G.R. No.

81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This 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 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 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 (See
Soliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] 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.
Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes

* Penned by Judge Romeo J. Callejo.

** It reads: "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, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."

*** Forged checks.

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as
Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I.
PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES
CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal
Court of Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor
General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin 1 — hereinafter referred to as Respondents-
Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges — issued, on different dates, 3 a
total of 42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed
to the any peace officer, to search the persons above-named and/or the premises of their offices, warehouses
and/or residences, and to seize and take possession of the following personal property to wit:

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

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

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

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

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

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

As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the
contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations
have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the
amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold
therein may be.8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose
rights have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence
against them of the documents, papers and things seized from the offices and premises of the corporations
adverted to above, since the right to object to the admission of said papers in evidence belongs exclusively to the
corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings
against them in their individual capacity. 11 Indeed, it has been held:

. . . that the Government's action in gaining possession of papers belonging to the corporation did not relate
to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the
constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of
the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one
whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional
rights of defendants whose property had not been seized or the privacy of whose homes had not been
disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if
any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows,
therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and
seizure does not extend to the personal defendants but embraces only the corporation whose property was
taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

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

In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1)
whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid
or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and
things may be used in evidence against petitioners herein. 1äwphï1.ñët
Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that
accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution 13

provides:

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

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

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

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

Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this
Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart,
under the Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection
with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that
"no search warrant shall issue for more than one specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was compounded
by the description therein made of the effects to be searched for and seized, to wit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We note, however, that petitioners' theory, regarding their alleged possession of and control over the
aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in
their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of
June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit
the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits
or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain
either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and
the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently
established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of
the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our
opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future.

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

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

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

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

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

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

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

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

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

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

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the
petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and
effects that were seized from places other than their family residences.

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

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

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

Ownership of matters seized gives "standing."

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

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

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

Control of premises searched gives "standing."

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

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

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

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

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

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

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

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful
search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal
Inspector's search and seizure of the corporation's books and records merely because the appellant did not
show ownership or possession of the books and records or a substantial possessory interest in the invade
premises . . . (Henzel vs. United States, 296 F. 2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police
officers seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim
ownership of either; he asserted that several employees (including himself) used the notebooks. The Court held that
the employee had a protected interest and that there also was an invasion of privacy. Both Henzel and Villano
considered also the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United
States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683.

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

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

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

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

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

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

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

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

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

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

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

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

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions,
the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of
their protection from cases not criminal in origin or nature.

Footnotes

Hon. Jose W. Diokno, in his capacity as Secretary of Justice, Jose Lukban, in his capacity as Acting
1

Director, National Bureau of Investigation, Special Prosecutors Pedro D. Cenzon, Efren I. Plana and Manuel
Villareal, Jr. and Assistant Fiscal Maneses G. Reyes, City of Manila.

Hon. Amado Roan, Judge of the Municipal (now City) Court of Manila, Hon. Roman Cansino, Judge of the
2

Municipal (now City) Court of Manila, Hon. Hermogenes Caluag, Judge of the Court of First Instance of
Rizal, Quezon City Branch, Hon. Eulogio Mencias, Judge of the Court of First Instance of Rizal, Pasig
Branch, and Hon. Damian Jimenez, Judge of the Municipal (now City) Court of Quezon City.

3
Covering the period from March 3 to March 9, 1962.

4
Harry S. Stonehill, Robert P. Brooks, John J. Brooks and Karl Beck.

U.S. Tobacco Corporation, Atlas Cement Corporation, Atlas Development Corporation, Far East Publishing
5

Corporation (Evening News), Investment Inc., Industrial Business Management Corporation, General
Agricultural Corporation, American Asiatic Oil Corporation, Investment Management Corporation, Holiday
Hills, Inc., Republic Glass Corporation, Industrial and Business Management Corporation, United Housing
Corporation, The Philippine Tobacco-Flue-Curing and Redrying Corporation, Republic Real Estate
Corporation and Merconsel Corporation.

6
Inter alia.

7
"Without prejudice to explaining the reasons for this order in the decision to be rendered in the case, the
writ of preliminary injunction issued by us in this case against the use of the papers, documents and things
from the following premises: (1) The office of the U.S. Tobacco Corp. at the Ledesma Bldg., Arzobispo St.,
Manila; (2) 932 Gonzales, Ermita, Manila; (3) office at Atlanta St. bounded by Chicago, 15th & 14th Sts.,
Port Area, Manila; (4) 527 Rosario St., Mla.; (5) Atlas Cement Corp. and/or Atlas Development Corp.,
Magsaysay Bldg., San Luis, Ermita, Mla.; (6) 205 13th St., Port Area, Mla.; (7) No. 224 San Vicente St.,
Mla.; (8) Warehouse No. 2 at Chicago & 23rd Sts., Mla.; (9) Warehouse at 23rd St., between Muelle de San
Francisco & Boston, Port Area, Mla.; (10) Investment Inc., 24th St. & Boston; (11) IBMC, Magsaysay Bldg.,
San Luis, Mla.; (12) General Agricultural Corp., Magsaysay Bldg., San Luis, Manila; (13) American Asiatic
Oil Corp., Magsaysay Bldg., San Luis, Manila; (14) Room 91, Carmen Apts.; Dewey Blvd., Manila; (15)
Warehouse Railroad St. between 17 & 12 Sts., Port Area, Manila; (16) Rm. 304, Army & Navy Club, Manila,
South Blvd.; (17) Warehouse Annex Bldg., 18th St., Port Area, Manila; (18) Rm. 81 Carmen Apts.; Dewey
 Blvd., Manila; (19) Holiday Hills, Inc., Trinity Bldg., San Luis, Manila; (20) No. 2008 Dewey Blvd.; (21)
Premises of 24th St. & Boston, Port Area, Manila; (22) Republic Glass Corp., Trinity Bldg., San Luis, Manila;
(23) IBMC, 2nd Floor, Trinity Bldg., San Luis, Manila; (24) IBMC, 2nd Flr., Gochangco Blg., 610 San Luis,
Manila; (25) United Housing Corp., Trinity Bldg., San Luis, Manila; (26) Republic Real Estate Corp., Trinity
Bldg., San Luis, Manila; (27) 1437 Colorado St., Malate, Manila; (28) Phil. Tobacco Flue-Curing, Magsaysay
Bldg., San Luis, Manila and (29) 14 Baldwin St., Sta. Cruz, Manila, in the hearing of Deportation Cases Nos.
R-953 and 955 against petitioners, before the Deportation Board, is hereby lifted. The preliminary injunction
shall continue as to the papers, documents and things found in the other premises namely: in those of the
residences of petitioners, as follows: (1) 13 Narra Road, Forbes Park, Makati, Rizal; (2) 15 Narra Road,
Forbes Park, Makati, Rizal; and (3) 8 Urdaneta Avenue, Urdaneta Village, Makati, Rizal."

8
Newingham, et al. vs. United States, 4 F. 2d. 490.

9
Lesis vs. U.S., 6 F. 2d. 22.

In re Dooley (1931) 48 F 2d. 121; Rouda vs. U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F. 69; Ganci vs.
10

U.S., 287 F. Moris vs. U.S., 26 F. 2d 444.

11
U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio, 57 Phil. 384, 394.

12
On March 22, 1962.

13
Section 1, paragraph 3, of Article III thereof.

14
Reading: . . . A search warrant shall not issue but upon probable cause 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.

. . . A search warrant shall not issue but upon probable cause in connection with one specific offense to be
15

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
persons or things to be seized.

No search warrant shall issue for more than one specific offense. (Sec. 3, Rule 126.)

16
People vs. Defore, 140 NE 585.

17
Wolf vs. Colorado, 93 L. ed. 1782.

18
Pugliese (1945) 133 F. 2d. 497.

19
Weeks vs. United States (1914) 232 U.S. 383, 58 L. ed. 652, 34 S. Ct. 341; emphasis supplied.

Gouled vs. United States (1921) 255 US 298, 65 L. ed, 647, 41 S. Ct. 261; Olmstead vs. United States
20

(1928) 277 US 438, 72 L. ed. 944, 48 S. Ct. 564, Wolf vs. Colorado, 338 US 25, 93 L. ed. 1782, 69 S. Ct.
1359; Elkins vs. United States, 364 US 206, 4 L. ed. 2d. 1669, 80 S. Ct. 1437 (1960); Mapp vs. Ohio (1961),
367 US 643, 6 L. ed. 2d. 1081, 81 S. Ct. 1684.

21
Even if remote.

Particularly, Jones vs. U.S. 362 U.S. 257; Alioto vs. U.S., 216 Fed. Supp. 49: U.S. vs. Jeffries, 72 S. Ct. 93:
22

Villano vs, U.S., 300 Fed. 2d 680; and Henzel vs. U.S., 296 Fed. 2d 650.

CASTRO, J., CONCURRING AND DISSENTING:

*
Attorney-client relationship played no part in the decision of the case.
G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS,

petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35,
UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY
FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE
HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE
WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL
TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ,
UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F.
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court,
at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In 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 facie
case 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 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.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes,
Griño-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement.
However, as to the more important issue on whether or not the prosecution of the libel case would produce a
"chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these
petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to
quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the
criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys
unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the
editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead
of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However,
this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads
the investigation and prosecution service and appoints members of appellate courts but who feels so terribly
maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press
which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense
lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond
the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize
government or to question government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound
can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not
authorized, criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights
with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous
charges, would actually invite attacks by those who desire to create sensation. It would seem that what would
ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a
high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution
for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other
words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the
words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the
willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society.
If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to
lay off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our
decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited
on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any
more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C.
P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and
the other various other formulae for the repression of expression that have been challenged
in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.

xxx xxx xxx

 Those who won our independence believed ... that public discussion is a political duty; and
that this should be a fundamental principle of the American government. They recognized
the risk to which all human institutions are subject. But they knew that order cannot be
secured merely through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law—the argument of force in
its worst form. ...

Thus we consider this case against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo
Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful
purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated
approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I
realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words, which if taken literally
may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen
the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which
have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see
no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should
proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of
our fiscals and judges are courageous individuals who would not allow any considerations of possible
consequences to their careers to stand in the way of public duty. But why should we subject them to this problem?
And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel
without bothering to fully explore the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the
dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal
libel laws are consistent with the concept of ordered liberty only when applied with
safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be
faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement.
However, as to the more important issue on whether or not the prosecution of the libel case would produce a
"chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these
petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to
quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the
criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of
governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys
unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the
editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead
of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of
malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However,
this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads
the investigation and prosecution service and appoints members of appellate courts but who feels so terribly
maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press
which would inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense
lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond
the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize
government or to question government handling of sensitive issues and public affairs, this Court and not a lower
tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound
can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not
authorized, criticism is to be expected and should be borne for the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted
position that the citizen must speak of him only with bated breath. "In the eye of our
Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights
with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous
charges, would actually invite attacks by those who desire to create sensation. It would seem that what would
ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a
high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution
for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other
words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the
words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the
willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society.
If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to
lay off certain issues or certain officials, the effect on a free press would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our
decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited
on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the
citations in Elizalde v. Gutierrez, supra).
<äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any
more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C.
P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and
the other various other formulae for the repression of expression that have been challenged
in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and
that this should be a fundamental principle of the American government. They recognized
the risk to which all human institutions are subject. But they knew that order cannot be
secured merely through fear of punishment for its infraction; that it is hazardous to
discourage thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsel is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law—the argument of force in
its worst form. ...

Thus we consider this case against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide open, and
that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. ... (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo
Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful
purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated
approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I
realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular
effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some provocative words, which if taken literally
may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen
the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which
have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see
no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second
issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should
proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal
remedies if somebody vilifies or maligns him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of
our fiscals and judges are courageous individuals who would not allow any considerations of possible
consequences to their careers to stand in the way of public duty. But why should we subject them to this problem?
And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel
without bothering to fully explore the more important areas of concern, the extremely difficult issues involving
government power and freedom of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the
dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal
libel laws are consistent with the concept of ordered liberty only when applied with
safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be
faithfully applied.

G.R. No. 81756 October 21, 1991

NICOMEDES SILVA @ " Comedes", MARLON SILVA, @ "Tama" and ANTONIETA SILVA, petitioners,

vs.

THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF NEGROS ORIENTAL, BRANCH XXXIII, DUMAGUETE CITY,
respondent.

Marcelo G. Flores for petitioners.

FERNAN, C.J.:

In this special civil action for certiorari, petitioners seek the nullification of Search Warrant No. 1 issued by respondent
Judge as well as the return of the money in the amount of P1,231.00 seized from petitioner Antonieta Silva.

The antecedent facts are as follows:

On June 13, 1986, M/Sgt. Ranulfo Villamor, Jr., as chief of the PC Narcom Detachment in Dumaguete City, Negros
Oriental, filed an "Application for Search Warrant" with the Regional Trial Court, Branch XXXIII, Dumaguete City against
petitioners Nicomedes Silva and Marlon Silva. 1 This application was accompanied by a "Deposition of Witness"
executed by Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo, also dated June 13, 1986. 2

On the same day. Judge Nickarter A. Ontal, then Presiding Judge of the Regional Trial Court, Branch XXXIII, Dumaguete
City, pursuant to the said "Application for Search Warrant" and "Deposition of Witness", issued Search Warrant No. 1,
directing the aforesaid police officers to search the room of Marlon Silva in the residence of Nicomedes Silva for
violation of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972. as amended. Pertinent
portions of Search Warrant No. 1 read as follows:

It appearing to the satisfaction of the undersigned after examining oath (sic) MSGT. Ranulfo T. Villamor, Jr. and his
witnesses (sic) Pfc. Arthur M. Alcoran and Pat. Leon T. Quindo that there is probable cause to believe that possession
and control of Marijuana dried leaves, cigarettes, joint has been committed or is about to be committed and that there
are good and sufficient reasons to believe that marijuana dried leaves, cigarettes, joint has in possession and/or control
at Tama's Room (Rgt. side lst Floor) located at Nono-Limbaga Drive, Tanjay, Neg. Or. which is/are:

X (Subject of the offense stated above

(Stolen or embezzled or other proceeds of fruits of the offense;

X (Used or intended to be used as means of committing an offense.

You are hereby commanded to make an immediate search at any time of the day (night) of the room of Tama Silva
residence of his father Comedes Silva to open (sic) aparadors, lockers, cabinets, cartoons, containers, forthwith seize and
take possession of the following property Marijuana dried leaves, cigarettes, joint and bring the said property to the
undersigned to be dealt with as the law directs. 3

In the course of the search, the serving officers also seized money belonging to Antonieta Silva in the amount of
P1,231.40.

On June 16, 1986, Antonieta Silva filed a motion for the return of the said amount on the grounds that the search
warrant only authorized the serving officers to seize marijuana dried leaves, cigarettes and joint, and that said officers
failed or refused to make a return of the said search warrant in gross violation of Section 11, Rule 126 of the Rules of
Court. 4

Acting on said motion, Judge Ontal issued an Order dated July 1, 1986, stating that the court "holds in abeyance the
disposition of the said amount of P1,231.40 pending the filing of appropriate charges in connection with the search
warrant." 5

On July 28, 1987, petitioners filed a motion to quash Search Warrant No. 1 on the grounds that (1) it was issued on the
sole basis of a mimeographed "Application for Search Warrant" and "Deposition of Witness", which were accomplished
by merely filling in the blanks and (2) the judge failed to personally examine the complainant and witnesses by searching
questions and answers in violation of Section 3, Rule 126 of the Rules of Court. 6

On August 11, 1987, respondent trial court, through Judge Eugenio M. Cruz, who, by then, had replaced retired Judge
Ontal, issued an Order denying the motion for lack of merit, finding the requisites necessary for the issuance of a valid
search warrant duly complied with. 7

A motion for reconsideration dated September 1, 1987 filed by petitioners was likewise denied by Judge Cruz in an order
dated October 19, 1987.

