) kilos of marijuana when these were formally offered in evidence by the prosecution. We consider that appellant’s objection to the admission of such evidence was made clearly and seasonably and that, under the circumstances, no intent to waive his rights under the premises can be reasonably inferred from his conduct before or during the trial. (Emphasis supplied).In fine, there was really no excuse for the NARCOM agents not to procure a search warrant considering that they had more than twenty-four hours to do so. Obviously, this is again an instance of seizure of the “fruit of the poisonous tree,” hence illegal and inadmissible subsequently in evidence.The exclusion of such evidence is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and spirit of the prohibition against unreasonable searches and seizures. 34

While conceding that the officer making the unlawful search and seizure may be held criminally and civilly liable, the Stonehill case observed that most jurisdictions have realized that the exclusionary rule is “the only practical means of enforcing the constitutional

injunction” against abuse. This approach is based on the justification made by Judge Learned Hand that “only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed.” 35

Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary to the public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 36

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 to pay for the loss of liberty. As Justice Holmes declared: “I think it is less evil that some criminals escape than that the government should play an ignoble part.” It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 37

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE. For lack of evidence to establish her guilt beyond reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED and ordered RELEASED from confinement unless she is being held for some other legal grounds. No costs. SO ORDERED.PEOPLE VS MALMSTEDTIn an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case is as follows:Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902.1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs.2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

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At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof.During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport.Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis.In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.Likewise, accused alleged that when the NARCOM officers demanded for his passport and other Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's defense.The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer

that the hashish was planted by the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs.Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as amended.SO ORDERED.4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.5 However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances.6

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may, without a warrant, arrest a person:(a) When, in his presence, the person to be arrested has committed is actually committing, or is attempting to commit an offense;(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest.7

While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there

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was sufficient probable cause for said officers to believe that accused was then and there committing a crime.Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched.8 The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused,10or where the accused was acting suspiciously,11 and attempted to flee.12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City.When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case,13 the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant.It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents

of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED. Costs against the accused-appellant.SO ORDERED.

PAPA VS MAGO This is an original action for prohibition and certiorari, with preliminary injunction filed by Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis, Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of the Court of First Instance of Manila, praying for the annulment of the order issued by respondent Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967, which authorized the release under bond of certain goods which were seized and held by petitioners in connection with the enforcement of the Tariff and Customs Code, but which were claimed by respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said case. Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police Department, acting upon a reliable information received on November 3, 1966 to the effect that a certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the following day from the customs zone of the port of

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Manila and loaded on two trucks, and upon orders of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1 at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a "Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau of Customs in the name of a certain Bienvenido Naguit. Claiming to have been prejudiced by the seizure and detention of the two trucks and their cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No. 67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657 Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police Department without search warrant issued by a competent court; that anila Chief of Police Ricardo Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally assigned appraisers to examine the goods because the goods were no longer under the control and supervision of the Commissioner of Customs; that the goods, even assuming them to have been misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and Customs Code because Remedios Mago had bought them from another person without knowledge that they were imported illegally; that the bales had not yet been opened, although Chief of Police Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and that unless restrained their constitutional rights would be violated and they would truly suffer irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a restraining order, ex parte, enjoining the above-named police and customs authorities, or their agents, from opening the bales and examining the goods, and a writ of mandamus for the return of the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their favor. On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex parte restraining the respondents in Civil Case No. 67496 — now petitioners in the instant case before this Court — from opening the nine bales in question, and at the same time set the hearing of the petition for preliminary injunction on November 16, 1966. However, when the restraining order was received by herein petitioners, some bales had already been opened by the examiners of the Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city fiscal and a representative of herein respondent Remedios Mago. Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed, on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary Injunction", denying the alleged illegality of the seizure and

detention of the goods and the trucks and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case, the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs had not lost jurisdiction over the goods because the full duties and charges thereon had not been paid; that the members of the Manila Police Department had the power to make the seizure; that the seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and Customs Code could effect search, seizures and arrests in inland places in connection with the enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein petitioners averred in the court below that the writ could not be granted for the reason that Remedios Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the case. At the hearing on December 9, 1966, the lower Court, with the conformity of the parties, ordered that an inventory of the goods be made by its clerk of court in the presence of the representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center of the Manila Police Department. On December 13, 1966, the above-named persons filed a "Compliance" itemizing the contents of the nine bales. Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to release the goods, alleging that since the inventory of the goods seized did not show any article of prohibited importation, the same should be released as per agreement of the patties upon her posting of the appropriate bond that may be determined by the court. Herein petitioners filed their opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967 seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of Manila, and the determination of all questions affecting the disposal of property proceeded against in seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January 30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the goods. On March 7, 1967, the respondent Judge issued an order releasing the goods to herein respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March 13, 1967, said respondent filed the corresponding bond. On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for reconsideration of the order of the court releasing the goods under bond, upon the ground that the Manila

