G.R. No.

L-32409 February 27, 1971

BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, petitioners,
vs.
HON. JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity asCommissioner of
Internal Revenue, ARTURO LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ,
MIMIR DELLOSA, NICANOR ALCORDO, et al,respondents.

DECISION
VILLAMOR, J:
This is an original action of certiorari, prohibition and mandamus, with prayer for a writ of
preliminary mandatory and prohibitory injunction. In their petition Bache & Co. (Phil.), Inc., a
corporation duly organized and existing under the laws of the Philippines, and its President,
Frederick E. Seggerman, pray this Court to declare null and void Search Warrant No. 2-M-70
issued by respondent Judge on February 25, 1970; to order respondents to desist from
enforcing the same and/or keeping the documents, papers and effects seized by virtue thereof,
as well as from enforcing the tax assessments on petitioner corporation alleged by petitioners to
have been made on the basis of the said documents, papersand effects, and to order the return
of the latter to petitioners. We gave due course to the petition but did not issue the writ of
preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal Revenue, wrote a
letter addressed to respondent Judge Vivencio M. Ruiz requesting the issuance of a search
warrant against petitioners for violation of Section 46(a) of the National Internal Revenue Code,
in relation to all other pertinent provisions thereof, particularly Sections 53, 72, 73, 208 and 209,
and authorizing Revenue Examiner Rodolfo de Leon, one of herein respondents, to make and
file the application for search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and his witness,
respondent Arturo Logronio, went to the Court of First Instance of Rizal. They brought with them
the following papers: respondent Veras aforesaid letter-request; an application for search
warrant already filled up but still unsigned by respondent De Leon; an affidavit of respondent
Logronio subscribed before respondent De Leon; a deposition in printed form of respondent
Logronio already accomplished and signed by him but not yet subscribed; and a search warrant
already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note, he instructed
his Deputy Clerk of Court to take the depositions of respondents De Leon and Logronio. After
the session had adjourned, respondent Judge was informed that the depositions had already
been taken. The stenographer, upon request of respondent Judge, read to him her stenographic

notes; and thereafter, respondent Judge asked respondent Logronio to take the oath and
warned him that if his deposition was found to be false and without legal basis, he could be
charged for perjury. Respondent Judge signed respondent de Leons application for search
warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then sign by
respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents served the
search warrant petitioners at the offices of petitioner corporation on Ayala Avenue, Makati, Rizal.
Petitioners lawyers protested the search on the ground that no formal complaint or transcript of
testimony was attached to the warrant. The agents nevertheless proceeded with their search
which yielded six boxes of documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal praying that
the search warrant be quashed, dissolved or recalled, that preliminary prohibitory and
mandatory writs of injunction be issued, that the search warrant be declared null and void, and
that the respondents be ordered to pay petitioners, jointly and severally, damages and attorneys
fees. On March 18, 1970, the respondents, thru the Solicitor General, filed an answer to the
petition. After hearing, the court, presided over by respondent Judge, issued on July 29, 1970,
an order dismissing the petition for dissolution of the search warrant. In the meantime, or on
April 16, 1970, the Bureau of Internal Revenue made tax assessments on petitioner corporation
in the total sum of P2,594,729.97, partly, if not entirely, based on the documents thus seized.
Petitioners came to this Court.
The petition should be granted for the following reasons:
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised Rules of Court
are:
(3) The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. (Art. III, Sec. 1, Constitution.)
SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon
probable cause in connection with one specific offense to be determined by the judge or justice
of the peace after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons or things to
be seized.
No search warrant shall issue for more than one specific offense.
SEC. 4. Examination of the applicant. The judge or justice of the peace must, before issuing
the warrant, personally examine on oath or affirmation the complainant and any witnesses he
may produce and take their depositions in writing, and attach them to the record, in addition to
any affidavits presented to him. (Rule 126, Revised Rules of Court.)

The examination of the complainant and the witnesses he may produce, required by Art. III, Sec.
1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the Revised Rules of Court,
should be conducted by the judge himself and not by others. The phrase which shall be
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, appearing in the said constitutional provision, was introduced by
Delegate Francisco as an amendment to the draft submitted by the Sub-Committee of Seven.
The following discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine
Constitutional Convention, Vol. III, pp. 755-757) is enlightening:
SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los fines de la
justicia mediante el registro inmediato y la incautacion del cuerpo del delito, no cree Su Seoria
que causaria cierta demora el procedimiento apuntado en su enmienda en tal forma que podria
frustrar los fines de la justicia o si Su Seoria encuentra un remedio para esto casos con el fin
de compaginar los fines de la justicia con los derechos del individuo en su persona, bienes
etcetera, etcetera.
SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria pregunta por
la siguiente razon: el que solicita un mandamiento de registro tiene que hacerlo por escrito y
ese escrito no aparecer en la Mesa del Juez sin que alguien vaya el juez a presentar ese escrito
o peticion de sucuestro. Esa persona que presenta el registro puede ser el mismo denunciante
o alguna persona que solicita dicho mandamiento de registro. Ahora toda la enmienda en esos
casos consiste en que haya peticion de registro y el juez no se atendra solamente a sea
peticion sino que el juez examiner a ese denunciante y si tiene testigos tambin examiner a los
testigos.
SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante por escrito
siempre requeriria algun tiempo?.

not a probable cause exists calls for the exercise of judgment after a judicial appraisal of facts
and should not be allowed to be delegated in the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent Judge of the
complainant (respondent De Leon) and his witness (respondent Logronio). While it is true that
the complainants application for search warrant and the witness printed-form deposition were
subscribed and sworn to before respondent Judge, the latter did not ask either of the two any
question the answer to which could possibly be the basis for determining whether or not there
was probable cause against herein petitioners. Indeed, the participants seem to have attached
so little significance to the matter that notes of the proceedings before respondent Judge were
not even taken. At this juncture it may be well to recall the salient facts. The transcript of
stenographic notes (pp. 61-76, April 1, 1970, Annex J-2 of the Petition) taken at the hearing of
this case in the court below shows that per instruction of respondent Judge, Mr. Eleodoro V.
Gonzales, Special Deputy Clerk of Court, took the depositions of the complainant and his
witness, and that stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent
Judge was at the sala hearing a case. After respondent Judge was through with the hearing,
Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and witness Logronio went
to respondent Judges chamber and informed the Judge that they had finished the depositions.
Respondent Judge then requested the stenographer to read to him her stenographic notes.
Special Deputy Clerk Gonzales testified as follows:
A And after finishing reading the stenographic notes, the Honorable Judge requested or
instructed them, requested Mr. Logronio to raise his hand and warned him if his deposition will
be found to be false and without legal basis, he can be charged criminally for perjury. The
Honorable Court told Mr. Logronio whether he affirms the facts contained in his deposition and
the affidavit executed before Mr. Rodolfo de Leon.
Q And thereafter?
A And thereafter, he signed the deposition of Mr. Logronio.

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

Q Who is this he?

A The Honorable Judge.

xxx

xxx

xxx
Q The deposition or the affidavit?

MR. LAUREL.. . . The reason why we are in favor of this amendment is because we are
incorporating in our constitution something of a fundamental character. Now, before a judge
could issue a search warrant, he must be under the obligation to examine personally under oath
the complainant and if he has any witness, the witnesses that he may produce . . .
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more emphatic and
candid, for it requires the judge, before issuing a search warrant, to personally examine on oath
or affirmation the complainant and any witnesses he may produce . . .
Personal examination by the judge of the complainant and his witnesses is necessary to enable
him to determine the existence or non-existence of a probable cause, pursuant to Art. III, Sec. 1,
par. 3, of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which
prohibit the issuance of warrants except upon probable cause. The determination of whether or

A The affidavit, Your Honor.

Thereafter, respondent Judge signed the search warrant.
The participation of respondent Judge in the proceedings which led to the issuance of Search
Warrant No. 2-M-70 was thus limited to listening to the stenographers readings of her notes, to
a few words of warning against the commission of perjury, and to administering the oath to the
complainant and his witness. This cannot be consider a personal examination. If there was an
examination at all of the complainant and his witness, it was the one conducted by the Deputy
Clerk of Court. But, as stated, the Constitution and the rules require a personal examination by
the judge. It was precisely on account of the intention of the delegates to the Constitutional
Convention to make it a duty of the issuing judge to personally examine the complainant and his
witnesses that the question of how much time would be consumed by the judge in examining

them came up before the Convention, as can be seen from the record of the proceedings quoted
above. The reading of the stenographic notes to respondent Judge did not constitute sufficient
compliance with the constitutional mandate and the rule; for by that manner respondent Judge
did not have the opportunity to observe the demeanor of the complainant and his witness, and to
propound initial and follow-up questions which the judicial mind, on account of its training, was in
the best position to conceive. These were important in arriving at a sound inference on the allimportant question of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for [v]iolation of Sec. 46(a) of the National Internal
Revenue Code in relation to all other pertinent provisions thereof particularly Secs. 53, 72, 73,
208 and 209. The question is: Was the said search warrant issued in connection with one
specific offense, as required by Sec. 3, Rule 126?

No 2-M-70 was issued for violation of only one code, i.e., the National Internal Revenue Code.
The distinction more apparent than real, because it was precisely on account of the Stonehill
incident, which occurred sometime before the present Rules of Court took effect on January 1,
1964, that this Court amended the former rule by inserting therein the phrase in connection with
one specific offense, and adding the sentence No search warrant shall issue for more than one
specific offense, in what is now Sec. 3, Rule 126. Thus we said in Stonehill:
Such is the seriousness of the irregularities committed in connection with the disputed search
warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of
Court that a search warrant shall not issue but upon probable cause in connection with one
specific offense. Not satisfied with this qualification, the Court added thereto a paragraph,
directing that no search warrant shall issue for more than one specific offense.'
3. The search warrant does not particularly describe the things to be seized.

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

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

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

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

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

Sec. 72 imposes surcharges for failure to render income tax returns and for rendering false and
fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to supply the
information required under the Tax Code.
Sec. 208 penalizes [a]ny person who distills, rectifies, repacks, compounds, or manufactures
any article subject to a specific tax, without having paid the privilege tax therefore, or who aids or
abets in the conduct of illicit distilling, rectifying, compounding, or illicit manufacture of any article
subject to specific tax . . ., and provides that in the case of a corporation, partnership, or
association, the official and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross value of
output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under the Tax Code.
The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing of income tax returns),
which are interrelated. The second is the violation of Sec. 53 (withholding of income taxes at
source). The third is the violation of Sec. 208 (unlawful pursuit of business or occupation); and
the fourth is the violation of Sec. 209 (failure to make a return of receipts, sales, business or
gross value of output actually removed or to pay the tax due thereon). Even in their classification
the six above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72 and
73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V (Privilege Tax on
Business and Occupation).
Respondents argue that Stonehill, et al. vs. Diokno, et al., L-19550, June 19, 1967 (20 SCRA
383), is not applicable, because there the search warrants were issued for violation of Central
Bank Laws, Internal Revenue (Code) and Revised Penal Code; whereas, here Search Warrant

The description does not meet the requirement in Art III, Sec. 1, of the Constitution, and of Sec.
3, Rule 126 of the Revised Rules of Court, that the warrant should particularly describe the
things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion, said:
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 paper 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.
While the term all business transactions does not appear in Search Warrant No. 2-M-70, the
said warrant nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the
elimination of general warrants, for the language used therein is so all-embracing as to include

all conceivable records of petitioner corporation, which, if seized, could possibly render its
business inoperative.
In Uy Kheytin, et al. vs. Villareal, etc., et al., 42 Phil. 886, 896, this Court had occasion to explain
the purpose of the requirement that the warrant should particularly describe the place to be
searched and the things to be seized, to wit:
. . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically require that a
search warrant should particularly describe the place to be searched and the things to be
seized. The evident purpose and intent of this requirement is to limit the things to be seized to
those, and only those, particularly described in the search warrant to leave the officers of the
law with no discretion regarding what articles they shall seize, to the end that unreasonable
searches and seizures may not be made, that abuses may not be committed. That this is the
correct interpretation of this constitutional provision is borne out by American authorities.
The purpose as thus explained could, surely and effectively, be defeated under the search
warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio; 57
Phil. 384); or when the description expresses a conclusion of fact not of law by which the
warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos,
J.,); or when the things described are limited to those which bear direct relation to the offense for
which the warrant is being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search
warrant does not conform to any of the foregoing tests. If the articles desired to be seized have
any direct relation to an offense committed, the applicant must necessarily have some evidence,
other than those articles, to prove the said offense; and the articles subject of search and
seizure should come in handy merely to strengthen such evidence. In this event, the description
contained in the herein disputed warrant should have mentioned, at least, the dates, amounts,
persons, and other pertinent data regarding the receipts of payments, certificates of stocks and
securities, contracts, promissory notes, deeds of sale, messages and communications, checks,
bank deposits and withdrawals, records of foreign remittances, among others, enumerated in the
warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a motion for
reconsideration of respondent Judges order of July 29, 1970. The contention is without merit. In
the first place, when the questions raised before this Court are the same as those which were
squarely raised in and passed upon by the court below, the filing of a motion for reconsideration
in said court before certiorari can be instituted in this Court is no longer a prerequisite. (Pajo,
etc., et al. vs. Ago, et al., 108 Phil., 905). In the second place, the rule requiring the filing of a
motion for reconsideration before an application for a writ of certiorari can be entertained was
never intended to be applied without considering the circumstances. (Matutina vs. Buslon, et al.,
109 Phil., 140.) In the case at bar time is of the essence in view of the tax assessments sought
to be enforced by respondent officers of the Bureau of Internal Revenue against petitioner
corporation, On account of which immediate and more direct action becomes necessary. (Matute
vs. Court of Appeals, et al., 26 SCRA 768.) Lastly, the rule does not apply where, as in this case,
the deprivation of petitioners fundamental right to due process taints the proceeding against
them in the court below not only with irregularity but also with nullity. (Matute vs. Court of
Appeals, et al., supra.)
It is next contended by respondents that a corporation is not entitled to protection against
unreasonable search and seizures. Again, we find no merit in the contention.

Although, for the reasons above stated, we are of the opinion that an officer of a corporation
which is charged with a violation of a statute of the state of its creation, or of an act of Congress
passed in the exercise of its constitutional powers, cannot refuse to produce the books and
papers of such corporation, we do not wish to be understood as holding that a corporation is not
entitled to immunity, under the 4th Amendment, against unreasonable searches and seizures. A
corporation is, after all, but an association of individuals under an assumed name and with a
distinct legal entity. In organizing itself as a collective body it waives no constitutional immunities
appropriate to such body. Its property cannot be taken without compensation. It can only be
proceeded against by due process of law, and is protected, under the 14th Amendment, against
unlawful discrimination . . . (Hale v. Henkel, 201 U.S. 43, 50 L. ed. 652.)
In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a different rule
applied to a corporation, the ground that it was not privileged from producing its books and
papers. But the rights of a corporation against unlawful search and seizure are to be protected
even if the same result might have been achieved in a lawful way. (Silverthorne Lumber
Company, et al. v. United States of America, 251 U.S. 385, 64 L. ed. 319.)
In Stonehill, et al. vs. Diokno, et al., supra, this Court impliedly recognized the right of a
corporation to object against unreasonable searches and seizures, thus:
As regards the first group, we hold that petitioners herein have no cause of action to assail the
legality of the contested warrants and of the seizures made in pursuance thereof, for the simple
reason that said corporations have their respective personalities, separate and distinct from the
personality of herein petitioners, regardless of the amount of shares of stock or the interest of
each of them in said corporations, whatever, the offices they hold therein may be. Indeed, it is
well settled that the legality of a seizure can be contested only by the party whose rights have
been impaired thereby, and that the objection to an unlawful search and seizure is purely
personal and cannot be availed of by third parties. Consequently, petitioners herein may not
validly object to the use in evidence against them of the documents, papers and things seized
from the offices and premises of the corporations adverted to above, since the right to object to
the admission of said papers in evidence belongs exclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity . . .
In the Stonehill case only the officers of the various corporations in whose offices documents,
papers and effects were searched and seized were the petitioners. In the case at bar, the
corporation to whom the seized documents belong, and whose rights have thereby been
impaired, is itself a petitioner. On that score, petitioner corporation here stands on a different
footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as claimed by
petitioners at least partly as in effect admitted by respondents based on the documents seized
by virtue of Search Warrant No. 2-M-70. Furthermore, the fact that the assessments were made
some one and one-half months after the search and seizure on February 25, 1970, is a strong
indication that the documents thus seized served as basis for the assessments. Those
assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2-M-70
issued by respondent Judge is declared null and void; respondents are permanently enjoined
from enforcing the said search warrant; the documents, papers and effects seized thereunder
are ordered to be returned to petitioners; and respondent officials the Bureau of Internal
Revenue and their representatives are permanently enjoined from enforcing the assessments

mentioned in Annex G of the present petition, as well as other assessments based on the
documents, papers and effects seized under the search warrant herein nullified, and from using
the same against petitioners in any criminal or other proceeding. No pronouncement as to costs.

The first and third case, G.R. No. 104988 and G.R. No. 123784, were originally assigned to the
Second and Third Divisions of the Court, respectively. They were subsequently consolidated with
the second, a case of the Court en banc.
Petitioner, a domestic corporation with principal office at Nos. 1350-1352 Juan Luna Street,
Tondo, Manila, and with a Lumberyard at Fortune Street, Fortune Village, Paseo de Blas,
Valenzuela, Metro Manila, was duly registered as a lumber dealer with the Bureau of Forest
Development (BFD) under Certificate of Registration No. NRD-4-092590-0469. Its permit as
such was to expire on 25 September 1990.
Respondent Secretary Fulgencio S. Factoran, Jr., and respondent Atty. Vincent A. Robles were,
during all the time material to these cases, the Secretary of the Department of Environment and
Natural Resources (DENR) and the Chief of the Special Actions and Investigation Division
(SAID) of the DENR, respectively.
The material operative facts are as follows:
On 1 April 1990, acting on an information that a huge stockpile of narra flitches, shorts, and
slabs were seen inside the lumberyard of the petitioner in Valenzuela, Metro Manila, the SAID
organized a team of foresters and policemen and sent it to conduct surveillance at the said
lumberyard. In the course thereof, the team members saw coming out from the lumberyard the
petitioner's truck, with Plate No. CCK-322, loaded with lauan and almaciga lumber of assorted
sizes and dimensions. Since the driver could not produce the required invoices and transport
documents, the team seized the truck together with its cargo and impounded them at the DENR
compound at Visayas Avenue, Quezon City. 1 The team was not able to gain entry into the
premises because of the refusal of the owner. 2
On 3 April 1990, the team was able to secure a search warrant from Executive Judge Adriano R.
Osorio of the Regional Trial Court (RTC) of Valenzuela, Metro Manila. By virtue thereof, the team
seized on that date from the petitioner's lumberyard four truckloads of narra shorts, trimmings,
and slabs; a negligible number of narra lumber; and approximately 200,000 board feet of lumber
and shorts of various species including almaciga and supa. 3
On 4 April 1990, the team returned to the premises of the petitioner's lumberyard in Valenzuela
and placed under administrative seizure the remaining stockpile of almaciga, supa, and lauan
lumber with a total volume of 311,000 board feet because the petitioner failed to produce upon
demand the corresponding certificate of lumber origin, auxiliary invoices, tally sheets, and
delivery receipts from the source of the invoices covering the lumber to prove the legitimacy of
their source and origin. 4

G.R. No. 104988 June 18, 1996

MUSTANG LUMBER, INC., petitioner,
vs.
HON. COURT OF APPEALS, HON. FULGENCIO S. FACTORAN, JR., Secretary, Department
of Environment and Natural Resources (DENR), and ATTY. VINCENT A. ROBLES, Chief,
Special Actions and Investigations Division, DENR, respondents.
DAVIDE, JR., J.:p

Parenthetically, it may be stated that under an administrative seizure the owner retains the
physical possession of the seized articles. Only an inventory of the articles is taken and signed
by the owner or his representative. The owner is prohibited from disposing them until further
orders. 5
On 10 April 1990, counsel for the petitioner sent a letter to Robles requesting an extension of
fifteen days from 14 April 1990 to produce the required documents covering the seized articles
because some of them, particularly the certificate of lumber origin, were allegedly in the
Province of Quirino Robles denied the motion on the ground that the documents being required
from the petitioner must accompany the lumber or forest products placed under seizure. 6

On 11 April 1990, Robles submitted his memorandum-report recommending to Secretary

Factoran the following:
1. Suspension and subsequent cancellation of the lumber Dealer's Permit of
Mustang Lumber, Inc. for operating an unregistered lumberyard and resaw
mill and possession of Almaciga Lumber (a banned specie) without the
required documents;
2. Confiscation of the lumber seized at the Mustang Lumberyard including
the truck with Plate No. CCK-322 and the lumber loaded herein [sic] now at
the DENR compound in the event its owner fails to submit documents
showing legitimacy of the source of said lumber within ten days from date of
seizure;
3. Filing of criminal charges against Mr. Ri Chuy Po, owner of Mustang
Lumber Inc. and Mr. Ruiz, or if the circumstances warrant for illegal
possession of narra and almaciga lumber and shorts if and when
recommendation no. 2 pushes through;
4. Confiscation of Trucks with Plate No. CCS-639 and CDV. 458 as well as
the lumber loaded therein for transport lumber using "recycled" documents. 7
On 23 April 1990, Secretary Factoran issued an order suspending immediately the petitioner's
lumber-dealer's permit No. NRD-4-092590-0469 and directing the petitioner to explain in writing
within fifteen days why its lumber-dealer's permit should not be cancelled.
On the same date, counsel for the petitioner sent another letter to Robles informing the latter
that the petitioner had already secured the required documents and was ready to submit them.
None, however, was submitted. 8
On 3 May 1990, Secretary Factoran issued another order wherein, after reciting the events
which took place on 1 April and 3 April 1990, he ordered "CONFISCATED in favor of the
government to be disposed of in accordance with law" the approximately 311,000 board feet of
lauan, supa, and almaciga lumber, shorts, and sticks found inside the petitioner's lumberyard. 9
On 11 July 1990, the petitioner filed with the RTC of Manila a petition for certiorari and
prohibition with a prayer for a restraining order or preliminary injunction against Secretary
Fulgencio S. Factoran, Jr., and Atty. Vincent A. Robles. The case (hereinafter, the FIRST CIVIL
CASE) was docketed as Civil Case No. 90-53648 and assigned to Branch 35 of the said court.
The petitioner questioned therein (a) the seizure on 1 April 1990, without any search and seizure
order issued by a judge, of its truck with Plate No. CCK-322 and its cargo of assorted lumber
consisting of apitong, tanguile, and lauan of different sizes and dimensions with a total value of
P38,000.00; and (b) the orders of Secretary Factoran of 23 April 1990 for lack of prior notice and
hearing and of 3 May 1990 for violation of Section 2, Article III of the Constitution.
On 17 September 1990, in response to reports that violations of P.D. No. 705 (The Revised
Forestry Code of the Philippines), as amended, were committed and acting upon instruction of
Robles and under Special Order No. 897, series of 1990, a team of DENR agents went to the
business premises of the petitioner located at No. 1352 Juan Luna Street, Tondo, Manila. The
team caught the petitioner operating as a lumber dealer although its lumber-dealer's permit had

already been suspended or 23 April 1990. Since the gate of the petitioner's lumberyard was
open, the team went inside and saw an owner-type jeep with a trailer loaded with lumber. Upon
investigation, the team was informed that the lumber loaded on the trailer was to be delivered to
the petitioner's customer. It also came upon the sales invoice covering the transaction. The
members of the team then introduced themselves to the caretaker, one Ms. Chua, who turned
out to be the wife of the petitioner's president and general manager, Mr. Ri Chuy Po, who was
then out of town. The team's photographer was able to take photographs of the stockpiles of
lumber including newly cut ones, fresh dust around sawing or cutting machineries and
equipment, and the transport vehicles loaded with lumber. The team thereupon effected a
constructive seizure of approximately 20,000 board feet of lauan lumber in assorted sizes
stockpiled in the premises by issuing a receipt
therefor. 10
As a consequence of this 17 September 1990 incident, the petitioner filed with the RTC of
Manila a petition forcertiorari and prohibition. The case (hereinafter, the SECOND CIVIL CASE)
was docketed as Civil Case No. 90-54610 and assigned to Branch 24 of the said court.
In the meantime, Robles filed with the Department of Justice (DOJ) a complaint against the
petitioner's president and general manager, Ri Chuy Po, for violation of Section 68 of P.D. No.
705, as amended by E.O. No. 277. After appropriate preliminary investigation, the investigating
prosecutor, Claro Arellano, handed down a resolution 11whose dispositive portion reads:
WHEREFORE, premises considered, it is hereby recommended that an
information be filed against respondent Ri Chuy Po for illegal possession of
approximately 200,000 bd. ft. of lumber consisting of almaciga and supa
and for illegal shipment of almaciga and lauan in violation of Sec. 68 of PD
705 as amended by E.O. 277, series of 1987.
It is further recommended that the 30,000 bd. ft. of narra shorts, trimmings
and slabs covered by legal documents be released to the rightful owner,
Malupa. 12
This resolution was approved by Undersecretary of Justice Silvestre H. Bello III, who served as
Chairman of the Task Force on Illegal Logging." 13
On the basis of that resolution, an information was filed on 5 June 1991 by the DOJ with Branch
172 of the RTC of Valenzuela, charging Ri Chuy Po with the violation of Section 58 of P.D. No.
705, as amended, which was docketed as Criminal Case No. 324-V-91 (hereinafter,
the CRIMINAL CASE). The accusatory portion of the information reads as follows:
That on or about the 3rd day of April 1990, or prior to or subsequent thereto,
within the premises and vicinity of Mustang Lumber, Inc. in Fortune Village,
Valenzuela, Metro Manila, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, feloniously
and unlawfully have in his possession truckloads of almaciga and lauan and
approximately 200,000 bd. ft. of lumber and shorts of various species
including almaciga and supa, without the legal documents as required under
existing forest laws and
regulations. 14