Hence, this special civil action for certiorari.

Petitioners allege that the issuance of Search Warrant No. 1 was tainted with illegality and that respondent Judge should
be viewed to have acted without or in excess of jurisdiction, or committed grave abuse of discretion amounting to lack
of jurisdiction when he issued the Order dated August 11, 1987, denying their motion to quash Search Warrant No, 1.

We rule for petitioners.

Section 2, Article III (Bill of Rights) of the 1987 Constitution guarantees the right to personal liberty and security of
homes against unreasonable searches and seizures. This section provides:

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

The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private
security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under
legislative or judicial sanction, and to give remedy against such usurpations when attempted. 8

Thus, Sections 3 and 4, Rule 126 of the Rules of Court provide for the requisites for the issuance of a search warrant, to
wit:
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 them and attach to the record their sworn statements together with any affidavits
submitted.

Based on the aforecited constitutional and statutory provisions, the judge must, before issuing a search warrant,
determine whether there is probable cause by examining the complainant and witnesses through searching questions
and answers.

In the case of Prudente vs. Dayrit, G.R. No. 82870, December 14, 1989, 180 SCRA 69, 767 this Court defined "probable
cause" as follows:

The "probable cause" for a valid search warrant, has been 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 objects sought in
connection with the offense are in the place sought to be searched". This probable cause must be shown to be within
the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay.

In the case at bar, we have carefully examined the questioned search warrant as well as the "Application for Search
Warrant" and "Deposition of Witness", and found that Judge Ontal failed to comply with the legal requirement that he
must examine the applicant and his witnesses in the form of searching questions and answers in order to determine the
existence of probable cause. The joint "Deposition of Witness" executed by Pfc. Alcoran and Pat. Quindo, which was
submitted together with the "Application for Search Warrant" contained, for the most part suggestive questions
answerable by merely placing "yes" or "no" in the blanks provided thereon. In fact there were only four (4) questions
asked, to wit:

Q Do you personally know M/Sgt. Ranulfo Villamor, Jr. the applicant for a search warrant?

A Yes, sir.

Q Do you have personal knowledge that the said premises subject of the offense stated above, and other proceeds of
fruit of the offense, used or obtain (sic) or intended to be used as means of committing an offense?
A Yes, sir.

Q Do you know personally who is/are the person who has/have the property in his/their possession and control?

A Yes, sir.

Q How did you know all this (sic) things?

A Through discreet surveillance. 9

The above deposition did not only contain leading questions but it was also very broad. The questions propounded to
the witnesses were in fact, not probing but were merely routinary. The deposition was already mimeogragphed and all
that the witnesses had to do was fill in their answers on the blanks provided.

In the case of Nolasco vs. Paño, G.R. No. 69803, October 8, 1985, 139 SCRA 152, 163, this Court held:

The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as
will induce a cautious man to rely upon them and act in pursuant thereof. Of the 8 questions asked, the 1st, 2nd and 4th
pertain to identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of
the personalities to be seized, which is identical to that in the Search Warrant and suffers from the same lack of
particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness.
Mere generalization will not suffice and does not satisfy the requirements or probable cause upon which a warrant may
issue.

Likewise, in the Prudente case cited earlier, this Court declared the search warrant issued as invalid due to the failure of
the judge to examine the witness in the form of searching questions and answers. Pertinent portion of the decision
reads:

Moreover, a perusal of the deposition of P/Lt. Florencio Angeles shows that it was too brief and short. Respondent Judge
did not examine him "in the form of searching questions and answers". On the contrary, the questions asked were
leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, "the questions propounded by
respondent Executive Judge to the applicant's witness' are not sufficiently searching to establish probable cause. 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. 10

Thus, in issuing a search warrant, the judge must strictly comply with the constitutional and statutory requirement that
he must determine the existence of probable cause by personally 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 abuse of discretion".

The officers implementing the search warrant clearly abused their authority when they seized the money of Antonieta
Silva. This is highly irregular considering that Antonieta Silva was not even named as one of the respondents, that the
warrant did not indicate the seizure of money but only of marijuana leaves, cigarettes and joints, and that the search
warrant was issued for the seizure of personal property (a) subject of the offense and (b) used or intended to be used as
means of committing an offense and NOT for personal property stolen or embezzled or other proceeds of fruits of the
offense. Thus, the then presiding Judge Ontal likewise abused his discretion when he rejected the motion of petitioner
Antonieta Silva seeking the return of her seized money.

WHEREFORE, the petition is granted. Search Warrant No. 1 is hereby declared null and void. Respondent Judge of the
Regional Trial Court of Negros Oriental, Branch XXXIII is directed to order the return to petitioner Antonieta Silva of the
amount of P1,231.40 which had earlier been seized from her by virtue of the illegal search warrant. This decision is
immediately executory. No costs.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

# Footnotes

1 Rollo, p. 20.

2 Rollo, p, 21.
3 Rollo, p. 22.

4 Rollo, pp. 23-24.

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, Petitioner, v. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding

Judge of the City Court of Ormoc, BERNARDO GOLES and REYNALDO MAYOTE,
Respondents.

Valeriano R. Ocubillo for Petitioner.

The Solicitor General for Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE;
REQUISITES FOR ISSUANCE OF SEARCH WARRANT. — Under the Constitution "no search warrant
shall issue but 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." More emphatic and detailed is the implementing rule of the
constitutional injunction, Section 4 of Rule 126 which provides that the 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.

2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS WITNESSES IN
THE CASE AT BAR. — Before issuing a search warrant, the examining Judge has to take depositions
in writing of the complainant and the witnesses he may produce and to 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, and to hold liable for perjury the person giving it if
it will be found later that his declarations are false. Mere affidavits of the complainant and his
witnesses are thus not sufficient.
3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF CASE IN CASE AT
BAR. — The judge’s insistence that she examined the complainants under oath has become dubious
by petitioner’s claim that at the particular time when he examined all the relevant papers connected
with the issuance of the questioned search warrant, after he demanded the same from the lower
court since they were not attached to the records, he did not find any certification at the back of the
joint affidavit of the complainants. Before he filed his motion to quash the search warrant and for the
return of the articles seized, he was furnished, upon his request, certified true copies of the said
affidavits by the Clerk of Court but which certified true copies do not bear any certification at the
back. Petitioner likewise claims that his xerox copy of the said joint affidavit obtained at the outset of
this case does not show also the certification of respondent judge. This doubt becomes more
confirmed by respondent Judge’s own admission, while insisting that she did examine thoroughly the
applicants, that "she did not take the deposition of Mayote and Goles because to have done so would
be to hold a judicial proceeding which will be open and public", such that, according to her, the
persons subject of the intended raid will just disappear and move his illegal operations somewhere
else. Could it be that the certification was made belatedly to cure the defect of the warrant? Be that
as it may, there was no "deposition in writing" attached to the records of the case in palpable
disregard of the statutory prohibition heretofore quoted.

4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching questions propounded to the
applicants of the search warrant and his witnesses must depend to a large extent upon the discretion
of the Judge just as long as the answers establish a reasonable ground to believe the commission of
a specific offense and that the applicant is one authorized by law, and said answers particularly
describe with certainty the place to be searched and the persons or things to be seized. The
examination or investigation which must be under oath may not be in public. It may even be held in
the secrecy of his chambers. Far more important is that the examination or investigation is not
merely routinary but one that is thorough and elicit the required information. To repeat, it must be
under oath and must be in writing.

5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. — Nothing can justify the
issuance of the search warrant but the fulfillment of the legal requisites. Thus, in issuing a search
warrant the Judge must strictly comply with the requirements of the Constitution and the statutory
provisions. In the case at bar, the search warrant is tainted with illegality by the failure of the Judge
to conform with essential requisites of taking the depositions in writing and attaching them to record,
rendering the search warrant invalid.

6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE AT BAR. —
While the search warrant is illegal, the return of the things seized cannot be ordered. In Castro v.
Pabalan (70 SCRA 478), it was held that the illegality of the search warrant does not call for the
return of the things seized, the possession of which is prohibited.

DECISION

DE CASTRO, J.:

The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by
petitioner for its alleged failure to comply with the requisites of the Constitution and the Rules of
Court.

Specifically, the contention is that the search warrant issued by respondent Judge was based merely
on the application for search warrant and a joint affidavit of private respondents which were
wrongfully it is alleged subscribed, and sworn to before the Clerk of Court of respondent Judge.
Furthermore, there was allegedly a failure on the part of respondent Judge to attach the necessary
papers pertinent to the issuance of the search warrant to the records of Criminal Case No. 4298-CC
wherein petitioner is accused under PD 810, as amended by PD 1306, the information against him
alleging that Soriano Mata offered, took and arranged bets on the Jai Alai game by "selling illegal
tickets known as ‘Masiao tickets’ without any authority from the Philippine Jai Alai & Amusement
Corporation or from the government authorities concerned." 1

Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of
the said case could be found the search warrant and other pertinent papers connected to the
issuance of the same, so that he had to inquire from the City Fiscal its whereabouts, and to which
inquiry respondent Judge replied, "it is with the court." The Judge then handed the records to the
Fiscal who attached them to the records. chanrobles.com : virtual law library

This led petitioner to file a motion to quash and annul the search warrant and for the return of the
articles seized, citing and invoking, among others, Section 4 of Rule 126 of the Revised Rules of
Court. The motion was denied by respondent Judge on March 1, 1979, stating that the court has
made a thorough investigation and examination under oath of Bernardo U. Goles and Reynaldo T.
Mayote, members of the Intelligence Section of 352nd PC Co./Police District II INP; that in fact the
court made a certification to that effect; and that the fact that documents relating to the search
warrant were not attached immediately to the record of the criminal case is of no moment,
considering that the rule does not specify when these documents are to be attached to the records. 2
Petitioner’s motion for reconsideration of the aforesaid order having been denied, he came to this
Court, with the instant petition, praying, among others, that this Court declare the search warrant to
be invalid and all the articles confiscated under such warrant as inadmissible as evidence in the case,
or in any proceedings on the matter.

We hold that the search warrant is tainted with illegality for being violative of the Constitution and
the Rules of Court.

Under the Constitution "no search warrant shall issue but 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." More emphatic and detailed is
the implementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the
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.

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 may produce and to 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 will 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. chanroblesvirtualawlibrary

The judge’s insistence that she examined the complainants under oath has become dubious by
petitioner’s claim that at the particular time when he examined all the relevant papers connected
with the issuance of the questioned search warrant, after he demanded the same from the lower
court since they were not attached to the records, he did not find any certification at the back of the
joint affidavit of the complainants. As stated earlier, before he filed his motion to quash the search
warrant and for the return of the articles seized, he was furnished, upon his request, certified true
copies of the said affidavits by the Clerk of Court but which certified true copies do not bear any
certification at the back. Petitioner likewise claims that his xerox copy of the said joint affidavit
obtained at the outset of this case does not show also the certification of respondent judge. This
doubt becomes more confirmed by respondent Judge’s own admission, while insisting that she did
examine thoroughly the applicants, that "she did not take the deposition of Mayote and Goles
because to have done so would be to hold a judicial proceeding which will be open and public", 3
such that, according to her, the persons subject of the intended raid will just disappear and move his
illegal operations somewhere else.

Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it
may, there was no "deposition in writing" attached to the records of the case in palpable disregard of
the statutory prohibition heretofore quoted.

Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every
man, woman and child, and even the lowliest laborer who could hardly make both ends meet justifies
her action. She claims that in order to abate the proliferation of this illegal "masiao" lottery, she
thought it more prudent not to conduct the taking of deposition which is done usually and publicly in
the court room.

Two points must be made clear. The term "depositions" is sometimes used in a broad sense to
describe any written statement verified by oath; but in its more technical and appropriate sense the
meaning of the word is limited to written testimony of a witness given in the course of a judicial
proceeding in advance of the trial or hearing upon oral examination. 4 A deposition is the testimony
of a witness, put or taken in writing, under oath or affirmation before a commissioner, examiner or
other judicial officer, in answer to interlocutory and cross interlocutory, and usually subscribed by the
witnesses. 5 The searching questions propounded to the applicants of the search warrant and his
witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers
establish a reasonable ground to believe the commission of a specific offense and that the applicant
is one authorized by law, and said answers particularly describe with certainty the place to be
searched and the persons or things to be seized. The examination or investigation which must be
under oath may not be in public. It may even be held in the secrecy of his chambers. Far more
important is that the examination or investigation is not merely routinary but one that is thorough
and elicit the required information. To repeat, it must be under oath and must be in writing. cralawnad

The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the
legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co.,
Inc. v. Herrera: jgc:chanrobles.com.ph

"It has been said that 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 inspection and scrutiny of others. 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 of the citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government." 6
Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal construction should be given in favor of the
individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by
the Constitution. 7 No presumption of regularity are to be invoked in aid of the process when an
officer undertakes to justify it. 8

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In
Castro v. Pabalan, 9 it was held that the illegality of the search warrant does not call for the return of
the things seized, the possession of which is prohibited.

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to
annul the search warrant as well as the order of March 21, 1979 denying the motion for
reconsideration are hereby reversed, the search warrant, being declared herein as illegal.
Notwithstanding such illegality, the things seized under such warrant, such as stock of "masiao"
tickets; "masiao" issue tickets; bet money; control pad or "masiao" numbers; stamping pad with
rubber stamp marked Ormoc City Jai-Alai," cannot be returned as sought by petitioner. No costs.

SO ORDERED.

Makasiar, Concepcion, Jr. and Guerrero, JJ., concur.

Aquino and Escolin, JJ., concur in the result.

Abad Santos, J., took no part.

Endnotes:

1. Annex "A", of the petition, p. 7, Rollo.

2. Annex "H" of the petition, p. 20, id.

3. Comment, p. 31, id.

4. 16 Am Jur, 699.

5. Words & Phrases "Demand", p. 258.

6. 54 SCRA 312.

7. Alvarez v. Court of First Instance of Tayabas, 64 Phil. 42.

8. People v. Veloso, 40 Phil. 169.

9. 70 SCRA 478.

G.R. No. 81567 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and
RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER
AGUIRRE, respondents.

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

AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.

G.R. Nos. 84583-84 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON
CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD,
T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention
Center, Camp Crame, Quezon City, respondents.

G.R. No. 83162 July 9, 1990

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA.
VIRGILIO A. OCAYA, petitioner,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents.

G.R. No. 85727 July 9, 1990

IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner,
vs.
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents.

G.R. No. 86332 July 9, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO. ALFREDO
NAZARENO, petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT.
JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO,
respondents.

Efren H. Mercado for petitioners in G.R. No. 81567.

Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.

Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84.

Efren H. Mercado for petitioner in G.R. No. 83162.

Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727.

Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.

The Solicitor General for the respondents.

PER CURIAM:

The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues raised, praying for the
issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named therein and to explain why they should not
be set at liberty without further delay.

In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not
available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in
court against them.

The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no
preliminary investigation was first conducted, so that the informations filed against them are null and void.

The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the
persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty, and
that the circumstances attending these cases do not warrant their release on habeas corpus.

The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or
instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court,
as amended, which provides:

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.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court, as
amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an offense;
or when an offense has just been committed and the person making the arrest has personal knowledge of the facts
indicating that the person arrested has committed it. The rationale behind lawful arrests, without warrant, was stated
by this Court in the case of People vs. Kagui Malasugui thus:
1

To hold that no criminal can, in any case, be arrested and searched for the evidence and
tokens of his crime without a warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their
escape in many instances.

The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus have
been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests
without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed
against them in court.

A brief narration of the facts and events surrounding each of the eight (8) petitions is in order.

In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence
Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the
NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt
Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital
records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the
killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio,
Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical Services of the
CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively
identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired
at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot.

As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who
conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging
Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in
Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was recommended. On 15
February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the
original information, was still unidentified.

Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil,
Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the
respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February
1988.

On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court of
Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were
accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot
and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an accused in a
criminal case who has been released on bail. 2

As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM
soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day
after the said shooting incident. Seemingly, his arrest without warrant is unjustified.

However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive
organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can
be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith
constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an
earlier case:

From the facts as above-narrated, the claim of the petitioners that they were initially arrested
illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses
committed in the furtherance, on the occasion thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No. 2045, are all in the nature of continuing
offenses which set them apart from the common offenses, aside from their essentially
involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the
herein detainees was well within the bounds of the law and existing jurisprudence in our
jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or
for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing
them in the course of an armed conflict, to quell the rebellion, than for the purpose of
immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not
follow the usual procedure in the prosecution of offenses which requires the determination by
a judge of the existence of probable cause before the issuance of a judicial warrant of arrest
and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant
is no legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation
that involves the very survival of society and its government and duly constituted authorities.
If killing and other acts of violence against the rebels find justification in the exigencies of
armed hostilities which is of the essence of waging a rebellion or insurrection, most
assuredly so in case of invasion, merely seizing their persons and detaining them while any
of these contingencies continues cannot be less justified. . . . 3

The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for "Double
Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and
Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the
sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as
held in the early case of U.S. vs. Wilson:4

In this case, whatever may be said about the manner of his arrest, the fact remains that the
defendant was actually in court in the custody of the law on March 29, when a complaint
sufficient in form and substance was read to him. To this he pleaded not guilty. The trial
followed, in which, and in the judgment of guilty pronounced by the court, we find no error.
Whether, if there were irregularities in bringing him personally before the court, he could
have been released on a writ of habeas corpus or now has a civil action for damages against
the person who arrested him we need not inquire. It is enough to say that such irregularities
are not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after
a trial free from error.

II

In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant, is
also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro Manila,
Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato Constantino and
other members of the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front
Commission, in charge of finance, and admitted ownership of subversive documents found in the house of her sister
in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she had no
permit or authority to possess.

The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the
NPA, who had surrendered to the military authorities, told military agents about the operations of the Communist
Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of his former
comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau; "Ka Nelia", a staff
member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka
Totoy". He also pointed to a certain house occupied by Renato Constantino located in the Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National United Front
Commission (NUFC) of the CPP-NPA.

In view of these revelations, the Constantino house was placed under military surveillance and on 12 August 1988,
pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the
house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal Investigation
Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the course of the
search, the following articles were found and taken under proper receipt:

a) One (1) Colt M16A1 long rifle with defaced serial number;

b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;

c) Two (2) fragmentation hand grenades;

d) Fifty-six (56) live ammunition for Cal. 5.56 mm;

e) Five (5) live ammunition for Cal. .380;

f) One (1) ICOM VHF FM Radio Transciever SN: 14903

g) One (1) Regulated power supply 220V AC;

h) One (1) Antennae (adjustable);

i) One (1) Speaker with cord ALEXAR;

j) Voluminous Subversive documents.

When confronted, Renato Constatino could not produce any permit or authority to possess the firearms,
ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for
investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff
member of the executive committee of the NUFC and a ranking member of the International Department of the
Communist Party of the Philippines (CPP).

At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house of
Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents that he is a
regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to Renato
Constatino, and other members of the rebel group. On further questioning, he also admitted that he is known as "Ka
Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the
following:

(1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988;

(2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988;

(3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988.

Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone number of
Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead
provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day (13
August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves as
military agents and after seeking permission to search the place, which was granted, the military agents conducted
a search in the presence of the occupants of the house and the barangay captain of the place, one Jesus D. Olba.

The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals,
vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live ammunition
for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle,
and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house were brought to the
PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the investigators
that the voluminous documents belonged to her and that the other occupants of the house had no knowledge of
them. As a result, the said other occupants of the house were released from custody.

On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an information
charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The case is
docketed therein as Criminal Case No. C-1196. Another information for violation of the Anti-Subversion Act was filed
against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal
Case No. C-150458.

An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the Metropolitan
Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail was set at
P4,000.00.

On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and Wilfredo
Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP
Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus filed on his behalf is now moot
and academic. Only the petition of Amelia Roque remains for resolution.

The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of the National
United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners. The contention
must be deemed admitted. As officers and/or members of the NUFC-CPP, their arrest, without warrant, was
5

justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was
additionally justified as she was, at the time of apprehension, in possession of ammunitions without license to
possess them.

III

In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without
warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC and,
when apprehended in the house of Renato Constatino, they had a bag containing subversive materials, and both
carried firearms and ammunition for which they had no license to possess or carry.

The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo T.
Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina Heights, Marikina, which was
still under surveillance by military agents. The military agents noticed bulging objects on their waist lines. When
frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license
to possess or carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC
Headquarters for investigation. Found in their possession were the following articles:

a) Voluminous subversive documents

b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65
containing ten (10) live ammunition of same caliber;

c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine
containing five (5) live ammunition of same caliber.

At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka Totoy" of the CPP,
by their comrades who had previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the
Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and Ramon
Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro
Manila. The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was
recommended.

On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and
Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and that
the informations filed against them are null and void for having been filed without prior hearing and preliminary
investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the respondents had filed a
Return of the Writ, the parties were heard.

The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no previous
warrant of arrest, is without merit The record shows that Domingo Anonuevo and Ramon Casiple were carrying
unlicensed firearms and ammunition in their person when they were apprehended.

There is also no merit in the contention that the informations filed against them are null and void for want of a
preliminary investigation. The filing of an information, without a preliminary investigation having been first conducted,
is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads:

Sec. 7. When accused lawfully arrested without a warrant. — When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal without a
preliminary investigation having been first conducted, on the basis of the affidavit of the
offended party or arresting officer or person.

However, before the filing of such complaint or information, the person arrested may ask for
a preliminary investigation by a proper officer in accordance with this Rule, but he must sign
a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding
rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same right to adduced evidence in his
favor in the manner prescribed in this Rule.

The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made
identical certifications, as follows:

This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of
the 1985 Rules on Criminal Procedure, that no preliminary investigation was conducted
because the accused has not made and signed a waiver of the provisions of Art. 125 of the
Revised Penal Code, as amended; that based on the evidence presented, there is
reasonable ground to believe that the crime has been committed, and that the accused is
probably guilty thereof.

Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in court.
Petitioners cannot now claim that they have been deprived of their constitutional right to due process.

IV

In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules, since
she had with her unlicensed ammunition when she was arrested. The record of this case shows that on 12 May
1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a search warrant
issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house
located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito
Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera.
Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya.
As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky
Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed therein as
Criminal Case No. 73447. Danny Rivera, on the other hand, was released from custody.

On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny Rivera.
It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a preliminary
investigation.

It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant is
justified. No preliminary investigation was conducted because she was arrested without a warrant and she refused
to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court,
as amended.

The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms,
ammunition and subversive documents alleged to have been found in their possession when they were arrested, did
not belong to them, but were "planted" by the military agents to justify their illegal arrest.

The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand, no
evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers in these cases to
accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not appear to be
seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there is
absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with
a reward of P150,000.00 each on their heads.'" On the other hand, as pointed out by the Solicitor General, the
6

arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth
surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel
movement.

The Solicitor General, in his Consolidated Memorandum, aptly observes:

. . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and
Casiple, was the lawful search and seizure conducted by the military at the residence of
Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro
Manila. The raid at Constantino's residence, was not a witch hunting or fishing expedition on
the part of the military. It was a result of an in-depth military surveillance coupled with the
leads provided by former members of the underground subversive organizations. That raid
produced positive results. to date, nobody has disputed the fact that the residence of
Constantino when raided yielded communication equipment, firearms and ammunitions, as
well as subversive documents.

The military agents working on the information provided by Constantino that other members
of his group were coming to his place, reasonably conducted a "stake-out" operation
whereby some members of the raiding team were left behind the place. True enough, barely
two hours after the raid and Constantino's arrest, petitioner Buenaobra arrived at
Constantino's residence. He acted suspiciously and when frisked and searched by the
military authorities, found in his person were letters. They are no ordinary letters, as even a
cursory reading would show. Not only that, Buenaobra admitted that he is a NPA courier and
was there to deliver the letters to Constantino.

Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra,
petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable
for the military agents to believe that petitioners Anonuevo and Casiple are among those
 expected to visit Constantino's residence considering that Constatino's information was true,
in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on
the part of the military agents, not to frisk and search anyone who should visit the residence
of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield
to Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who
was to leave for Saudi Arabia on the day they were arrested thereat?

As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest
without warrant considering that it was Buenaobra who provided the leads on her identity? It
cannot be denied that Buenaobra had connection with Roque. Because the former has the
phone number of the latter. Why the necessity of jumbling Roque's telephone number as
written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and
Buenaobra have not offered any plausible reason so far.

In all the above incidents, respondents maintain that they acted reasonably, under the time,
place and circumstances of the events in question, especially considering that at the time of
petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive
documents were found in their possession.

Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp,
but were arrested in such time, place and circumstances, from which one can reasonably
conclude tat they were up to a sinister plot, involving utmost secrecy and comprehensive
conspiracy.

IV

In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is
detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed
with the Regional Trial Court of Manila, is similarly not warranted.

The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng
Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in the
Philippines, organized for their mutual aid and protection.

Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his home
located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him that a
group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately put under
arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and
placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany
him, but the men did not accede to his request and hurriedly sped away.

He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was
interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the respondent
Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter brought to the
General Assignment Section, Investigation Division of the Western Police District under Police Capt. Cresenciano A.
Cabasal where he was detained, restrained and deprived of his liberty. 7

The respondents claim however, that the detention of the petitioner is justified in view of the Information filed against
him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging him with
violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).

The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since
petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988, during
a press conference at the National Press Club.

Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on
nationwide strike on November 23, 1988, to force the government to give into their demands
 to lower the prices of spare parts, commodities, water and the immediate release from
detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators
Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president
Medardo Roda and also announced the formation of the Alliance Drivers Association to go
on nationwide strike on November 23, 1988. 8

Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he gave the lawmen
the slip. He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers at the
9

corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say:

Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil
hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare
parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na.
(emphasis supplied)
10

The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to
police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against
him before the Regional Trial Court of Manila. 11

Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b) of
the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent court,
he may not be released on habeas corpus. He may, however be released upon posting bail as recommended.
However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it to P10,000.00
only.

VII

In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso Nazareno
that he was illegally arrested and is unlawfully detained. The record of this case shows that at about 8:30 o'clock in
the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina
and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regal
who was arrested by the police on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on
of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant,
picked up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence of
petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno, Ramil Regala,
and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro
Manila. The case is docketed therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an
order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was
granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13
January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial
Court of Biñan, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve
the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Biñan,
Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in
the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati,
Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said
Narciso Nazareno (presumably because of the strength of the evidence against him).

The findings of the Presiding Judge of the Regional Trial Court of Biñan, Laguna are based upon the facts and the
law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police without
warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil
Regala in the killing of Romulo Bunye
II; and after investigation by the police authorities. As held in People vs. Ancheta: 12

The obligation of an agent of authority to make an arrest by reason of a crime, does not
presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a
crime. For the detention to be perfectly legal, it is sufficient that the agent or person in
authority making the arrest has reasonably sufficient grounds to believe the existence of an
act having the characteristics of a crime and that the same grounds exist to believe that the
person sought to be detained participated therein.

VIII

It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts
against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court judge, and that the court or judge had jurisdiction to issue the process or
make the order, of if such person is charged before any court, the writ of habeas corpus will not be allowed. Section
4, Rule 102, Rules of Court, as amended is quite explicit in providing that:

Sec. 4. When writ is allowed or discharge authorized. — If it appears that the person alleged
to be restrained of his liberty is in the custody of an officer under process issued by a court or
judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or order. Nor
shall anything in this rule be held to authorize the discharge of a person charged with a
convicted of an offense in the Philippines or of a person suffering imprisonment under lawful
judgment. (emphasis supplied)

At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its pronouncement in
Ilagan vs. Enrile, that a writ of habeas corpus is no longer available after an information is filed against the person
13

detained and a warrant of arrest or an order of commitment, is issued by the court where said information has been
filed. The petitioners claim that the said ruling, which was handed down during the past dictatorial regime to
14

enforce and strengthen said regime, has no place under the present democratic dispensation and collides with the
basic, fundamental, and constitutional rights of the people. Petitioners point out that the said doctrine makes
possible the arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is
only after a petition for habeas corpus is filed before the court that the military authorities file the criminal information
in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners assert,
stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State action.

We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the
Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really
unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan
case doctrine is not the answer. The answer and the better practice would be, not to limit the function of the habeas
corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment
or before whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to
take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, "in all petitions for
15

habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the moment petition
was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a
scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This is
exactly what the Court has done in the petitions at bar. This is what should henceforth be done in all future cases of
habeas corpus. In Short, all cases involving deprivation of individual liberty should be promptly brought to the courts
for their immediate scrutiny and disposition.

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond
for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

SO ORDERED.
Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting and concurring:

I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a continuing offense,
to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed
under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is
doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is
sleeping, on the ground that he is committing the "continuing" offense of subversion. Libertarians were appalled
when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to
sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past
dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures.
We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it
be argued that the military should be given every support in our fight against subversion, I maintain that that fight
must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must
adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important
motivation should be what are we fighting for.

Except for this reservation and appeal, I concur with the decision.

FELICIANO, J., concurring:

I concur in the result reached in each of the eight (8) consolidated Petitions for Habeas Corpus. At the same time, I
have some reservations concerning certain statements made by the Court in G.R. No. 81567 (Umil, et al. v. Ramos)
(Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision).

In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states categorically that: "the crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof
or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes."
The majority here relies upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there made the same
equally broad statement but without any visible effort to examine the basis, scope and meaning of such a sweeping
statement. Garcia-Padilla did not even identify the specific offenses which it regarded as "in the nature of continuing
offenses which set them apart from the common offenses" (121 SCRA at 489). It appears to me that in G.R. No.
85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has in effect included the offense of "inciting
to sedition" penalized under Article 142 of the Revised Penal Code as a "continuing offense" under the capacious
blanket of the majority opinion in Garcia-Padilla, at least for purposes of determining the legality of the arrest without
a warrant of petitioner Deogracias Espiritu.

I would respectfully recall to my learned colleagues in the Court that "inciting to sedition" is defined in Article 142 of
the Revised Penal Code in terms of speech and that consequently it is important constantly do distinguish between
1

speech which is protected by the constitutional guaranty of freedom of speech and of the press and speech which
may constitutionally be regarded as violative of Article 142 of the Revised Penal Code. Precisely because speech
which the police authorities might regard as seditious or as criminal inciting to sedition may well turn out to be only
an exercise of a constitutionally guaranteed freedom, I would submit that we must apply the concept of "continuing
offense" narrowly for purposes of application of Section 5(b), Rule 113 of the Revised Rules of Court.

In my view, the very broad statement made about "continuing crimes" in G.R. No. 81567 (Umil, et al v. Ramos)
constitutes dictum, considering that Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court below
for "double murder, etc." and found guilty of the offense charged, sentenced accordingly, and at least in the case of
Rolando Dural, service of the sentence imposed upon him by the trial court had already begun.

Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of petitioner Espiritu without a warrant was
in accordance with the provisions of Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly
necessary, considering that the petitioner had already been charged in a valid information filed with the competent
court, which court had presumably issued an order for his commitment, and considering further that he is entitled to
bail.

There is thus no obstacle, to my mind, to a careful examination of the doctrine of "continuing crimes" as applied to
such offenses as subversion and inciting to sedition and possibly other offenses, in some future case where that
issue is raised squarely and is unavoidable.

Cortes, J., concurs.

SARMIENTO, J., dissenting:

I beg to differ from my brethren. I submit that habeas corpus lies in all eight cases.