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Police Department had been directed by the Collector of Customs of the Port of Manila to hold the goods pending termination of the seizure proceedings. Without waiting for the court's action on the motion for reconsideration, and alleging that they had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the present action for prohibition and certiorari with preliminary injunction before this Court. In their petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons: (1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of First Instance of Manila due to her failure to exhaust all administrative remedies before invoking judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release of the goods was grossly insufficient. In due time, the respondents filed their answer to the petition for prohibition and certiorari in this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long before seizure, and identification proceedings against the nine bales of goods in question were instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in question after the corresponding duties and taxes had been paid and said goods had left the customs premises and were no longer within the control of the Bureau of Customs; (3) that respondent Remedios Mago was purchaser in good faith of the goods in question so that those goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods was affected by members of the Manila Police Department at a place outside control of jurisdiction of the Bureau of Customs and affected without any search warrant or a warrant of seizure and detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers have no authority to seize the goods in question because they are not articles of prohibited importation; (7) that petitioners are estopped to institute the present action because they had agreed before the respondent Judge that they would not interpose any objection to the release of the goods under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that the bond for the release of the goods was sufficient. The principal issue in the instant case is whether or not, the respondent Judge had acted with jurisdiction in issuing the order of March 7, 1967 releasing the goods in question. The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on Informal Entry". 2 As long as the importation has not been terminated the imported goods remain under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the payment of the duties, taxes and other

charges upon the articles, or secured to be paid, at the port of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties, taxes, fees and other charges must be in full. 4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a comparison of the goods on which duties had been assessed, as shown in the "Statement and Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared, presumably to avoid the payment of duties thereon. For example, Annex B (the statement and receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H (the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320 dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2, 120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200 dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code. And this Court has held that merchandise, the importation of which is effected contrary to law, is subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had been brought out of the customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon the Collector of Customs the duty to hold possession of all imported articles upon which duties, taxes, and other charges have not been paid or secured to be paid, and to dispose of the same according to law. The goods in question, therefore, were under the custody and at the disposal of the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496, was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been issued by the Collector of Customs. The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of Cebu City 90 bales of assorted textiles

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and rags, valued at P117,731.00, which had been imported and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an inter-island vessel. When the goods where about to leave the customs premises in Manila, on October 6, 1964, the customs authorities held them for further verification, and upon examination the goods were found to be different from the declaration in the cargo manifest of the carrying vessel. Francindy Commercial subsequently demanded from the customs authorities the release of the goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was involved so the Bureau of Customs had no right to examine the goods; and that the goods came from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector of Customs of the port of Manila to compel said customs authorities to release the goods. Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had no jurisdiction over the goods because the same were not imported to the port of Manila; that it was not liable for duties and taxes because the transaction was not an original importation; that the goods were not in the hands of the importer nor subject to importer's control, nor were the goods imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered them to comply with the preliminary and mandatory injunction, upon the filing by Francindy Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In resolving the question raised in that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to seize the goods and institute forfeiture proceedings against them? and (2) has the Court of First Instance jurisdiction to entertain the petition for mandamus to compel the Customs authorities to release the goods? Francindy Commercial contends that since the petition in the Court of first Instance was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of the said court. The record shows, however, that the goods in question were actually seized on October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the seizure by the Customs bureau was to verify whether or not Custom duties and taxes were paid for

their importation. Hence, on December 23, 1964, Customs released 22 bales thereof, for the same were found to have been released regularly from the Cebu Port (Petition Annex "L"). As to goods imported illegally or released irregularly from Customs custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code (RA 1957). The Bureau of Customs has jurisdiction and power, among others to collect revenues from imported articles, fines and penalties and suppress smuggling and other frauds on customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957). The goods in question are imported articles entered at the Port of Cebu. Should they be found to have been released irregularly from Customs custody in Cebu City, they are subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of the Bureau of Customs pursuant to Republic Act 1937. Said proceeding should be followed; the owner of the goods may set up defenses therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act 1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in cases of seizure of imported goods would in effect render ineffective the power of the Customs authorities under the Tariff and Customs Code and deprive the Court of Tax Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v. Averia,supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First Instance is a general legislation, not to mention that the former are later enactments, the Court of First Instance should yield to the jurisdiction of the Customs authorities.