On 7 June 1991, Branch 35 of the RTC of Manila rendered its decision

CASE, the dispositive portion of which reads:

15

in the FIRST CIVIL

WHEREFORE, judgment in this case is rendered as follows:

1. The Order of Respondent Secretary of the DENR, the Honorable
Fulgencio S. Factoran, Jr., dated 3 May 1990 ordering the confiscation in
favor of the Government the approximately 311,000 board feet of Lauan,
supa, end almaciga Lumber, shorts and sticks, found inside and seized from
the Lumberyard of the petitioner at Fortune Drive, Fortune Village, Paseo de
Blas, Valenzuela, Metro Manila, on April 4, 1990 (Exhibit 10), is hereby set
aside and vacated, and instead the respondents are required to report and
bring to the Hon. Adriano Osorio, Executive Judge, Regional Trial Court,
NCR, Valenzuela, Metro Manila, the said 311,000 board feet of Lauan, supa
and almaciga Lumber, shorts and sticks, to be dealt with as directed by Law;
2. The respondents are required to initiate and prosecute the appropriate
action before the proper court regarding the Lauan and almaciga lumber of
assorted sizes and dimensions Loaded in petitioner's truck bearing Plate
No. CCK-322 which were seized on April 1, 1990;
3. The Writ of Preliminary Injunction issued by the Court on August 2, 1990
shall be rendered functus oficio upon compliance by the respondents with
paragraphs 1 and 2 of this judgment;.
4. Action on the prayer of the petitioner that the Lauan, supa and almaciga
lumber, shorts and sticks mentioned above in paragraphs 1 and 2 of this
judgment be returned to said petitioner is withheld in this case until after the
proper court has taken cognizance and determined how those Lumber,
shorts and sticks should be disposed of; and

The trial court, however, set aside Secretary Factoran's order of 3 May 1990 ordering the
confiscation of the seized articles in favor of the Government for the reason that since the
articles were seized pursuant to the search warrant issued by Executive Judge Osorio they
should have been returned to him in compliance with the directive in the warrant.
As to the propriety of the 23 April 1990 order of Secretary Factoran, the trial court ruled that the
same had been rendered moot and academic by the expiration of the petitioner's lumber
dealer's permit on 25 September 1990, a fact the petitioner admitted in its memorandum.
The petitioner forthwith appealed from the decision in the FIRST CIVIL CASE to the Court of
Appeals, which docketed the appeal as CA-G.R. SP No. 25510.
On 7 July 1991, accused Ri Chuy Po filed in the CRIMINAL CASE a Motion to Quash and/or to
Suspend Proceedings based on the following grounds: (a) the information does not charge an
offense, for possession oflumber, as opposed to timber, is not penalized in Section 68 of P.D.
No. 705, as amended, and even grantingarguendo that lumber falls within the purview of the
said section, the same may not be used in evidence against him for they were taken by virtue of
an illegal seizure; and (b) Civil Case No. 90-53648 of Branch 35 of the RTC of Manila, the
FIRST CIVIL CASE, then pending before the Court of Appeals, which involves the legality of the
seizure, raises a prejudicial question. 19
The prosecution opposed the motion alleging that lumber is included in Section 68 of P.D. No.
705, as amended, and possession thereof without the required legal documents is penalized
therein. It referred to Section 3.2 of DENR Administrative Order No. 19, series of 1989, for the
definitions of timber and lumber, and then argued that exclusion of lumber from Section 68
would defeat the very purpose of the law, i.e., to minimize, if not halt, illegal logging that has
resulted in the rapid denudation of our forest resources. 20
In her order of 16 August 1991 in the CRIMINAL CASE, 21 respondent Judge Teresita DizonCapulong granted the motion to quash and dismissed the case on the ground that "possession
of lumber without the legal documents required by forest laws and regulations is not a crime. 22

5. The petitioner is ordered to pay the costs.

SO ORDERED.
In resolving the said case, the trial court held that the warrantless search and seizure on 1 April
1990 of the petitioner's truck, which was moving out from the petitioner's lumberyard in
Valenzuela, Metro Manila, loaded with large volumes of lumber without covering document
showing the legitimacy of its source or origin did not offend the constitutional mandate that
search and seizure must be supported by a valid warrant. The situation fell under one of the
settled and accepted exceptions where warrantless search and seizure is justified, viz., a search
of a moving vehicle. 16 As to the seizure of a large volume of almaciga, supa, and lauan lumber
and shorts effected on 4 April 1990, the trial court ruled that the said seizure was a continuation
of that made the previous day and was still pursuant to or by virtue of the search warrant issued
by Executive Judge Osorio whose validity the petitioner did not even question. 17 And, although
the search warrant did not specifically mention almaciga, supa, and lauan lumber and shorts,
their seizure was valid because it is settled that the executing officer is not required to ignore
contrabands observed during the conduct of the
search. 18

Its motion for reconsideration having been denied in the order of 18 October 1991, 23 the People
filed a petition forcertiorari with this Court in G.R. No. 106424, wherein it contends that the
respondent Judge acted with grave abuse of discretion in granting the motion to quash and in
dismissing the case.
On 29 November 1991, the Court of Appeals rendered a decision 24 in CA-G.R. SP
No. 25510 dismissing for lack of merit the petitioner's appeal from the decision in the FIRST
CIVIL CASE and affirming the trial court's rulings on the issues raised. As to the claim that the
truck was not carrying contraband articles since there is no law punishing the possession
oflumber, and that lumber is not timber whose possession without the required legal documents
is unlawful under P.D. No. 705, as amended, the Court of Appeals held:
This undue emphasis on lumber or the commercial nature of the forest
product involved has always been foisted by those who claim to be engaged
in the legitimate business of lumber dealership. But what is important to
consider is that when appellant was required to present the valid documents
showing its acquisition and lawful possession of the lumber in question, it
failed to present any despite the period of extension granted to it. 25

The petitioner's motion to reconsider the said decision was denied by the Court of Appeals in its
resolution of 3 March 1992. 26 Hence, the petitioner came to this Court by way of a petition for
review on certiorari in G.R. No. 104988, which was filed on 2 May 1992. 27
On 24 September 1992, Branch 24 of the RTC of Manila handed down a decision in the
SECOND CIVIL CASE dismissing the petition for certiorari and prohibition because (a) the
petitioner did not exhaust administrative remedies; (b) when the seizure was made on 17
September 1990 the petitioner could not lawfully sell lumber, as its license was still under
suspension; (c) the seizure was valid under Section 68-A of P.D. No. 705, as amended; and (d)
the seizure was justified as a warrantless search and seizure under Section 80 of P.D. No. 705,
as amended.
The petitioner appealed from the decision to the Court of Appeals, which docketed the appeal
as CA-G.R. SP No.33778.
In its decision 28 of 31 July 1995, the Court of Appeals dismissed the petitioner's appeal in CAG.R. SP No. 33778 for lack of merit and sustained the grounds relied upon by the trial court in
dismissing the SECOND CIVIL CASE. Relying on the definition of "lumber" by Webster, viz.,
"timber or logs, especially after being prepared for the market," and by the Random House
Dictionary of the English Language, viz., "wood, esp. when suitable or adapted for various
building purposes," the respondent Court held that since wood is included in the definition
of forest product in Section 3(q) of P.D. No. 705, as amended, lumber is necessarily included in
Section 68 under the term forest product.
The Court of Appeals further emphasized that a forest officer or employee can seize the forest
product involved in a violation of Section 68 of P.D. No. 705 pursuant to Section 80 thereof, as
amended by P.D. No. 1775, which provides in part as follows:
Sec. 80. Arrest, Institution of Criminal Actions. -- A forest officer or employee
of the Bureau or any personnel of the Philippine Constabulary/Integrated
National Police shall arrest even without warrant any person who has
committed or is committing in his presence any of the offenses defined in
this chapter. He shall also seize and confiscate, in favor of the Government,
the tools and equipment used in committing the offense, or the forest
products cut, gathered or taken by the offender in the process of committing
the offense.
Among the offenses punished in the chapter referred to in said Section 80 are the cutting,
gathering, collection, or removal of timber or other forest products or possession of timber or
other forest products without the required legal documents.
Its motion to reconsider the decision having been denied by the Court of Appeals in the
resolution of 6 February 1996, the petitioner filed with this Court on 27 February 1996 a petition
for review on certiorari in G.R. No.123784.
We shall now resolve these three cases starting with G.R. No. 106424 with which the other two
were consolidated.
G.R. No. 106424

The petitioner had moved to quash the information in Criminal Case No. 324-V-91 on the ground
that it does not charge an offense. Respondent Judge Dizon-Capulong granted the motion
reasoning that the subject matter of the information in the CRIMINAL CASE is LUMBER, which
is neither "timber" nor "other forest product" under Section 68 of P.D. No. 705, as amended, and
hence, possession thereof without the required legal documents is not prohibited and penalized
under the said section.
Under paragraph (a), Section 3, Rule 117 of the Rules of Court, an information may be quashed
on the ground that the facts alleged therein do not constitute an offense. It has been said that
"the test for the correctness of this ground is the sufficiency of the averments in the information,
that is, whether the facts alleged, if hypothetically admitted, constitute the elements of the
offense, 29 and matters aliunde will not be considered." Anent the sufficiency of the information,
Section 6, Rule 110 of the Rules of Court requires, inter alia, that the information state the acts
or omissions complained of as constituting the offense.
Respondent Ri Chuy Po is charged with the violation of Section 68 of P.D. No. 705, as amended
by E.O. No. 277, which provides:
Sec. 68. Cutting, Gathering and/or collecting Timber, or Other Forest
Products Without License. -- Any person who shall cut, gather, collect,
remove timber or other forest products from any forest land, or timber from
alienable or disposable public land, or from private land, without any
authority, or possess timber or other forest products without the legal
documents as required under existing forest laws and regulations, shall be
punished with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code: Provided, That in the case of partnerships,
associations, or corporations, the officers who ordered the cutting,
gathering, collection or possession shall be liable, and if such officers are
aliens, they shall, in addition to the penalty, be deported without further
proceedings on the part of the Commission on Immigration and Deportation.
The Court shall further order the confiscation in favor of the government of
the timber or any forest products cut, gathered, collected, removed, or
possessed, as well as the machinery, equipment, implements and tools
illegally used in the area where the timber or forest products are found.
Punished then in this section are (1) the cutting, gathering, collection,
or removal of timber or other forest products from the places therein mentioned
without any authority; and (b) possession of timber forest products without the legal
documents as required under existing forest laws and regulations.
Indeed, the word lumber does not appear in Section 68. But conceding ex gratia that this
omission amounts to an exclusion of lumber from the section's coverage, do the facts averred in
the information in the CRIMINAL CASE validly charge a violation of the said section?
A cursory reading of the information readily leads us to an infallible conclusion that lumber is not
solely its subject matter. It is evident therefrom that what are alleged to be in the possession of
the private respondent, without the required legal documents, are truckloads of
(1) almaciga and lauan; and

2) approximately 200,000 bd. ft. of lumber and shorts of various species including almaciga and
supa.

almaciga and supa and for illegal shipment of almaciga and lauan in violation of Sec. 63 of PD
705 as amended by E.O. 277, series of 1987. (emphasis supplied)

The "almaciga and lauan" specifically mentioned in no. (1) are not described as "lumber." They
cannot refer to the "lumber" in no. (2) because they are separated by the words "approximately
200,000 bd. ft." with the conjunction "and," and not with the preposition "of." They must then be
raw forest products or, more specifically, timbers under Section 3(q) of P.D. No. 705, as
amended, which reads:

The foregoing disquisitions should not, in any manner, be construed as an affirmance of the
respondent Judge's conclusion that lumber is excluded from the coverage of Section 68 of P.D.
No. 705, as amended, and thus possession thereof without the required legal documents is not
a crime. On the contrary, this Court rules that such possession is penalized in the said section
because lumber is included in the term timber.

Sec. 3. Definitions. -xxx xxx xxx

(q) Forest product means timber, firewood, bark, tree
top, resin, gum, wood, oil, honey, beeswax, nipa, rattan,
or other forest plant, the associated water, fish game,
scenic, historical, recreational and geological resources
in forest lands.
It follows then that lumber is only one of the items covered by the information. The public and the
private respondents obviously miscomprehended the averments in the information. Accordingly,
even if lumber is not included in Section 68, the other items therein as noted above fall within the
ambit of the said section, and as to them, the information validly charges an offense.
Our respected brother, Mr. Justice Jose C. Vitug, suggests in his dissenting opinion that this
Court go beyond the four corners of the information for enlightenment as to whether the
information exclusively refers to lumber. With the aid of the pleadings and the annexes thereto,
he arrives at the conclusion that "only lumber has been envisioned in the indictment."
The majority is unable to subscribe to his view. First, his proposition violates the rule that only
the facts alleged in the information vis-a-vis the law violated must be considered in determining
whether an information charges an offense.
Second, the pleadings and annexes he resorted to are insufficient to justify his conclusion. On
the contrary, the Joint Affidavit of Melencio Jalova, Jr., and Araman Belleng, which is one of the
annexes he referred to, 30 cannot lead one to infer that what the team seized was all lumber.
Paragraph 8 thereof expressly states:
8. That when inside the compound, the team found approximately four (4) truckloads ofnarra
shorts, trimmings and slabs and a negligible amount of narra lumber, and approximately 200,000
bd. ft. of lumber and shorts of various species including almaciga and supa which are classified
as prohibited wood species. (emphasis supplied)
In the same vein, the dispositive portion of the resolution 31 of the investigating
prosecutor, which served as the basis for the filing of the information, does not limit
itself to lumber; thus:
WHEREFORE, premises considered, it is hereby recommended that an information be filed
against respondent Ri Chuy Po for illegal possession of 200,000 bd. ft. of lumber consisting of

The Revised Forestry Code contains no definition of either timber or lumber. While the former is
included in forest products as defined in paragraph (q) of Section 3, the latter is found in
paragraph (aa) of the same section in the definition of "Processing plant," which reads:
(aa) Processing plant is any mechanical set-up, machine or combination of machine used for the
processing of logs and other forest raw materials into lumber, veneer, plywood, wallbond,
blockboard, paper board, pulp, paper or other finished wood products. This simply means
that lumber is a processed log or processed forest raw material. Clearly, the Code uses the
term lumber in its ordinary or common usage. In the 1993 copyright edition of Webster's Third
New International Dictionary, lumber is defined, inter alia, as "timber or logs after being prepared
for the market."32 Simply put, lumber is a processed log or timber.
It is settled that in the absence of legislative intent to the contrary, words and phrases used in a
statute should be given their plain, ordinary, and common usage meaning. 33 And insofar as
possession of timber without the required legal documents is concerned, Section 68 of P.D. No.
705, as amended, makes no distinction between raw or processed timber. Neither should
we. Ubi lex non distinguere debemus.
Indisputably, respondent Judge Teresita Dizon-Capulong of Branch 172 of the RTC of
Valenzuela, Metro Manila, committed grave abuse of discretion in granting the motion to quash
the information in the CRIMINAL CASE and in dismissing the said case.
G.R. No. 104988
We find this petition to be without merit. The petitioner has miserably failed to show that the
Court of Appeals committed any reversible error in its assailed decision of 29 November 1991.
It was duly established that on 1 April 1990, the petitioner's truck with Plate No. CCK-322 was
coming out from the petitioner's lumberyard loaded with lauan and almaciga lumber of different
sizes and dimensions which were not accompanied with the required invoices and transport
documents. The seizure of such truck and its cargo was a valid exercise of the power vested
upon a forest officer or employee by Section 80 of P.D. No. 705, as amended by P.D. No. 1775.
Then, too, as correctly held by the trial court and the Court of Appeals in the FIRST CIVIL CASE,
the search was conducted on a moving vehicle. Such a search could be lawfully conducted
without a search warrant.
Search of a moving vehicle is one of the five doctrinally accepted exceptions to the constitutional
mandate 34 that no search or seizure shall be made except by virtue of a warrant issued by a
judge after personally determining the existence of probable cause. The other exceptions are (3)
search as an incident to a lawful arrest, (2) seizure of evidence in plain view, (3) customs
searches, and (4) consented warrantless search. 35

We also affirm the rulings of both the trial court and the Court of Appeals that the search on 4
April 1990 was a continuation of the search on 3 April 1990 done under and by virtue of the
search warrant issued on 3 April 1990 by Executive Judge Osorio. Under Section 9, Rule 126 of
the Rules of Court, a search warrant has a lifetime of ten days. Hence, it could be served at any
time within the said period, and if its object or purpose cannot be accomplished in one day, the
same may be continued the following day or days until completed. Thus, when the search under
a warrant on one day was interrupted, it may be continued under the same warrant the following
day, provided it is still within the ten-day period. 36
As to the final plea of the petitioner that the search was illegal because possession of lumber
without the required legal documents is not illegal under Section 68 of P.D. No. 705, as
amended, since lumber is neither specified therein nor included in the term forest product, the
same hardly merits further discussion in view of our ruling in G.R. No. 106424.

WHEREFORE, judgment is hereby rendered

1. (a) GRANTING the petition in G.R. No. 106424; (b) SETTING ASIDE and ANNULLING, for
having been rendered with grave abuse of discretion, the challenged orders of 16 August 1991
and 18 October 1991 of respondent Judge Teresita Dizon-Capulong, Branch 172, Regional Trial
Court of Valenzuela, Metro Manila, in Criminal Case No. 324-V-91, entitled "People of the
Philippines vs. Ri Chuy Po"; (c) REINSTATING the information in the said criminal case; and (d)
DIRECTING the respondent Judge or her successor to hear and decide the case with
purposeful dispatch; and
2. DENYING the petitions in G.R. No. 104988 and in G. R. No. 123784 for utter failure of the
petitioner to show that the respondent Court of Appeals committed any reversible error in the
challenged decisions of 29 November 1991 in CA-G.R. SP No. 25510 in the FIRST CIVIL CASE
and of 31 July 1995 in CA-G.R. SP No. 33778 on the SECOND CIVIL CASE.

G.R. No. 123784

Costs against the petitioner in each of these three cases.
The allegations and arguments set forth in the petition in this case palpally fail to shaw prima
facie that a reversible error has been committed by the Court of Appeals in its challenged
decision of 31 July 1995 and resolution of 6 February 1996 in CA-G.R. SP No. 33778. We must,
forthwith, deny it for utter want of merit. There is no need to require the respondents to comment
on the petition.
The Court of Appeals correctly dismissed the petitioner's appeal from the judgment of the trial
court in the SECOND CIVIL CASE. The petitioner never disputed the fact that its lumber-dealer's
license or permit had been suspended by Secretary Factoran on 23 April 1990. The suspension
was never lifted, and since the license had only a lifetime of up to 25 September 1990, the
petitioner has absolutely no right to possess, sell, or otherwise dispose of lumber. Accordingly,
Secretary Factoran or his authorized representative had the authority to seize the Lumber
pursuant to Section 68-A of P.D. No. 705, as amended, which provides as follows:
Sec. 68-A Administrative Authority of the Department Head or his Duly Authorized
Representative to Order Confiscation. -- In all cases of violations of this Code or other forest
laws, rules and regulations, the Department Head or his duly authorized representative may
order the confiscation of any forest products illegally cut, gathered, removed, or possessed or
abandoned. . . .
The petitioner's insistence that possession or sale of lumber is not penalized must also fail view
of our disquisition and ruling on the same issue in G.R. No. 106424. Besides, the issue is totally
irrelevant in the SECOND CIVIL CASE which involves administrative seizure as a consequence
of the violation of the suspension of the petitioner's license as lumber dealer.
All told then, G.R. No. 104988 and G.R. No. 123784 are nothing more than rituals to cover up
blatant violations of the Revised Forestry Code of the Philippines (P.D. No. 705), as amended.
They are presumably trifling attempts to block the serious efforts of the DENR to enforce the
decree, efforts which deserve the commendation of the public in light of the urgent need to take
firm and decisive action against despoilers of our forests whose continuous destruction only
ensures to the generations to come, if not the present, an inheritance of parched earth incapable
of sustaining life. The Government must not tire in its vigilance to protect the environment by
prosecuting without fear or favor any person who dares to violate our laws for the utilization and
protection of our forests.

SO ORDERED.
U.S. Supreme Court
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
United States v. Verdugo-Urquidez
No. 88-1353
Argued Nov. 7, 1989
Decided Feb. 28, 1990
494 U.S. 259
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Syllabus
After the Government obtained an arrest warrant for respondent -- a Mexican citizen and
resident believed to be a leader of an organization that smuggles narcotics into this country -- he
was apprehended by Mexican police and transported here, where he was arrested. Following
his arrest, Drug Enforcement Administration agents, working with Mexican officials, searched his
Mexican residences and seized certain documents. The District Court granted his motion to
suppress the evidence, concluding that the Fourth Amendment -- which protects "the people"
against unreasonable searches and seizures -- applied to the searches, and that the DEA
agents had failed to justify searching the premises without a warrant. The Court of Appeals
affirmed. Citing Reid v. Covert,354 U. S. 1 -- which held that American citizens tried abroad by
United States military officials were entitled to Fifth and Sixth Amendment protections -- the court
concluded that the Constitution imposes substantive constraints on the Federal Government,
even when it operates abroad. Relying onINS v. Lopez-Mendoza,468 U. S. 1032 -- where a
majority assumed that illegal aliens in the United States have Fourth Amendment rights -- the
court observed that it would be odd to acknowledge that respondent was entitled to trial-related
rights guaranteed by the Fifth and Sixth Amendments, but not to Fourth Amendment protection.
Held: The Fourth Amendment does not apply to the search and seizure by United States agents
of property owned by a nonresident alien and located in a foreign country. Pp. 494 U. S. 264275.

(a) If there were a constitutional violation in this case, it occurred solely in Mexico, since a Fourth
Amendment violation is fully accomplished at the time of an unreasonable governmental
intrusion whether or not the evidence seized is sought for use in a criminal trial. Thus, the Fourth
Amendment functions differently from the Fifth Amendment, whose privilege against
selfincrimination is a fundamental trial right of criminal defendants. P. 494 U. S. 264.
(b) The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of
the Constitution, and contrasts with the words "person" and "accused" used in Articles of the
Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people"

borders. The rule would apply not only to law enforcement operations abroad, but also to other
foreign operations -- such as armed forces actions -- which might result in "searches and
seizures." Under the rule, aliens with no attachment to this country might bring actions for
damages to remedy claimed violations of the Fourth Amendment in foreign countries or in
international waters, and Members of the Executive and Legislative Branches would be plunged
into a sea of uncertainty as to what might be reasonable in the way of searches and seizures
conducted abroad. Any restrictions on searches and seizures incident to American action abroad
must be imposed by the political branches through diplomatic understanding, treaty, or
legislation. Pp. 494 U. S. 273-275.

Page 494 U. S. 260

856 F.2d 1214 (CA9 1988), reversed.

refers to a class of persons who are part of a national community or who have otherwise
developed sufficient connection with this country to be considered part of that community.
Pp. 494 U. S. 264-266.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA,
and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 494 U. S. 275.
STEVENS, J., filed an opinion concurring in the judgment, post, p. 494 U. S. 279. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 494 U. S. 279. BLACKMUN,
J., filed a dissenting opinion, post, p. 494 U. S. 297.