G.R. No. 81567

The majority says that Rolando Dural's arrest without a warrant is lawful under the Rules of Court, which reads:

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. 1

"Rolando Dural," so states the majority, "was arrested for being a member of the New People's Army (NPA), an
outlawed subversive organization," and that "[s]ubversion being a continuing offense, the arrest of Rolando Dural
2

without a warrant is justified as it can be said that he was committing an offense when arrested." 3

As I said, I beg to differ.

First, Rolando Dural was charged with "Double Murder with Assault upon Agents of Authority." If he had been guilty
4

of subversion — the offense for which he was supposedly arrested via a warrantless arrest — subversion was the
logical crime with which he should have been charged.
The authorities could not have rightly arrested him for subversion on account of the slay of the two CAPCOM
soldiers, a possible basis for violation of the Anti-Subversion Act, because as the majority points out, "he was not
arrested while in the act of shooting [them] . . . [n]or was he arrested just after the commission of the said offense for
his arrest came a day after the said shooting incident." 5

Second, I do not believe that a warrantless (or citizen's) arrest is possible in case of subversion — in the absence of
any overt act that would justify the authorities to act. "Subversion," as the term is known in law, means "knowingly,
wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or remain[ing] a member of the Communist Party of
the Philippines and/or its successor or of any subversion association as defined in sections two and three
hereof. . . . " Logically, the military could not have known that Dural, at the time he was taken, was a member of the
6

New People's Army because he was not performing any over act that he was truly, a rebel. Indeed, it had to take a
"verification" before he could be identified as allegedly a member of the underground army. Under these
6

circumstances, I am hard put to say that he was committing subversion when he was arrested, assuming that he
was guilty of subversion, for purposes of a warrantless arrest.

"Overt act" is made up of "[e]very act, movement, deed and word of the [accused]," 7

indicating intent to accomplish a criminal objective. Dural, at the time he was arrested, was
lying in a hospital bed. This is not the overt act contemplated by law.

Under the Rule above-quoted, the person must have either been apprehended in flagranti (first paragraph) or after
the act, provided that the peace officer has "personal knowledge" that he, the suspect, is guilty. (second paragraph.)
As I stated, Dural was not caught in the act. Moreover, what the Regional Intelligence Operations Unit of the Capital
Command (RIOU-CAPCOM) had in its hands was a mere "confidential information." I do not think that this is the
personal knowledge referred to by the second paragraph. Plainly and simply, it is hearsay.
8

The rule, furthermore, on warrantless arrest is an exceptional one. By its language, it may be exercised only in the
most urgent cases and when the guilt of an offender is plain and evident. What I think we have here is purely and
simply, the military taking the law in its hands.

By stamping validity to Rolando Dural's warrantless arrest, I am afraid that the majority has set a very dangerous
precedent. With all due respect, my brethren has accorded the military a blanket authority to pick up any Juan,
Pedro, and Maria without a warrant for the simple reason that subversion is supposed to be a continuing offense.

That Rolando Dural was arrested for being a member of the New People's Army" is furthermore to me, a hasty
9

statement. It has yet to be established that Dural is indeed a member of the Communist Party's military arm. And
unless proven guilty, he is presumed, and must be presumed most of all by this Court, to be innocent.

The majority also says that habeas corpus is moot and academic because Dural has been convicted and is serving
sentence. I likewise take exception. It has been held that: "The writ may be granted upon a judgment already final."
10

The writ of liberty is a high prerogative writ. 11

Vindication of due process is its historic office. 12

G.R. Nos. 84581-82

In the case of Wilfredo Buenaobra, the majority avers that he had "manifested his desire to stay in the PC-INP
stockade," for which habeas corpus has supposedly become moot and academic. I am not convinced that that is
13

reason enough to dismiss habeas corpus as moot and academic. It is the duty of this Court, in my opinion, to make
sure that Buenaobra has made his choice freely and voluntarily. Personally, I find it indeed strange why he should
prefer to stay in jail than go scot-free.

There is further no doubt that Buenaobra's petition is one impressed with a public interest. In one case we denied
14

a motion to withdraw a petition for habeas corpus in view of its far-reaching importance to the motion, I do not see
how we should act differently, perhaps even insouciantly, here, especially since it involves persons who think and
believe differently from the rest of us.
Both Buenaobra and Amelia Roque supposedly admitted that they were ranking officers of the Communist Party of
the Philippines. According to the majority, Buenaobra and Roque are bound by their admissions. 15

That both parties had admitted to be members of the Communist Party of the Philippines (the National United Front
Commission) is a naked contention of the military. The fact that it has not been controverted, in my view, does not
justify the couple's arrest without warrant. Worse, by relying on the bare word of the military, this very Court has, to
all intents and purposes, condemned the duo for a crime (subversion and/or illegal possession of firearms) the bone
of contention, precisely, below.

G.R. Nos. 84583-84

I also find the warrantless arrests of Domingo Añonuevo and Ramon Casiple to be contrary to law. That they are
"admittedly members of the standing committee of the NUFC" and that "subversive materials" and unlicensed
16 17

firearms were found in their possession, are, like Buenaobra's and Roque's cases, barren claims of the military. I
also fear that by the majority's strong language (that Añonuevo and Casiple are admitted NUCF officers) the
majority has pronounced the petitioners guilty, when the lower courts have yet to sit in judgment. I think we should
be the last to preempt the decision of the trial courts. We would have set to naught the presumption of innocence
accused persons enjoy.

G.R. No. 83162

With respect to the case of Vicky Ocaya, I am afraid that I am inclined towards the same conclusion. There was
basis — at the outset — to say that Ocaya was probably guilty of illegal possession of firearms. As I have observed,
a warrantless arrest must be predicated upon the existence of a crime being actually committed or having been
committed. What I find here, rather, is nothing less than a successful fishing expedition conducted by the military
upon an unwary citizen. I am quite distressed to note that this is still possible under a supposed democracy.

G.R. No. 85727

Deogracias Espiritu was fast asleep in his house when he was placed under arrest. For the life of me, I can not
figure out how one can be picked upon in one's own home and held moments later without a warrant of arrest.

Espiritu was allegedly guilty of inciting to sedition as a result of a speech delivered in a press conference at the
National Press Club on November 21, 1988. He was, however, arrested the day after, November 22, 1988. Under
these circumstances, it eludes me how an arrest without a warrant could be justified, either under paragraph (a) or
paragraph (b) of the Rule on warrantless arrests.

The majority avers that since an information had been filed with the court, Espiritu's detention, is allegedly justifiable.
The question is whether or not an information is an authority to hold a person in custody. Under the Rules, an
information means "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with
the court." It is not, however, an order to keep one under detention.
18

G.R. No. 86332

The offense for which Narciso Nazareno is being held — the fatal shooting of Romulo Bunye II — was committed on
December 14, 1988. It was, however, only on December 28, 1988 that the police collared a suspect, Ramil Regala,
who subsequently pointed to Nazareno as his accomplice. It also escapes me how Nazareno, under these
circumstances, could have been validly put under arrest without a warrant or the existence of the circumstance
described under either paragraph (a) or (b) of the Rule above-quoted: The crime had long been committed prior to
the arrest.

G.R. Nos. 81567; 84581-82; 84583-84; 83162;

85727 & 86332; Postscripts

The majority has disposed of these cases on the bedrock of what I view as doctrines that have lost their luster:

1. The teaching of Garcia-Padilla v. Enrile, which held that subversion is a continuing offense;
19
2. The ruling in Ilagan v. Enrile. 20

I also find, for reasons to be set forth hereinafter, a glossing over of the fundamental rights of the petitioners under
the Constitution in the authorities' handling of the petitioners' cases.

I hold that Garcia-Padilla is no longer good law under the present Constitution. Two reasons persuade me. First, it is
repugnant to due process of law. ("The arrest, therefore, need not follow the usual procedure in the prosecution of
offenses which require the determination by a judge of the existence of probable cause before the issuance of a
judicial warrant of arrest and the granting of bail if the offense is bailable." Under the 1987 Constitution, not even
21

"[a] state of martial law suspend[s] the operation of [the Charter]. . ." Second, it leaves the liberty of citizens to the
22

whim of one man ("On these occasions [the existence of a state of emergency], the President takes absolute
command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril.
In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him
the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty and
without patriotism, the President will not fail them." ) Under the Charter now prevailing, the Chief Executive shares,
23

to a certain extent, the exercise of emergency powers, with Congress. 24

As a law advocate under the regime of Marcos, I had challenged the soundness of Garcia-Padilla. I doubted
whether it could stand up under the aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny
under the 1987 Constitution.

The majority also fails to point out that six days after Garcia-Padilla was handed down, the Court promulgated
Morales, Jr. v. Enrile, a case that in my view has significantly whittled down Garcia-Padilla's very esse. In that
25

case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority:

xxx xxx xxx

16. After a person is arrested . . . without a warrant . . . the proper complaint or information
against him must be filed with the courts of justice within the time prescribed by law. . .

17. Failure of the public officer to do so without any valid reason would constitute a violation
of Art. 125, Revised Penal Code, as amended. And the person detained would be entitled to
be released on a writ of habeas corpus, unless he is detained under subsisting process
issued by a competent court. 26

I also gather from the records that none of the petitioners had been: (1) informed of their right to remain silent; and
(2) to have competent and independent counsel. 27

As I said, the majority is denying habeas corpus on self-serving claims of the military that the petitioners (Dural,
Buenaobra, Roque, Añonuevo, and Casiple) are members of the Communist Party of the Philippines — and that
they have supposedly confessed to be in fact members of the outlawed organization. The question that has not
been answered is whether or not these supposed confessions are admissible, for purposes of a warrantless arrest,
as evidence of guilt, in the absence of any showing that they were apprised of their constitutional rights. I am
perturbed by the silence of the majority. I am distressed because as we held in one case, violation of the
Constitution divests the court of jurisdiction and entitles the accused to habeas corpus. 28

According to the majority, a "re-examination or re-appraisal . . . of

the Ilagan doctrine is not the answer." In my considered opinion, Ilagan v. Enrile does not rightfully belong in the
29 30

volumes of Philippine jurisprudence. In that case, the petitioners, three Davao-based lawyers, were held by virtue of
a simple information ("the petition herein has been rendered moot and academic by virtue of the filing of an
Information against them for Rebellion . . . and the issuance of a Warrant of Arrest against them" ) without any31

preliminary investigation (examination) having been previously conducted (to justify the issuance of a warrant). As I i•t•c-aüsl

have stated, an information is not a warrant of arrest. The fact that an information exists does not mean that a
warrant will be issued.

Accused persons have the right of preliminary investigation (examination). 32

It forms part and parcel of due process
of law .
33
I find the majority's reliance on U.S. v. Wilson, an ancient (1905) decision, inapt and untenable. In that case, the
34

accused had been served with a warrant and thereafter taken into custody. The question that faced the Court was
whether or not the warrant was valid, amid the accused's charges that the judge who issued it did not examine the
complainant under oath. We held that the query was academic, because the accused had already pleaded, and the
case had entered the trial stage.

The cases at bar are not on all fours. Here, no warrant has been issued. I submit that in that event, the petitioners
are entitled to freedom by way of the writ of liberty.

xxx xxx xxx

The apprehensions in question chronicle in my mind the increasing pattern of arrests and detention in the country
without the sanction of a judicial decree. Four years ago at "EDSA", and many years before it, although with much
fewer of us, we valiantly challenged a dictator and all the evils his regime had stood for: repression of civil liberties
and trampling on of human rights. We set up a popular government, restored its honored institutions, and crafted a
democratic constitution that rests on the guideposts of peace and freedom. I feel that with this Court's ruling, we
have frittered away, by a stroke of the pen, what we had so painstakingly built in four years of democracy, and
almost twenty years of struggle against tyranny.

It also occurs to me that I am interposing what looms as a quixotic outlook of Philippine law on warrantless arrests
and its implications on liberty. It is an impression that does not surprise me. Quixotic as they may seem, and
modesty aside, my views reflect a strong bias on my part — forged by years of experience and sharpened by a
painful and lonely struggle for freedom and justice — toward men and women who challenge settled beliefs. If this
dissent can not gain any adherent for now, let it nevertheless go on record as a plea to posterity and an appeal for
tolerance of opinions with which we not only disagree, but opinions we loathe.

I feel it is my duty to articulate this dissent.

Separate Opinions

CRUZ, J., dissenting and concurring:

I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a continuing offense,
to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed
under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is
doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is
sleeping, on the ground that he is committing the "continuing" offense of subversion. Libertarians were appalled
when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to
sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past
dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures.
We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it
be argued that the military should be given every support in our fight against subversion, I maintain that that fight
must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must
adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important
motivation should be what are we fighting for.

Except for this reservation and appeal, I concur with the decision.

FELICIANO, J., concurring:

I concur in the result reached in each of the eight (8) consolidated Petitions for Habeas Corpus. At the same time, I
have some reservations concerning certain statements made by the Court in G.R. No. 81567 (Umil, et al. v. Ramos)
(Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision).
In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states categorically that: "the crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof
or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes."
The majority here relies upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there made the same
equally broad statement but without any visible effort to examine the basis, scope and meaning of such a sweeping
statement. Garcia-Padilla did not even identify the specific offenses which it regarded as "in the nature of continuing
offenses which set them apart from the common offenses" (121 SCRA at 489). It appears to me that in G.R. No.
85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has in effect included the offense of "inciting
to sedition" penalized under Article 142 of the Revised Penal Code as a "continuing offense" under the capacious
blanket of the majority opinion in Garcia-Padilla, at least for purposes of determining the legality of the arrest without
a warrant of petitioner Deogracias Espiritu.

I would respectfully recall to my learned colleagues in the Court that "inciting to sedition" is defined in Article 142 of
the Revised Penal Code in terms of speech and that consequently it is important constantly do distinguish between
1

speech which is protected by the constitutional guaranty of freedom of speech and of the press and speech which
may constitutionally be regarded as violative of Article 142 of the Revised Penal Code. Precisely because speech
which the police authorities might regard as seditious or as criminal inciting to sedition may well turn out to be only
an exercise of a constitutionally guaranteed freedom, I would submit that we must apply the concept of "continuing
offense" narrowly for purposes of application of Section 5(b), Rule 113 of the Revised Rules of Court.

In my view, the very broad statement made about "continuing crimes" in G.R. No. 81567 (Umil, et al v. Ramos)
constitutes dictum, considering that Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court below
for "double murder, etc." and found guilty of the offense charged, sentenced accordingly, and at least in the case of
Rolando Dural, service of the sentence imposed upon him by the trial court had already begun.

Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of petitioner Espiritu without a warrant was
in accordance with the provisions of Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly
necessary, considering that the petitioner had already been charged in a valid information filed with the competent
court, which court had presumably issued an order for his commitment, and considering further that he is entitled to
bail.

There is thus no obstacle, to my mind, to a careful examination of the doctrine of "continuing crimes" as applied to
such offenses as subversion and inciting to sedition and possibly other offenses, in some future case where that
issue is raised squarely and is unavoidable.

Cortes, J., concurs.

SARMIENTO, J., dissenting:

I beg to differ from my brethren. I submit that habeas corpus lies in all eight cases.

G.R. No. 81567

The majority says that Rolando Dural's arrest without a warrant is lawful under the Rules of Court, which reads:

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. 1

"Rolando Dural," so states the majority, "was arrested for being a member of the New People's Army (NPA), an
outlawed subversive organization," and that "[s]ubversion being a continuing offense, the arrest of Rolando Dural
2

without a warrant is justified as it can be said that he was committing an offense when arrested." 3

As I said, I beg to differ.

First, Rolando Dural was charged with "Double Murder with Assault upon Agents of Authority." If he had been guilty
4

of subversion — the offense for which he was supposedly arrested via a warrantless arrest — subversion was the
logical crime with which he should have been charged.