It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of the customs laws, from the moment the goods are actually in its possession or control, even if no warrant of seizure or detention had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In the present case, the Bureau of Customs actually seized the goods in question on November 4, 1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts. Much less then would the Court of First Instance of Manila have jurisdiction over the goods in question after the Collector of Customs had issued the warrant of seizure and detention on January 12, 1967. 10 And so, it cannot be said, as respondents contend, that the issuance of said warrant was only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case. The court presided by respondent Judge did not acquire jurisdiction over the goods in question when the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction. Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.

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Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police Department, could not seize the goods in question without a search warrant. This contention cannot be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the customs and tariff laws, effect searches, seizures, and arrests,11 and it was his duty to make seizure, among others, of any cargo, articles or other movable property when the same may be subject to forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and examine any box, trunk, envelope or other container wherever found when he had reasonable cause to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law; and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer to effect said search and seizure, and the latter has the legal duty to render said assistance. 14 This was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle. He was given authority by the Chief of Police to make the interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure without any search warrant issued by a competent court. The Tariff and Customs Code does not require said warrant in the instant case. The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said "dwelling house may be entered and searched only upon warrant issued by a judge or justice of the peace. . . ."17 It is our considered view, therefor, that except in the case of the search of a dwelling house, persons exercising police authority under the customs law may effect search and seizure without a search warrant in the enforcement of customs laws. Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799, wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and Customs Code, said as follows:

Thus contemporaneously with the adoption of the 4th Amendment, we find in the first Congress, and in the following second and fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house of similar place, and like goods in course of transportation and concealed in a movable vessel, where readily they could be put out of reach of a search warrant. . . . Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it was made lawful for customs officers not only to board and search vessels

within their own and adjoining districts, but also to stop, search and examine any vehicle, beast or person on which or whom they should suspect there was merchandise which was subject to duty, or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares, or merchandise thereon, which they had probably cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap. 100), for a year and expired. The Act of February 28, 1865, revived § 2 of the Act of 1815, above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter embodied in the Revised Statutes as § 3061, Comp. Stat. § 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161. Neither § 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .

In the instant case, we note that petitioner Martin Alagao and his companion policemen did not have to make any search before they seized the two trucks and their cargo. In their original petition, and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege that there was a search. 18All that they complained of was,

That while the trucks were on their way, they were intercepted without any search warrant near the Agrifina Circle and taken to the Manila Police Department, where they were detained.

But even if there was a search, there is still authority to the effect that no search warrant would be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267 U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question raised by defendant's counsel was whether an automobile truck or an automobile could be searched without search warrant or other process and the goods therein seized used afterwards as evidence in a trial for violation of the prohibition laws of the State. Same counsel contended the negative, urging the constitutional provision forbidding unreasonable searches and seizures. The Court said:

. . . Neither our state nor the Federal Constitution directly prohibits search and seizure without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is forbidden. . . .

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. . . The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the circumstances under which it is made must be looked to. The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called "bootleging" or "rum running," which is itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition, and not a theory, confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made.

Having declared that the seizure by the members of the Manila Police Department of the goods in question was in accordance with law and by that seizure the Bureau of Customs had acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal and decisive issue in the present case. We do not consider it necessary, for the purposes of this decision, to discuss the incidental issues raised by the parties in their pleadings. WHEREFORE, judgment is hereby rendered, as follows: (a) Granting the writ of certiorari and prohibition prayed for by petitioners; (b) Declaring null and void, for having been issued without jurisdiction, the order of respondent Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First Instance of Manila; (c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967 restraining respondent Judge from executing, enforcing and/or implementing his order of March 7, 1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any manner in said case; (d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila; and1äwphï1.ñët (e) Ordering the private respondent, Remedios Mago, to pay the costs. It is so ordered