(c) The Fourth Amendment's drafting history shows that its purpose was to protect the people of
the United States against arbitrary action by their own Government, and not to restrain the
Federal Government's actions against aliens outside United States territory. Nor is there any
indication that the Amendment was understood by the Framers' contemporaries to apply to
United States activities directed against aliens in foreign territory or in international waters.
Pp. 494 U. S. 266-268.
(d) The view that every constitutional provision applies wherever the Government exercises its
power is contrary to this Court's decisions in the Insular Cases, which held that not all
constitutional provisions apply to governmental activity even in territories where the United
States has sovereign power. See, e.g., Balzac v. Porto Rico,258 U. S. 298. Indeed, the claim
that extraterritorial aliens are entitled to rights under the Fifth Amendment -- which speaks in the
relatively universal term of "person" -- has been emphatically rejected. Johnson v.
Eisentrager,339 U. S. 763, 339 U. S. 784. Pp. 494 U. S. 268-269.
(e) Respondent's reliance on Reid, supra, is misplaced, since that case stands only for the
proposition that United States citizensstationed abroad could invoke the protection of the Fifth
and Sixth Amendments. Similarly, those cases in which aliens have been determined to enjoy
certain constitutional rights establish only that aliens receive such protections when they have
come within the territory of, and have developed substantial connections with, this country. See,
e.g., Plyler v. Doe,457 U. S. 202, 457 U. S. 212. Respondent, however, is an alien with no
previous significant voluntary connection with the United States, and his legal but involuntary
presence here does not indicate any substantial connection with this country. The Court of
Appeals' reliance on INS v. Lopez-Mendoza, supra, is also misplaced, since that case assumed
that, but did not expressly address the question whether, the Fourth Amendment applies to
illegal aliens in the United States. Even assuming such aliens -- who are in this country
voluntarily and presumably have accepted some societal obligations -- would be entitled to
Fourth Amendment protections, their situation differs from that of respondent, who had no
voluntary connection with this country that might place him among "the people." This Court's
decisions expressly according differing protection to aliens than to citizens also undermine
respondent's claim that treating aliens differently under the Fourth Amendment violates the equal
protection component of the Fifth Amendment. Pp. 494 U. S. 269-273.
(f) The Court of Appeals' rule would have significant and deleterious consequences for the
United States in conducting activities beyond its
Page 494 U. S. 261

Chief Justice REHNQUIST delivered the opinion of the Court.

The question presented by this case is whether the Fourth Amendment applies to the search
and seizure by United States agents of property that is owned by a nonresident alien and
located in a foreign country. We hold that it does not.
Page 494 U. S. 262
Respondent Rene Martin Verdugo-Urquidez is a citizen and resident of Mexico. He is believed
by the United States Drug Enforcement Agency (DEA) to be one of the leaders of a large and
violent organization in Mexico that smuggles narcotics into the United States. Based on a
complaint charging respondent with various narcotics-related offenses, the Government
obtained a warrant for his arrest on August 3, 1985. In January, 1986, Mexican police officers,
after discussions with United States Marshals, apprehended Verdugo-Urquidez in Mexico and
transported him to the United States Border Patrol station in Calexico, California. There, United
States Marshals arrested respondent and eventually moved him to a correctional center in San
Diego, California, where he remains incarcerated pending trial.
Following respondent's arrest, Terry Bowen, a DEA agent assigned to the Calexico DEA office,
decided to arrange for searches of Verdugo-Urquidez's Mexican residences located in Mexicali
and San Felipe. Bowen believed that the searches would reveal evidence related to
respondent's alleged narcotics trafficking activities and his involvement in the kidnaping and
torture-murder of DEA Special Agent Enrique Camarena Salazar (for which respondent
subsequently has been convicted in a separate prosecution). Bowen telephoned Walter White,
the Assistant Special Agent in charge of the DEA office in Mexico City, and asked him to seek
authorization for the search from the Director General of the Mexican Federal Judicial Police
(MFJP). After several attempts to reach high-ranking Mexican officials, White eventually
contacted the Director General, who authorized the searches and promised the cooperation of
Mexican authorities. Thereafter, DEA agents working in concert with officers of the MFJP
searched respondent's properties in Mexicali and San Felipe and seized certain documents. In
particular, the search of the Mexicali residence uncovered a tally sheet, which the Government
Page 494 U. S. 263
believes reflects the quantities of marijuana smuggled by Verdugo-Urquidez into the United
States.

The District Court granted respondent's motion to suppress evidence seized during the
searches, concluding that the Fourth Amendment applied to the searches and that the DEA
agents had failed to justify searching respondent's premises without a warrant. A divided panel
of the Court of Appeals for the Ninth Circuit affirmed. 856 F.2d 1214 (1988). It cited this Court's
decision in Reid v. Covert,354 U. S. 1(1957), which held that American citizens tried by United
States military authorities in a foreign country were entitled to the protections of the Fifth and
Sixth Amendments, and concluded that "[t]he Constitution imposes substantive constraints on
the federal government, even when it operates abroad." 856 F.2d at 1218. Relying on our
decision in INS v. Lopez-Mendoza,468 U. S. 1032, where a majority of Justices assumed that
illegal aliens in the United States have Fourth Amendment rights, the Ninth Circuit majority found
it "difficult to conclude that Verdugo-Urquidez lacks these same protections." 856 F.2d at 1223. It
also observed that persons in respondent's position enjoy certain trial-related rights, and
reasoned that
"[i]t would be odd indeed to acknowledge that Verdugo-Urquidez is entitled to due process under
the fifth amendment, and to a fair trial under the sixth amendment, . . . and deny him the
protection from unreasonable searches and seizures afforded under the fourth amendment."
Id. at 1224. Having concluded that the Fourth Amendment applied to the searches of
respondent's properties, the court went on to decide that the searches violated the Constitution
because the DEA agents failed to procure a search warrant. Although recognizing that "an
American search warrant would be of no legal validity in Mexico," the majority deemed it
sufficient that a warrant would have "substantial constitutional value in this country," because it
would reflect a magistrate's determination
Page 494 U. S. 264
that there existed probable cause to search and would define the scope of the search. Id. at
1230.
The dissenting judge argued that this Court's statement in United States v. Curtiss-Wright Export
Corp.,299 U. S. 304, 299 U. S. 318(1936), that "[n]either the Constitution nor the laws passed in
pursuance of it have any force in foreign territory unless in respect of our own citizens,"
foreclosed any claim by respondent to Fourth Amendment rights. More broadly, he viewed the
Constitution as a "compact" among the people of the United States, and the protections of the
Fourth Amendment were expressly limited to "the people." We granted certiorari, 490 U.S. 1019
(1989).
Before analyzing the scope of the Fourth Amendment, we think it significant to note that it
operates in a different manner than the Fifth Amendment, which is not at issue in this case. The
privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial
right of criminal defendants. See Malloy v. Hogan,378 U. S. 1 (1964). Although conduct by law
enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs
only at trial. Kastigar v. United States,406 U. S. 441, 406 U. S. 453 (1972). The Fourth
Amendment functions differently. It prohibits "unreasonable searches and seizures" whether or
not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is
"fully accomplished" at the time of an unreasonable governmental intrusion. United States v.
Calandra,414 U. S. 338, 414 U. S. 354 (1974); United States v. Leon,468 U. S. 897, 468 U. S.
906 (1984). For purposes of this case, therefore, if there were a constitutional violation, it
occurred solely in Mexico. Whether evidence obtained from respondent's Mexican residences
should be excluded at trial in the United States is a remedial question separate from the
existence vel non of the constitutional violation. Calandra, supra, 414 U.S. at 414 U. S.
354; Leon, supra, 468 U.S. at 468 U. S. 906.
The Fourth Amendment provides:

Page 494 U. S. 265

"[t]he 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."
That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the
people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to
avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union as Amici
Curiae et al. 12, n. 4, "the people" seems to have been a term of art employed in select parts of
the Constitution. The Preamble declares that the Constitution is ordained and established by
"the People of the United States." The Second Amendment protects "the right of the people to
keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and
powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress
shall make no law . . . abridging . . . the right of the peoplepeaceably to assemble"); Art. I, 2, cl.
1 ("The House of Representatives shall be composed of Members chosen every second Year by
the People of the several States") (emphasis added). While this textual exegesis is by no means
conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First
and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth
Amendments, refers to a class of persons who are part of a national community or who have
otherwise developed sufficient connection with this country to be considered part of that
community. See United States ex rel. Turner v. Williams,194 U. S. 279, 194 U. S. 292 (1904)
(Excludable alien is not entitled to First Amendment rights, because "[h]e does not become one
of the people to whom these things are secured by our Constitution by an attempt to enter
forbidden by law"). The language of these Amendments contrasts with the words
Page 494 U. S. 266
"person" and "accused" used in the Fifth and Sixth Amendments regulating procedure in criminal
cases.
What we know of the history of the drafting of the Fourth Amendment also suggests that its
purpose was to restrict searches and seizures which might be conducted by the United States in
domestic matters. The Framers originally decided not to include a provision like the Fourth
Amendment, because they believed the National Government lacked power to conduct searches
and seizures. See C. Warren, The Making of the Constitution 508-509 (1928); The Federalist
No. 84, p. 513 (C. Rossiter ed. 1961) (A. Hamilton); 1 Annals of Cong. 437 (1789) (statement of
J. Madison). Many disputed the original view that the Federal Government possessed only
narrow delegated powers over domestic affairs, however, and ultimately felt an Amendment
prohibiting unreasonable searches and seizures was necessary. Madison, for example, argued
that
"there is a clause granting to Congress the power to make all laws which shall be necessary and
proper for carrying into execution all of the powers vested in the Government of the United
States,"
and that general warrants might be considered "necessary" for the purpose of collecting
revenue. Id. at 438. The driving force behind the adoption of the Amendment, as suggested by
Madison's advocacy, was widespread hostility among the former Colonists to the issuance of
writs of assistance empowering revenue officers to search suspected places for smuggled
goods, and general search warrants permitting the search of private houses, often to uncover
papers that might be used to convict persons of libel. See Boyd v. United States,116 U. S.
616, 116 U. S. 625-626 (1886). The available historical data show, therefore, that the purpose of
the Fourth Amendment was to protect the people of the United States against arbitrary action by

their own Government; it was never suggested that the provision was intended to restrain the
actions of the Federal Government against aliens outside of the United States territory.

"a system of laws which shall include the right of trial by jury, and that the Constitution does not
without legislation and of its own force, carry such right to territory so situated."

Page 494 U. S. 267

195 U.S. at 195 U. S. 149 (emphasis added). Only "fundamental" constitutional rights are
guaranteed to inhabitants of those territories.Id. at 148; Balzac, supra, 258 U.S. at 258 U. S.
312-313; see Examining Board of Engineers, Architects and Surveyors v. Flores de Otero,426 U.
S. 572, 426 U. S. 599, n. 30 (1976). If that is true with respect to territories ultimately governed
by Congress, respondent's claim that the protections of the Fourth Amendment extend to aliens
in foreign nations is even weaker. And certainly, it is not open to us in light of the Insular
Cases to endorse the

There is likewise no indication that the Fourth Amendment was understood by contemporaries of
the Framers to apply to activities of the United States directed against aliens in foreign territory
or in international waters. Only seven years after the ratification of the Amendment, French
interference with American commercial vessels engaged in neutral trade triggered what came to
be known as the "undeclared war" with France. In an Act to "protect the Commerce of the United
States" in 1798, Congress authorized President Adams to

Page 494 U. S. 269

"instruct the commanders of the public armed vessels which are, or which shall be employed in
the service of the United States, to subdue, seize and take any armed French vessel, which
shall be found within the jurisdictional limits of the United States, or elsewhere, on the high
seas."
1 of An Act Further to Protect the Commerce of the United States, Ch. 68, 1 Stat. 578. This
public naval force consisted of only 45 vessels, so Congress also gave the President power to
grant to the owners of private armed ships and vessels of the United States "special
commissions," which would allow them
"the same license and authority for the subduing, seizing and capturing any armed French
vessel, and for the recapture of the vessels, goods and effects of the people of the United
States, as the public armed vessels of the United States may by law have."
2, 1 Stat. 579; see U.S. Const., Art. I, 8, cl. 11 (Congress has power to grant letters of
marque and reprisal). Under the latter provision, 365 private armed vessels were commissioned
before March 1, 1799, see G. Allen, Our Naval War with France 59 (1967); together, these
enactments resulted in scores of seizures of foreign vessels under congressional
authority. See M. Palmer, Stoddert's War: Naval Operations during the Quasi-War with France
1798-1801, p. 235 (1987). See also An Act further to suspend the Commercial Intercourse
between the United States and France, Ch. 2, 1 Stat. 613. Some commanders were held liable
by this Court for unlawful seizures because their actions were beyond the scope of the
congressional

view that every constitutional provision applies wherever the United States Government
exercises its power.
Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the
sovereign territory of the United States. InJohnson v. Eisentrager,339 U. S. 763 (1950), the
Court held that enemy aliens arrested in China and imprisoned in Germany after World War II
could not obtain writs of habeas corpus in our federal courts on the ground that their convictions
for war crimes had violated the Fifth Amendment and other constitutional provisions.
The Eisentrager opinion acknowledged that in some cases constitutional provisions extend
beyond the citizenry; "[t]he alien . . . has been accorded a generous and ascending scale of
rights as he increases his identity with our society." Id. at 339 U. S. 770. But our rejection of
extraterritorial application of the Fifth Amendment was emphatic:
"Such extraterritorial application of organic law would have been so significant an innovation in
the practice of governments that, if intended or apprehended, it could scarcely have failed to
excite contemporary comment. Not one word can be cited. No decision of this Court supports
such a view. Cf. Downes v. Bidwell,182 U. S. 244 (1901). None of the learned commentators on
our Constitution has even hinted at it. The practice of every modern government is opposed to
it."
Id. at 339 U. S. 784. If such is true of the Fifth Amendment, which speaks in the relatively
universal term of "person," it would seem even more true with respect to the Fourth Amendment,
which applies only to "the people."

Page 494 U. S. 268

grant of authority, see, e.g., 6 U. S. Barreme, 2 Cranch 170, 6 U. S. 177-178 (1804); cf. 5 U.
S. Seeman, 1 Cranch 1, 5 U. S. 31, (1801) (seizure of neutral ship lawful where American
captain had probable cause to believe vessel was French), but it was never suggested that the
Fourth Amendment restrained the authority of Congress or of United States agents to conduct
operations such as this.

To support his all-encompassing view of the Fourth Amendment, respondent points to language
from a plurality opinion in Reid v. Covert,354 U. S. 1 (1957). Reid involved an attempt by
Congress to subject the wives of American servicemen to trial by military tribunals without the
protection of the Fifth and Sixth Amendments. The Court held that it was unconstitutional to
apply the Uniform Code of Military
Page 494 U. S. 270

The global view taken by the Court of Appeals of the application of the Constitution is also
contrary to this Court's decisions in the Insular Cases, which held that not every constitutional
provision applies to governmental activity even where the United States has sovereign
power. See, e.g., Balzac v. Porto Rico,258 U. S. 298 (1922) (Fifth Amendment right to jury trial
inapplicable in Puerto Rico); Ocampo v. United States,234 U. S. 91 (1914) (Sixth Amendment
grand jury provision inapplicable in Philippines); Dorr v. United States,195 U. S. 138 (1904) (jury
trial provision inapplicable in Philippines); Hawaii v. Mankichi,190 U. S. 197 (1903) (provisions
on indictment by grand jury and jury trial inapplicable in Hawaii); Downes v. Bidwell,182 U. S.
244 (1901) (revenue clauses of Constitution inapplicable to Puerto Rico). In Dorr, we declared
the general rule that in an unincorporated territory -- one not clearly destined for statehood -Congress was not required to adopt

Justice to the trials of the American women for capital crimes. Four Justices "reject[ed] the idea
that when the United States acts against citizens abroad it can do so free of the Bill of
Rights." Id. at 354 U. S. 5 (emphasis added). The plurality went on to say:
"The United States is entirely a creature of the Constitution. Its power and authority have no
other source. It can only act in accordance with all the limitations imposed by the Constitution.
When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of
Rights and other parts of the Constitution provide to protect his life and liberty should not be
stripped away just because he happens to be in another land."

Id. at 354 U. S. 5-6 (emphasis added; footnote omitted). Respondent urges that we interpret this
discussion to mean that federal officials are constrained by the Fourth Amendment wherever and
against whomever they act. But the holding of Reid stands for no such sweeping proposition: it
decided that United States citizens stationed abroad could invoke the protection of the Fifth and
Sixth Amendments. The concurring opinions by Justices Frankfurter and Harlan in Reid resolved
the case on much narrower grounds than the plurality and declined even to hold that United
States citizens were entitled to the full range of constitutional protections in all overseas criminal
prosecutions. See id. at 354 U. S. 75 (Harlan, J., concurring in result) ("I agree with my brother
FRANKFURTER that . . . we have before us a question analogous, ultimately, to issues of due
process; one can say, in fact, that the question of which specific safeguards of the Constitution
are appropriately to be applied in a particular context overseas can be reduced to the issue of
what process is due' a defendant in the particular circumstances of a particular case"). Since
respondent is not a United States citizen, he can derive no comfort from the Reid holding.
Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy
certain constitutional rights.
Page 494 U. S. 271
See, e.g., Plyler v. Doe,457 U. S. 202, 457 U. S. 211-212 (1982) (illegal aliens protected by
Equal Protection Clause); Kwong Hai Chew v. Colding,344 U. S. 590, 344 U. S. 596 (1953)
(resident alien is a "person" within the meaning of the Fifth Amendment); Bridges v. Wixon,326
U. S. 135, 326 U. S. 148 (1945) (resident aliens have First Amendment rights); Russian
Volunteer Fleet v. United States,282 U. S. 481 (1931) (Just Compensation Clause of Fifth
Amendment); Wong Wing v. United States,163 U. S. 228, 163 U. S. 238 (1896) (resident aliens
entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins,118 U. S. 356, 118 U. S.
369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish
only that aliens receive constitutional protections when they have come within the territory of the
United States and developed substantial connections with this country. See, e.g., Plyler,
supra, 457 U.S. at 457 U. S. 212 (The provisions of the Fourteenth Amendment "are universal in
their application, to all persons within the territorial jurisdiction. . . .'") (quoting Yick Wo,
supra, 118 U.S. at 118 U. S. 369); Kwong Hai Chew, supra, 344 U.S. at 344 U. S. 596, n. 5
("The Bill of Rights is a futile authority for the alien seeking admission for the first time to these
shores. But once an alien lawfully enters and resides in this country he becomes invested with
the rights guaranteed by the Constitution to all people within our borders.") (quoting Bridges,
supra, 326 U.S. at 326 U. S. 161 (concurring opinion) (emphasis added)). Respondent is an
alien who has had no previous significant voluntary connection with the United States, so these
cases avail him not.
Justice STEVENS' concurrence in the judgment takes the view that, even though the search
took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment
because respondent was "lawfully present in the United States . . . even though he was brought
and held here against his will." Post at 494 U. S. 279. But this sort of presence -- lawful but
involuntary -- is not of the sort to indicate any substantial connection with our country. The extent
to which respondent might claim the protection of the Fourth Amendment

The Court of Appeals found some support for its holding in our decision in INS v. LopezMendoza,468 U. S. 1032 (1984), where a majority of Justices assumed that the Fourth
Amendment applied to illegal aliens in the United States. We cannot fault the Court of Appeals
for placing some reliance on the case, but our decision did not expressly address the proposition
gleaned by the court below. The question presented for decision in Lopez-Mendoza was limited
to whether the Fourth Amendment's exclusionary rule should be extended to civil deportation
proceedings; it did not encompass whether the protections of the Fourth Amendment extend to
illegal aliens in this country. The Court often grants certiorari to decide particular legal issues
while assuming without deciding the validity of antecedent propositions, compare, e.g., Maine v.
Thiboutot,448 U. S. 1 (1980) (assuming State is a "person" within the meaning of 42 U.S.C.
1983) with Will v. Michigan Dept. of State Police,491 U. S. 58 (1989) (State is not a "person"),
and such assumptions -- even on jurisdictional issues -- are not binding in future cases that
directly raise the questions. Id. at 491 U. S. 63, n. 4; Hagans v. Levine,415 U. S. 528, 415 U. S.
535, n. 5 (1974). Our statements in Lopez-Mendoza are therefore not dispositive of how the
Court would rule on a Fourth Amendment claim by illegal aliens in the United States if such a
claim were squarely before us. Even assuming such aliens would be entitled to Fourth
Amendment protections, their situation is
Page 494 U. S. 273
different from respondent's. The illegal aliens in Lopez-Mendoza were in the United States
voluntarily and presumably had accepted some societal obligations; but respondent had no
voluntary connection with this country that might place him among "the people" of the United
States.
Respondent also contends that to treat aliens differently from citizens with respect to the Fourth
Amendment somehow violates the equal protection component of the Fifth Amendment to the
United States Constitution. He relies on Graham v. Richardson,403 U. S. 365(1971), and Foley
v. Connelie,435 U. S. 291 (1978), for this proposition. But the very cases previously cited with
respect to the protection extended by the Constitution to aliens undermine this claim. They are
constitutional decisions of this Court expressly according differing protection to aliens than to
citizens, based on our conclusion that the particular provisions in question were not intended to
extend to aliens in the same degree as to citizens. Cf. Mathews v. Diaz,426 U. S. 67, 426 U. S.
79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied to citizens").
Not only are history and case law against respondent, but as pointed out in Johnson v.
Eisentrager, supra, the result of accepting his claim would have significant and deleterious
consequences for the United States in conducting activities beyond its boundaries. The rule
adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but
also to other foreign policy operations which might result in "searches or seizures." The United
States frequently employs armed forces outside this country -- over 200 times in our history -- for
the protection of American citizens or national security. Congressional Research Service,
Instances of Use of United States Armed Forces Abroad, 1798-1983 (E. Collier ed. 1983).
Application of the Fourth Amendment to those circumstances could significantly disrupt the
ability of the political

Page 494 U. S. 272

Page 494 U. S. 274
if the duration of his stay in the United States were to be prolonged -- by a prison sentence, for
example -- we need not decide. When the search of his house in Mexico took place, he had
been present in the United States for only a matter of days. We do not think the applicability of
the Fourth Amendment to the search of premises in Mexico should turn on the fortuitous
circumstance of whether the custodian of its nonresident alien owner had or had not transported
him to the United States at the time the search was made.

branches to respond to foreign situations involving our national interest. Were respondent to
prevail, aliens with no attachment to this country might well bring actions for damages to remedy
claimed violations of the Fourth Amendment in foreign countries or in international waters. See
Bivens v. Six Unknown Federal Narcotics Agents,403 U. S. 388 (1971); cf. Tennessee v.
Garner,471 U. S. 1(1985); Graham v. Connor,490 U. S. 386 (1989). Perhaps a Bivens action
might be unavailable in some or all of these situations due to "special factors counselling
hesitation,'" see Chappell v. Wallace,462 U. S. 296, 462 U. S. 298 (1983) (quoting Bivens,

supra, 403 U.S. at 403 U. S. 396), but the Government would still be faced with case-by-case
adjudications concerning the availability of such an action. And even were Bivens deemed
wholly inapplicable in cases of foreign activity, that would not obviate the problems attending the
application of the Fourth Amendment abroad to aliens. The Members of the Executive and
Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow
its commands. But the Court of Appeals' global view of its applicability would plunge them into a
sea of uncertainty as to what might be reasonable in the way of searches and seizures
conducted abroad. Indeed, the Court of Appeals held that absent exigent circumstances, United
States agents could not effect a "search or seizure" for law enforcement purposes in a foreign
country without first obtaining a warrant -- which would be a dead letter outside the United
States -- from a magistrate in this country. Even if no warrant were required, American agents
would have to articulate specific facts giving them probable cause to undertake a search or
seizure if they wished to comply with the Fourth Amendment as conceived by the Court of
Appeals.
We think that the text of the Fourth Amendment, its history, and our cases discussing the
application of the Constitution to aliens and extraterritorially require rejection of respondent's
claim. At the time of the search, he was a citizen and resident of Mexico with no voluntary
attachment to the
Page 494 U. S. 275
United States, and the place searched was located in Mexico. Under these circumstances, the
Fourth Amendment has no application.
For better or for worse, we live in a world of nation-states in which our Government must be able
to "functio[n] effectively in the company of sovereign nations." Perez v. Brownell,356 U. S.
44, 356 U. S. 57 (1958). Some who violate our laws may live outside our borders under a regime
quite different from that which obtains in this country. Situations threatening to important
American interests may arise half-way around the globe, situations which in the view of the
political branches of our Government require an American response with armed force. If there
are to be restrictions on searches and seizures which occur incident to such American action,
they must be imposed by the political branches through diplomatic understanding, treaty, or
legislation.

G.R. No. 121917 March 12, 1997

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner,
vs.
COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents.

The judgment of the Court of Appeals is accordingly

Reversed.

FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live ammunitions were found in the
possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:
(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live
ammunitions;
(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one
(1) short magazine with ammunitions;
(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8)
ammunitions; and
(4) Six additional live double action ammunitions of .38 caliber revolver. 1

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court
(RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866 2 thru
the following Information: 3
That on or about the 26th day of October, 1992, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously have
in his possession and under his custody and control one (1) M-16 Baby
Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines
with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SNA35723Y with clip and eight (8) ammunitions, without having the necessary
authority and permit to carry and possess the same.
ALL CONTRARY TO LAW. 4
The lower court then ordered the arrest of petitioner, 5 but granted his application for
bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was entered for
petitioner after he refused, 7 upon advice of counsel, 8 to make any plea. 9 Petitioner
waived in writing his right to be present in any and all stages of the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994
convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from
17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion
perpetua, as maximum". 11 Petitioner filed his notice of appeal on April 28, 1994. 12 Pending the
appeal in the respondent Court of Appeals, 13 the Solicitor-General, convinced that
the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel
petitioner's bail bond. The resolution of this motion was incorporated in the now assailed
respondent court's decision sustaining petitioner's conviction14 the dispositive portion of which
reads:
WHEREFORE, the foregoing circumstances considered, the appealed
decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond
posted by accused-appellant for his provisional liberty, FGU Insurance
Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial
Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of
accused-appellant and thereafter his transmittal to the National Bureau of
Prisons thru the Philippine National Police where the said accused-appellant
shall remain under confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately executory. The
Regional Trial Court is further directed to submit a report of compliance
herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995 he
filed a "motion for reconsideration (and to recall the warrant of arrest)" 17 but the same
was denied by respondent court in its September 20, 1995 Resolution 18 copy of which
was received by petitioner on September 27, 1995. The next day, September 28,
petitioner filed the instant petition for review on certiorari with application for
bail 19 followed by two "supplemental petitions" filed by different counsels, 20 a "second

supplemental petition" 21 and an urgent motion for the separate resolution of his
application for bail. Again, the Solicitor-General 22 sought the denial of the application
for bail, to which the Court agreed in a Resolution promulgated on July 31,
1996. 23 The Court also granted the Solicitor-General's motion to file a consolidated
comment on the petitions and thereafter required the petitioner to file his
reply.24 However, after his vigorous resistance and success on the intramural of bail
(both in the respondent court and this Court) and thorough exposition of petitioner's
guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a
complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for
petitioner's acquittal. 25
The People's detailed narration of facts, well-supported by evidence on record and given
credence by respondent court, is as follows: 26
At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang
and his compadre Danny Perez were inside the Manukan sa Highway
Restaurant in Sto. Kristo, Angeles City where they took shelter from the
heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted
their ride on motorcycles (pp 5-6, ibid.) along McArthur Highway (ibid).
While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi
Pajero, running fast down the highway prompting him to remark that the
vehicle might get into an accident considering the inclement weather. (p.
7, Ibid) In the local vernacular, he said thus: "Ka bilis na, mumuran pa
naman pota makaaksidente ya." (p. 7,ibid). True enough, immediately after
the vehicle had passed the restaurant, Manarang and Perez heard a
screeching sound produced by the sudden and hard braking of a vehicle
running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle
hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened,
remarked "oy ta na" signifying that Manarang had been right in his
observation (pp. 8-9, ibid).
Manarang and Cruz went out to investigate and immediately saw the vehicle
occupying the edge or shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic
group and the Barangay Disaster Coordinating Council, decided to report
the incident to the Philippine National Police of Angeles City (p. 10, ibid). He
took out his radio and called the Viper, the radio controller of the Philippine
National Police of Angeles City (p. 10, ibid). By the time Manarang
completed the call, the vehicle had started to leave the place of the accident
taking the general direction to the north (p. 11, ibid).
Manarang went to the location of the accident and found out that the vehicle
had hit somebody (p. 11,ibid).
He asked Cruz to look after the victim while he went back to the restaurant,
rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase
he was able to make out the plate number of the vehicle as PMA 777 (p. 33,
TSN, February 15, 1193). He called the Viper through the radio once again
(p. 34, ibid) reporting that a vehicle heading north with plate number PMA
777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The
Viper, in the person of SP02 Ruby Buan, upon receipt of the second radio
call flashed the message to all units of PNP Angeles City with the order to

apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City
reached by the alarm was its Patrol Division at Jake Gonzales Street near
the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja
III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle
(Mobile No. 3) and positioned themselves near the south approach of
Abacan bridge since it was the only passable way going to the north (pp. 89, ibid). It took them about ten (10) seconds to cover the distance between
their office and the Abacan bridge (p. 9, ibid).
Another PNP mobile patrol vehicle that responded to the flash message
from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment
which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN,
March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and
SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan
to proceed to the MacArthur Highway to intercept the vehicle with plate
number PMA 777 (p. 10, ibid).
In the meantime, Manarang continued to chase the vehicle which figured in
the hit and run incident, even passing through a flooded portion of the
MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church
but he could not catch up with the same vehicle (pp. 11-12, February 15,
1993). When he saw that the car he was chasing went towards Magalang,
he proceeded to Abacan bridge because he knew Pulongmaragal was not
passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found
Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles
coming their way (p. 10, TSN, February 23, 1993). He approached them
and informed them that there was a hit and run incident (p. 10, ibid). Upon
learning that the two police officers already knew about the incident,
Manarang went back to where he came from (pp. 10-11; ibid). When
Manarang was in front of Tina's Restaurant, he saw the vehicle that had
figured in the hit and run incident emerging from the corner adjoining Tina's
Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate
hanging in front of the vehicle bore the identifying number PMA 777 and he
followed it (p. 15,ibid) towards the Abacan bridge.
Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of
Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about
twelve (12) meters away from their position, the two police officers boarded
their Mobile car, switched on the engine, operated the siren and strobe light
and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of
the vehicle forcing it to stop (p. 11, ibid).
SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN,
February 23, 1993). SPO2 Miranda went to the vehicle with plate number
PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled
down the window and put his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid).
There was no one else with him inside the vehicle (p. 24). At that moment,
Borja noticed that Manarang arrived and stopped his motorcycle behind the
vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to
which appellant complied. Appellant was wearing a short leather jacket (p.
16, TSN, March 8, 1993) such that when he alighted with both his hands

raised, a gun (Exhibit "C") tucked on the left side of his waist was revealed
(p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja
made the move to confiscate the gun but appellant held the former's hand
alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja,
however, insisted that if the gun really was covered by legal papers, it would
have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2
Borja told him about the hit and run incident which was angrily denied by
appellant (p. 17, ibid). By that time, a crowd had formed at the place (p.
19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live
bullets inside (p. 20, ibid).
While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO
Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12,
TSN, March 8, 1993). As the most senior police officer in the group, SPO
Mercado took over the matter and informed appellant that he was being
arrested for the hit and run incident (p. 13, ibid). He pointed out to appellant
the fact that the plate number of his vehicle was dangling and the railing and
the hood were dented (p. 12, ibid). Appellant, however,arrogantly denied his
misdeed and, instead, played with the crowd by holding their hands with
one hand and pointing to SPO3 Borja with his right hand saying "iyan,
kinuha ang baril ko" (pp. 13-15,ibid). Because appellant's jacket was short,
his gesture exposed a long magazine of an armalite rifle tucked in appellant
's back right, pocket (p. 16, ibid). SPO Mercado saw this and so when
appellant turned around as he was talking and proceeding to his vehicle,
Mercado confiscated the magazine from appellant (pp. 16-17, ibid).
Suspecting that appellant could also be carrying a rifle inside the vehicle
since he had a magazine, SPO2 Mercado prevented appellant from going
back to his vehicle by opening himself the door of appellant's vehicle (1617, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the
front by the driver 's seat. It had a long magazine filled with live bullets in a
semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers
covering the rifle and appellant answered angrily that they were at his home
(pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including
as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then
read to appellant his constitutional rights (pp. 28-29, ibid).
The police officers brought appellant to the Traffic Division at Jake Gonzales
Boulevard (pp. 31-32,ibid) where appellant voluntarily surrendered a third
firearm, a pietro berreta pistol (Exhibit "L") with a single round in its chamber
and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets.
Appellant also voluntarily surrendered a black bag containing two additional
long magazines and one short magazine (Exhibits M, N, and O, pp. 3637, ibid). After appellant had been interrogated by the Chief of the Traffic
Division, he was transferred to the Police Investigation Division at Sto.
Rosario Street beside the City Hall Building where he and the firearms and
ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10,
TSN, July 13, 1993). During the investigation, appellant admitted
possession of the firearms stating that he used them for shooting (p.
14, ibid). He was not able to produce any permit to carry or memorandum
receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994).
On November 28, 1992, a certification (Exhibit "F") was issued by Captain,
Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms

and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification
stated that the three firearms confiscated from appellant, an M-16 Baby
armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN
32919 and a .380 Pietro Beretta SN-A35720, were not registered in the
name of Robin C. Padilla (p. 6, ibid). A second Certification dated December
11, 1992 issued by Captain Espino stated that the three firearms were not
also registered in the name of Robinhood C. Padilla (p. 10, ibid).
Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms
and ammunitions taken in the course thereof are inadmissible in evidence under the
exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and
Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal
possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution.
After a careful review of the records 27 of this case, the Court is convinced that petitioner's guilt
of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of
heart.
Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no
warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at
the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances:

28

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private

person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it.
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Paragraph (a) requires that the person be arrested (i) after he has committed or while
he is actually committing or is at least attempting to commit an offense, (ii) in the
presence of the arresting officer or private person. 29 Both elements concurred here,
as it has been established that petitioner's vehicle figured in a hit and run an
offense committed in the "presence" of Manarang, a private person, who then sought
to arrest petitioner. It must be stressed at this point that "presence" does not only
require that the arresting person sees the offense, but also when he "hears the
disturbance created thereby AND proceeds at once to the scene." 30 As testified to by
Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped
victim (balutvendor), reported the incident to the police and thereafter gave chase to
the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After

having sent a radio report to the PNP for assistance, Manarang proceeded to the
Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda
already positioned near the bridge who effected the actual arrest of petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen
who actually arrested him were not at the scene of the hit and run. 32 We beg to disagree. That
Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity
of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the
apprehension. It was in fact the most prudent action Manarang could have taken rather than
collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and
well-equipped in effecting an arrest of a suspect (like herein petitioner) who, in all probability,
could have put up a degree of resistance which an untrained civilian may not be able to contain
without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more
success when law enforcers function in collaboration with private citizens. It is precisely through
this cooperation, that the offense herein involved fortunately did not become an additional entry
to the long list of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the
arrest which has been set in motion in a public place for want of a warrant as the police was
confronted by an urgent need to render aid or take action. 33 The exigent circumstances of hot
pursuit, 34 a fleeing suspect, a moving vehicle, the public place and the raining nighttime all
created a situation in which speed is essential and delay improvident. 35 The Court
acknowledges police authority to make the forcible stop since they had more than mere
"reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in
criminal activity. 36 Moreover, when caught in flagrante delicto with possession of an unlicensed
firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was
proper as he was again actually committing another offense (illegal possession of firearm and
ammunitions) and this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise be justified under
paragraph (b) as he had in fact just committed an offense. There was no supervening event or a
considerable lapse of time between the hit and run and the actual apprehension. Moreover, after
having stationed themselves at the Abacan bridge in response to Manarang's report, the
policemen saw for themselves the fast approaching Pajero of petitioner, 38 its dangling plate
number (PMA 777 as reported by Manarang), and the dented hood and railings thereof. 39 These
formed part of the arresting police officer's personal knowledge of the facts indicating that
petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal knowledge and not on unreliable hearsay
information. 40
Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity
attending an arrest must be made before the accused enters his plea. 41 Petitioner's belated
challenge thereto aside from his failure to quash the information, his participation in the trial and
by presenting his evidence, placed him in estoppel to assail the legality of his arrest. 42 Likewise,
by applying for bail, petitioner patently waived such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner without a search warrant, the
admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and seizure of property is
valid, 44 are as follows:

1. warrantless search incidental to a lawful arrest recognized under Section

12, Rule 126 of the Rules of Court 45 and by prevailing jurisprudence 46,
2. Seizure of evidence in "plain view", the elements of which are:

47

(a). a prior valid intrusion based on the valid

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

indicated a waiver of his right against the alleged search and seizure 56, and that his
failure to quash the information estopped him from assailing any purported defect.57
Even assuming that the firearms and ammunitions were products of an active search done by
the authorities on the person and vehicle of petitioner, their seizure without a search warrant
nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once
the lawful arrest was effected, the police may undertake a protective search 58 of the passenger
compartment and containers in the vehicle 59 which are within petitioner's grabbing distance
regardless of the nature of the offense. 60 This satisfied the two-tiered test of an incidental
search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of
immediate control 61 and (ii) the search was contemporaneous with the arrest. 62 The products of
that search are admissible evidence not excluded by the exclusionary rule. Another justification
is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is
constitutionally permissible when, as in this case, the officers conducting the search have
reasonable or probable cause to believe, before the search, that either the motorist is a lawoffender (like herein petitioner with respect to the hit and run) or the contents or cargo of the
vehicle are or have been instruments or the subject matter or the proceeds of some criminal
offense. 63

3. search of a moving vehicle. 49 Highly regulated by the government, the

vehicle's inherent mobility reduces expectation of privacy especially when
its transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal
activity. 50

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

4. consented warrantless search, and

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

5. customs search.
In conformity with respondent court's observation, it indeed appears that the authorities
stumbled upon petitioner's firearms and ammunitions without even undertaking any active
search which, as it is commonly understood, is a prying into hidden places for that which is
concealed. 51 The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was
justified for they came within "plain view" of the policemen who inadvertently discovered the
revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised
his hands after alighting from his Pajero. The same justification applies to the confiscation of the
M-16 armalite rifle which was immediately apparent to the policemen as they took a casual
glance at the Pajero and saw said rifle lying horizontally near the driver's seat. 52 Thus it has
been held that:
(W)hen in pursuing an illegal action or in the commission of a criminal
offense, the . . . police officers should happen to discover a criminal offense
being committed by any person, they are not precluded from performing
their duties as police officers for the apprehension of the guilty person and
the taking of the, corpus delicti. 53
Objects whose possession are prohibited by law inadvertently found in plain
view are subject to seizure even without a warrant. 54
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police. 55 This latter gesture of petitioner

Appellant's contention is predicated on the assumption that the

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

prosecutor that appellant is authorized to possess and carry the subject

firearms under Memorandum Receipt and Mission Order. At the initial
presentation of his evidence in court, appellant could have produced these
documents to belie the charged against him. Appellant did not. He did not
even take the witness stand to explain his possession of the subject
firearms.
Even in appellant's Demurrer to Evidence filed after the prosecution rested
contain no allegation of a Memorandum Receipts and Mission Order
authorizing appellant to possess and carry the subject firearms.
At the initial presentation of appellant's evidence, the witness cited was one
James Neneng to whom a subpoena was issued. Superintendent Gumtang
was not even mentioned. James Neneng appeared in court but was not
presented by the defense. Subsequent hearings were reset until the
defense found Superintendent Gumtang who appeared in court without
subpoena on January 13, 1994. 67
The Court is baffled why petitioner failed to produce and present the Mission Order and
Memorandum Receipt if they were really issued and existing before his apprehension.
Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes,
or that they were owned by the Presidential Security Group, or that his Mission Order and
Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably
expected, an accused claiming innocence, like herein petitioner, would grab the earliest
opportunity to present the Mission Order and Memorandum Receipt in question and save
himself from the long and agonizing public trial and spare him from proffering inconsistent
excuses. In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff,
is explicit in providing that:
VIII. c. When a Mission Order is requested for verification by enforcement
units/personnels such as PNP, Military Brigade and other Military Police
Units of AFP, the Mission Order should be shown without resentment to
avoid embarrassment and/or misunderstanding.
IX. d. Implicit to this Mission Order is the injunction that the confidential
instruction will be carried out through all legal means and do not cover an
actuation in violation of laws. In the latter event, this Mission Order is
rendered inoperative in respect to such violation. 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were
ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his
signature on the dorsal side of the Mission Order and declared further that he did not authorize
anyone to sign in his
behalf. 69 His surname thereon, we note, was glaringly misspelled as
"Durembes." 70 In addition, only Unit Commanders and Chief of Offices have the authority to
issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs,
MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy
commander. Having emanated from an unauthorized source, petitioner's Mission Order and

Memorandum Receipt are infirm and lacking in force and effect. Besides, the Mission Order
covers "Recom 1-12-Baguio City," 72 areas outside Supt. Gumtang's area of responsibility
thereby needing prior approval "by next higher Headquarters" 73 which is absent in this case.
The Memorandum Receipt is also unsupported by a certification as required by the March 5,
1988 Memorandum of the Secretary of Defense which pertinently provides that:
No memorandum receipt shall be issued for a CCS firearms without
corresponding certification from the corresponding Responsible Supply
Officer of the appropriate AFP unit that such firearm has been officially taken
up in that units property book, and that report of such action has been
reported to higher AFP authority.
Had petitioner's Memorandum Receipt been authentic, we see no reason why he
cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel
of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of
Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a
fact admitted by petitioner's counsel. 74 The implementing rules of P.D. 1866 issued by the then
PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
No Mission Order shall be issued to any civilian agent authorizing the same
to carry firearms outside residence unless he/she is included in the regular
plantilla of the government agency involved in law enforcement and is
receiving regular compensation for the services he/she is rendering in the
agency. Further, the civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or special project which
specifically required the use of firearms(s) to insure its accomplishment and
that the project is duly approved at the PC Regional Command level or its
equivalent level in other major services of the AFP, INP and NBI, or at
higher levels of command. 75Circular No. 1, dated January 6, 1986, of the
then Ministry of Justice likewise provides as follows:
If mission orders are issued to civilians (not members of the uniformed
service), they must be civilian agents included in the regular plantilla of the
government agency involved in law enforcement and are receiving regular
compensation for the service they are rendering.
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of
evidence is accentuated all the more by the testimony and certification of the Chief of
the Records Branch of the firearms and Explosives Office of the PNP declaring that
petitioner's confiscated firearms are not licensed or registered in the name of the
petitioner. 76 Thus:
Q. In all these files that you have just mentioned Mr.
Witness, what did you find, if any?
A. I found that a certain Robin C. Padilla is a licensed
registered owner of one 9 mm pistol, Smith and
Wesson with Serial No. TCT 8214 and the following
firearms being asked whether it is registered or not, I

did not find any records, the M-16 and the caliber .357
and the caliber .380 but there is a firearm with the same
serial number which is the same as that licensed and/or
registered in the name of one Albert Villanueva
Fallorina.
Q. So in short, the only licensed firearms in the name of
accused Robin C. Padilla is a pistol, Smith and
Wesson, caliber 9 mm with Serial No. TCT 8214?

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

A. Yes, sir.

JOSE MAR
Sr. Inspect
Chief, Rec

Q. And the firearms that were the subject of this case

are not listed in the names of the accused in this case?
A. Yes, sir. 77
xxx xxx xxx
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
PNFEO5 28 November 1992
C E R TI F I CATI O N
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a
licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial
number TCT8214 covered by License No. RL M76C4476687.
Further certify that the following firearms are not registered with this Office
per verification from available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120

In several occasions, the Court has ruled that either the testimony of a representative of, or a
certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a
licensee of any firearm would suffice to prove beyond reasonable doubt the second element of
illegal possession of firearm. 79 In People vs.Tobias, 80 we reiterated that such certification is
sufficient to show that a person has in fact no license. From the foregoing discussion, the fact
that petitioner does not have the license or permit to possess was overwhelmingly proven by the
prosecution. The certification may even be dispensed with in the light of the evidences 81 that an
M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms,
cannot be licensed to a civilian, 82 as in the case of petitioner. The Court, therefore, entertains no
doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was
presented, to depart from the factual findings of both the trial court and respondent court which,
as a rule, are accorded by the Court with respect and finality. 83
Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic
ambience (sic) and a non-subversive context" and adds that respondent court should have
applied instead the previous laws on illegal possession of firearms since the reason for the
penalty imposed under P.D. 1866 no longer exists. 84 He stresses that the penalty of 17 years
and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in
contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court and the respondent court are
bound to apply the governing law at the time of appellant's commission of the offense for it is a
rule that laws are repealed only by subsequent ones. 86 Indeed, it is the duty of judicial officers to
respect and apply the law as it stands. 87 And until its repeal, respondent court can not be faulted
for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is
unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges
from reclusion temporal maximum toreclusion perpetua contrary to appellant's erroneous
averment. The severity of a penalty does not ipso facto make the same cruel and excessive.

Revolver Cal 357 SN-3219

Pistol Cal 380 Pietro Beretta SN-35723

It takes more than merely being harsh, excessive, out of proportion, or

severe for a penalty to be obnoxious to the Constitution. "The fact that the
punishment authorized by the statute is severe does not make it cruel and
unusual." (24 C.J.S., 1187-1188). Expressed in other terms, it has been held
that to come under the ban, the punishment must be "flagrantly and plainly

oppressive", "wholly disproportionate to the nature of the offense as to

shock the moral sense of the community" 88

SO ORDERED.

It is well-settled that as far as the constitutional prohibition goes, it is not so much the
extent as the nature of the punishment that determines whether it is, or is not, cruel
and unusual and that sentences of imprisonment, though perceived to be harsh, are
not cruel or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality. The burden of proving
the invalidity of the statute in question lies with the appellant which burden, we note, was not
convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal
breach of the Constitution, not a doubtful and argumentative implication, 90 as in this case. In
fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. 91 Just recently, the
Court declared that "the pertinent laws on illegal possession of firearms [are not] contrary to any
provision of the Constitution. . . " 92 Appellant's grievances on the wisdom of the prescribed
penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or
morality of laws. That question falls exclusively within the province of Congress which enacts
them and the Chief Executive who approves or vetoes them. The only function of the courts, we
reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years
4 months and 1 day of reclusion temporal, as minimum, to 21 years of reclusion perpetua, as
maximum), we reduce the same in line with the fairly recent case of People v. Lian 93 where the
Court en banc provided that the indeterminate penalty imposable for simple illegal possession of
firearm, without any mitigating or aggravating circumstance, should be within the range of ten
(10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18)
years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This
is discernible from the following explanation by the Court:

G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:

In the case at bar, no mitigating or aggravating circumstances have been

alleged or proved, In accordance with the doctrine regarding special laws
explained in People v. Simon, 94 although Presidential Decree No. 1866 is a
special law, the penalties therein were taken from the Revised Penal Code,
hence the rules in said Code for graduating by degrees or determining the
proper period should be applied. Consequently, the penalty for the offense
of simple illegal possession of firearm is the medium period of the complex
penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the
judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union,
Branch 66, finding him guilty of transporting, without appropriate legal authority, the regulated
substance methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic
Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A.
No. 7659, 2 and sentencing him to "die by lethal injection." In view thereof, the judgement was
brought to this Court for automatic review pursuant to Article 47 of the Revised Penal Code, as
amended by Section 11 of R.A. No. 7659.