The authorities could not have rightly arrested him for subversion on account of the slay of the two CAPCOM
soldiers, a possible basis for violation of the Anti-Subversion Act, because as the majority points out, "he was not
arrested while in the act of shooting [them] . . . [n]or was he arrested just after the commission of the said offense for
his arrest came a day after the said shooting incident." 5

Second, I do not believe that a warrantless (or citizen's) arrest is possible in case of subversion — in the absence of
any overt act that would justify the authorities to act. "Subversion," as the term is known in law, means "knowingly,
wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or remain[ing] a member of the Communist Party of
the Philippines and/or its successor or of any subversion association as defined in sections two and three
hereof. . . . " Logically, the military could not have known that Dural, at the time he was taken, was a member of the
6

New People's Army because he was not performing any over act that he was truly, a rebel. Indeed, it had to take a
"verification" before he could be identified as allegedly a member of the underground army. Under these
6

circumstances, I am hard put to say that he was committing subversion when he was arrested, assuming that he
was guilty of subversion, for purposes of a warrantless arrest.

"Overt act" is made up of "[e]very act, movement, deed and word of the [accused]," 7

indicating intent to accomplish a criminal objective. Dural, at the time he was arrested, was
lying in a hospital bed. This is not the overt act contemplated by law.

Under the Rule above-quoted, the person must have either been apprehended in flagranti (first paragraph) or after
the act, provided that the peace officer has "personal knowledge" that he, the suspect, is guilty. (second paragraph.)
As I stated, Dural was not caught in the act. Moreover, what the Regional Intelligence Operations Unit of the Capital
Command (RIOU-CAPCOM) had in its hands was a mere "confidential information." I do not think that this is the
personal knowledge referred to by the second paragraph. Plainly and simply, it is hearsay.
8

The rule, furthermore, on warrantless arrest is an exceptional one. By its language, it may be exercised only in the
most urgent cases and when the guilt of an offender is plain and evident. What I think we have here is purely and
simply, the military taking the law in its hands.

By stamping validity to Rolando Dural's warrantless arrest, I am afraid that the majority has set a very dangerous
precedent. With all due respect, my brethren has accorded the military a blanket authority to pick up any Juan,
Pedro, and Maria without a warrant for the simple reason that subversion is supposed to be a continuing offense.

That Rolando Dural was arrested for being a member of the New People's Army" is furthermore to me, a hasty
9

statement. It has yet to be established that Dural is indeed a member of the Communist Party's military arm. And
unless proven guilty, he is presumed, and must be presumed most of all by this Court, to be innocent.
The majority also says that habeas corpus is moot and academic because Dural has been convicted and is serving
sentence. I likewise take exception. It has been held that: "The writ may be granted upon a judgment already final."
10

The writ of liberty is a high prerogative writ. 11

Vindication of due process is its historic office. 12

G.R. Nos. 84581-82

In the case of Wilfredo Buenaobra, the majority avers that he had "manifested his desire to stay in the PC-INP
stockade," for which habeas corpus has supposedly become moot and academic. I am not convinced that that is
13

reason enough to dismiss habeas corpus as moot and academic. It is the duty of this Court, in my opinion, to make
sure that Buenaobra has made his choice freely and voluntarily. Personally, I find it indeed strange why he should
prefer to stay in jail than go scot-free.

There is further no doubt that Buenaobra's petition is one impressed with a public interest. In one case we denied 14

a motion to withdraw a petition for habeas corpus in view of its far-reaching importance to the motion, I do not see
how we should act differently, perhaps even insouciantly, here, especially since it involves persons who think and
believe differently from the rest of us.

Both Buenaobra and Amelia Roque supposedly admitted that they were ranking officers of the Communist Party of
the Philippines. According to the majority, Buenaobra and Roque are bound by their admissions. 15

That both parties had admitted to be members of the Communist Party of the Philippines (the National United Front
Commission) is a naked contention of the military. The fact that it has not been controverted, in my view, does not
justify the couple's arrest without warrant. Worse, by relying on the bare word of the military, this very Court has, to
all intents and purposes, condemned the duo for a crime (subversion and/or illegal possession of firearms) the bone
of contention, precisely, below.

G.R. Nos. 84583-84

I also find the warrantless arrests of Domingo Añonuevo and Ramon Casiple to be contrary to law. That they are
"admittedly members of the standing committee of the NUFC" and that "subversive materials" and unlicensed
16 17

firearms were found in their possession, are, like Buenaobra's and Roque's cases, barren claims of the military. I
also fear that by the majority's strong language (that Añonuevo and Casiple are admitted NUCF officers) the
majority has pronounced the petitioners guilty, when the lower courts have yet to sit in judgment. I think we should
be the last to preempt the decision of the trial courts. We would have set to naught the presumption of innocence
accused persons enjoy.

G.R. No. 83162

With respect to the case of Vicky Ocaya, I am afraid that I am inclined towards the same conclusion. There was
basis — at the outset — to say that Ocaya was probably guilty of illegal possession of firearms. As I have observed,
a warrantless arrest must be predicated upon the existence of a crime being actually committed or having been
committed. What I find here, rather, is nothing less than a successful fishing expedition conducted by the military
upon an unwary citizen. I am quite distressed to note that this is still possible under a supposed democracy.

G.R. No. 85727

Deogracias Espiritu was fast asleep in his house when he was placed under arrest. For the life of me, I can not
figure out how one can be picked upon in one's own home and held moments later without a warrant of arrest.

Espiritu was allegedly guilty of inciting to sedition as a result of a speech delivered in a press conference at the
National Press Club on November 21, 1988. He was, however, arrested the day after, November 22, 1988. Under
these circumstances, it eludes me how an arrest without a warrant could be justified, either under paragraph (a) or
paragraph (b) of the Rule on warrantless arrests.
The majority avers that since an information had been filed with the court, Espiritu's detention, is allegedly justifiable.
The question is whether or not an information is an authority to hold a person in custody. Under the Rules, an
information means "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with
the court." It is not, however, an order to keep one under detention.
18

G.R. No. 86332

The offense for which Narciso Nazareno is being held — the fatal shooting of Romulo Bunye II — was committed on
December 14, 1988. It was, however, only on December 28, 1988 that the police collared a suspect, Ramil Regala,
who subsequently pointed to Nazareno as his accomplice. It also escapes me how Nazareno, under these
circumstances, could have been validly put under arrest without a warrant or the existence of the circumstance
described under either paragraph (a) or (b) of the Rule above-quoted: The crime had long been committed prior to
the arrest.

G.R. Nos. 81567; 84581-82; 84583-84; 83162;

85727 & 86332; Postscripts

The majority has disposed of these cases on the bedrock of what I view as doctrines that have lost their luster:

1. The teaching of Garcia-Padilla v. Enrile, which held that subversion is a continuing offense;
19

2. The ruling in Ilagan v. Enrile. 20

I also find, for reasons to be set forth hereinafter, a glossing over of the fundamental rights of the petitioners under
the Constitution in the authorities' handling of the petitioners' cases.

I hold that Garcia-Padilla is no longer good law under the present Constitution. Two reasons persuade me. First, it is
repugnant to due process of law. ("The arrest, therefore, need not follow the usual procedure in the prosecution of
offenses which require the determination by a judge of the existence of probable cause before the issuance of a
judicial warrant of arrest and the granting of bail if the offense is bailable." Under the 1987 Constitution, not even
21

"[a] state of martial law suspend[s] the operation of [the Charter]. . ." Second, it leaves the liberty of citizens to the
22

whim of one man ("On these occasions [the existence of a state of emergency], the President takes absolute
command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril.
In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him
the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty and
without patriotism, the President will not fail them." ) Under the Charter now prevailing, the Chief Executive shares,
23

to a certain extent, the exercise of emergency powers, with Congress. 24

As a law advocate under the regime of Marcos, I had challenged the soundness of Garcia-Padilla. I doubted
whether it could stand up under the aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny
under the 1987 Constitution.

The majority also fails to point out that six days after Garcia-Padilla was handed down, the Court promulgated
Morales, Jr. v. Enrile, a case that in my view has significantly whittled down Garcia-Padilla's very esse. In that
25

case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority:

xxx xxx xxx

16. After a person is arrested . . . without a warrant . . . the proper complaint or information
against him must be filed with the courts of justice within the time prescribed by law. . .

17. Failure of the public officer to do so without any valid reason would constitute a violation
of Art. 125, Revised Penal Code, as amended. And the person detained would be entitled to
be released on a writ of habeas corpus, unless he is detained under subsisting process
issued by a competent court. 26
I also gather from the records that none of the petitioners had been: (1) informed of their right to remain silent; and
(2) to have competent and independent counsel. 27

As I said, the majority is denying habeas corpus on self-serving claims of the military that the petitioners (Dural,
Buenaobra, Roque, Añonuevo, and Casiple) are members of the Communist Party of the Philippines — and that
they have supposedly confessed to be in fact members of the outlawed organization. The question that has not
been answered is whether or not these supposed confessions are admissible, for purposes of a warrantless arrest,
as evidence of guilt, in the absence of any showing that they were apprised of their constitutional rights. I am
perturbed by the silence of the majority. I am distressed because as we held in one case, violation of the
Constitution divests the court of jurisdiction and entitles the accused to habeas corpus. 28

According to the majority, a "re-examination or re-appraisal . . . of

the Ilagan doctrine is not the answer." In my considered opinion, Ilagan v. Enrile does not rightfully belong in the
29 30

volumes of Philippine jurisprudence. In that case, the petitioners, three Davao-based lawyers, were held by virtue of
a simple information ("the petition herein has been rendered moot and academic by virtue of the filing of an
Information against them for Rebellion . . . and the issuance of a Warrant of Arrest against them" ) without any
31

preliminary investigation (examination) having been previously conducted (to justify the issuance of a warrant). As I i•t•c-aüsl

have stated, an information is not a warrant of arrest. The fact that an information exists does not mean that a
warrant will be issued.

Accused persons have the right of preliminary investigation (examination). 32

It forms part and parcel of due process
of law .33

I find the majority's reliance on U.S. v. Wilson, an ancient (1905) decision, inapt and untenable. In that case, the
34

accused had been served with a warrant and thereafter taken into custody. The question that faced the Court was
whether or not the warrant was valid, amid the accused's charges that the judge who issued it did not examine the
complainant under oath. We held that the query was academic, because the accused had already pleaded, and the
case had entered the trial stage.

The cases at bar are not on all fours. Here, no warrant has been issued. I submit that in that event, the petitioners
are entitled to freedom by way of the writ of liberty.

xxx xxx xxx

The apprehensions in question chronicle in my mind the increasing pattern of arrests and detention in the country
without the sanction of a judicial decree. Four years ago at "EDSA", and many years before it, although with much
fewer of us, we valiantly challenged a dictator and all the evils his regime had stood for: repression of civil liberties
and trampling on of human rights. We set up a popular government, restored its honored institutions, and crafted a
democratic constitution that rests on the guideposts of peace and freedom. I feel that with this Court's ruling, we
have frittered away, by a stroke of the pen, what we had so painstakingly built in four years of democracy, and
almost twenty years of struggle against tyranny.

It also occurs to me that I am interposing what looms as a quixotic outlook of Philippine law on warrantless arrests
and its implications on liberty. It is an impression that does not surprise me. Quixotic as they may seem, and
modesty aside, my views reflect a strong bias on my part — forged by years of experience and sharpened by a
painful and lonely struggle for freedom and justice — toward men and women who challenge settled beliefs. If this
dissent can not gain any adherent for now, let it nevertheless go on record as a plea to posterity and an appeal for
tolerance of opinions with which we not only disagree, but opinions we loathe.

I feel it is my duty to articulate this dissent.

Footnotes

1 63 Phil. 221.

2 Zacarias vs. Cruz, G.R. No. L-25899, November 29, 1969, 30 SCRA 728.
3 Garcia-Padilla vs. Enrile, G.R. No. 61388, April 20, 1983, 121 SCRA 472, 488-489.

4 4 Phil. 317, 325.

5 Lorenzo vs. Mc Coy, 15 Phil. 559.

6 Rollo of G.R. Nos. 84583-84, p. 105.

7 Petition, Nos. 4 to 8, inclusive.

8 Return of Writ.

9 Exhibit 2.

10 Exhibit 1.

11 Exhibit 4.

12 68 Phil. 415.

13 G.R. No. 70748, Oct. 21, 1985, 139 SCRA 349.

14 Actually, the requirement in the Ilagan case doctrine that a warrant of arrest or order of
commitment should be issued even after the information has been filed against the detained
person, would seem superfluous. As aptly stated in the early case of U.S. vs. Wilson, 4 Phil.
381, "where a person who has been legally arrested without a warrant was actually before a
court, that court had a right to proceed against him without in the first place issuing a warrant
for his detention."

15 G.R. Nos. 61016 and 61107, April 26, 1983, 121 SCRA 538, 563.

FELICIANO, J., concurring:

1 Art. 142. Inciting to sedition. — The penalty of prision correcional in its maximum period
and a fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking
any direct part in the crime of sedition, should incite others to the accomplishments of any of
the acts which constitute sedition, by means of speeches, proclamations, writings, emblems
cartoons, banners, or other representations tending to the same end, or upon any person or
persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous
libels against the Government of Republic of the Philippines, or any of the duly constituted
authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the
functions of his office, or which tend to instigate others to cabal and meet together for
unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead
or tend to stir up the people against the lawful authorities or to disturb the peace of the
community, the safety and order of the Government, or who shall knowingly conceal such
evil practices. (As amended by Com. Act No. 202).

SARMIENTO, J., dissenting opinion:

1 RULES OF COURT, Rule 113, sec. 5

2 Decision, 7.

3 Supra; emphasis in the original

4 Supra, 6.
5 Supra, 6; emphasis in the original.

6 Exec. Order No. 276, sec. 3; emphasis ours.

7 Cramer v. U.S., 325 U.S. 1, 34 (1944), a treason case.

8 Prior to its amendments, paragraph (b) required merely "reasonable ground" to justify a
warrantless arrest. See RULES OF COURT (1964), Rule 113, sec. 6, par. (b). The
amendments was made to stop warrantless arrests based on suspicion and hearsay. See
FERIA, 1985 RULES ON CRIMINAL PROCEDURE, 20 (1987).

9 Decision, supra, 7.

10 Chavez v. Court of Appeals, No. L-29169, August 19, 1968, 24 SCRA 663, 684; see
Castro, J., Concurring, citing Fay v. Noia, 372 US 391 (1963).

11 Supra, 683.

12 Supra, 690.

13 Decision, supra 14.

14 Aquino, Jr. v. Enrile, Nos. L-35546, 35538, 35539, 35540, 35547, 35556, 35567, 35571,
and 35573, September 17, 1974, 59 SCRA 183, 247-248, citing among other cases,
Gonzales v. Commission on Elections, No. L-27833, April 18, 1969, 27 SCRA 835 and
Krivenko v. Register of Deeds, 79 Phil. 461 (1947).

15 Decision, supra.

16 Supra.

17 Supra.

18 RULES OF COURT, Rule 110, sec. 4.

19 No. 61388, April 20, 1983, 121 SCRA 472.

20 No. 70748, October 21, 1985, 139 SCRA 349.

21 Garcia-Padilla v. Enrile, supra, 489.

22 CONST., art. VII, sec. 18.

23 Garcia-Padilla, supra, 501.

24 CONST., supra.

25 Nos. 61016-7, April 16, 1983, 121 SCRA 538.

26 Supra, 560, 562.

27 CONST., art. III, sec. 12.

28 Abriol v. Homeres, 84 Phil. 525 (1949).

 29 Decision, supra, 28.

30 Supra.

31 Supra, 364-365.

32 Ilagan v. Enrile, supra, 384, Teehankee, J., Dissenting.

33 Supra.

34 4 Phil. 316 (March 24, 1905).

G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO MENGOTE y TEJAS, accused-appellant.