PEOPLE VS LO HO WING

This case involves the unlawful transport of metamphetamine, a regulated drug under Republic Act No. 6425, as amended. One of its derivatives is metamphetamine hydrochloride, notoriously known in street parlance as "shabu" or "poor man's cocaine."Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio Lim and Reynaldo Tia, were charged with a violation of Section 15, Article III of the aforementioned statute otherwise known as the Dangerous Drugs Act of 1972, before Branch 114 of the Regional Trial Court of Pasay City. Only appellant and co-accused Lim Cheng Huat were convicted. They were sentenced to suffer life imprisonment, to pay a fine of P25,000.00 each, and to pay the costs. Their co-accused Reynaldo Tia was discharged as a state witness. The pertinent portion of the information reads as follows:

That on or about the 6th day of October, 1987, in Pasay City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, without authority of law, did then and there willfully, unlawfully and feloniously deliver, dispatch or transport 56 teabags of Metamphetamine, a regulated drug.Contrary to law. 1

The antecedent facts of the case as found by the trial court are as follows:In July 1987, the Special Operations Group, a unit of the Criminal Investigation Service (CIS) of the Philippine Constabulary (PC), received a tip from one of its informers about an organized group engaged in the importation of illegal drugs, smuggling of contraband goods, and gunrunning. After an evaluation of the information thus received, a project codenamed "OPLAN SHARON 887" was created in order to bust the suspected syndicate.As part of the operations, the recruitment of confidential men and "deep penetration agents' was carried out to infiltrate the crime syndicate. One of those recruited was the discharged accused, Reynaldo Tia (hereinafter referred to as Tia).Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to as Lim) by another confidential agent named George on August 3, 1987. Lim expressed a desire to hire a male travelling companion for his business nips abroad. Tia offered his services and was hired.Lim and Tia met anew on several occasions to make arrangements for a trip to China. In the course of those meetings, Tia was introduced to Peter Lo (hereinafter referred to as appellant), whom Tia found out to be the person he was to accompany to China in lieu of Lim.As a "deep penetration agent," Tia regularly submitted reports of his undercover activities on the suspected criminal syndicate. Meanwhile, the officer-in-charge of OPLAN SHARON 887, Captain Luisito Palmera, filed with his superiors the reports submitted to him, and officially informed the Dangerous Drugs Board of Tia's activities.On October 4, 1987, appellant and Tia left for Hongkong on board a Philippine Airlines flight. Before they departed, Tia was able to telephone Captain Palmera to inform him of their expected date of return to the Philippines as declared in his round-trip plane ticket-October 6, 1987 at two o'clock in the afternoon.The day after they arrived in Hongkong, Tia and appellant boarded a train bound for Guangzhou, in the People's Republic of China. Upon arriving there, they checked in at a hotel, and rested for a few hours. The pair thereafter went to a local store where appellant purchased

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six (6) tin cans of tea. Tia saw the paper tea bags when the cans were opened for examination during the purchase. Afterwards, they returned to the hotel. Appellant kept the cans of tea in his hotel room. That evening, Tia went to appellant's room to talk to him. Upon entering, he saw two other men with appellant. One was fixing the tea bags, while the other was burning substance on a piece of aluminum foil using a cigarette lighter. Appellant joined the second man and sniffed the smoke emitted by the burning substance. Tia asked the latter what they would be bringing back to the Philippines. He was informed that their cargo consisted of Chinese drugs. Tia stayed in the room for about twenty minutes before going back to his room to sleep.The next day, October 6,1987, the two returned to Manila via a China Airlines flight. Appellant had with him his red traveling bag with wheels. Before departing from Guangzhou however, customs examiners inspected their luggage. The tin cans of tea were brought out from the traveling bag of appellant. The contents of the cans were not closely examined, and appellant was cleared along with Tia.The plane landed at the Ninoy Aquino International Airport (NAIA), then named Manila International Airport, on schedule. Lim met the newly-arrived pair at the arrival area. Lim talked to appellant, while Tia, upon being instructed, looked after their luggage. After Lim and appellant finished their conversation, the latter hailed a taxicab. Appellant and Tia boarded the taxicab after putting their luggage inside the back compartment of the vehicle. Lim followed in another taxi cab.Meanwhile, a team composed of six operatives headed by Captain Palmera was formed to act on the tip given by Tia. On the expected date of arrival, the team proceeded to the NAIA. Captain Palmera notified the Narcotics Command (NARCOM) Detachment at the airport for coordination. After a briefing, the operatives were ordered to take strategic positions around the arrival area. Two operatives stationed just outside the arrival area were the first ones to spot the suspects emerging therefrom. Word was passed on to the other members of the team that the suspects were in sight. Appellant was pulling along his red traveling bag while Tia was carrying a shoulder bag. The operatives also spotted Lim meeting their quarry.Upon seeing appellant and Tia leave the airport, the operatives who first spotted them followed them. Along Imelda Avenue, the car of the operatives overtook the taxicab ridden by appellant and Tia and cut into its path forcing the taxi driver to stop his vehicle. Meanwhile, the other taxicab carrying Lim sped away in an attempt to escape. The operatives disembarked from their car, approached the taxicab, and asked the driver to open the baggage compartment. Three pieces of luggage were retrieved from the back compartment of the vehicle. The operatives requested from the suspects permission to search their luggage. A tin can of tea was taken out of the red traveling bag owned by appellant. Sgt. Roberto Cayabyab, one of the operatives, pried the lid open, pulled out a paper tea bag from the can and pressed it in the middle to feel its contents. Some crystalline white powder resembling crushed alum came out of the bag. The sergeant then opened the tea bag and examined its contents more closely. Suspecting the crystalline powder to be a dangerous drug, he had the three traveling bags opened for inspection. From the red traveling bag, a total of six (6) tin cans were found, including the one previously opened. Nothing else of consequence was recovered from the other bags. Tia and appellant were taken to the CIS Headquarters in Quezon City for questioning.