This penalty, being that which is to be actually imposed in accordance with

the rules therefor and not merely imposable as a general prescription under
the law, shall be the maximum of the range of the indeterminate sentence.
The minimum thereof shall be taken, as aforesaid, from any period of the
penalty next lower in degree, which is, prision mayor in its maximum period
to reclusion temporal in its medium
period. 95

In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling
the Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on
29 March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan
Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding
an unfamiliar speedboat the latter had spotted. According to ALMOITE, the vessel looked
different from the boats ordinarily used by fisherfolk of the area and was poised to dock at
Tammocalao shores. CID and six of his men led by his Chief Investigator, SPO1 Reynoso Badua
(hereafter BADUA), proceeded forthwith to Tammocalao beach and there conferred with
ALMOITE. CID then observed that the speedboat ferried a lone male passenger. As it was
routine for CID to deploy his men in strategic places when dealing with similar situations, he
ordered his men to take up positions thirty meters from the coastline. When the speedboat
landed, the male passenger alighted, and using both hands, carried what appeared a
multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and

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

BADUA, the latter two conspicuous in their uniform and issued side-arms, became suspicious of
the man as he suddenly changed direction and broke into a run upon seeing the approaching
officers. BADUA, however, prevented the man from fleeing by holding on to his right arm.
Although CID introduced themselves as police officers, the man appeared impassive. Speaking
in English, CID then requested the man to open his bag, but he seem not to understand. CID
thus tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he
termed "sign language;" he motioned with his hands for the man to open the bag. This time, the
man apparently understood and acceded to the request. A search of the bag yielded several
transparent plastic packets containing yellowish crystalline substances. CID then gestured to the
man to close the bag, which he did. As CID wished to proceed to the police station, he signaled
the man to follow, but the latter did not to comprehend. Hence, CID placed his arm around the
shoulders of the man and escorted the latter to the police headquarters.
At the police station, CID surmised, after having observed the facial features of the man, that he
was probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to
remain silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID
ordered his men to find a resident of the area who spoke Chinese to act as an enterpreter. In the
meantime, BADUA opened the bag and counted twenty-nine (29) plastic packets containing
yellowish crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go
Ping Guan, finally arrived, through whom the man was "apprised of his constitutional rights." The
police authorities were satisfied that the man and the interpreter perfectly understood each other
despite their uncertainty as to what language was spoken. But when the policemen asked the
man several questions, he retreated to his obstinate reticence and merely showed his I.D. with
the name Chua Ho San printed thereon. CHUA's bag and its contents were sent to the PNP
Crime Laboratory at Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory
examination. In the meantime, CHUA was detained at the Bacnotan Police Station.1wphi1.nt
Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of
the Philippine National Police, Region I, received a letter request 3 from CID incidentally her
husband to conduct a laboratory examination of twenty-nine (29) plastic packets placed
inside a multicolored strawbag. In her Chemistry Report No. D-025-95, 4 she stated that her
qualitative examination established the contents of the plastic packets, weighing 28.7 kilos, to be
positive of methamphetamine hydrochloride or shabu, a regulated drug.
CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the
RTC which docketed the case as Criminal Case No. 4037. However, pursuant to the
recommendation of the Office of the Provincial Prosecutor, La Union, that the facts of the case
could support an indictment for illegal transport of a regulated drug, the information was
subsequently amended to allege that CHUA "willfully, unlawfully and feloniously transpor(ted)
28.7 kilos of [m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit or
authority to transport the same" in violation of Section 15, Article III of R.A. 6425 as amended by
R.A. 7659.
At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied
that CHUA understood the amended information read to him in Fukien by the Fukien-speaking
interpreter, Thelma Sales Go.
Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through
the auspices of the Department of Foreign Affairs. However, it was only after directing the
request to the Taipei Economic and Cultural Office in the Philippines that interpreters were
assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the above narration of
facts which were culled chiefly from the testimony of CID, its first witness, and whose testimony,
in turn, was substantially corroborated by witnesses BADUA and ALMOITE.
Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the
contents of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were
pure, unadulterated methamphetamine hydrochloride or shabu. She also explained that they
were unwashed, hence they appeared yellowish.
For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed
that he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21
March 1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the
latter's 35-tonner ship which would embark for Nan Au Port, Mainland China where they would
buy fish. Upon arrival at their destination, RONG left the ship, came back without the fish, but
with two bags, the contents of which he never divulged to CHUA. RONG then showed to CHUA
a document purportedly granting them authority to fish on Philippine waters. So they sailed
towards the Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30
a.m., they disembarked on a small speedboat with the two bags RONG brought with him from
China. While, sailing, RONG made several phone calls using his mobile phone. CHUA heard
RONG asked the person on the other side of the line if he could see the speedboat they were
riding. Apparently, the person on shore could not see them so they cruised over the waters for
about five hours more when finally, low on fuel and telephone battery, they decided to dock.
CHUA anchored the boat while RONG carried the bags to shore. The tasks completed, RONG
left to look for a telephone while CHUA rested and sat one and half (1 1/2) meters away from
one bag. A child thereafter pointed out to him that one bag was missing much to RONG's dismay
when he learned of it. When a crowd started to mill around them, the police arrived. CHUA then
realized that RONG was nowhere to be found. The police immediately approached CHUA, and
with nary any spoken word, only gestures and hand movements, they escorted him to the
precinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who
CHUA guessed as the Chief of Police arrived with the motor engine of the speedboat and a bag.
They presented the bag to him, opened it, inspected and weighed the contents, then proclaimed
them as methaphetamine hydrochloride.
CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever
favored with an interpreter or informed of his "constitutional rights," particularly of his right to
counsel. Consequently, his arrest was tainted with illegality and the methamphetamine
hydrochloride found in the bag should have been regarded inadmissible as evidence. He also
maintained that CID never graced the occasion of his setting foot for the first time at
Tammocalao beach. BADUA certainly never prevented him from running away, as such thought
failed to make an impression in his mind. Most significantly, he denied ownership and knowledge
of the contents of the bag, emphasizing that RONG alone exercised dominion over the same.
Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in
question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him.
He also remembered hearing from the people congregating at the beach that CHUA arrived with
a companion and a certain policeman Anneb had chased the latter's car. He additionally claimed
that when the crowd became unruly, the police decided to bring CHUA to police headquarters.
There, the mayor took charge of the situation he opened CHUA's bag with the assistance of
the police, he called for a forensic chemist surnamed CID to take a sample of the contents of the
bag, and he ordered his officials to find an interpreter. Throughout the proceedings,
photographers were busy taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he
was standing with CHUA on the beach when two men and a lady arrived. They were about to get
a bag situated near CHUA when they detected the arrival of the local police. They quickly
disappeared. CRAIG then noticed ALMOITE and PARONG at the beach but not CID.
In a decision promulgated on 10 February 1997, the RTC found that the prosecution
successfully discharged its burden of proving that CHUA transported 28.7 kilos of
methamphetamine hydrochloride without legal authority to do so. Invoking People v.
Tagliben 5 as authority, the RTC characterized the search as incidental to a valid in flagrante
delicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus
delicti. The RTC also noted the futility of informing CHUA of his constitutional rights to remain
silent, and to have competent and independent counsel preferably of his own choice,
considering the language barrier and the observation that such irregularity was "rectified when
accused was duly arraigned and . . . (afterwards) participated in the trial of this case." The RTC
then disregarded the inconsistencies and contradictions in the testimonies of the prosecution
witnesses as these referred to minor details which did not impair the credibility of the witnesses
or tarnish the credence conferred on the testimonies thus delivered.
The RTC also believed that CHUA conspired not only with his alleged employer RONG and the
Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but
with several other members of an organized syndicate bent on perpetrating said illicit traffic.
Such predilection was plainly evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as proven and established
by convincing and satisfactory evidence that the accused had conspired and
acted in concert with one Cho Chu Rong, not to mention Chen Ho Fa, the
Skipper of the 35-tonner ship they used in coming to the Country from
China and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho
San guilty beyond reasonable doubt of the offense of Violation of Sec. 15,
Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in the
Information, and considering the provisions of Sec. 20 of R.A. No. 7659 that
the maximum penalty shall be imposed if the quantity
sold/possessed/transported is "200 grams or more" in the case of Shabu,
and considering, further that the quantity involved in this case is 28.7
kilograms which is far beyond the weight ceiling specified in said Act,
coupled with the findings of conspiracy or that accused is a member of an
organized syndicated crime group, this Court, having no other recourse but
to impose the maximum penalty to accused, this Court hereby sentences
the said accused Chua Ho San @ Tsay Ho San to die by lethal injection; to
pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the costs.
The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine
National Police to immediately form an investigating Committee to be
composed by [sic] men of unimpeachable integrity, who will conduct an
exhaustive investigation regarding this case to determine whether there was
negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or
three (3) persons who approached the accused in the seashore of
Tammocalao, Bacnotan, La Union, and attempted to take the remaining bag
from accused, as well as the whereabouts of the other bag; and to furnish
this Court a copy of the report/result of the said investigation in order to
show compliance herewith sixty (60) days from receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu

is ordered turned over immediately to the Dangerous Drugs Board for
destruction in accordance with the law.
The fiberglass boat with its motor engine is hereby ordered confiscated in
favor of the government and to be turned over to the Philippine National
Police, La Union Command, for use in their Bantay-Dagat operations
against all illegal seaborne activities.
SO ORDERED. 6
Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the
29 plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden
fruits;" (2) granting weight and credence to the testimonies of prosecution witnesses despite
glaring inconsistencies on material points; and in (3) appreciating conspiracy between him and
an organized syndicate in the illicit commerce of prohibited drugs since this was not alleged in
the information.
The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly
conducted despite the absence of search and seizure warrants as circumstances immediately
preceding to and comtemporaneous with the search necessitated and validated the police
action; and (2) that there was an effective and valid waiver of CHUA's right against
unreasonable searches and seizures since he consented to the search.
We reverse the RTC.
Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly
ordains that people have the right to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any
purpose. 7 Inseparable, and not merely corollary or incidental to said right and equally hallowed
in and by the Constitution, is the exclusionary principle which decrees that any evidence
obtained in violation of said right is inadmissible for any purpose in any proceedings. 8
The Cosntitutional proscription against unreasonable searches and seizures does not, of course,
forestall reasonable searches and seizure. What constitutes a reasonable or even an
unreasonable search in any particular case is purely a judicial question, determinable from a
consideration of the circumstances involved. 9Verily, the rule is, the Constitution bars State
intrusions to a person's body, personal effects or residence except if conducted by virtue of a
valid of a valid search warrant issued in compliance with the procedure outlined on the
Constitution and reiterated in the Rules of Court; "otherwise such search and seizure become
"unreasonable" within the meaning of the aforementioned constitutional provision." 10 This
interdiction against warrantless searches and seizures, however, is not absolute and such
warrantless searches and seizures have long been deemed permissible by jurisprudence 11 in
instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4)
waiver or consent searches, (5) stop and frisk situations (Terry search), 12 and (6) search
incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuan to
an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if
effected with a valid wararnt of arrest, the Rules of Court recognize permissible warrantless
arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of
escaped prisoners. 13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure
conducted under the facts of the case at bar constitute a valid exemption from the warrant
requirement. Expectedly and quite understandably, the prosecution and the defense painted
extremely divergent versions of the incident. But this Court is certain that CHUA was arrested
and his bag searched without the benefit of a warrant.
In cases of in fragrante delicto, arrests, a peace officer or a private person may without a
warrant, arrest a person, when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense. The arresting officer, therefore, must
have personal knowledge of such facts 14 or as recent case law 15adverts to, personal knowledge
of facts or circumstances convincingly indicative or constitutive of probable cause. The term
probable cause had been understood to mean a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man's belief that the
person accused is guilty of the offense with which he is charged. 16 Specifically with respect to
arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought to be
arrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the
propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been
reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary
standard was "prima facie evidence" and that it had been dubiously equated with probable
cause, the Court explained:

This Court, however, finds that these do not constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited
drug, 20 confidential report and/or positive identification by informers of courier(s) of prohibited
drug and/or the time and place where they will transport/deliver the same,21 suspicious
demeanor or behavior 22 and suspicious bulge in the waist 23 accepted by this Court as
sufficient to justify a warrantless arrest exists in this case. There was no classified information
that a foreigner would disembark at Tammocalao beach bearing prohibited drug on the date in
question. CHUA was not identified as a drug courier by a police informer or agent. The fact that
the vessel that ferried him to shore bore no resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an offense. And despite claims by CID
and BADUA that CHUA attempted to flee, ALMOITE testified that the latter was merely walking
and oblivious to any attempt at conversation when the officers approached him. This cast
serious doubt on the truthfulness of the claim, thus:
Q: How far were you when the accused put the bag on his sholder?
A: We were then very near him about three meters away from the male person carrying the bag.
Q: To what direction was he facing when he put the bag on his shoulder?
A: To the east direction.

[F]elicitously, those problems and confusing concepts (referring to prima

facie evidence and probable cause) were clarified and set aright, at least on
the issue under discussion, by the 1985 amendment of the Rules of Court
which provides in Rule 112 thereof that the quantum of evidence required in
preliminary investigation is such evidence as suffices to "engender as well
founded belief" as to the fact of the commission of the crime and the
respondent's probable guilt thereof. It has the same meaning as the related
phraseology used in other parts of the same Rule, that is, that the
investigating fiscal "finds cause to hold the respondent for trial," or where "a
probable cause exists." It should, therefore, be in that sense, wherein the
right to effect a warrantless arrest should be considered as legally
authorized." (emphasis supplied) 19
Guided by these principles, this Court finds that there are no facts on record reasonably
suggestive or demonstrative of CHUA's participation in on going criminal enterprise that could
have spurred police officers from conducting the obtrusive search. The RTC never took the
pains of pointing to such facts, but predicated mainly its decision on the finding that was
"accused was caught red-handed carrying the bagful of [s]habu when apprehended." In short,
there is no probable cause. At least in People v. Tangliben, the Court agreed with the lower
court's finding that compelling reasons (e.g., accused was acting suspiciously, on the spot
identification by an informant that accused was transporting prohibitive drug, and the urgency of
the situation) constitutive of probable cause impelled police officers from effecting an in flagrante
delicto arrest. In the case at bar, the Solicitor General proposes that the following details are
suggestive of probable cause persistent reports of rampant smuggling of firearm and other
contraband articles, CHUA's watercraft differing in appearance from the usual fishing boats that
commonly cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines (he lacked
the necessary travel documents or visa), CHUA's suspicious behavior, i.e. he attempted to flee
when he saw the police authorities, and the apparent ease by which CHUA can return to and
navigate his speedboat with immediate dispatch towards the high seas, beyond the reach of
Philippine laws.

Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached the accused and when Maj.
Cid went near him, he spoke in Tagalong, English and Ilocano which accused did not understand
because he did not respond.
Q: When Maj. Cid was talking, what was the accused doing at that time?
A: He was walking.
Q: To what direction he was walking?
A: He was walking to the east direction. (sic)
Q: He was walking away from you or going near you?
A: He was going away from us. That is why Sgt. Reynoso held the right arm of the accused.
Q: Was Sgt. Badua able to hold the right arm of the accused?
A: Yes sir and he stopped. 24
True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But
gossamer to the officers' sense perception and view were CHUA disembarking from a
speedboat, CHUA walking casually towards the road, and CHUA carrying a multicolored
strawbag. These acts did not convey any impression that he illegally entered Philippine shores.

Neither were these overt manifestations of an ongoing felonious activity nor of CHUA's criminal
behevior as clearly established in CID's testimony, thus:

Q Okey, in the first place why did you introduce

yourselves?

Q Was the accused committing a crime when you introduced yourselves:

A That is normal practice in our part, sir.

A No, sir.

xxx xxx xxx

Q No, so there was no reason for you to approach the accused because he was not doing
anything wrong?

Q If it is possible. Okey (sic) now, after introducing

yourselves what did you do?

A No, sir, that is our objective, to approach the person and if ever or whatever assistance that we
can give we will give. 25

A He did not answer me and he did not utter any word,

The search cannot therefore be denominated as incidental to an arrest. While a

contemporaneous search of a person arrested may be effected to deliver dangerous weapons or
proofs or implements used in the commission of the crime and which search may extend to the
area within his immediate control where he might gain possession of a weapon or evidence he
can destroy, 26 a valid arrest must precede the search. The process cannot be reversed.
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 be first a lawful arrest before a search can be made the process
cannot be reversed. 27
To reiterate, the search was not incidental to an arrest. There was no warrant of arrest
and the warrantless arrest did not fall under the exemptions allowed by the Rules of
Court 28 as already shown. Fom all indications, the search was nothing but a fishing
expedition. It is worth mentioning here that after introducing themselves, the police
officcers immediately inquired about the contents of the bag. What else could have
impelled the officers from displaying such inordinate interest in the bag but to ferret out
evidence and discover if a felony had indeed been committed by CHUA in effect to
"retroactively establish probable cause and validate an illegal search and seizure."
The State then attempted to persuade this Court that there was a consented search, a legitimate
waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however,
that to constitute a waiver, it must first appear that the right exists; secondly, that the person
involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that
said person had an actual intention to relinquish the right. 29 CHUA never exhibited that he knew,
actually or constructively of his right against unreasonable searches or that he intentionally
conceded the same. This can be inferred from the manner by which the search performed, thus:

Q When he did not utter any word. What else did he

do?
A I asked again a question that if he can open his bag
sir.
Q And did he understand your question when you
requested him to open his bag?
A No, sir, there is no answer.
Q No answer?
A Yes, sir, no answer.
Q And when there was no answer what did you do
next?
A I used sign language sir.
Q Will you demonstrate to this Honorable Court how
you demonstrated that sign language of opening the
bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an
action like this sir.
xxx xxx xxx

Q Together with your Chief Investigator, what was the

first thing that you did when you approached him
(CHUA)?

SHERIFF:

A We introduced ourselves as police officers, sir.

The witness demonstrating (sic) by pointing to the straw

bag and then manifesting a sign to open the zipper of
the straw bag moving his right hand from left to right or
from the opening to the end of the zipper.

COURT: From the start of the zipper where you open it

up to the end of the zipper.
Witness: Yes, sir, and then I made a motion like this.
(The witness repeating the motion described
on record.)

and gestures. This Court disagrees. If CHUA could not understand what was orally articulated to
him, how could he understand the police's "sign language." More importantly, it cannot logically
be inferred from his alleged cognizance of the "sign language" that he deliberately, intelligently,
and consciously waived his right against such an intrusive search. This Court is not unmindful of
cases upholding the validity of consented warrantless searches and seizure. But in these cases,
the police officers' request to search personnel effects was orally articulated to the accused and
in such language that left no room for doubt that the latter fully understood what was requested.
In some instances, the accused even verbally replied to the request demonstrating that he also
understood the nature and consequences of such request. 31

COURT: Did you open that personally?

WITNESS:
A No, your honor.
Q Now, mr. (sic) witness, why did you request the
accused to open the bag?
A Because it is our duty also to inspect his belongings
sir.
Q Why, why was it no, I reform my question your
honor. Is it normal procedure for you to examine
anybody or to request anybody to open his bag?
A The fact that he was a foreigner, sir, it is also our duty
to inspect the baggage, it is our routine duty of a police
(sic), sir.
Q Is that the normal duty of a police officer to request a
person to open his bag?
A yes, sir.
Q Okey, (sic) you did not ask the accused, mr. (sic)
witness, to open his bag?
A No, sir.

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling
matter. If evidence obtained during an illegal search even if tending to confirm or actually
confirming initial information or suspicion of felonious activity is absolutely considered
inadmissible for any purpose in any proceeding, the same being the fruit of a poisonous
trees 32 how much more of "forbidden fruits" which did not confirm any initial suspicion of criminal
enterprise as in this case because the police admitted that they never harbored any initial
suspicion. Casting aside the regulated substance as evidence, the remaining evidence on
record are insufficient, feeble and ineffectual to sustain CHUA's conviction.
Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride
cannot be quickly dispelled. But the constitutional guarantee against unreasonable searches and
seizures cannot be so carelessly disregarded, as overzealous police officers are sometimes
wont to do. Fealty to the Constitution and the rights it guarantees should be paramount in their
minds, otherwise their good intentions will remain as such simply because they have blundered.
"There are those who say that . . . 'the criminal is to go free because the constable has
blundered.'. . . In some cases this will undoubtedly be the result. But . . . 'there is another
consideration the imperative of judicial integrity . . . The criminal goes free, if he must, but it is
the law that sets him free. Nothing can destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the charter of its own existence." 33
As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this
Court considers them trivial as they refer to insignificant details which will not affect the outcome
of the case. On a passing note, this Court calls the attention of the trial court regarding its
erroneous appreciation of conspiracy. This aggravating circumstance is without question
unsupported by the records. Conspiracy was not included in the indictment nor raised in the
pleadings or proceedings of the trial court. It is also fundamental that conspiracy must be proven
just like any other criminal accusation, that is, independently and beyond reasonable doubt. 34
WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San
Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and
accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime
charged, the evidence not being sufficient to establish his guilt beyond reasonable doubt.

Q But you simply requested him to open the nag?

Costs de oficio. SO ORDERED.
A Yes, sir. 30
A.M. No. RTJ-98-1420 October 8, 1998
CHUA obviously failed to understand the events that overran and overwhelmed him. The police
officers already introduced themselves to CHUA in three languages, but he remained completely
deadpan. The police hence concluded that CHUA failed to comprehend the three languages.
When CHUA failed to respond again to the police's request to open the bag, they resorted to
what they called "sign language." They claimed that CHUA finally understood their hand motions

OFFICE OF THE COURT ADMINISTRATOR (OCA), complainant,

vs.
FLORENCIO S. BARRON, Presiding Judge, Branch 35, Regional Trial Court of Dumaguete
City,respondent.

PER CURIAM:
This administrative case takes its roots from an entrapment operation conducted by the National
Bureau of Investigation (NBI) sub-office based in Dumaguete City, wherein respondent Judge
Florencio S. Barron was apprehended for having been found in possession of the marked
money utilized by the NBI in the aforementioned operation.
Judge Barron was designated as Acting Presiding Judge of Branch 41, whereat a civil case
entitled "Mainit Marine Resources Corporation, Inc. (MMRC) vs. Alex J. Amor, Jr., and the
Register of Deeds of Negros Oriental," was pending. 1
In the morning of June 4, 1996, at around 9:00 o'clock, Casildo Gabo, a retired court employee,
went to the hatchery of MMRC to see David Crear, the president. Introducing himself as Sheriff
Gabo of RTC, Branch 36, he told David Crear that Judge Barron wanted to see him at Salawaki
Beach in Zamboanguita, Negros Oriental. Crear replied that he was not feeling well but added
that he would go to Salawaki at around 3:00 o'clock in the afternoon. Sensing that there was
more than meets the eye in the message of Gabo, Crear instructed Gemma Briones, the
bookkeeper of MMRC, to call the NBI office. Crear talked to Special Investigator Teodoro M.
Saavedra, that he (Crear) and Judge Barron were to meet at Salawaki Beach Resort at around
3:00 o'clock that afternoon. 2
Agent-in-Charge Nicetas B. Hontucan instructed Special Investigator Teodoro M. Saavedra,
SRA Paterno O. Reserva and SRA Dominador D. Cimafranca 3 to proceed to the beach resort
that afternoon to conduct discreet surveillance to confirm the veracity of the information
communicated to them by Crear.
Crear arrived at Salawaki on the appointed hour astride a motorcycle driven by Rosendo
Paculanang, a technician at MMRC. 4 Thereat, Judge Barron and Gabo were waiting, and so
were the NBI agents who observed them through the use of binoculars. Both Crear and Judge
Barron were seen talking at the far end of the beach, while Gabo, serving as a look-out, stayed
in one of the sheds.
According to Crear, he was met by Sheriff Gabo who directed him (Crear) to sit in the chair
directly outside the door of the last cottage on the southern side of the resort. Crear had hardly
warmed the chair for about five minutes when Judge Barron emerged from the cottage, casually
dressed. Respondent judge then asked Crear to sit with him at a bench out on the beach.
After the meeting, Crear went back to his office and entered on his computer his recollection of
events before and during his talk with Judge Barron as follows:
A (sic) individual identifying himself as Sheriff Cresaldo R. Gabo came to the
Mainit Prawn Hatchery at about 0900 hours on Tuesday, 4 June 1996. The
man was asked what he wanted by both Rosendo Paculanang and Gemma
Briones but he refused to speak to anyone except the "kano." Mr. David
Crear thereupon approached the visitor who identified (sic) himself as the
Sheriff from RTC Branch 36. The Sheriff asked Mr. Crear if he was party to
a legal dispute concerning the ownership of the land under the hatchery. Mr.
Crear replied in the affirmative. Thereupon the Sheriff indicated that he had

been directed by Judge Barron to deliver the message that Judge was
waiting for me at Salawaki Beach Resort because he wanted to "talk with
you about the case." A meeting was arranged for 0300 hours for that
afternoon. The Sheriff showed his laminated I.D. card to Mr. Crear with the
name Cresaldo R. Gabo and a photo that looked like a man about 20 years
younger.
That afternoon, Mr. Crear was driven to Salawaki Beach Resort on the
motorbike of Rosendo Paculanang. Upon arrival Mr. Crear was greeted by
Sheriff Gabo who directed Mr. Crear to sit in the chair directly outside the
door of the last cottage on the southern side of the resort. Mr. Crear
occupied the appointed chair for a period of about five minutes before the
Judge emerged from the cottage, casually dressed. The Judge directed Mr.
Crear to accompany him to sit at the bench out on the beach. The following
is a reconstruction of the conversation that took place.
Barron: I've asked you to come here because I want to talk with you about
your case. You see I need your help. It is clear to me as God is my witness,
that you have been wronged. I can see this from that "one document" that
Alex Amor did not purchase the land. And again I need your help because
my wife and daughter are preparing to travel to the United States.
Crear: Traveling to the U.S. is quite costly.
Barron: Yes, and I need your help. You see we are in a symbiotic
relationship. I can help you and you can help me. I can clearly see that it
would be easy for me to write a decision for your case that would be
favorable for your situation. But I will need your help. You know, I like
working with foreigners because they understand that the salaries here in
the Philippines are very low. Honestly, if I weren't a Judge I would have
already gone to the United States where I could earn more money. So, I can
see that I will have to write a decision in this case against my good friend
Attorney Amor but I will do it but reluctantly so. Of course he will appeal the
decision so we have to make sure that the decision is good. You should tell
your lawyer that you must complete your testimony as soon as possible so
that it will be certain that I will be the Judge to write the decision. Maybe
Judge Villarente will return to Branch 41 but I don't think so because I've
heard that he is being transferred to Manila. Now I don't want you to tell
either your wife or your lawyer about our arrangement. This must be strictly
confidential between the two of us. Yes, I like working with foreigners
because they understand about these things. I also like working with Sheriff
Gabo, well, we have had an understanding and have been working together
for about 20 years! I often come down here to Salawaki and I can work on
my legal decisions in a quiet, clean environment. I'm like you I enjoy living
by the beach. You know I am disappointed in Atty. Amor and his son Alex.
They have clearly, as God is my witness, wronged you. I also noticed that
Attorney Amor made a serious legal error. He notorized (sic) the signature
of his (sic) on the extra-judicial deed-of-sale. This was foolish.
Crear: Attorney Amor is guilty of much more. He has consistently aided and
abetted the theft of documents, money, and equipment committed by his
son, Alex Amor, Jr. But never mind that now.