CRUZ, J.:

Accused-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, they there saw two men "looking from side
1

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" bearing

Serial 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. For his part, Mengote made no effort to prove that he
2

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

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 reclusion
perpetua. 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, the Court sustained the warrantless arrest of the accused because there
5

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, the accused boarded a bus and placed the buri bag she was
6

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, where the Court held that the warrantless arrest of the accused was
7

unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than
the other disembarking passengers. He had 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, this Court declared:

9

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 xxx

In 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, thus: 10

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.

Griño-Aquino, Medialdea and Bellosillo, JJ., concur.

Footnotes

1 TSN, September 21, 1987, October 21, 1987.

2 Records, p. 54.

3 TSN, October 26, 1987. p. 11.

4 Through Judge Romeo J. Callejo.

5 198 SCRA 401.

6 160 SCRA 646.

7 163 SCRA 402.

8 TSN, September 23, 1987, p. 10.

9 144 SCRA 1.

10 151 SCRA 279.

G.R. No. 123595 December 12, 1997

SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

In an Information filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of
1

Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree
No. 1866, as follows:
2

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 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.
3

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," while the
4

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 petitioner's "front waist line." Yu's companion, police officer Rogelio Malibiran, apprehended Abdul
7

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 for investigation. Forthwith, Serapio conducted the inquest of the two suspects,
10

informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite
Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance
of a lawyer. Serapio then took petitioner's 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 Ordinance Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's 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 petitioner's 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 it 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." Probable cause
15

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." The RTC emphasized that Yu and
16

his companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens
the destruction of evidence" and the officers "[h]ad to act in haste," as petitioner and his companions were acting
17

suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's 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 petitioner's guilt beyond reasonable doubt.

In its decision dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner
19

guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, 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 indicating that he was appealing to this Court. However,
20

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 Appellant's Brief filed with the Court of Appeals, petitioner asserted that:
22

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. As such, the search was illegal, and the
23

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, the Court of Appeals affirmed the trial court, noting, first, that petitioner
25

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 petitioner's 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,
Malacat's posture is simply too preposterous to inspire belief.

In so doing, the Court of Appeals took into account petitioner's 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 latter's 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, which petitioner relied upon, was
26

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 WARRANTIES 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 into account. Since the maximum of the penalty is reclusion 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), in relation to Section 17 of the Judiciary Act of 1948, Section 5(2) of Article VIII of the
27 28

Constitution and Section 3(c) of Rule 122 of the Rules of Court. The term "life imprisonment" as used in Section
29 30

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.

Petitioner's Notice of Appeal indicated that he was appealing from the trial court's 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 petitioner's 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
petitioner's guilt with moral certainty.

First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's
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
petitioner's 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 petitioner's 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.

xxx xxx xxx

(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. The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected
31

without a validly issued warrant, subject to certain exceptions. As regards valid warrantless arrests, these are
32

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; (5) a search incidental to a lawful arrest;
33 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. In this instance, the law requires that there first be a lawful arrest before a search
36

can be made — the process cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may
37

search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to
destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the
crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or
committing violence. 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," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
40

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. Finally, a "stop-and-
41

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, there are at least three (3) reasons why the "stop-and-frisk" was invalid:

First, we harbor grave doubts as to Yu's 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 petitioner's 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 petitioner's 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.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ.,
concur.
 Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:

1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-
and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and

2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs. Court
of Appeals, People vs. Encinada, People vs. Lacerna and People vs. Cuizon, all of which were promulgated
1 2 3 4

without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law
enforcement officers. Let me first present a background on each.

Manalili Involved a
Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were
roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high
on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first,
Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what
they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged,
tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the
legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two
were products of the illegal search.

Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to
stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order
to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning,
appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly
because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About
8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The
police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked
Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky
package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by
the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence,
the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of
the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw
intelligence information was not a sufficient ground for a warrantless arrest. Furthermore, "[t]he prosecution's
5

evidence did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the
motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare
circumstances." Having known the identity of their suspect the previous day, the law enforcers could have secured
6

a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987).
In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and
searches, the Court exhorted:

Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact whereabouts underscored the need to
secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse
him from violating a constitutional right of the appellant. 7

. . . That the search disclosed a prohibited substance in appellant's possession and thus
confirmed the police officers' initial information and suspicion, did not cure its patent illegality.
An illegal search cannot be undertaken and then an arrest effected on the strength of the
evidence yielded by the search. 8

Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched
when they passed through the checkpoint he was manning, making him suspect that something was amiss. He
signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a
plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna
questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights.

The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure,
ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely
consented to the search. Although appellant and his companion were stopped by the police on mere suspicion —
without probable cause — that they were engaged in a felonious enterprise, the Court stressed that their permission
for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver
being a generally recognized exception to the rule against warrantless search. The marijuana, therefore, was
9

admissible in evidence. "There was no poisonous tree to speak of."

Mere Suspicion of Criminal Activity

Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip
from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu.
A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon
spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter
bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking
area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila
Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked
permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in
writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic
packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with
them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence
where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal
transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and
seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than
chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such
person as well as his arrest [is] deemed illegal," this Court declared unlawful the arrest of Cuizon as well as the
10

incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in flagrante
delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No
offense had just been committed or was actually being committed or attempted by him in the presence of the
lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just
in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or
actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same
being 'the fruit of the poisonous tree.'"
11

The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the
warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to
challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the
case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was effectively
denied his right to counsel; for although he was provided with one, he could not understand and communicate with
him concerning his defense.

After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that
there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug
transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce
identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and
searches, as where motor vehicles are used and there is great probability that the suspect would get away before a
warrant can be procured. Most important is that the law enforcers must act immediately on the information received,
suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 12

Instant Case Correlated

with Four Cited

Now to the correlation with the case at bar.

(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the
offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use
and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary
law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to
possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when
these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a
person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine
reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the
policemen are not specially trained, and in common places where people ordinarily converge, the same features
displayed by a person will not normally justify a warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving
very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be
hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of
Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious
activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any
illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that
indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the
rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed commission of the crime and
his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants
themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there
was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence
information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's
evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant.
It is not for the police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest
and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to
detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there
and then and, further, their inability to effectively investigate and identify the culprit — so as to have obtained a
lawful arrest warrant — that hindered his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the
police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to
stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly
effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and
express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of
Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a
search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, another classic on the right
13

against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer
that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District
dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding
his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as
other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded
pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court,
through Mr. Justice Isagani A. Cruz, succinctly put it: "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?"

. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and he 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. 14

In closing, the Court lamented and thus warned:

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.15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify
a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a
lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

Separate Opinions

PANGANIBAN, J., separate opinion:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:

1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-
and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and

2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs. Court
of Appeals, People vs. Encinada, People vs. Lacerna and People vs. Cuizon, all of which were promulgated
1 2 3 4

without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law
enforcement officers. Let me first present a background on each.

Manalili Involved a
Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were
roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high
on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first,
Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what
they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A
chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged,
tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the
legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two
were products of the illegal search.

Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to
stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order
to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning,
appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly
because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About
8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The
police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked
Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky
package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by
the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence,
the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of
the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw
intelligence information was not a sufficient ground for a warrantless arrest. Furthermore, "[t]he prosecution's
5

evidence did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the
motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare
circumstances." Having known the identity of their suspect the previous day, the law enforcers could have secured
6

a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987).
In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and
searches, the Court exhorted:

Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact whereabouts underscored the need to
 secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse
him from violating a constitutional right of the appellant. 7

. . . That the search disclosed a prohibited substance in appellant's possession and thus
confirmed the police officers' initial information and suspicion, did not cure its patent illegality.
An illegal search cannot be undertaken and then an arrest effected on the strength of the
evidence yielded by the search. 8

Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched
when they passed through the checkpoint he was manning, making him suspect that something was amiss. He
signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a
plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna
questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights.

The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure,
ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely
consented to the search. Although appellant and his companion were stopped by the police on mere suspicion —
without probable cause — that they were engaged in a felonious enterprise, the Court stressed that their permission
for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver
being a generally recognized exception to the rule against warrantless search. The marijuana, therefore, was
9

admissible in evidence. "There was no poisonous tree to speak of."

Mere Suspicion of Criminal Activity

Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip
from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu.
A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon
spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter
bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking
area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila
Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked
permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in
writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic
packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with
them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence
where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal
transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and
seizure.

Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than
chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such
person as well as his arrest [is] deemed illegal," this Court declared unlawful the arrest of Cuizon as well as the
10

incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in flagrante
delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No
offense had just been committed or was actually being committed or attempted by him in the presence of the
lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just
in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or
actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same
being 'the fruit of the poisonous tree.'"
11

The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the
warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to
challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the
case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was effectively
denied his right to counsel; for although he was provided with one, he could not understand and communicate with
him concerning his defense.

After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that
there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug
transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce
identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and
searches, as where motor vehicles are used and there is great probability that the suspect would get away before a
warrant can be procured. Most important is that the law enforcers must act immediately on the information received,
suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 12

Instant Case Correlated

with Four Cited

Now to the correlation with the case at bar.

(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the
offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use
and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary
law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to
possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when
these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a
person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine
reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the
policemen are not specially trained, and in common places where people ordinarily converge, the same features
displayed by a person will not normally justify a warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving
very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be
hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.

(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of
Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious
activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any
illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that
indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the
rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house
unhampered by the police. There was considerable interruption between the supposed commission of the crime and
his subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants
themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there
was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence
information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's
evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant.
It is not for the police to make such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest
and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to
detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there
and then and, further, their inability to effectively investigate and identify the culprit — so as to have obtained a
lawful arrest warrant — that hindered his valid seizure thereafter.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the
police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to
stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly
effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and
express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of
Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a
search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, another classic on the right
13

against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer
that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District
dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding
his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as
other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded
pistol; from his companion, a fan knife.

The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court,
through Mr. Justice Isagani A. Cruz, succinctly put it: "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?"

. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and he 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. 14

In closing, the Court lamented and thus warned:

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. 15

Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify
a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a
lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

Footnotes

1 Original Record (OR), 1.

2 Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in,

Acquisition or Disposition, of Firearms, Ammunition or Explosives or Instruments used in the
Manufacture of Firearms, Ammunition or Explosives; and Imposing Stiffer Penalties for
Certain Violations thereof and for Relevant Purposes.

3 OR, 9.
4 The affidavit of arrest, booking sheet and letter-referral to the prosecutor, respectively.

5 OR, 21.

6 Transcript of Stenographic Notes (TSN), 14 April 1993, 12.

7 TSN, 14 April 1993, 13.

8 TSN, 14 April 1993, 14.

9 Id., 15-21.

10 Spelled as Suquila in the Affidavit of Arrest; Exhibit A; Rollo, CA-G.R. CR No. 15988 [CA
Rollo] 7.

11 TSN 14 April 1993, 3-9.

12 TSN, 14 April 1993, 9.

13 TSN, 27 October 1992, 2-5.

14 TSN, 11 June 1993, 2-5.

15 Citing Posadas v. Court of Appeals, 188 SCRA 288 [1990].

16 Citing 1 JOAQUIN G. BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE

PHILIPPINES, A COMMENTARY, 124 (1987 ed.) [hereinafter 1 BERNAS].

17 Citing Schmerber v. California, 384 U.S. 757; 86 S. CT. 1826; 16 L: Ed. 2d. 908 (1966).

18 Citing ISAGANI A. CRUZ, CONSTITUTIONAL LAW 141 (1987 ed.).

19 OR, 196-200; Annex "A" [should be "E"] of Petition, Rollo, 91-95. Per Judge Cesar
Mindaro.

20 OR, 208.

21 CA Rollo, 37.

22 Id., 49 et seq.

23 210 SCRA 174 [1992].

24 Id., 84-100.

25 Annex "A" of the Petition, Rollo, 34-41. Per Garcia, C., J., ponente, with Labitoria, E., and
Aliño-Hormachuelos, P., JJ., concurring.

26 Supra note 23.

27 Said Section provides:

Sec. 9. Jurisdiction. — The Court of Appeals shall exercise:

xxx xxx xxx

 (3) Exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders, or awards of Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards, or commission, except those falling
within the appellate jurisdiction of the Supreme Court in accordance with the
Constitution, the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the
Judiciary Act of 1948.

28 The Section pertinently reads:

Sec. 17. Jurisdiction of the Supreme Court. — . . . The Supreme Court shall have exclusive
jurisdiction to review, revise, reverse, modify or affirm on appeal, as the law or rules of court
may provide, final judgments and decrees of inferior courts as herein provided, in —

(1) All criminal cases involving offenses for which the penalty imposed is
death or life imprisonment; and those involving other offenses which,
although not so punished, arose out of the same occurrence or which may
have been committed by the accused on the same occasion, as that giving
rise to the mere serious offense, regardless of whether the accused are
charged as principals, accomplices or accessories, or whether they have
been tried jointly or separately;

xxx xxx xxx

29 The Section relevantly reads

Sec. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari as the

law or the Rules of Court may provide, final judgments and orders of the
lower courts in:

xxx xxx xxx

(d) All criminal cases in which the penalty imposed is

reclusion perpetua or higher. . . .

30 The Section provides:

Sec. 3. How appeal taken. —

xxx xxx xxx

The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment,
or where a lesser penalty is imposed but involving offenses committed on the same occasion
or arising out of the same occurrence that give rise to the more serious offense for which the
penalty of death or life imprisonment is imposed. . . .

31 Art. III, Section 2, Constitution.

32 See 1 BERNAS 86 (1987).

33 Mustang Lumber Inc. v. Court of Appeals, 257 SCRA 430, 450 [1996].
34 Moreno v. Ago Chi, 12 Phil. 439 (1909); Rule 126, Section 12, Rules of Court.

35 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968].

36 See REX D. DAVIS, FEDERAL, SEARCHES AND SEIZURES 96-98, 120 [1964].

37 People v. Malmstedt, 198 SCRA 401, 422 [1991] per Narvasa, C.J., concurring and
dissenting.

38 1 BERNAS 105.

39 Terry, at 911. In fact, the Court noted that the "sole justification" for a stop-and-frisk was
the "protection of the police officer and others nearby;" while the scope of the search
conducted in the case was limited to patting down the outer clothing of petitioner and his
companions, the police officer did not place his hands in their pockets nor under the outer
surface of their garments until he had felt weapons, and then he merely reached for and
removed the guns. This did not constitute a general exploratory search, Id.

See MICHELE G. HERMANN, SEARCH AND SEIZURE CHECKLISTS 202 [1994]

(hereinafter HERMANN): "Nothing in Terry can be understood to allow a generalized
cursory search for weapons or, indeed, any search whatever for anything but
weapons," quoting from Ybarra v. Illinois, 444 U.S. 85, 93-94 [1979].

40 We have held that probable cause means a fair probability that contraband or evidence of
a crime will be found, . . . and the level of suspicion required for a Terry stop is obviously less
demanding than that for probable cause, in HERMANN, at 187, quoting from United States v.
Sokolow, 490 U.S. 1, 7
[1989].

Thus, it may be said that a brief on-the-street seizure does not require as much
evidence of probable cause as one which involves taking the individual to the station,
as the former is relatively short, less conspicuous, less humiliating, in 3 WAYNE R.
LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
§9.1(d), at 342 [2nd ed. 1987] (emphasis supplied).

It is necessary to determine if "stop and frisk" may be distinguished from arrest and
search, knowing that the justification of stopping and frisking is less than the
probable cause to arrest and search, in 1 JOSEPH A. VARON, SEARCHES,
SEIZURES AND IMMUNITIES 81 [2nd ed. 1974] (hereinafter 1 VARON) (emphasis
supplied).

41 See 1 VARON, at 84.

42 TSN, 14 April 1993, 19-20.

43 RTC Decision, 2; CA Rollo, 28.

PANGANIBAN, J., separate opinion:

1 G.R. No. 113447, October 9, 1997.

2 G.R. No. 116720, October 2, 1997.

3 G.R. No. 109250, September 5, 1997.

4 256 SCRA 325, April 18, 1996.