Meanwhile, the second taxicab was eventually overtaken by two other operatives on Retiro Street, Quezon City. Lim was likewise apprehended and brought to the CIS Headquarters for interrogation.During the investigation of the case, the six tin cans recovered from the traveling bag of appellant were opened and examined. They contained a total of fifty-six (56) paper tea bags with white crystalline powder inside instead of tea leaves.The tea bag opened by Sgt. Cayabyab during the search and seizure was sent to the PC-INP Crime Laboratory for preliminary examination. Tests conducted on a sample of the crystalline powder inside the tea bag yielded a positive result that the specimen submitted was metamphetamine. Samples from each of the fifty-six (56) tea bags were similarly tested. The tests were also positive for metamphetamine. Hence, the three suspects were indicted.In rendering a judgment of conviction, the trial court gave full credence to the testimonies of the government anti-narcotics operatives, to whom the said court applied the well-settled presumption of regularity in the performance of official duties.Appellant now assigns three errors alleged to have been committed by the trial court, namely:

I.THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH AND SEIZURE ON THE ACCUSED AS ILLEGAL.

II.THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF DELIVERING, DISPATCHING OR TRANSPORTING METAMPHETAMINE, A REGULATED DRUG.

III.THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO TESTIFY FOR THE PROSECUTION. 2

We affirm.Anent the first assignment of error, appellant contends that the warrantless search and seizure made against the accused is illegal for being violative of Section 2, Article III of the Constitution. He reasons that the PC-CIS officers concerned could very well have procured a search warrant since they had been informed of the date and time of a arrival of the accused at the NAIA well ahead of time, specifically two (2) days in advance. The fact that the search and seizure in question were made on a moving vehicle, appellant argues, does not automatically make the warrantless search herein fall within the coverage of the well-known exception to the rule of the necessity of a valid warrant to effect a search because, as aforementioned, the anti-narcotics agents had both time and opportunity to secure a search warrant.The contentions are without merit. As correctly averred by appellee, that search and seizure must be supported by a valid warrant is not an absolute rule. There are at least three (3) well-recognized exceptions thereto. As set forth in the case of Manipon, Jr. vs. Sandiganbayan, 3 these are: [1] a search incidental to an arrest, [2] a search of a moving vehicle, and [3] seizure of evidence in plain view (emphasis supplied). The circumstances of the case clearly show that the search in question was made as regards a moving vehicle. Therefore, a valid warrant was not necessary to effect the search on appellant and his co-accused.In this connection, We cite with approval the averment of the Solicitor General, as contained in the appellee's brief, that the rules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge—a

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requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle that can transport contraband from one place to another with impunity. 4

We might add that a warrantless search of a moving vehicle is justified on the ground that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 5

In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case.The second assignment of error is likewise lacking in merit. Appellant was charged and convicted under Section 15, Article III of Republic Act No. 6425, as amended, which reads:

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, dispose, deliver, transport or distribute any regulated drug (emphasis supplied).