Barron: Yes. Now you understand that we have a symbiotic arrangement

and an agreement can be arrived at to effect a favorable decision on your
case. In this instance I will have to write a decision against my good friend
Attorney Amor and I will do so reluctantly.

agents then positioned themselves and waited for the pre-arranged signal. Crear returned to the
car carrying a black leatherette clutch bag containing the eleven (11) bundles of marked money
amounting to P30,000.00. Immediately after boarding the car, Crear gave the pre-arranged
signal of opening the door on his side twice, indicating that the money had been handed to and
received by Judge Barron.

Crear: So what are the mechanics of this arrangement?

The NBI reported the arrest as follows:
Barron: Well, as I said my wife and daughter will be flying to the U.S. and I
think that they will need $2,000 each.
Crear: Okay but when is all this supposed to happen?
Barron: Well, my wife and daughter are ready now.
Crear: So you are saying sooner rather than later.

NBI operatives then rushed up towards the car and caught Subject
BARRON in flagrante delicto in possession of the marked money in the act
of putting the same underneath the driver's seat from a black leatherette
clutch bag. During the arrest, Subject BARRON tried to draw his gun from
his shoulder holster but was prevented from doing so.
Subject BARRON was handcuffed and was informed of the reason for his
arrest and was likewise informed of his rights under the Constitution as well
as his rights under R.A. 7438.

Barren: Yes . . .
Crear: Well, how about on Saturday right here.
Barron: That would be good. Let's make it for four o'clock on Saturday
afternoon right here.
Crear: Okay, I'll see you next Saturday. 5
On June 6, 1996, David Crear, along with Gemma Briones and Rosendo Paculanang executed
their respective sworn statements 6 at the NBI Dumaguete City Sub-Office. Thereafter, on June
8, 1996, Rosendo Paculanang and David Crear gave their supplemental sworn
statements. 7 Crear also filed a complaint sheet with the NBI. 8
Subsequently, the NBI agents drew up an entrapment plan for the respondent judge and Casildo
Gabo. Since David Crear did not have the $4,000.00 cash which the respondent judge asked,
the NBI agents had to improvise. The amount of P30,000.00 in 100, 50, 20 and 10 peso bills
were sorted into eleven (11) bundles to make it appear as containing P10,000.00 each thus
purportedly totaling P110,000.00 9 roughly the equivalent of $4,000.00 which respondent judge
requested. The NBI Regional Chemist, Cesar Cagalawan, marked and treated the eleven (11)
bundles with fluorescent powder at the NBI Dumaguete Sub-Office.
In the morning of June 8, 1996, the NBI operatives occupied strategic places at the Salawaki
Beach Resort. At around 4:00 P.M., Crear headed for Salawaki Beach Resort, again aboard
Rosendo Paculanang's motorcycle. At the vicinity of Mag-abo in the town of Zamboanguita, they
met Judge Barron's Mitsubishi Lancer bearing plate No. 16-G35, heading in the direction of
Dumaguete City. The car blinked its headlights signalling them to stop. Consistent with the
entrapment plan, Crear was able to convince Judge Barron to go back as Crear had left the
money at Salawaki. Crear rode in Judge Barron's car while Gabo was Paculanang's passenger
on the motorcycle.
Upon their arrival at Salawaki, Crear alighted from the car and discreetly informed the NBI
operatives that the money would be delivered to Judge Barron inside the latter's car. The NBI

Recovered underneath the driver's seat were the eleven (11) bundles of
marked money and a black leatherette clutch bag. Confiscated likewise from
his possession was a 9mm Cal. Browning Short Pistol with Serial No.
9203338 from his shoulder holster. 10
After the arrest was made, respondent judge was taken to the NBI Office, where he was booked,
photographed, and fingerprinted. 11 The ultra violet light examination 12 conducted on his hands
yielded residues of the "fluorescent yellow powder" used earlier to mark the bundles of money.
The peso bills with serial numbers and denominations were duly listed 13 by the bundle.
Respondent Judge was then turned over to the Dumaguete City police station for temporary
custody and safekeeping. An information 14 for the crime of DIRECT BRIBERY was filed before
the Sandiganbayan against Respondent Judge, as principal, and Casildo Gabo, as accomplice.
On June 11, 1996, the Philippine Daily Inquirer, 15 on page 18 carried the news story "NBI
Arrests Negros Judge for getting P30,000.00 bribe." Likewise, the incident came out in the
Negros Chronicle on June 16, 1996. 16
The Office of the Court Administrator (OCA) sought 17 the assistance of NBI Director Santiago
Toledo to verify the authenticity of the news report. The OCA was then furnished with a certified
copy of the radio message received from the NBI at Dumaguete City and the media
Release 18 containing a case summary and photographs of respondent judge being examined,
and pictures of his car and marked money.
In a memorandum 19 addressed to the Chief Justice, Deputy Court Administrator Bernardo P.
Abesamis recommended that respondent judge be placed under suspension and that the case
be referred to a Justice of the Court of Appeals for investigation, report and recommendation.
The Court referred 20 the case to Justice Portia Alio-Hormachuelos of the Court of Appeals.
Judge Barron, in his verified comment dated September 20, 1996 rendered his revision of the
incident as follows:

Sometime in the month of April 1996, David Crear chanced to hold my

audience privately at Lab-as Restaurant in Dumaguete City, where he
frankly offered me money in exchange for a favorable decision in Civil Case
No. 10104. He offered something like P30,000.00. In deference to his being
a foreigner, I patiently and politely told him that what he was doing was
against the law, and that besides, I was only an acting presiding judge who
could be replaced anytime by the regular judge before the case could even
be decided. Thereafter, he made more indecent calls increasing his bribe
offer to P50,000.00, thence to P100,000.00 which upset me. It was his
insolent remark that even Justices are receiving offers that made me decide
that I had (sic) had enough of this man's impudence (sic). I then referred the
matter to Judge Teopisto Calumpang of RTC Branch 39, and he advised me
to report the bribe offer to the PNP and set the entrapment of Mr. Crear
(Annex "D").
On May 4, 1996, I officially reported Mr. Crear's bribe offer to the
Dumaguete City PNP and the same was entered in the Police Blotter
(Annex "E"). SPO1 Burlaza and I agreed to set the entrapment after I could
get Mr. Crear to agree on the time and place of pay-off. It was our
understanding that the PNP, through SPO1 Burlaza, would wait for my go
signal (Annex "F").
Thus, on June 4, 1996 I sent Criseldo Gabo to David Crear to inform the
latter that I wanted to meet him at Salawaki Beach Resort at Dauin, Negros
Oriental. In the afternoon of said date David Crear met me at the beach
resort. There we talked about his offer. But we could not agree on the
amount even as I pretended to haggle with him. Neither could I get a
definite commitment from him as to where and when the pay-off would be
made so that I could relay it to
SPO1 Burlaza. David Crear expressed surprise, though, why suddenly I
was interested in his offer which I firmly refused before. He warily said he
would like to meet me to finalize the project on June 8, 1996 at Salawaki
Beach at 4:00 p.m. It was my impression that on June 8, 1996 we would
agree on the amount, the place and the time the pay-off would be made.
Thus, I went to Salawaki Beach on that day for the purpose of obtaining
said information for our planned entrapment. (At this juncture, per affidavits
with the NBI, Mr. Crear and the NBI prepared a shocking reception for me.)
I went to Salawaki Beach on June 8, 1996, a Saturday, day of the alleged
"entrapment" and arrest with Criseldo Gabo. After past 4:00 p.m. with no
Crear on sight, I decided to go home. On the way home I encountered Mr.
Crear riding on a motorcycle. He stopped me and I went with him back to
Salawaki Beach to have a talk and a drink or two.
Crear rode with me. In my car we had a chance to talk about his offer. He
told me that since the case was scheduled for hearing on June 13, 1996 at
2:30 p.m., that would be the time he would produce the amount of
P100,000.00 at the place of my convenience in Dumaguete City. With that
information. I did not feel the need to talk with Mr. Crear any further. The
entrapment would be set.

Thus, upon arriving at Salawaki Beach I did not anymore get out of my car
and I told Mr. Crear we could have our drinks some other time as I was
going back to Dumaguete City and would just see him on June 13, 1996. At
this juncture, Mr. Crear frantically told me to wait as he hurriedly went out of
the car. I thought he was going back with me. After a while I saw Mr. Crear
hurrying back. He went straight inside my car, opened his black bag and
unceremoniously tossed some bundles of money to me. In reflex action I
caught some bundles while some fell on the floor. Before I could
comprehend Crear's act, almost simultaneously an NBI agent opened the
door of my car, pointed a gun at me and announced an arrest. I was then
pulled out of my car and handcuffed. Then they searched my car.
Thereafter, I was taken to the NBI office. I was not allowed to call my lawyer
and was forcibly examined for fluorescent powder on my hands. They would
have found some of the powder on my lap, steering wheel, my shoes and
on the hands of Mr. Crear.
After the foregoing incident David Crear reportedly left the
country. 21
In his defense, respondent judge preferred several arguments to support his innocence to wit:
(1) what happened was not an entrapment but a frame-up; (2) that he never made a gesture of
voluntarily accepting the bribe money fluorescent powder notwithstanding; (3) the NBI relied
on the signal of David Crear, not on their personal discernment of what transpired in the car; and
(4) that his car was subjected to an illegal search by the NBI agents.22 In addition to the
aforementioned arguments, the respondent judge also presented the
affidavits 23 of Judge Teopisto Calumpang and SPO Avelino Burlaza.
After Justice Hormachuelos completed her investigation, she submitted her report and
recommendation dated November 3, 1997, containing the following evaluation of the evidence
adduced, to wit:
The undersigned respectfully submits that this defense, which is in line with
the thinking that the best defense is a good offense, can not be accorded
credence for the following reasons:
1. The NBI operatives has no bias
nor ill-motives against the
respondent judge. As law
enforcement officers, they are
presumed to have acted regularly
in their performance of their duties
(Rule 31, sec. 3(m) Revised Rules
on Evidence). Respondent
attempted to show that these NBI
officers prosecuted some cases in
his sala, but it was not clear why
they should be aggrieved at the
way these cases were handled,
much less that they were so
aggrieved that they would go to the
extent of cooperating with a

foreigner David Crear to

manufacture evidence against a
judge, who is moreover a native of
Dumaguete and a graduate of
Dumaguete's prestigious Silliman
University.
2. The testimony of NBI Agent Atty.
Cimafranca was marked by
spontaneity and candor. At some
points during his cross examination
by respondent himself, Cimafranca
even engaged the latter in a frank,
matter-of-fact, straightforward
recall of the June 8, 1996
entrapment mentioning minutiae of
the incident which could not be
easily concocted (TSN, July 8,
1997, pp. 99-138).
3. Respondent's witness Judge
Calumpang is his close friend and
compadre while respondent Judge
Barron once served as lawyer of
the family of witness SPO1
Burlasa.
4. The police blotter entry dated
May 4, 1996 (Exhibit "4" for
Respondent,Rollo, p. 142) is highly
suspicious, being written only on
what appears to be the remaining
small space at the bottom edge of
the page, hardly befitting the
prestige and standing of its alleged
reporter an RTC judge, as well as
the importance of the alleged
incident involving an attempt to
bribe by an American national.
This investigator believes, in the light of the evidence
presented, that this entry was only intercalated to lend
credence to respondent's defense.
5. Respondent's version itself
strains one's credulity. He would
have the court believe that having
had enough of Crear's impudence
(in allegedly offering a bribe) he
would:

a) personally
report the
matter to the
PNP on a nonworking day
(Saturday May
4, 1996) at
3:00 o'clock in
the afternoon.
b) himself
personally
travel to David
Crear's
hatchery in
Mainit,
Zamboanguita
which is at
least 30 kms.
away from
Dumaguete
City where his
court is located
in the midmorning of
June 4, 1996,
a Wednesday,
merely to
engage Crear
in a
conversation
for the purpose
of entrapping
him later.
c)
Subsequently,
undertake
another distant
travel 28 kms.
away to
Salawaki
Beach Resort
on a Saturday
afternoon
merely to
determine or
agree on when
the pay-off
would be.
It is to be noted, that
notwithstanding respondent's claim

that he was to act as bait for the

entrapment of David Crear by the
Dumaguete police, no policeman
ever accompanied him either on
June 4th or June 8th when he met
with David Crear. He was
accompanied only by Casildo Gabo
who was not even a court
employee anymore, having
retired. 24
In an effort to escape criminal liability, the respondent judge shifts the burden on the NBI by
raising the defense of frame-up. Frame-up as a defense has been invariably viewed by this
Court with disfavor for it can just easily be concocted but is quite difficult to prove. 25 And the
defense of frame-up must be proved by clear and convincing evidence because it is of the same
category as alibi. 26 In the case at bar, the respondent judge failed to present any convincing
evidence to substantiate his claim. He advances the theory that the NBI had carefully mapped
out a frame-up operation against him as a retaliatory measure for all those cases which the NBI
had filed and for which he (Judge Barron) caused the dismissal thereof. This cannot be given
credence. There is no evidence on record that the NBI harboured a personal grudge against the
respondent judge. Clearly, what transpired was an entrapment and not a frame-up as claimed by
the respondent. Entrapment has received judicial sanction as long as it is carried out with due
regard to Constitutional and legal safeguards.27 Furthermore, there is no scintilla of evidence that
the manner by which the NBI agents conducted the operation was tainted with illegality. This
Court has held in the case of Mallari vs. Court of Appeals 28 that "Absent strong and convincing
proof to the contrary, this Court is bound by the presumption that the arresting officers were
aware of the legal mandates in effecting an arrest and strictly complied with the same."
The respondent judge insinuates that the search conducted on his car was illegal. We do not
think so. Where the arrest of the been caught in flagrante delicto, there is no need for a warrant
for the seizure of the fruit of the crime as well as for the body search upon him, the same being
incidental to a lawful arrest. 29 There being a lawful arrest upon the person of the respondent
judge, the NBI agents were authorized to conduct a warrantless search. In People vs. De
Lara, 30 we held: "A contemporaneous search may be conducted upon the person of the arrestee
and the immediate vicinity where the arrest was made."
We have previously held that the warrantless search incidental to a lawful arrest authorizes the
arresting officer to make a search upon the person of the person arrested. Moreover, "the
individual being arrested may be frisked for concealed weapons that may be used against the
arresting officer and all unlawful articles found in his person, or within his immediate control may
be seized." 31
As shown on record, a firearm was confiscated on the person of the respondent judge. There
was even an attempt on the part of the respondent judge to draw such was weapon. He was
only prevented from doing so on account of the timely confiscation of the firearm by the agents.
The search, being merely an incident to the lawful arrest, cannot be stigmatized as unlawful. 32
The respondent judge denied accepting the bribe money despite the presence of "fluorescent
powder" on his hands. He claims that the money was "unceremoniously tossed to him." 33 Such
statement deserves scant consideration. The pictures taken immediately after the arrest reveal
that the bundles of money were neatly placed under the driver's seat. If the bundles of money
were "unceremoniously tossed to him," it is difficult to understand how all the money found

themselves orderly placed under his seat. Furthermore, the incident report filed by the NBI
showed that he was caught placing the money under the driver's seat.
Respondent Judge further contends that "the NBI relied on the signal of David Crear, and not on
their personal discernment of what transpired inside the car." 34
The means employed and the manner by which the entrapment operation was conducted is
assailed by the respondent judge. The reliance of the NBI agents on the signal given by Crear
was appropriate. It was the manner by which Crear would convey to the agents that the marked
money was already in possession of the respondent judge. The arresting officers could not place
themselves in a conspicuous position where they could easily be seen by the respondent judge
as the said transaction was supposedly between Crear and Judge Barron only. It must be noted
that ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in
the execution of his criminal plan. 35 Entrapment is not a bar to the prosecution and conviction of
the lawbreaker.
As regards the testimonies given by the witnesses presented by the respondent judge, little, it
any, credence should be given.
First, the deposition of Judge Teopisto Calumpang Sr. was taken when he was still confined at
the Holy Child Hospital. Although he was able to attest to the contents of his affidavit and confirm
his signature, he could not effectively and intelligently relate the surrounding circumstances
leading to the execution of said affidavit, as he was too sick to do so. In addition, Judge
Calumpang was a compadre and a good friend of the respondent judge.
Secondly, the testimony of SPO1 Avelino Burlaza is wanting in substantial veracity to warrant
credence and the necessary logic to elicit belief. We agree with the findings of the special
investigator that the manner by which the alleged bribe attempt was reported was not
commensurate to the stature of the judge. It was observed that the entry in the police blotter was
hurriedly written, while the other entries in the same book appeared to be written more
deliberately. Likewise, it was noted that the entry seemed cramped as it was written at the
bottom of the page, leaving the impression that it was a fabricated entry.
Moreover, when the alleged bribe attempt was reported, SPO1 Burlaza did not even bother to
inquire as to the amount involved and the relevant facts relative to a reported crime. In addition,
Burlaza did not inform his superiors of the bribe attempt. His explanation is that he waited for the
respondent judge's go signal before he would report the entrapment plan to his superiors. Again,
this is contrary to the standard operating police procedures. What further taints the credibility of
this police officer is that respondent judge was once the family lawyer of Burlaza.
All told, a judge should always be a symbol of rectitude and propriety, comporting himself in a
manner that will raise no doubt whatsoever about his honesty. 36 The conduct of respondent
judge shows that he can be influenced by monetary considerations. His act of demanding and
receiving money from a party-litigant constitutes serious misconduct in office. It is this kind of
gross and flaunting misconduct, no matter how nominal the amount involved on the part of those
who are charged with the responsibility of administering the law and rendering justice quickly,
which erodes the respect for law and the courts. 37
Respondent judge tainted the image of the Judiciary to which he owes fealty and the obligation
to keep it at all times unsullied and worthy of the people's trust. 38 There is no place in the
Judiciary for those who cannot meet the exacting standards of judicial conduct and

integrity. 39 Respondent judge does not deserve to remain in the Judiciary and should
accordingly be removed from the service. 40

they had had sufficient information to constitute probable cause for the arrest, the arrest was
lawful. The courts also held that the search was justified as incident to a valid arrest.

IN VIEW OF THE FOREGOING, the Court resolved to DISMISS respondent Judge Florencio S.
Barron from the service with FORFEITURE of all retirement benefits and privileges. He is
likewise DISQUALIFIED from re-employment in any branch or instrumentality of the
government, including government-owned or controlled corporations. This decision shall be
immediately executory.

Held: Assuming the arrest was valid, the warrantless search of petitioner's house cannot be
constitutionally justified as incident to that arrest. Pp. 395 U. S. 755-768.

SO ORDERED.

(a) An arresting officer may search the arrestee's person to discover and remove weapons and
to seize evidence to prevent its concealment or destruction, and may search the area "within the
immediate control" of the person arrested, meaning the area from which he might gain
possession of a weapon or destructible evidence. Pp. 395 U. S. 762-763.
(b) For the routine search of rooms other than that in which an arrest occurs, or for searching
desk drawers or other closed or concealed areas in that room itself, absent well recognized
exceptions, a search warrant is required. P. 395 U. S. 763.

U.S. Supreme Court

Chimel v. California, 395 U.S. 752 (1969)
Chimel v. California

(c) While the reasonableness of a search incident to arrest depends upon "the facts and
circumstances -- the total atmosphere of the case," those facts and circumstances must be
viewed in the light of established Fourth Amendment principles, and the only reasoned
distinction is one between (1) a search of the person arrested and the area within his reach, and
(2) more extensive searches. Pp. 395 U. S. 765-766.
Page 395 U. S. 753
(d) United Ste v. Rabinowitz,339 U. S. 56, and Harris v. United States,331 U. S. 145, on their
facts, and insofar as the principles they stand for are inconsistent with this decision, are no
longer to be followed. P. 395 U. S. 768.

No. 770
Argued March 27, 1969
Decided June 23, 1969
395 U.S. 752

(e) The scope of the search here was unreasonable under the Fourth and Fourteenth
Amendments, as it went beyond petitioner's person and the area from within which he might
have obtained a weapon or something that could have been used as evidence against him, and
there was no constitutional justification, in the absence of a search warrant, for extending the
search beyond that area. P. 395 U. S. 768.
68 Cal.2d 436, 439 P.2d 333, reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

Syllabus
Police officers, armed with an arrest warrant but not a search warrant, were admitted to
petitioner's home by his wife, where they awaited petitioner's arrival. When he entered, he was
served with the warrant. Although he denied the officers' request to "look around," they
conducted a search of the entire house "on the basis of the lawful arrest." At petitioner's trial on
burglary charges, items taken from his home were admitted over objection that they had been
unconstitutionally seized. His conviction was affirmed by the California appellate courts, which
held, despite their acceptance of petitioner's contention that the arrest warrant was invalid, that,
since the arresting officers had procured the warrant "in good faith," and since, in any event,

This case raises basic questions concerning the permissible scope under the Fourth
Amendment of a search incident to a lawful arrest.
The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965,
three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant
authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified
themselves to the petitioner's wife, and asked if they might come inside. She ushered them into
the house, where they waited 10 or 15 minutes until the petitioner returned home from work.
When the petitioner entered the house, one of the officers handed him the arrest warrant and
asked for permission to "look around." The petitioner objected, but was advised that,
Page 395 U. S. 754

"on the basis of the lawful arrest," the officers would nonetheless conduct a search. No search
warrant had been issued.

of Carroll v. United States,267 U. S. 132, brought the following embellishment of

theWeeks statement:

Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom
house, including the attic, the garage, and a small workshop. In some rooms, the search was
relatively cursory. In the master bedroom and sewing room, however, the officers directed the
petitioner's wife to open drawers and

"When a man is legally arrested for an offense, whatever is found upon his person or in his
control which it is unlawful for him to have and which may be used to prove the offense may be
seized and held
Page 395 U. S. 756

"to physically move contents of the drawers from side to side so that [they] might view any items
that would have come from [the] burglary."
After completing the search, they seized numerous items -- primarily coins, but also several
medals, tokens, and a few other objects. The entire search took between 45 minutes and an
hour.
At the petitioner's subsequent state trial on two charges of burglary, the items taken from his
house were admitted into evidence against him over his objection that they had been
unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by
both the California Court of Appeal, 61 Cal.Rptr. 714, and the California Supreme Court, 68
Cal.2d 436, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest arrant
was invalid because the supporting affidavit was set out in conclusory terms, [Footnote 1] but
held that, since the arresting officers had procured the warrant "in good faith," and since, in any
event, they had had sufficient information to constitute probable cause for the petitioner's arrest,
that arrest had been lawful. From this conclusion, the appellate courts went on to hold that the
search of the petitioner's home
Page 395 U. S. 755
had been justified, despite the absence of a search warrant, on the ground that it had been
incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial
constitutional claims. 393 U.S. 958.
Without deciding the question, we proceed on the hypothesis that the California courts were
correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us
directly to the question whether the warrantless search of the petitioner's entire house can be
constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that
question have been far from consistent, as even the most cursory review makes evident.
Approval of a warrantless search incident to a lawful arrest seems first to have been articulated
by the Court in 1914 as dictum in Weeks v. United States,232 U. S. 383, in which the Court
stated:
"What then is the present case? Before answering that inquiry specifically, it may be well, by a
process of exclusion, to state what it is not. It is not an assertion of the right on the part of the
Government, always recognized under English and American law, to search the person of the
accused when legally arrested to discover and seize the fruits or evidences of crime."
Id. at 232 U. S. 392. That statement made no reference to any right to search the place where
an arrest occurs, but was limited to a right to search the "person." Eleven years later, the case

as evidence in the prosecution."