 5 People vs. Encinada, supra, pp. 17-18.

6 Ibid., pp. 18-19.

7 Ibid., pp. 21-22.

8 Ibid., p. 24.

9 Citing People vs. Fernandez, 239 SCRA 174, December 13, 1994, Aniag Jr. vs. Comelec,
237 SCRA 424, October 7, 1994, and other cases.

10 People vs. Cuizon, supra, p. 339.

11 Ibid.

12 Ibid., pp. 346-347.

13 210 SCRA 174, June 22, 1992.

14 Ibid., p. 179.

15 Ibid., pp. 181-182.

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused)
was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-
CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972, as amended. The factual background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a
tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following
day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to
catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to
Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From
Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1
At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer
of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary
checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from
the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that
vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was
received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had
in his possession prohibited drugs.2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint
at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera
Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan
boarded the bus and announced that they were members of the NARCOM and that they would conduct an
inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus.
Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to
be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply,
the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to
be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped
objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused
stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag.
Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam
stuffing. It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further
investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain
hashish. Representative samples were taken from the hashish found among the personal effects of accused and
the same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a
derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.

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. The dispositive portion of the
3

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. However, where the search is made pursuant to a lawful arrest, there
5

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 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. The required probable cause that will justify a warrantless search
8

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, or 10

where the accused was acting suspiciously, and attempted to flee.

11 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, the police authorities conducted a surveillance at the Victory Liner Terminal located
13

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.

Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento, J., is on leave.

Separate Opinions

NARVASA, J., concurring and dissenting:

The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has not only found its
niche in all our charters, from 1935 to the present; it has also received unvarying recognition and acceptance in our
case law. The present Constitution declares that —
1 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.

It further ordains that any evidence obtained in violation of said right, among others, "shall be inadmissible for any
purpose in any proceeding." 3

The rule is that no person may be subjected by the police or other government authority to a search of his body, or
his personal effects or belongings, or his residence except by virtue of a search warrant or on the occasion of a
legitimate arrest.
4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant, an arrest may
also be lawfully made by a peace officer or a private person: 5

(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.

In any of these instances of a lawful arrest, the person 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." And it has been
6

held that the search may extend to the area "within his immediate control," i.e., the area from which said person
arrested might gain possession of a weapon or destructible evidence. 7

Apart from "search incidental to an arrest," a warrantless search has also been held to be proper in cases of "search
of a moving vehicle, and "seizure of evidence in plain view." This was the pronouncement in Manipon, Jr. v.
8 9

Sandiganbayan, 143 SCRA 267, 276, which drew attention to Moreno v. Ago Chi; Alvero v. Dizon, Papa v. Mago,
10 11 12

and an American precedent, Harris v. U.S. 13

If, on the other, a person is searched without a warrant, or under circumstances other than those justifying an arrest
without warrant in accordance with law, supra, merely on suspicion that he is engaged in some felonious enterprise,
and in order to discover if he has indeed committed a crime, it is not only the arrest which is illegal but also, the
search on the occasion thereof, as being "the fruit of the poisonous tree. In that event, any evidence taken, even if
14

confirmatory of the initial suspicion, is inadmissible "for any purpose in any proceeding." But the right against an
15

unreasonable search and seizure may be waived by the person arrested, provided he knew of such right and
knowingly decided not to invoke it. 16

There is unanimity among the members of the Court upon the continuing validity of these established principles.
However, the Court is divided as regards the ultimate conclusions which may properly be derived from the proven
facts and consequently, the manner in which the principles just cited should apply thereto.
The proofs of the prosecution and those of the defense are diametrically at odds. What is certain, however, is that
the soldiers had no warrant of arrest when they conducted a search of Malmstedt's person and the things in his
possession at the time. Indeed, the Court a quo acknowledged that the soldiers could "not be expected to be armed
with a warrant or arrest nor a search warrant everytime they establish a temporary checkpoint . . . (and) no judge
would issue them one considering that searching questions have to be asked before a warrant could be issued."
Equally plain is that prior to the search, a warrantless arrest of Malmstedt could not validly have been in accordance
with the norms of the law. For Malmstedt had not committed, nor was he actually committing or attempting to
commit a crime, in the soldiers' presence, nor did said soldiers have personal and competent knowledge that
Malmstedt had in fact just committed a crime. All they had was a suspicion that Malmstedt might have some
prohibited drug on him or in his bags; all they had was, in the words of the Trial Court, "the hope of intercepting any
dangerous drug being transported," or, as the Office of the Solicitor General asserts, "information that most of the
buses coming . . . (from the Cordillera) were transporting marijuana and other prohibited drugs."

This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6, 1988 also by the First Division. There,
17

Aminnudin was arrested without a warrant by PC officers as he was disembarking from an inter-island vessel. The
officers were waiting for him because he was, according to an informer's report, then transporting marijuana. The
search of Aminnudin's bag confirmed the informer's report; the bag indeed contained marijuana. The Court
nevertheless held that since the PC officers had failed to procure a search warrant although they had sufficient time
(two days) to do so and therefore, the case presented no such urgency as to justify a warrantless search, the search
of Aminnudin's person and bag, the seizure of the marijuana and his subsequent arrest were illegal; and the
marijuana was inadmissible in evidence in the criminal action subsequently instituted against Aminnudin for violating
the Dangerous Drugs Act.

There are, on the other hand, other cases adjudicated by this Court in which apparently different conclusions were
reached. It is needful to devote a few words to them so that the relevant constitutional and legal propositions are not
misunderstood.

In People v. Claudio (decision promulgated on April 15, 1988), the accused boarded a "Victory Liner" passenger
18

bus going to Olongapo from Baguio City. She placed the plastic bag she was carrying at the back of the seat then
occupied by Obiña, an INP member "on Detached Service with the Anti-Narcotics Unit." This avowedly aroused
Obiña's suspicion, and at the first opportunity, and without Claudio's knowledge, he surreptitiously looked into the
plastic bag and noted that it contained camote tops as well as a package, and that there emanated from the
package the smell of marijuana with which he had become familiar on account of his work. So when the bus
stopped at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her his ID, identified himself as a
policeman, and announced his intention to search her bag which he said contained marijuana because of the
distinctive odor detected by him. Ignoring her plea — "Please go with me, let us settle this at home" — he brought
her to the police headquarters., where examination of the package in Claudio's bag confirmed his suspicion that it
indeed contained marijuana. The Court held the warrantless arrest under the circumstances to be lawful, the search
justified, and the evidence thus discovered admissible in evidence against the accused.

In People v. Tangliben (decision promulgated on April 6, 1990), two police officers and a barangay tanod were
19

conducting a "surveillance mission" at the Victory Liner Terminal at San Nicolas, San Fernando, Pampanga, "aimed
not only against persons who may commit misdemeanors . . . (there) but also on persons who may be engaging in
the traffic of dangerous drugs based on information supplied by informers; . . . they noticed a person carrying a red
travelling bag . . who was acting suspiciously;" they asked him to open the bag; the person did so only after they
identified themselves as peace officers; found in the bag were marijuana leaves wrapped in plastic weighing one
kilogram, more or less; the person was then taken to the police headquarters at San Fernando, Pampanga, where
he was investigated; and an information was thereafter filed against that person, Tangliben, charging him with a
violation of the Dangerous Drugs Act of 1972 (RA 6425), as amended. Upon these facts it was ruled, citing Claudio,
supra, that there was a valid warrantless arrest and a proper warrantless search incident thereto.

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra. "In contrast" to
Aminnudin where the Court perceived no urgency as to preclude the application for and obtention of a search
warrant, it was declared that the Tangliben case —

. . . presented urgency. . . (The evidence revealed) that there was an informer who pointed to the
accused-appellant as carrying marijuana . . . Faced with such on-the-spot information, the police
officers had to act quickly. There was not enough time to secure a search warrant . . . To require
 search warrants during on-the-spot apprehensions of drug pushers, illegal possessors of firearms,
jueteng collectors, smugglers of contraband goods, robber, etc. would make it extremely difficult, if
not impossible to contain the crimes with which these persons are associated.

In Tangliben, therefore, there was in the Court's view sufficient evidence on hand to enable the PC officers to secure
a search warrant, had there been time. But because there was actually no time to get the warrant, and there were
"on-the-spot" indications that Tangliben was then actually committing a crime, the search of his person and his
effects was considered valid.

Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et al., decided on
August 2, 1990, and People v. Moises Maspil, Jr., et al., decided on August 20, 1990.
20 21

In the first case, Posadas was seen to be acting suspiciously by two members of the INP, Davao Metrodiscom, and
when he was accosted by the two, who identified themselves as police officers, he suddenly fled. He was pursued,
overtaken and, notwithstanding his resistance, placed in custody. The buri bag Posadas was then carrying was
found to contain a revolver, for which he could produce no license or authority to possess, four rounds of live
ammunition, and a tear gas grenade. He was prosecuted for illegal possession of firearms and ammunition and
convicted after trial. This Court affirmed Posadas' conviction, holding that there was, in the premises, probable
cause for a search without warrant, i.e., the appellant was acting suspiciously and attempted to flee with the buri bag
he had with him at the time. The Court cited with approval the ruling of the U.S. Federal Supreme Court in John W.
Terry v. State of Ohio, a 1968 case, which the Solicitor General had invoked to justify the search.
22

In the case of Maspil, et al., a checkpoint was set up by elements of the First Narcotics Regional Unit of the
Narcotics Command at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles on the highway going
towards Baguio City. This was done because of a confidential report by informers that Maspil and another person,
Bagking, would be transporting a large quantity of marijuana to Baguio City. In fact, the informers were with the
policemen manning the checkpoint. As expected, at about 2 o'clock in the early morning of November 1, 1986, a
jeepney approached the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped the vehicle
and saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin cans. When opened, the sacks and
cans were seen to contain what appeared to be marijuana leaves. The policemen thereupon placed Maspil and
Bagking under arrest, and confiscated the leaves which, upon scientific examination, were verified to be marijuana
leaves. The Court upheld the validity of the search thus conducted, as being incidental to a lawful warrantless
arrest, and declared that, as in Tangliben, supra, Maspil and Bagking had been caught in flagrante delicto
23

transporting prohibited drugs at the time of their arrest. Again, the Court took occasion to distinguish the case from
Aminnudin in which, as aforestated, it appeared that the police officers were aware of Aminnudin's identity, his
24

projected criminal enterprise and the vessel on which he would be arriving, and, equally as importantly, had
sufficient time and opportunity to obtain a search warrant. In the case of Maspil and Bagking, the Court found that
the officers concerned had no exact description of the vehicle the former would be using to transport marijuana, and
no inkling of the definite time of the suspects' arrival, and pointed out that a jeepney on the road is not the same as
a passenger boat on the high seas whose route and time of arrival are more or less certain, and which ordinarily
cannot deviate from or otherwise alter its course, or select another destination.25

The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho Wing; et al.,
G.R. No. 88017, decided on January 21, 1991 (per Gancayco, J.). In that case, an undercover or "deep penetration"
agent, Tia, managed somehow to gain acceptance into a group of suspected drug smugglers, which included Peter
Lo and Lim Ching Huat. Tia accompanied Peter Lo to Guangzhou, China, where he saw him and other person
empty the contents of six (6) tins of tea and replace them with white powder. On their return to Manila with the cans
of substituted "tea," they were met at the airport by Lim. As they were leaving the airport in separate vehicles, they
were intercepted by officers and operatives of the Narcotics Command (NARCOM), who had earlier been tipped off
by Tia, and placed under arrest. As search of the luggage brought in by Tia and Peter Lo, loaded on the group's
vehicles, quickly disclosed the six (6) tin cans containing fifty-six (56) bags of white crystalline powder which, upon
analysis, was identified as metamphetamine. Tia, Lo and Lim were indicted for violation of the Dangerous Drugs Act
of 1972. Tia was discharged as state witness. Lo and Lim were subsequently convicted and sentenced to life
imprisonment. One of the questions raised by them in this Court on appeal was whether the warrantless search of
their vehicles and personal effects was legal. The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267
(1986), held legal the search of the appellants' moving vehicles and the seizure therefrom of the dangerous drug,
26

considering that there was intelligence information, including clandestine reports by a planted spy actually
participating in the activity, that the appellants were bringing prohibited drugs into the country; that the requirement
of obtaining a search warrant "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," and "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.27

In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing, facts existed which were found by the Court
as justifying warantless arrests. In Claudio, the arresting officer had secretly ascertained that the woman he was
arresting was in fact in possession of marijuana; he had personally seen that her bag contained not only vegetables
but also a package emitting the odor of marijuana. In Tangliben, the person arrested and searched was acting
suspiciously, and had been positively pointed to as carrying marijuana. And in both cases, the accused were about
to board passenger buses, making it urgent for the police officers concerned to take quick and decisive action. In
Posadas, the person arrested and searched was acting suspiciously, too, and when accosted had attempted to flee
from the police officers. And in Maspil and Lo Ho Wing, there was definite information of the precise identity of the
persons engaged in transporting prohibited drugs at a particular time and place.

Now, as regards the precise issue at hand, whether or not the facts in the case at bar make out a legitimate instance
of a warrantless search and seizure, there is, as earlier pointed out, a regrettable divergence of views among the
members of the Court.

Contrary to the conclusion reached by the majority, I believe that the appellant should be absolved on reasonable
doubt. There was in this case no confidential report from, or positive identification by an informer; no attempt to flee;
no bag or package emitting tell-tale odors; no other reasonably persuasive indications that Malmstedt was at the
time in process of perpetrating the offense for which he was subsequently prosecuted. Hence, when the soldiers
searched Malmstedt's pouch and the bags in his possession, they were simply "fishing" for evidence. It matters not
that the search disclosed that the bags contained prohibited substances, confirming their initial information and
suspicion. The search was not made by virtue of a warrant or as an incident of a lawful warrantless arrest, i.e.,
under circumstances sufficient to engender a reasonable belief that some crime was being or about to be
committed, or adjust been committed. There was no intelligent and intentional waiver of the right against
unreasonable searches and seizure. The search was therefore illegal, since the law requires that there first be a
lawful arrest of an individual before a search of his body and his belongings may licitly be made. The process
cannot be reversed, i.e., a search be first undertaken, and then an arrest effected, on the strength of the evidence
yielded by the search. An arrest made in that case would be unlawful, and the search undertaken as an incident of
such an unlawful arrest, also unlawful.

The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, La Trinidad,
Malmstedt had, it is said, willingly admitted that there were was hashish inside the "teddy bears" in the luggage
found in his possession — an admission subsequently confirmed by laboratory examination — does not help the
cause of the prosecution one bit. Nothing in the record even remotely suggests that Malmstedt was accorded the
rights guaranteed by the Constitution to all persons under custodial investigation. He was not informed, prior to
28

being interrogated, that he had the "right to remain silent and to have competent and independent counsel
preferably of his own choice," and that if he could not afford the services of counsel, he would be provided with one;
not does it appear at all that he waived those rights "in writing and in the presence of counsel." The soldiers and the
police officers simply went ahead with the investigation of Malmstedt, without counsel. The admissions elicited from
Malmstedt under these circumstances, as the Constitution clearly states, are "inadmissible in evidence against him. 29

The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation of the constitutional
right against unreasonable searches and seizures, are inadmissible against him "for any purpose in any
proceeding." Also pronounced as incompetent evidence against him are the admissions supposedly made by him
without his first being accorded the constitutional rights of persons under custodial investigation. Without such object
evidence and admissions, nothing remains of the case against Malmstedt.

It may be conceded that, as the Trial Court points out, the evidence presented by Malmstedt in his defense is feeble,
unworthy of credence. This is beside the point; for conformably to the familiar axiom, the State must rely on the
strength of its evidence and not on the weakness of the defense. The unfortunate fact is that although the existence
of the hashish is an objective physical reality that cannot but be conceded, there is in law no evidence to
demonstrate with any degree of persuasion, much less beyond reasonable doubt, that Malmstedt was engaged in a
criminal activity. This is the paradox created by the disregard of the applicable constitutional safeguards. The
tangible benefit is that the hashish in question has been correctly confiscated and thus effectively withdrawn from
private use.