The information charged the accused of delivering, transporting or dispatching fifty-six (56) tea bags containing metamphetamine, a regulated drug. The conjunction "or' was used, thereby implying that the accused were being charged of the three specified acts in the alternative. Appellant argues that he cannot be convicted of "delivery" because the term connotes a source and a recipient, the latter being absent under the facts of the case. It is also argued that "dispatching' cannot apply either since appellant never sent off or disposed of drugs. As for "transporting," appellant contends that he cannot also be held liable therefor because the act of transporting necessarily requires a point of destination, which again is non- existent under the given facts.The contentions are futile attempts to strain the meaning of the operative acts of which appellant and his co-accused were charged in relation to the facts of the case. There is no doubt that law enforcers caught appellant and his co-accused in flagrante delicto of transporting a prohibited drug. The term "transport" is defined as "to carry or convey from one place to another." 6 The operative words in the definition are "to carry or convey." The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. It is immaterial whether or not the place of destination is reached. Furthermore, the argument of appellant gives rise to the illogical conclusion that he and his co- accused did not intend to bring the metamphetamine anywhere, i.e.they had no place of destination.The situation in the instant case is one where the transport of a prohibited drug was interrupted by the search and arrest of the accused. Interruption necessarily infers that an act had already been commenced. Otherwise, there would be nothing to interrupt.Therefore, considering the foregoing, since the information included the acts of delivery, dispatch or transport, proof beyond reasonable doubt of the commission of any of the acts so included is sufficient for conviction under Section 15, Article III of Republic Act No. 6425, as amended.

Moreover, the act of transporting a prohibited drug is a malum prohibitum because it is punished as an offense under a special law. It is a wrong because it is prohibited by law. Without the law punishing the act, it cannot be considered a wrong. As such, the mere commission of said act is what constitutes the offense punished and suffices to validly charge and convict an individual caught committing the act so punished, regardless of criminal intent. 7

As to the third assigned error, appellant contests the discharge of accused Reynaldo Tia to testify for the prosecution on the ground that there was no necessity for the same. Appellant argues that deep penetration agents such as Tia "have to take risks and accept the consequences of their actions." 8 The argument is devoid of merit. The discharge of accused Tia was based on Section 9, Rule 119 of the Rules of Court, which reads in part:

Sec. 9. Discharge of the accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may directone or more of the accused to be discharged with their consent so that they may be witnesses for the state . . . (emphasis supplied).

As correctly pointed out by the Solicitor General, the discharge of an accused is left to the sound discretion of the lower court.1âwphi1 The trial court has the exclusive responsibility to see that the conditions prescribed by the rule exist.9 In the instant case, appellant does not allege that any of the conditions for the discharge had not been met by the prosecution. Therefore, the discharge, as ordered by the trial court, stands.Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab regarding the facts surrounding the commission of the offense proves that the discharge of accused Tia is unnecessary. The allegation is baseless. Appellant himself admits that the sergeant's testimony corroborates the testimony of the discharged accused. The fact of corroboration of the testimonies bolsters the validity of the questioned discharge precisely because paragraph (a) of the aforequoted rule on discharge requires that the testimony be substantially corroborated in its material points. The corroborative testimony of the PC-CIS operative does not debunk the claim of the prosecution that there is absolute necessity for the testimony of accused Tia.WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and the appeal is thereby DISMISSED. No costs.SO ORDERED.

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PEOPLE VS MARTIThis is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the

consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof(tsn, pp. 29-30, October 6, 1987; Emphasis supplied).Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at

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the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.After trial, the court a quo rendered the assailed decision.In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies.On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State.As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession

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of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics.And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence***complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities.The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged.Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction.The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it.First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the

contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term.That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985]

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and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution.Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed.Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl?WITNESS:Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a

man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.Premises considered, we see no error committed by the trial court in rendering the assailed judgment.WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs.SO ORDERED.PEOPLE VS BONGCARAWAN

his is an appeal from the Decision[1] dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of violation of Section 16, Article III of Republic Act No. 6425[2] as amended, and sentencing him to suffer the penalty ofreclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency.

Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus:That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control eight (8)

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packs of Methamphetamine Hydrochloride, a regulated drug commonly known as Shabu, weighing approximately 400 grams, without the corresponding license or prescription.Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA 7659.[3]

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan City when its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelry. Canoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of the vessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.[4] The suspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escorted by two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase and brought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bag and small plastic packs containing white crystalline substance. Suspecting the substance to be shabu, the security personnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and its contents. They also called the Philippine Coast Guard for assistance.[5] At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and took custody of the accused and the seized items--the Samsonite suitcase, a brown bag[6] and eight (8) small plastic packs of white crystalline substance.[7] When asked about the contraband articles, the accused explained that he was just requested by a certain Alican Alex Macapudi to bring the suitcase to the latters brother in Iligan City.[8] The accused and the seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force (PAOCTF).Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters,[9] while the packs of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride, commonly known as shabu, weighing 399.3266 grams.[10]

The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manila where he met Alican Alex Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bring a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudis brother at the Iligan port. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or maleta containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi.[11] He stayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers. There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and a woman whom he recognized as his co-

passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so he went back to the economy section and took the big luggage and Macapudis Samsonite suitcase. He left the small maleta containing sunglasses and brushes for fear that they would be confiscated by the security personnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcase which he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase and found packs of white crystalline substance inside which they suspected to be shabu. They took pictures of him with the merchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to the PAOCTF.[12]

On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonable doubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659 and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventive detention shall be credited in full in favor of the accused in the service of his sentence.The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the National Bureau of Investigation for proper disposition.SO ORDERED.[13]

Hence, this appeal where the accused raises the following assignment of errors:

I.THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE IN EVIDENCE AGAINST THE ACCUSED/APPELLANT.

II.THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATED EVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM.[14]

On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing the methamphetamine hydrochloride or shabu was forcibly opened and searched without his consent, and hence, in violation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to such unlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that People v. Marti[15] is not applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman.

The contentions are devoid of merit.The right against unreasonable search and seizure is a

fundamental right protected by the Constitution.[16] Evidence acquired in violation of this right shall be inadmissible for any purpose in any proceeding.[17] Whenever this right is challenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consent to the search and seizure. It should be stressed, however, that protection is against transgression committed by the government or its agent. As held by this Court in the case of People v. Marti,[18] [i]n the absence of governmental interference, liberties guaranteed by the Constitution cannot be invoked against the State.[19] The constitutional

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proscription against unlawful searches and seizures applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.[20]

In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was only after they found shabu inside the suitcase that they called the Philippine Coast Guard for assistance. The search and seizure of the suitcase and the contraband items was therefore carried out without government intervention, and hence, the constitutional protection against unreasonable search and seizure does not apply.

There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel security personnel should be considered as one conducted by the police authorities for like the latter, the former are armed and tasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does not discharge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign function of enforcement of the law. Historically and until now, it is against them and other agents of the state that the protection against unreasonable searches and seizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcase and he had no knowledge that the same contained shabu. He submits that without knowledge or intent to possess the dangerous drug, he cannot be convicted of the crime charged.[21]

We are not persuaded.In a prosecution for illegal possession of dangerous drugs, the

following facts must be proven beyond reasonable doubt, viz: (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that such possession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug.[22] The first two elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third.

As early as 1910 in the case of United States v. Tan Misa,[23] this Court has ruled that to warrant conviction, the possession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with the possession or control of such articles.[24] It has been ruled, however, that possession of dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a satisfactory explanation of such possession.[25] Hence, the burden of evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.[26]

In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, was not given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence of palpable error or grave abuse of discretion on the part of the trial judge, the trial courts evaluation of the credibility of witnesses will not be disturbed on appeal.[27] Moreover, evidence must be credible in itself to deserve credence and weight in law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would be inspected.[28] Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock known only to the owner remains unclear. He also claims that he did not present his small maleta for inspection for fear that its contents consisting of expensive sunglasses and brushes would be

confiscated,[29] but he brought the Samsonite suitcase which is not his and also contained expensive sunglasses, and even watches.[30]

The things in possession of a person are presumed by law to be owned by him.[31] To overcome this presumption, it is necessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican Alex Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed by the trial judge:First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of the imagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall selling sunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, flesh and blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does exist, he has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused.[32]

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of the accused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Court that a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same.

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convicting accused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED.

Costs against the accused-appellant. SO ORDERED.

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