Id. at 276 U. S. 158. (Emphasis added.) Still, that assertion too was far from a claim that the
"place" where one is arrested may be searched so long as the arrest is valid. Without
explanation, however, the principle emerged in expanded form a few months later inAgnello v.
United States,269 U. S. 20 -- although still by way of dictum:
"The right without a search warrant contemporaneously to search persons lawfully arrested
while committing crime and to search the place where the arrest is made in order to find and
seize things connected with the crime as its fruits or as the means by which it was committed, as
well as weapons and other things to effect an escape from custody, is not to be doubted. See
Carroll v. United States,267 U. S. 132, 267 U. S. 158; Weeks v. United States,232 U. S.
383, 232 U. S. 392."
269 U.S. at 269 U. S. 30. And in Marron v. United States,275 U. S. 192, two years later, the
dictum of Agnello appeared to be the foundation of the Court's decision. In that case, federal
agents had secured a search warrant authorizing the seizure of liquor and certain articles used
in its manufacture. When they arrived at the premises to be searched, they saw "that the place
was used for retailing and drinking intoxicating liquors." Id. at 275 U. S. 194. They proceeded to
arrest the person in charge and to execute the warrant. In searching a closet for the items listed
in the warrant, they came across an incriminating ledger, concededly not covered by the
warrant, which they also seized. The Court upheld the seizure of the ledger by holding that,
since the agents had made a lawful arrest,
"[t]hey had a right without a warrant contemporaneously to search the place in order to find and
seize the things used to carry on the criminal enterprise."
Id. at 275 U. S. 199.
Page 395 U. S. 757
That the Marron opinion did not mean all that it seemed to say became evident, however, a few
years later in Go-Bart Importing Co. v. United States,282 U. S. 344, and United States v.
Lefkowitz,285 U. S. 452. In each of those cases, the opinion of the Court was written by Mr.
Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of
persons whom they had lawfully arrested, [Footnote 2] and had taken several papers from a
desk, a safe, and other parts of the office. The Court noted that no crime had been committed in
the agents' presence, and that, although the agent in charge "had an abundance of information
and time to swear out a valid [search] warrant, he failed to do so." 282 U.S. at 282 U. S. 358. In
holding the search and seizure unlawful, the Court stated:

"Plainly the case before us is essentially different from Marron v. United States,275 U. S. 192.
There, officers executing a valid search warrant for intoxicating liquors found and arrested one
Birdsall, who, in pursuance of a conspiracy, was actually engaged in running a saloon. As an
incident to the arrest, they seized a ledger in a closet where the liquor or some of it was kept,
and some bills beside the cash register. These things were visible and accessible and in the
offender's immediate custody. There was no threat of force, or general search, or rummaging of
the place."
282 U.S. at 282 U. S. 358. This limited characterization of Marron was reiterated in Lefkowitz, a
case in which the Court held unlawful a search of desk drawers and a cabinet despite the fact
that the search had accompanied a lawful arrest. 285 U.S. at 285 U. S. 465.
The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however,
in Harris v. United
Page 395 U. S. 758
States,331 U. S. 145, decided in 1947. In that case, officers had obtained a warrant for Harris'
arrest on the basis of his alleged involvement with the cashing and interstate transportation of a
forged check. He was arrested in the living room of his four-room apartment, and, in an attempt
to recover two canceled checks thought to have been used in effecting the forgery, the officers
undertook a thorough search of the entire apartment. Inside a desk drawer, they found a sealed
envelope marked "George Harris, personal papers." The envelope, which was then torn open,
was found to contain altered Selective Service documents, and those documents were used to
secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court
rejected Harris' Fourth Amendment claim, sustaining the search as "incident to arrest." Id. at 331
U. S. 151.
Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States,334
U. S. 699, agents raided the site of an illicit distillery, saw one of several conspirators operating
the still, and arrested him, contemporaneously "seiz[ing] the illicit distillery." Id. at334 U. S. 702.
The Court held that the arrest and others made subsequently had been valid, but that the
unexplained failure of the agents to procure a search warrant -- in spite of the fact that they had
had more than enough time before the raid to do so -- rendered the search unlawful. The opinion
stated:
"It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and
use search warrants wherever reasonably practicable. . . . This rule rests upon the desirability of
having magistrates, rather than police officers, determine when searches and seizures are
permissible and what limitations should be placed upon such activities. . . . To provide the
necessary security against unreasonable intrusions upon the private lives of
Page 395 U. S. 759
individuals, the framers of the Fourth Amendment required adherence to judicial processes
wherever possible. And subsequent history has confirmed the wisdom of that requirement."

"A search or seizure without a warrant as an incident to a lawful arrest has always been
considered to be a strictly limited right. It grows out of the inherent necessities of the situation at
the time of the arrest. But there must be something more in the way of necessity than merely a
lawful arrest."
Id. at 334 U. S. 705, 334 U. S. 708.
In 1950, two years after Trupiano, [Footnote 3] came United States v. Rabinowitz,339 U. S. 56,
the decision upon which California primarily relies in the case now before us.
In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps
bearing forged overprints. On the basis of that information, they secured a warrant for his arrest,
which they executed at his one-room business office. At the time of the arrest, the officers
"searched the desk, safe, and file cabinets in the office for about an hour and a half,"id. at 339 U.
S. 59, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at
the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the
warrantless search had been unlawful. The Court held that the search in its entirety fell within
the principle giving law enforcement authorities "[t]he right to search the place where the arrest
is made in order to find and seize things connected with the crime. . . .'" Id. at 339 U. S.
61. Harris was regarded as "ample authority" for that conclusion.Id. at 339 U. S. 63. The opinion
rejected the rule of Trupiano that,
"in seizing goods and articles, law enforcement agents must secure and use search warrants
Page 395 U. S. 760
wherever reasonably practicable."
The test, said the Court, "is not whether it is reasonable to procure a search warrant, but
whether the search was reasonable." Id. at 339 U. S. 66.
Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident
to a lawful arrest" may generally extend to the area that is considered to be in the "possession"
or under the "control" of the person arrested. [Footnote 4] And it was on the basis of that
proposition that the California courts upheld the search of the petitioner's entire house in this
case. That doctrine, however, at least in the broad sense in which it was applied by the
California courts in this case, can withstand neither historical nor rational analysis.
Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on
an unimpeachable line of authority. As Mr. Justice Frankfurter commented in dissent in that case,
the "hint" contained in Weeks was, without persuasive justification, "loosely turned into dictum
and finally elevated to a decision." 339 U.S. at 339 U. S. 75. And the approach taken in cases
such as Go-Bart, Lefkowitz,and Trupiano was essentially disregarded by the Rabinowitz Court.
Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house
supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr.
Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's
proscription of "unreasonable searches and seizures"

"* * * *"
Page 395 U. S. 761

must be read in light of "the history that gave rise to the words" -- a history of "abuses so deeply
felt by the Colonies as to be one of the potent causes of the Revolution. . . ." 339 U.S. at 339 U.
S. 69. The Amendment was in large part a reaction to the general warrants and warrantless
searches that had so alienated the colonists and had helped speed the movement for
independence. [Footnote 5] In the scheme of the Amendment, therefore, the requirement that
"no Warrants shall issue, but upon probable cause," plays a crucial part. As the Court put it
in McDonald v. United States,335 U. S. 451:
"We are not dealing with formalities. The presence of a search warrant serves a high function.
Absent some grave emergency, the Fourth Amendment has interposed a magistrate between
the citizen and the police. This was done not to shield criminals, nor to make the home a safe
haven for illegal activities. It was done so that an objective mind might weigh the need to invade
that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust
to the discretion of those whose job is the detection of crime and the arrest of criminals. . . . And
so the Constitution requires a magistrate to pass on the desires of the police before they violate
the privacy of the home. We cannot be true to that constitutional requirement and excuse the
absence of a search warrant without a showing by those who seek exemption from the
constitutional mandate that the exigencies of the situation made that course imperative."
Id. at 335 U. S. 455-456.
Page 395 U. S. 762
Even in the Agnello case, the Court relied upon the rule that
"[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes
no justification for a search of that place without a warrant. And such searches are held unlawful
notwithstanding facts unquestionably showing probable cause."
269 U.S. at 269 U. S. 33. Clearly, the general requirement that a search warrant be obtained is
not lightly to be dispensed with, and "the burden is on those seeking [an] exemption [from the
requirement] to show the need for it. . . ." United States v. Jeffers,342 U. S. 48, 342 U. S. 51.
Only last Term, in Terry v. Ohio,392 U. S. 1, we emphasized that "the police must, whenever
practicable, obtain advance judicial approval of searches and seizures through the warrant
procedure," id. at 392 U. S. 20, [Footnote 6] and that "[t]he scope of [a] search must be strictly
tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 392 U.
S. 19. The search undertaken by the officer in that "stop and frisk" case was sustained under
that test, because it was no more than a "protective . . . search for weapons." Id. at 392 U. S.
29. But in a companion case, Sibron v. New York,392 U. S. 40, we applied the same standard to
another set of facts and reached a contrary result, holding that a policeman's action in thrusting
his hand into a suspect's pocket had been neither motivated by nor limited to the objective of
protection. [Footnote 7] Rather, the search had been made in order to find narcotics, which
were, in fact, found.

arrest is made, it is reasonable for the arresting officer to search the person arrested in order to
remove any weapons that the latter might seek to use in order to resist arrest or effect his
escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated.
In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence
on the arrestee's person in order to prevent its concealment or destruction. And the area into
which an arrestee might reach in order to grab a weapon or evidentiary items must, of course,
be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be
as dangerous to the arresting officer as one concealed in the clothing of the person arrested.
There is ample justification, therefore, for a search of the arrestee's person and the area "within
his immediate control" -- construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in
which an arrest occurs -- or, for that matter, for searching through all the desk drawers or other
closed or concealed areas in that room itself. Such searches, in the absence of well recognized
exceptions, may be made only under the authority of a search warrant. [Footnote 8] The
"adherence to judicial processes" mandated by the Fourth Amendment requires no less.
This is the principle that underlay our decision in Preston v. United States,376 U. S. 364. In that
case, three men had been arrested in a parked car, which had later been towed to a garage and
searched by police. We held the search to have been unlawful under the Fourth Amendment,
despite the contention that it had
Page 395 U. S. 764
been incidental to a valid arrest. Our reasoning was straightforward:
"The rule allowing contemporaneous searches is justified, for example, by the need to seize
weapons and other things which might be used to assault an officer or effect an escape, as well
as by the need to prevent the destruction of evidence of the crime -- things which might easily
happen where the weapon or evidence is on the accused's person or under his immediate
control. But these justifications are absent where a search is remote in time or place from the
arrest."
Id. at 376 U. S. 367. [Footnote 9] The same basic principle was reflected in our opinion last Term
in Sibron. That opinion dealt withPeters v. New York, No. 74, as well as with Sibron's case,
and Peters involved a search that we upheld as incident to a proper arrest. We sustained the
search. however, only because its scope had been "reasonably limited" by the "need to seize
weapons" and "to prevent the destruction of evidence," to which Preston had referred. We
emphasized that the arresting officer
"did not engage in an unrestrained and thoroughgoing examination of Peters and his personal
effects. He seized him to cut short his flight, and he searched him primarily for weapons."
392 U.S. at 392 U. S. 67.

A similar analysis underlies the "search incident to arrest" principle, and marks its proper extent.
When an
Page 395 U. S. 763

It is argued in the present case that it is "reasonable" to search a man's house when he is
arrested in it. But that argument is founded on little more than a subjective view regarding the
acceptability of certain sorts of police

Page 395 U. S. 765

Page 395 U. S. 768

conduct, and not on considerations relevant to Fourth Amendment interests. Under such an
unconfined analysis, Fourth Amendment protection in this area would approach the evaporation
point. It is not easy to explain why, for instance, it is less subjectively "reasonable" to search a
man's house when he is arrested on his front lawn -- or just down the street -- than it is when he
happens to be in the house at the time of arrest. [Footnote 10] As Mr. Justice Frankfurter put it:

but it is small consolation to know that one's papers are safe only so long as one is not at home."

"To say that the search must be reasonable is to require some criterion of reason. It is no guide
at all either for a jury or for district judges or the police to say that an 'unreasonable search' is
forbidden -- that the search must be reasonable. What is the test of reason which makes a
search reasonable? The test is the reason underlying and expressed by the Fourth Amendment:
the history and the experience which it embodies and the safeguards afforded by it against the
evils to which it was a response."
United States v. Rabinowitz, 339 U.S. at 339 U. S. 83 (dissenting opinion). Thus, although "[t]he
recurring questions of the reasonableness of searches" depend upon "the facts and
circumstances -- the total atmosphere of the case," id. at 339 U. S. 63, 339 U. S. 66 (opinion of
the Court), those facts and circumstances must be viewed in the light of established Fourth
Amendment principles.
Page 395 U. S. 766
It would be possible, of course, to draw a line between Rabinowitz and Harris, on the one hand,
and this case, on the other. ForRabinowitz involved a single room, and Harris a four-room
apartment, while, in the case before us, an entire house was searched. But such a distinction
would be highly artificial. The rationale that allowed the searches and seizures
in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration
relevant to the Fourth Amendment suggests any point of rational limitation once the search is
allowed to go beyond the area from which the person arrested might obtain weapons or
evidentiary items. [Footnote 11] The only reasoned distinction is one between a search of the
person arrested and the area within his reach, on the one hand, and more extensive searches,
on the other. [Footnote 12]
Page 395 U. S. 767
The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is
to give law enforcement officials the opportunity to engage in searches not justified by probable
cause, by the simple expedient of arranging to arrest suspects at home, rather than elsewhere.
We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy
was utilized here, [Footnote 13] but the fact remains that, had he been arrested earlier in the
day, at his place of employment, rather than at home, no search of his house could have been
made without a search warrant. In any event, even apart from the possibility of such police
tactics, the general point so forcefully made by Judge Learned Hand in United States v.
Kirschenblatt, 16 F.2d 202, remains:
"After arresting a man in his house, to rummage at will among his papers in search of whatever
will convict him appears to us to be indistinguishable from what might be done under a general
warrant; indeed, the warrant would give more protection, for presumably it must be issued by a
magistrate. True, by hypothesis, the power would not exist if the supposed offender were not
found on the premises;

Id. at 203.
Rabinowitz and Harris have been the subject of critical commentary for many years, [Footnote
14] and have been relied upon less and less in our own decisions. [Footnote 15] It is time, for
the reasons we have stated, to hold that, on their own facts, and insofar as the principles they
stand for are inconsistent with those that we have endorsed today, they are no longer to be
followed.
Application of sound Fourth Amendment principles to the facts of this case produces a clear
result. The search here went far beyond the petitioner's person and the area from within which
he might have obtained either a weapon or something that could have been used as evidence
against him. There was no constitutional justification, in the absence of a search warrant, for
extending the search beyond that area. The scope of the search was, therefore, "unreasonable"
under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand.
[Footnote 16]---Reversed.
G.R. No. L-69803 January 30, l987
CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON.
ANTONIO P. SANTOS, Presiding Judge, Branch XLII Metropolitan Trial Court of Quezon
City; HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE,
LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.

MELENCIO-HERRERA, J.:
For resolution are petitioners' and public respondents' respective Motions for Partial
Reconsideration of this Court's Decision of October 8, 1985, which decreed that:
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984
by respondent Executive Judge Ernani Cruz Pano is hereby annulled and
set aside, and the Temporary Restraining Order enjoining respondents from
introducing evidence obtained pursuant to the Search Warrant in the
Subversive Documents Case hereby made permanent, the personalities
seized may be retained by the Constabulary Security Group for possible
introduction as evidence in Criminal Case No. SMC1-1, pending before
Special Military Commission No. 1, without prejudice to petitioner Mila
Aguilar-Roque objecting to their relevance and asking said Commission to
return to her any and all irrelevant documents and articles. (Rollo, p. 154;
139 SCRA 165).
In their Motion for Partial Reconsideration, public respondents maintain that the subject Search
Warrant meets the standards for validity and that it should be considered in the context of the

criminal offense of Rebellion for which the Warrant was issued, the documents to establish
which are less susceptible of particularization since the offense does not involve an isolated act
or transaction.

ACCORDINGLY, considering the respective positions now taken by the parties, petitioners'
Motion for Partial Reconsideration of this Court's Decision of October 8, 1985 is GRANTED, and
the dispositive portion thereof is hereby revised to read as follows:

In their own Motion for Partial Reconsideration, petitioners assail that portion of the Decision
holding that, in so far as petitioner Mila Aguilar-Roque is concerned, the search made in her
premises was incident to her arrest and could be made without a search warrant. Petitioners
submit that a warrantless search can be justified only if it is an incident to a lawful arrest and that
since Mila Aguilar was not lawfully arrested a search without warrant could not be made.

WHEREFORE, Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive
Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order
enjoining respondents from introducing evidence obtained pursuant to the Search Warrant in the
Subversive Documents Case hereby made permanent. The personalities seized by virtue of the
illegal Search Warrant are hereby ordered returned to petitioners.

On April 10, 1986, we required the parties to MOVE in the premises considering the supervening
events, including the change of administration that have transpired, and pursuant to the
provisions of Section 18 of Rule 3 in so far as the public respondents are concerned (which
requires the successor official to state whether or not he maintains the action and position taken
by his predecessor-in-office).

SO ORDERED.

In their Compliance, petitioners maintain that the arrest of petitioners and the search of their
premises thereafter are both illegal and that the personalties seized should be ordered returned
to their owners.
The Solicitor General on behalf of public respondents, "in deference to the dissenting opinion of
then Supreme Court Justice (now Chief Justice) Claudio Teehankee," now offer no further
objection to a declaration that the subject search is illegal and to the return of the seized items to
the petitioners. Respondents state, however, that they cannot agree to having the arrest of
petitioners declared illegal.
The pertinent portion of the dissenting opinion referred to reads:
... The questioned search warrant has correctly been declared null and void
in the Court's decision as a general warrant issued in gross violation of the
constitutional mandate that 'the right of the people to be secure in their
persons, houses, papers and effects aqainst unreasonable searches and
seizures of whatever nature and for any purpose shall not be violated' (Bill
of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all
illegally obtained evidence: "Any evidence obtained in violation of this . . .
section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]).
This constitutional mandate expressly adopting the exclusionary rule has
proved by historical experience to be the only practical means of enforcing
the constitutional injunction against unreasonable searches and seizures by
outlawing all evidence illegally seized and thereby removing the incentive on
the part of state and police officers to disregard such basic rights. What the
plain language of the Constitution mandates is beyond the power of the
courts to change or modify.
All the articles thus seized fag under the exclusionary
rule totally and unqualifiedly and cannot be used against any of the three
petitioners, as held by the majority in the recent case of Galman vs.
Pamaran (G.R. Nos. 71208-09, August 30, 1985). ...

G.R. No. L-69803 October 8, 1985

CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners,
vs.
HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON.
ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon
City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE,
LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.
Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for
petitioners.

MELENCIO-HERRERA, J.:
The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be
briefly stated. The three petitioners will be referred to through their surnames of NOLASCO,
AGUILAR-ROQUE and TOLENTINO.
1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was
one of the accused of Rebellion in Criminal Case No.

MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines
vs. Jose Ma. Sison, et al." She was then still at large.

articles and documents attached to the Return was signed by the two Barangay Tanods, but not
by Dra. Galang.

2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a

Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street,
Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The
record does not disclose that a warrant of arrest had previously beeen issued against
NOLASCO.

6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO,
were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon
complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to
Commit Rebellion/Subversion."

3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon
Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by
respondents. In their COMMENT, however, respondents have alleged that the search was
conducted "late on the same day"; that is late on august 6th.
4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a
Search Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial
Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be
the leased residence of AGUILAR-ROQUE, after almost a month of "round the clock
surveillance" of the premises as a "suspected underground house of the CPP/NPA." AGUILARROQUE has been long wanted by the military for being a high ranking officer of the Communist
Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases.
In connection with the Search Warrant issued, the following may be stated:
(a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila
Aguilar-Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT
CASE). Judge Panos Court was Branch 88.
(b) It does not appear from the records before us that an application in writing was submitted by
Lt. Col. Saldajeno to Judge Pao.
(c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were
examined under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to
us. The latter deposed that to his personal knowledge, there were kept in the premises to be
searched records, documents and other papers of the CPP/NPA and the National Democratic
Front, including support money from foreign and local sources intended to be used for
rebellion. 1
5. In connection with the search made at 12:00 N. of August 6th the following may be stated:
(a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching
party presumably without a warrant of arrest.
(b) The searching party seized 428 documents and written materials, 2 and additionally a
portable typewriter, and 2 wooden boxes, making 431 items in all. 3
4

(c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, the
search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two
(2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428

(b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree
No. 33 (Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the
Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent
Judge Antonio P. Santos, presiding.
(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that
AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on
November 16th.
7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT
CASE praying, inter alia, that the CSG be allowed to retain the seized 431 documents and
articles, in connection with cases that are presently pending against Mila Aguilar Roque before
the Quezon City Fiscal's Office and the court. 5
(b) On September 28th, petitioners were required by Judge Pano to comment on the Amended
Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of
any evidence obtained pursuant to the Search Warrant.
(c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized
documents "shall be subject to disposition of the tribunal trying the case against respondent."
8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE
DOCUMENTS CASE, praying that such of the 431 items belonging to them be returned to them.
It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos
denied the Motion on January 7, 1985 on the ground that the validity of the Search Warrant has
to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of
Judge Pao of December 13th issued in the SEARCH WARRANT CASE.
Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1)
Search Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended
Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge
Santos denying petitioners' Motion to Suppress.
This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the
respondents or their duly authorized representatives from introducing evidence obtained under
the Search Warrant.
The PETITIONERS principally assert that the Search Warrant is void because it is a general
warrant since it does not sufficiently describe with particularity the things subject of the search
and seizure, and that probable cause has not been properly established for lack of searching
questions propounded to the applicant's witness. The respondents, represented by the Solicitor
General, contend otherwise, adding that the questions raised cannot be entertained in this

present petition without petitioners first moving for the quashal of the disputed Search Warrant
with the issuing Judge.
We find merit in the Petition.
Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that no Search Warrant shall issue
except upon probable cause to be determined by the Judge or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the things
to be seized.
The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows:
Documents, papers and other records of the Communist Party of the
Phihppines/New Peoples Army and/or the National Democratic Front, such
as Minutes of the Party Meetings, Plans of these groups, Programs, List of
possible supporters, subversive books and instructions, manuals not
otherwise available to the public, and support money from foreign or local
sources.
It is at once evident that the foregoing Search Warrant authorizes the seizure of personal
properties vaguely described and not particularized. It is an all- embracing description which
includes everything conceivable regarding the Communist Party of the Philippines and the
National Democratic Front. It does not specify what the subversive books and instructions are;
what the manuals not otherwise available to the public contain to make them subversive or to
enable them to be used for the crime of rebellion. There is absent a definite guideline to the
searching team as to what items might be lawfully seized thus giving the officers of the law
discretion regarding what articles they should seize as, in fact, taken also were a portable
typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the
constitutional mandate requiring particular description of the things to be seized. In the recent
rulings of this Court, search warrants of similar description were considered null and void for
being too general. Thus:
Subversive documents, pamphlets, leaflets, books, and other publications to
promote the objectives and purposes of the subversive organizations known
as Movement for Free Philippines. Light-a-Fire Movement and April 6
Movement. 6
The things to be seized under the warrant issued by respondent judge were
described as 'subversive documents, propaganda materials, FAs, printing
paraphernalia and all other subversive materials Such description hardly
provided a definite guideline to the search team as to what articles might be
lawfully seized thereunder. Said description is no different from if not worse
than, the description found in the search warrants in "Burgos, et al. v. the
Chief of Staff"which this Court declared null and void for being too general. 7

etc., and even typewriters, duplicating machines, mimeographing and tape

recording machines. Thus, the language used is so all embracing as to
include all conceivable records and equipment of petitioner regardless of
whether they are legal or illegal. The search warrant under consideration
was in the nature of a general warrant which is constitutionally
objectionable. 8
The lack of particularization is also evident in the examination of the witness presented by the
applicant for Search Warrant.
Q Mr. Dionicio Lapus, there is an application for search
warrant filed by Lt. Col. Virgilio Saldajeno and the Court
would like to know if you affirm the truth of your answer
in this deposition?
(The deposition instead)
A Yes, sir,
Q How long did it take you for the surveillance?
A Almost a month, sir.
Q Are you a lawyer, Mr. Lapus?
A No, Your Honor, but I was a student of law.
Q So, you are more or less familiar with the requisites
of the application for search warrant?
A Yes, Your Honor.
Q How did you come to know of the person of Mila
Aguilar-Roque?
A Because of our day and night surveillance, Your
Honor, there were so many suspicious persons with
documents.
Q What kind of documents do you refer to?
A Documents related to the Communist Party of
Philippines and New People's Army.
Q What else?

In the case at bar, the search warrant issued by respondent judge allowed
the seizure of printed copies of the Philippine Times, manuscripts/drafts of
articles for publication, newspaper dummies subversive documents, articles,

A Conferences of the top ranking officials from the

National Democratic Front, Organization of the
Communist Party of the Philippines ...
Q And may include what else?
A Other papers and documents like Minutes of the
Party Meetings, Plans of these groups, Programs, List
of possible supporters, subversive books and
instructions, manuals not otherwise available to the
public and support money from foreign and local
sources. 9
The foregoing questions propounded by respondent Executive Judge to the applicant's witness
are not sufficiently searching to establish probable cause. 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. 10 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 of probable
cause upon which a warrant may issue. 11
Respondents claim, however, that the proper forum for questioning the illegality of a Search
Warrant is with the Court that issued it instead of this original, independent action to quash. The
records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in
their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the
evidence obtained under the Search Warrant, even during the inquest investigation on August
10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on
December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful.
Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned
the legality of the Search Warrant.