What is here said should not by any means be taken as a disapproval or a disparagement of the efforts of the police
and military authorities to deter and detect offenses, whether they be possession of and traffic in prohibited drugs, or
some other. Those efforts obviously merit the support and commendation of the Courts and indeed of every
responsible citizen. But those efforts must take account of the basic rights granted by the Constitution and the law to
persons who may fall under suspicion of engaging in criminal acts. Disregard of those rights may not be justified by
the objective of ferreting out and punishing crime, no matter how eminently desirable attainment of that objective
might be. Disregard of those rights, as this Court has earlier stressed, may result in the escape of the guilty, and all
because the "constable has blundered," rendering the evidence inadmissible even if truthful or otherwise credible. 30

I therefore vote to reverse the Trial Court's judgment of October 12, 1989 and to acquit the appellant on reasonable
doubt.

CRUZ, J., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct application to the facts of
this case of the provisions of the Bill of Rights and the Rules of Court on searches and seizures. It is consistent with
my ponencia in People v. Aminnudin, 163 SCRA 402, and also with Alih v. Castro, 151 SCRA 279, the latter being a
unanimous decision of the Court en banc, and my dissents in Umil v. Ramos (on warrantless arrests, 187 SCRA
311, Valmonte v. De Villa (on checkpoints), 178, SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"),
181 SCRA 623.

I write this separate opinion merely to remark on an observation made during the deliberation on this case that
some members of the Court seem to be coddling criminals instead of extending its protection to society, which
deserves our higher concern. The inference is that because of our wrong priorities, criminals are being imprudently
let free, to violate our laws again; and it is all our fault.

Believing myself to be among those alluded to, I will say without apology that I do not consider a person a criminal,
until he is convicted by final judgment after a fair trial by a competent and impartial court. Until then, the Constitution
bids us to presume him innocent. He may seem boorish or speak crudely or sport tattoos or dress weirdly or
otherwise fall short of our own standards of propriety and decorum. None of these makes him a criminal although he
may look like a criminal.

It is so easy to condemn a person on the basis of his appearance but it is also so wrong.

On the question before us, it seems to be the inclination of some judges to wink at an illegal search and seizure as
long as the suspect has been actually found in possession of a prohibited article That fact will retroactively validate
the violation of the Bill of Rights for after all, as they would rationalize, the suspect is a criminal. What matters to
them is the fact of illegal possession, not the fact of illegal search and seizure.

This kind of thinking takes us back to the intolerant days of Moncado v. People's Court, 80 Phil. 1, which was
discredited in Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by an express provision in the
1973 Constitution. That provision, which has been retained in the present Constitution, again explicitly declares that
any evidence illegally obtained "shall be inadmissible for any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. In the case at bar, the
1âwphi1

search was made at a checkpoint established for the preposterous reason that the route was being used by
marijuana dealers and on an individual who had something bulging at his waist that excited the soldier's suspicion.
Was that probable cause? The ponencia notes that the military had advance information that a Caucasian was
coming from the Sagada with prohibited drugs in his possession. This is what the military says now, after the fact, to
justify the warrantless search. It is so easy to make such a claim, and I am surprised that the majority should readily
accept it.
The conclusion that there was probable cause may have been influenced by the subsequent discovery that the
accused was carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the
fact of illegal possession that retroactively established the probable cause that validated the illegal search and
seizure. It was the fruit of the poisonous tree that washed clean the tree itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available evidence
should be used. It is also desirable that the government should not itself foster and pay for other
1avvphi1

crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for
having got evidence by crime, I do not see why it may not as well pay them for getting it in the same
way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays
and announces that in the future it will pay for the fruits. We have to choose, and for my part I think it
a less evil that some criminals should escape than that the government should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome the accusation
and take pride in it. I would rather err in favor of the accused who is impaled with outlawed evidence than exalt order
at the price of liberty.

Footnotes

* The case was referred to the Court En Banc by the First Division (to which it had originally been
assigned). Thereafter the Court En Banc resolved to accept and itself decide the case.

1
Brief for Defendant-appellant, Rollo, pp. 43-44.

2
Brief for Plaintiff-appellee, Rollo, p. 89.

3
Decision of the RTC of La Trinidad, Branch 10, dated 12 October 1989, Rollo, pp. 14-20.

4
Rollo, pp. 16-17.

5
Art. III, Sec. 2, 1987 Constitution.

6
Sec. 5, Rule 1 13 of the Rules on Criminal Procedure.

7
People vs. Maspil, G.R. No. 885177, 20 August 1990; People vs. Tangliben, G.R. No. 63630, 6
April 1990, 184 SCRA 220; People vs. Claudio G.R. No. 72564, 15 April 1988,160 SCRA 646.

8
Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467.

9
Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA 211.

10
People vs. Claudio, supra.

11
People vs. Tangliben, supra.

12
Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990.

13
Supra.

NARVASA, J., CONCURRING AND DISSENTING:

1
SEE People v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA 687 (1986); Alih v.
Castro, 151 SCRA 279 (1987); Guazon v. de Villa, G.R. No. 80508, Jan. 30, 1990.

2
Art. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3, 1973 Constitution, and ART.
IV, Sec. 3, 1935 Constitution.

3
ART. III, Sec. 3 (2).

4
Peo. v. de la Cruz, G.R. No. 83260, April 18, 1990.

5
Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987 ed., pp. 141-142, citing
Adams v. Williams, 47 U.S. 143 and Terry v. Ohio, 392 U.S. 1.

6
Sec. 12, Rule 126, Rules of Court.

7
SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph of Mr. Justice Mendoza,
V.V. entitled Reflections on the Constitutional Law of Arrest, Search and Seizure, Philippine Law
Journal, Vol. LXIII, Third Quarter, September, 1988, p. 241.

8
As pointed out in Cruz, op. cit. p. 142, in the U.S., "searches without warrant may also be made of
automobiles 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," but "the mere mobility of these vehicles does not justify their indiscriminate searches
without warrants if made within the interior of the territory and in the absence of probable cause
(Almeida-Sanchez v. U.S., 37 L. ed. 2d 596; Carrol v. U.S. 267 U.SS. 132).

9
SEE footnote 13, infra.

10
12 Phil. 439, to the effect that, "An officer making an arrest may take from the person arrested any
money or property found upon his persons which was used in the commission of the crime or was
the fruit of the crime of which might furnish the prisoner with the means of committing violence of
escaping, or which may be used in evidence in the trial of the case."

11
76 Phil. 637 to the effect that, "The most important exception to the necessity for a search warrant
is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either
while a crime is being committed or after its commission. The right to search includes in both
instances that of searching the person of him who is arrested, in order to find and seize things
connected with the crime as its fruits or as the means by which it was committed (Agnello vs. United
States, 269 U.S., 20).

12
22 SCRA 857 –– that the "Tariff and Customs Code does not require any search warrant issued by
a competent court before police authorities can effect the seizure. But the Code requires it in the
search of a dwelling house."

390 U.S. 243, holding that "prohibited articles within plain view "open to eye and" hand of the law-
13

enforcement officer who comes upon them "inadvertently," may also be seized by him even without
warrant (SEE Cruz, op. cit. p. 143).

SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil. 853 (1917), Integrated Bar of the
14

Philippines v. Enrile, Oct. 21, 1985, cited in Gupit, Rules of Criminal Procedure, 1986 ed., pp.
179182; Peo. v. Aminnudin, 163 SCRA 402 (1988); Guazon v. de Villa, G.R. No. 80508, Jan. 30,
1990; cf., Peo. v. Cruz, 165 SCRA 135 (1988).

15
Nolasco v. Ernani Cruz-Paño, 147 SCRA 509 (1987); SEE, also, People v. Burgos, 144 SCRA 1
(1986) where the petitioner, while plowing his field, was arrested and his premises searched on the
basis of information that he was in possession of unlicensed firearms, and thereafter, on discovery
by the authorities of a gun and subversive documents, had admitted ownership thereof –– upon
 which facts, this Court ruled the gun and documents to be inadmissible in evidence because their
seizure was not an incident of a lawful arrest, and his acknowledgment of ownership thereof equally
incompetent because obtained in violation of the Miranda doctrine.

16
SEE Cruz, op. cit. p. 142, citing Terry v. Ohio, supra, and Magoncia v. Palacio, 80 Phil. 770, and
pointing out, on the authority of Callanta vs. Villanueva, 77 SCRA 377 and Bagcal v. Villaraza, 120
SCRA 525, that the posting by the accused of a bail bond constitutes waiver of any irregularity
attending his arrest and estops him from questioning its validity.

17
163 SCRA 402, per Cruz, J., Griño-Aquino, J., dissenting; SEE footnote 6 at page 2 supra.

18
160 SCRA 646, Third Division, per Gutierrez, Jr., J.

19
184 SCRA 22, Third Division, per Gutierrez, Jr., J.

20
G.R. No. 83139, First Division, per Gancayco, J.

21
G.R. No. 85177, Third Division, per Gutierrez, Jr., J:

22
392 US 1, 20 L Ed 2d 889, 88 S Ct 1868.

23
Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of Criminal Procedure.

24
SEE footnote 20, supra.

25
Attention may be drawn, in this connection, to the Resolution of May 24, 1990 in G.R. No. 83988
(Valmonte v. de Villa, [Sept. 29, 1989], 178 SCRA 211) where the Court cited with approval a ruling
of the U.S. Supreme Court that "Automobiles, because of their mobility, may be searched without a
warrant upon facts not justifying a warrantless search of a residence or office. Brinegar v. United
States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States, 267 US 132, 69 L
Ed 543, 45 S Ct 280, 39 ALR 790 (1952). The cases so holding have, however, always insisted that
the officers conducting the search have "reasonale or probable cause" to believe that they will find
the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless
search. . . . (Dyke v. Taylor, 391 US 216, 20 L Ed 538, 88 S Ct 1472)."

26
SEEFootnotes 9 and 13, supra.

27
Citing Carroll v. U.S., 267 U.S. 132, 153 (1925).

28
ART. III, Sec. 12 (1).

Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22, 1990; Peo. v. Camalog, G.R. No.
29

77116, Jan. 31, 1989; Peo. v. Lagahan, G.R. No. 78692, Dec. 8, 1988; Peo. v. Newman, G.R. No.
45354, July 26, 1988.

30
Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),
petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.
Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the
declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and
banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of
checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated
Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and
Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the
IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of
Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations
within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense,
maintaining peace and order, and providing an atmosphere conducive to the social, economic and political
development of the National Capital Region. As part of its duty to maintain peace and order, the NCRDC installed
1

checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of
being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military
manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and
check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged
fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of
Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the
checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims
that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to
search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches
and/or seizures without search warrant or court order in violation of the Constitution; and, instances have occurred
2

where a citizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are
not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to
show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right
against unlawful search and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs.
Integrated National Police, it was held that individual petitioners who do not allege that any of their rights were
3

violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable only by those
whose rights have been infringed, or threatened to be infringed. What constitutes a reasonable or unreasonable
4

search and seizure in any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search
warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which
amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to
determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches
and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair
grounds, or simply looks into a vehicle, or flashes a light therein, these do not constitute unreasonable search.
7 8 9

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a
security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and
maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart
plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial
notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the
increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are
reported in media, most likely brought about by deteriorating economic conditions — which all sum up to what one
can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its
existence and promote public welfare and an individual's right against a warrantless search which is however
reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner
that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and
even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits,
are part of the price we pay for an orderly society and a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and
refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the
National Capital Regional Command Chief and the Metropolitan Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Griño-Aquino,
Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting:

I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and
fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the
demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is worse is that the searches and seizures are
peremptorily pronounced to be reasonable even without proof of probable cause and much less the required
warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political development of the
National Capital Region." For these purposes, every individual may be stopped and searched at random and at any
time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on
pain of arrest or worse, even being shot to death, if he resists.
I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of
security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic
checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion
might impair "the social, economic and political development of the National Capital Region." It is incredible that we
can sustain such a measure. And we are not even under martial law.

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed
wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty.

SARMIENTO, J., dissenting:

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the
existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution.

The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It
is also the bedrock — the right of the people to be left alone — on which the regime of law and constitutionalism
rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation."
(Resolution, 4.) To say that it is, is — so I submit — to trivialize the plain command of the Constitution.

Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by
virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH
CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR
OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND
AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial
law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures,
the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at
EDSA and a quest that terminated a dictatorship. How soon we forget.

While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the
aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I
submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The
petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident"
(Resolution, supra, 4) in all their gore and gruesomeness.

In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable,
and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants"
unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search
is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But
the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one
simple reason: No search warrant has been issued by a judge.

I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant
vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big
Brother watching every step we take and every move we make.

As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine
checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but
armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no
provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I
have witnessed actual incidents.

Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct
here.
"Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless
search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the
same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time
around. Second, the checkpoint searches herein are unreasonable: There was no warrant.

A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of
democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its
stand, and make liberty in the land, a living reality.

I vote then, to grant the petition.

Separate Opinions

CRUZ, J., dissenting:

I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and
fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the
demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is worse is that the searches and seizures are
peremptorily pronounced to be reasonable even without proof of probable cause and much less the required
warrant. The improbable excuse is that they are aimed at 'establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to the social, economic and political development of the
National Capital Region." For these purposes, every individual may be stopped and searched at random and at any
time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on
pain of arrest or worse, even being shot to death, if he resists.

I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of
security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic
checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion
might impair "the social, economic and political development of the National Capital Region." It is incredible that we
can sustain such a measure. And we are not even under martial law.

Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed
wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty.

SARMIENTO, J., dissenting:

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the
existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution.

The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It
is also the bedrock — the right of the people to be left alone — on which the regime of law and constitutionalism
rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation."
(Resolution, 4.) To say that it is, is — so I submit — to trivialize the plain command of the Constitution.

Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by
virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH
CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR
OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND
AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial
law issuance. (See O.G. 4224-4226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures,
the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at
EDSA and a quest that terminated a dictatorship. How soon we forget.
While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the
aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I
submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The
petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident"
(Resolution, supra, 4) in all their gore and gruesomeness.

In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable,
and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants"
unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search
is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But
the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one
simple reason: No search warrant has been issued by a judge.

I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant
vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big
Brother watching every step we take and every move we make.

As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine
checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but
armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no
provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I
have witnessed actual incidents.

Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct
here.

"Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless
search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the
same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time
around. Second, the checkpoint searches herein are unreasonable: There was no warrant.

A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of
democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its
stand, and make liberty in the land, a living reality.

I vote then, to grant the petition.

Footnotes

1 Comment of Respondents. Rollo, p. 32.

2 Article III, Section 2, 1987 Constitution 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.

3 G.R. No. 80432. Minute Resolution dated 8 March 1988.

4 Section 52, 79 C.J.S. 810-811.

5 Section 8, 79 C.J.S. 786.

6 U.S. v. Robinwitz, N.Y., 70 S. Crt. 430,339 U.S. 56,94 L.Ed. 653; Harries v. U.S., Okl., 67
S.Ct. 1098 & 331 U.S. 146, 94 L.Ed. 1871; Martin v. U.S., C.A. Va., 183 F2d 436; 66, 79
C.J.S., 835-8,36.

7 Ibid., citing the case of People v. Case, 190 MW 289, 220 Mich. 379, 27 A.L.R. 686.

8 Ibid., citing the case of State v. Gaina, 97 SE 62, 111 S.C. 1 74, 3 A.L.R. 1500.

9 Ibid., citing the case of Rowland v. Commonwealth, 259 SW 33, 202 Rg 92.

10 Comment. Rollo, pp. 25-26.