The provision is declaratory in the sense that it is confined to the search, without a search
warrant, of a person who had been arrested. It is also a general rule that, as an incident of an
arrest, the place or premises where the arrest was made can also be search without a search
warrant. In this latter case, "the extent and reasonableness of the search must be decided on its
own facts and circumstances, and it has been stated that, in the application of general rules,
there is some confusion in the decisions as to what constitutes the extent of the place or
premises which may be searched. 12 "What must be considered is the balancing of the
individual's right to privacy and the public's interest in the prevention of crime and the
apprehension of criminals." 13
Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against
public order; that the warrant for her arrest has not been served for a considerable period of
time; that she was arrested within the general vicinity of her dwelling; and that the search of her
dwelling was made within a half hour of her arrest, we are of the opinion that in her respect, the
search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible
effective results in the interest of public order.
Such being the case, the personalities seized may be retained. by CSG, for possible introduction
as evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance
and to ask Special Military Commission No.1 to return to her any and all irrelevant documents
and articles.
WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent
Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary
Restraining Order enjoining respondent from introducing evidence obtained pursuant to the
Search Warrant in the Subversive Documents case hereby made permanent, the, personalities
seized may be retained by the Constabulary Security Group for possible introduction as
evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1,
without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said
Commission to return to her any and all irrelevant documents and articles.
SO ORDERED.

Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of
the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an
orderly administration of justice. It should be advisable that, whenever a Search Warrant has
been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or
Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should
be consolidated with the criminal case for orderly procedure. The later criminal case is more
substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case
should have the right to act on petitions to exclude evidence unlawfully obtained.
Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the
articles seized under an invalid search warrant should be returned, they cannot be ordered
returned in the case at bar to AGUILAR-ROQUE. Some searches may be made without a
warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides:
Section 12. Search without warrant of person arrested.A person charged
with an offense may be searched for dangerous weapons or anything which
may be used as proof of the commission of the offense.

G.R. No. 89139 August 2, 1990

ROMEO POSADAS y ZAMORA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

Rudy G. Agravate for petitioner.

GANCAYCO, J.:
The validity of a warrantless search on the person of petitioner is put into issue in this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab and Pat. Umbra
Umpar, both members of the Integrated National Police (INP) of the Davao Metrodiscom
assigned with the Intelligence Task Force, were conducting a surveillance along Magallanes
Street, Davao City. While they were within the premises of the Rizal Memorial Colleges they
spotted petitioner carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP. Petitioner
attempted to flee but his attempt to get away was thwarted by the two notwithstanding his
resistance.
They then checked the "buri" bag of the petitioner where they found one (1) caliber .38 Smith &
Wesson revolver with Serial No. 770196 1 two (2) rounds of live ammunition for a .38 caliber
gun 2 a smoke (tear gas) grenade, 3 and two (2) live ammunitions for a .22 caliber gun. 4 They
brought the petitioner to the police station for further investigation. In the course of the same, the
petitioner was asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to the Davao
Metrodiscom office and the prohibited articles recovered from him were indorsed to M/Sgt. Didoy
the officer then on duty. He was prosecuted for illegal possession of firearms and ammunitions in
the Regional Trial Court of Davao City wherein after a plea of not guilty and trial on the merits a
decision was rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:
WHEREFORE, in view of all the foregoing, this Court , finds the accused
guilty beyond reasonable doubt of the offense charged.
It appearing that the accuse d was below eighteen (18) years old at the time
of the commission of the offense (Art. 68, par. 2), he is hereby sentenced to
an indeterminate penalty ranging from TEN (10) YEARS and ONE (1) DAY
of prision mayor to TWELVE (12) Years, FIVE (5) months and Eleven (11)
days of Reclusion Temporal, and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in favor of the
government and the Branch Clerk of Court is hereby directed to turn over
said items to the Chief, Davao Metrodiscom, Davao City. 5
Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals wherein in
due course a decision was rendered on February 23, 1989 affirming in toto the appealed
decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being no lawful arrest
or search and seizure, the items which were confiscated from the possession of the petitioner
are inadmissible in evidence against him.

The Solicitor General, in justifying the warrantless search of the buri bag then carried by the
petitioner, argues that under Section 12, Rule 136 of the Rules of Court a person lawfully
arrested may be searched for dangerous weapons or anything used as proof of a commission of
an offense without a search warrant. It is further alleged that the arrest without a warrant of the
petitioner was lawful under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
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)
From the foregoing provision of law it is clear that an arrest without a warrant may be effected by
a peace officer or private person, among others, when in his presence the person to be arrested
has committed, is actually committing, or is attempting to commit an offense; or when an offense
has in fact just been committed, and he has personal knowledge of the facts indicating that the
person arrested has committed it.
The Solicitor General argues that when the two policemen approached the petitioner, he was
actually committing or had just committed the offense of illegal possession of firearms and
ammunitions in the presence of the police officers and consequently the search and seizure of
the contraband was incidental to the lawful arrest in accordance with Section 12, Rule 126 of the
1985 Rules on Criminal Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended the petitioner
as he attempted to flee they did not know that he had committed, or was actually committing the
offense of illegal possession of firearms and ammunitions. They just suspected that he was
hiding something in the buri bag. They did now know what its contents were. The said
circumstances did not justify an arrest without a warrant.
However, there are many instances where a warrant and seizure can be effected without
necessarily being preceded by an arrest, foremost of which is the "stop and search" without a
search warrant at military or police checkpoints, the constitutionality or validity of which has been
upheld by this Court in Valmonte vs. de Villa, 7 as follows:

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 light 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.
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.

. . . In the ordinary cases where warrant is indispensably necessary, the

mechanics prescribed by the Constitution and reiterated in the Rules of
Court must be followed and satisfied. But We need not argue that there are
exceptions. Thus in the extraordinary events where warrant is not necessary
to effect a valid search or seizure, or when the latter cannot be performed
except without warrant, what constitutes a reasonable or unreasonable
search or seizure becomes purely a judicial question, determinable from the
uniqueness of the circumstances involved, including the purpose of the
search or seizure, the presence or absence of probable cause, the manner
in which the search and seizure was made, the place or thing searched and
the character of the articles procured.
The Court reproduces with approval the following disquisition of the Solicitor General:
The assailed search and seizure may still be justified as akin to a "stop and
frisk" situation whose object is either to determine the identity of a
suspicious individual or to maintain the status quo momentarily while the
police officer seeks to obtain more information. This is illustrated in the case
ofTerry vs. Ohio, 392 U.S. 1 (1968). In this case, two men repeatedly
walked past a store window and returned to a spot where they apparently
conferred with a third man. This aroused the suspicion of a police officer. To
the experienced officer, the behaviour of the men indicated that they were
sizing up the store for an armed robbery. When the police officer
approached the men and asked them for their names, they mumbled a
reply. Whereupon, the officer grabbed one of them, spun him around and
frisked him. Finding a concealed weapon in one, he did the same to the
other two and found another weapon. In the prosecution for the offense of
carrying a concealed weapon, the defense of illegal search and seizure was
put up. The United States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behaviour even
though there is no probable cause to make an arrest." In such a situation, it
is reasonable for an officer rather than simply to shrug his shoulder and
allow a crime to occur, to stop a suspicious individual briefly in order to
determine his identity or maintain thestatus quo while obtaining more
information. . . .

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. (Emphasis
supplied).
Thus, as between a warrantless search and seizure conducted at military or police checkpoints
and the search thereat in the case at bar, there is no question that, indeed, the latter is more
reasonable considering that unlike in the former, it was effected on the basis of a probable
cause. The probable cause is that when the petitioner acted suspiciously and attempted to flee
with the buri bag there was a probable cause that he was concealing something illegal in the
bag and it was the right and duty of the police officers to inspect the same.

Clearly, the search in the case at bar can be sustained under the exceptions heretofore
discussed, and hence, the constitutional guarantee against unreasonable searches and seizures
has not been violated. 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.

It is too much indeed to require the police officers to search the bag in the possession of the
petitioner only after they shall have obtained a search warrant for the purpose. Such an exercise
may prove to be useless, futile and much too late.
G.R. No. 123595 December 12, 1997
In People vs. CFI of Rizal, 8 this Court held as follows:

SAMMY MALACAT y MANDAR, petitioner,

vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.

DAVIDE, JR., J.:

1

In an Information filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional
Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with
violating Section 3 of Presidential Decree No. 1866, 2 as follows:
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.

Yu and other policemen chased petitioner and his companions; however, the former were unable
to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on
the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not
creating a commotion, since they were supposedly acting suspiciously, Yu and his companions
approached them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner. 9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain
Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted
the inquest of the two suspects, informing them of their rights to remain silent and to be assisted
by competent and independent counsel. Despite 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

At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of

not guilty.

On cross-examination, Serapio admitted that he took petitioner's confession knowing it was

inadmissible in evidence. 12

At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A2," 4 while the prosecution admitted that the police authorities were not armed with a search
warrant nor warrant of arrest at the time they arrested petitioner. 5

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

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." 7 Yu's companion, police officer Rogelio Malibiran, apprehended
Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then
brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a
group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda.
Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda,
Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when

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." 15 Probable cause was not required as it was not
certain that a crime had been committed, however, the situation called for an investigation,
hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu
and his companions were "[c]onfronted with an emergency, in which the delay necessary to
obtain a warrant, threatens the destruction of evidence" 17and the officers "[h]ad to act in haste,"

as petitioner and his companions were acting suspiciously, considering the time, place and
"reported cases of bombing." Further, 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 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court
thus found petitioner 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 OFRECLUSION TEMPORAL, as minimum,
and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as
maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to
this Court. However, the record of the case was forwarded to the Court of Appeals which
docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT
THE SEARCH UPON THE PERSON OF ACCUSEDAPPELLANT AND THE SEIZURE OF THE ALLEGED
HANDGRENADE FROM HIM "WAS AN
APPROPRIATE INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE AGAINST ACCUSED-APPELLANT THE
HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS
IT WAS A PRODUCT OF AN UNREASONABLE AND
ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the
conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People
vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in
evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and
prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first,
that petitioner abandoned his original theory before the court a quo that the grenade was
"planted" by the police officers; and second, the factual finding of the trial court that the grenade
was seized from 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, 26 which
petitioner relied upon, was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that
someone [at] the corner of a busy street [would] be in possession of a
prohibited article. Here the police officers were responding to a [sic] public
clamor to put a check on the series of terroristic bombings in the Metropolis,
and, after receiving intelligence reports about a bomb threat aimed at the
vicinity of the historically notorious Plaza Miranda, they conducted foot
patrols for about seven days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no personal knowledge
that the person arrested has committed, is actually committing, or is
attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of
the fact that he chased Malacat in Plaza Miranda two days before he finally
succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the
following errors:

1. THE RESPONDENT COURT ERRED IN

AFFIRMING THE FINDING OF THE TRIAL COURT
THAT THE 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 ofPeople 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), 27 in relation to
Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and
Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section
9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.
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. 31 The Constitutional prohibition against unreasonable arrests,
searches and seizures refers to those effected without a validly issued warrant, 32 subject to
certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113
of the Rules of Court, which reads, in part:
Sec. 5. Arrest, without warrant; when lawful A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting
to commit an offense;
(b) When an offense has in fact just been committed,
and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has
been denominated as one "in flagrante delicto," while that under Section 5(b) has
been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2)
search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a
search incidental to a lawful arrest; 34and (6) a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with
"the seizure of the grenade from the accused [as an appropriate incident to his arrest," hence
necessitating a brief discussion on the nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a
search incidental to a lawful arrest. These two types of warrantless searches differ in terms of
the requisite quantum of proof before they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g.,
whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the
law requires that there first be a lawful arrest before a search can be made the process
cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the
person of the arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in the commission
of 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," 40it nevertheless holds that mere suspicion or a hunch will not
validate a "stop and frisk." A genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief that the person detained
has weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold
interest: (1) the general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under appropriate circumstances
and in an appropriate manner, approach a person for purposes of investigating
possible criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take steps to
assure himself that the person with whom he deals is not armed with a deadly weapon
that could unexpectedly and fatally be used against the police officer.
Here, 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.

the deceased Tan Why in the sum of P1,000, with costs. The accused appealed therefrom and
assigns five errors as committed by the lower court, which may be briefly summarized as
follows:
(1) In not having granted him a period of twenty-four hours to prepare his defense;
(2) In having denied his petition for the return of the articles taken from him during the
search of his person, without the corresponding judicial warrant;
(3) In having admitted Exhibits A, B, C, D, E, F, L and L-1, as evidence in the case;
(4) In having denied his petition to dismiss for lack evidence, filed immediately after
the fiscal had finished presenting his evidence; and
(5) In having found him guilty of robbery with homicide, instead of acquitting him.

G.R. No. L-44335

July 30, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
KAGUI MALASUGUI, defendant-appellant.
Manuel Jose for appellant.
Office of the Solicitor-General Hilado for appellee.
DIAZ, J.:
At about 5:30 o'clock in the morning of March 5, 1935, Tan Why, a Chinese merchant, a resident
of Cotabato, was found lying on the ground, with several wounds in the head, on a path leading
to the barrio of Carcar, Cotabato, and situated within the property of another Chinese named Yu
Enching Sero. Tan Why received a wound on the upper part of his forehead, which necessarily
proved fatal because it fractured his skull. He died as a result of this wound shortly afterward in
the Cotabato Hospital where he had been brought by an agent of authority with the aid of some
laborers who had gone to the scene of the crime.
The death of Tan Why was imputed to the herein accused who was charged with the crime of
robbery with homicide. He was convicted of said crime and sentenced to reclusion perpetua, to
return the sum of P150 to the Mindanao Rice Industrial Company, and to indemnify the heirs of

When Tan Why was found on the morning in question, he was still alive and able to answer
laconically "Kagui", when Moro Alamada, was among the first to approach him, asked who had
attacked him. The appellant was known by this name in Cotabato, whereupon Lieutenant A.
Jacaria of the Constabulary ordered his immediate arrest. The accused was arrested shortly
after eight o'clock in the morning of the same day, and after he had been brought to Lieutenant
Jacaria, who had already been informed, that he had just redeemed two pairs of bracelets from
some pawnshops of Cotabato and that he carried money, said lieutenant asked him for the
bracelets and he then voluntarily and without protest produced what now appear in the record as
Exhibit A. He was later searched, without opposition or protest on his part, and it was discovered
that he also had the pocketbook (Exhibit B), containing P92 in bills (Exhibit C), Tan Why's
identification card and a memorandum of amounts with some Chinese characters (Exhibit D). In
one of the pockets of his pants was found some change, making the total amount of money
found in his possession P92.68.
Tan Why, the deceased, carried the pocketbook, Exhibit B, as he did on former occasions, a few
hours before his body was found in the condition and under the circumstances above stated.
Before he left his home between 4.30 and 5 o'clock that morning, he had it full of bills because
he was, as usual, on his way to purchase palay in Carcar as part of his work. The memorandum
of amounts, Exhibit D, found in the pocketbook, Exhibit B, is in Tan Why's handwriting; and in the
afternoon before his death he was given by Kaw Tin of the Mindanao Rice Industrial Company
the sum of P150 to be invested in the purchase of palay, in addition to the P80 that remained of
the amount previously delivered to him.
The appellant had to be searched after he had voluntarily produced the bracelets Exhibit A and
placed them on Lieutenant Jacaria's table, because, upon being asked if he had any thing, he
tremblingly answered in the negative.
The foregoing facts are inferred from the testimony of the government witnesses Alamada, Chua
Sian, Kaw Tin, Yap Sea, Lieutenant Jacaria, and Police Sergeant Urangut.
Alamada testified that the deceased, shortly before he died, Kagui as his aggressor, and the
appellant was known by this name in Cotabato. He also testified that on the morning in question,
he saw the appellant, with a club in his hand, pass by the house where he and the deceased

lived. The club, Exhibit M, then with bloodstains, was found near the place where Tan Why was
wounded.
Chua Sian, an employee of the deceased, identified the pocketbook Exhibit B saying that it was
the same that the deceased used to carry whenever he went to make purchases; that it was
usually kept in a box at Tan Why's store; that the deceased in truth carried it when he left his
store on the morning of March 5, 1935, to purchase palay, and that it was then full of bills.
Kaw Tin, cashier of the Mindanao Rice Industrial Company, in turn, testified that on the night
before the crime, he gave the deceased, at the latter's request the sum of P150 to purchase
palay, inasmuch as he was a buyer of said commodity for the company in Cotabato.
About four meters from the place where Tan Why's body was found, there was a coconut tree
with two dangling leaves, as if they were so arranged intentionally to hide anybody who might
post himself near the trunk. At the very place where the tips of the leaves touched the ground,
there were footprints presumably of somebody who had posted who had posted himself there in
ambush, without being seen: the fresh footprints exactly the same size as the appellant's foot;
and the said bloodstained club was found very near the place. Such was the testimony of
Lieutenant Jacaria and Sergeant Eusebio de los Santos who inspected the scene of the crime,
particularly the latter who did so early in the morning and took said measurements with the aid of
Exhibit E which is a part of a reed-grass leaf.
The appellant testified at the trial that Lieutenant Jacaria and Sergeant Urangut had forcibly and
through intimidation taken from him the bracelets (Exhibit A), the pocketbook (Exhibit B) and all
the money which he carried (Exhibit C); and that, but for the printing thereon, the identification
card found in the pocketbook then was blank and there was no memorandum of the kind of
Exhibit D, in Tan Why's handwriting, inside the pocketbook, thereby, insinuating that it was
Lieutenant Jacaria who typed or caused to be typewritten on the card Tan Why's name and
personal data and who placed Exhibit D in the pocketbook. There is nothing of record to
corroborate the appellant's imputation to said two officers; and it is unbelievable that they so
acted because they were induced by no other motive than to comply with their duties as agents
of authority. The appellant permitted them to search his person and to take from him the articles
in question to be used as evidence against him in due time; at least, he neither made any
objection nor even muttered a bit of protest. Consequently, his contention that he was subjected
to the rigor of an unreasonable search to dispossess him of his effects without judicial warrant,
and that the court should have ordered their return to him when he so formally requested before
the trial, is unfounded. When one voluntarily submits to a search or consents to have it made of
his person or premises, he is precluded from later complaining thereof. (Cooley, Constitutional
Limitations, 8th ed., vol. I page 631.) The right to be secure from unreasonable search may, like
every right, be waived and such waiver may be made either expressly or impliedly. On the other
hand, the appellant was then charged with the crime, imputed to him by Tan Why before the
latter's death, of having assaulted the "deceased; that he was then also known to be carrying
much money; and that a few moments before he was brought to Lieutenant Jacaria, and shortly
after the assault on Tan Why, he was able to redeem two pairs of bracelets from two persons to
whom he had pledge them several months before. These are circumstances which undoubtedly
warranted his arrest without a previous judicial warrant, only upon a verbal order from said
officer to Sergeant Urangut, or of the latter's own will, inasmuch as he had direct knowledge of
the aggression committed on the person of Tan Why, his violent death, the revelation made by
Tan Why before his death naming the appellant as the author of the of the aggression, and the
other circumstances already stated. This is so because under the law, members of Insular Police
or Constabulary as well as those of the municipal police and of chartered cities like Manila and
Baguio, and even of townships (secs. 848, 2463, 2564, 2165 and 2383 of the Revised

Administrative Code) may make arrests without judicial warrant, not only when a crime is
committed or about to be committed in their presence but also when there is reason to believe or
sufficient ground to suspect that one has been committed and that it was committed by the
person arrested by them. (U. S. vs.Fortaleza, 12 Phil., 472; U. S. vs. Samonte, 16 Phil., 516; U.
S. vs. Batallones, 23 Phil., 46; U. S. vs. Santos, 36 Phil., 853.) An arrest made under said
circumstances is not unlawful but perfectly justified; and the agent of authority who makes the
arrest does not violate the provisions of article 269 of the Revised Penal Code which defines
and punishes unlawful arrest, nor infringe the constitutional precept relative to the inviolability of
one's right to be secure in his person, house, papers, and effects against unreasonable search
and seizures; as either provision of law permits, like the above cited sections of the Revised
Administrative Code, the making of arrests without judicial warrant, when there exist reasonable
motives therefor so that the person arrested may be brought to the corresponding authority. In
fact such was the appellant's state and circumstances when he was searched and his alleged
effects (Exhibits A, B, C and D with Tan Why's identification card) were taken from him and, such
being the case, it was proper, perfectly lawful, prudent and even necessary, in order to avoid any
possible "surprise or aggression from the appellant, in the search to be made and the effects in
question seized by the persons concerned, to be presented, as they were in truth presented to
the competent authority. Section 105 of General Orders, No. 58 reads:
A person charged with a crime may be marched for dangerous weapons or anything
which may be used as proof of the commission of the crime.
Article III, section 1, paragraph (3), of our Constitution is identical in all respects to the Fourth
Amendment of the Constitution of the United States; and said constitutional precept has been
interpreted as not prohibiting arrests, searches and seizures without judicial warrant, but only
those that are unreasonable.
In United States vs. Snyder (278 Fed., 650), it was said:
The Fourth Amendment, providing that "the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable search and seizures shall
not be violated, and no warrant 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," contains no prohibition of arrest, search, or seizure
without a warrant, but only against "unreasonable" searches and seizures.
When the search of the person detained or arrested and the seizure of the effects found in his
possession are incidental to an arrest made in conformity with the law, they cannot be
considered unreasonable, much less unlawful.(Weeks vs. United States, 232 U. S., 652, citing
favorably 1 Bishop, Crim. Proc., sec. 211; Wharton, Crim. Pl. & Pr., 8th ed., sec. 60;
Dillon vs. O'Brien, 16 Cox, C. C., 245, Ir. L. R. 20 C. L., 300; Moreno vs. Ago Chi, 12 Phil., 439;
United States vs. Welsh, 247 Fed., 239; United States vs. Kraus, 270 Fed., 578, 582, par. 7;
Garske vs.United States, 1 Fed. [2d], 620; King vs. United States, 1 Fed. [2d], 931.) In this last
case it was said:
In these circumstances of search and seizure of defendant engaged in the
commission of a felony, and of which the officers had reliable information and cause to
believe, there is nothing unreasonable within the import of that term in the Fourth
Amendment. After the amendment, as before it, the law necessarily sanctions arrest,
search, and seizure of persons engaged in commission of a crime, or reasonably
believed to have committed a felony, without any paper warrant. This case is so plain
that it suffices to say so.

Anent an identical question, the Supreme Court of Virginia, in United States vs. Snyder, supra,
said:
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 appellant contends that the lower court did not grant him even twenty-four hours to prepare
his defense, thereby denying him the right afforded to every accused by section 30 of General
Orders, No. 58. We have carefully examined the record and found nothing to convince us that
said court had in truth refused to grant him time for said purpose. To be entitled to said time as a
matter of right, the interested party must expressly ask for it, inasmuch as the law so prescribes.
The truth, however, is that the appellant not only did not ask for it but, after his petition for the
return of his effects to him had been denied, he forthwith asked, through his counsel, to be
arraigned and to proceed with the trial.
The appellant likewise contends that there was error in the admission of the evidence Exhibits A,
B, C, and D, alleging that they had been taken from him through force and intimidation. The
record shows that before proceeding with the trial in the lower court, the appellant asked for the
return of said effects (Exhibits A, B, C, and D) to him on the ground that they were unlawfully
taken away from him. Leaving aside the foregoing considerations, his testimony cannot prevail
against nor is it sufficient to counteract that of the government witnesses, Lieutenant Jacaria and
Sergeant Urangut, who testified that when Lieutenant Jacaria asked him what other things he
carried, after having voluntarily placed the two pairs of bracelets, Exhibit A, on the table, and
Sergeant Urangut felt his body, he did not show the least opposition. It follows, therefore, that
the lower court committed no error in accepting as evidence Exhibits A, B, C and D, not only
because the appellant did not object to the taking thereof from him when searched, but also
because the effects found in his possession of a person detained or arrested are perfectly
admissible as evidence against him, if they constitute the corpus delicti or are pertinent or
relevant thereto. (Adams vs. New York, 192 U.S., 585; 24 Sup. Ct., 372; 48 Law. ed., 575;
Weeks vs.United States, supra; People vs. Mayen, 205 Pac., 435.) It is certainly repugnant to
maintain the opposite view because it would amount to authorizing the return to the accused of
the means of conviction seized from him, notwithstanding their being eloquent proofs of crime,
for him to conceal, destroy or otherwise dispose of, in order to assure his impunity.
The appellant attempted to prove that the money found in his possession had been given to him,
on different occasions, by the witnesses who testified in his favor, as Kagui Guialal, Kagui Patak,
Kakim, Akun or Amay Indo. Kagui Guialal, in truth, testified that he had given the accused P90,
two days before the latter's arrest; Kagui Patak, P45, on two occasions, one month, and two
weeks, respectively, also prior to his arrest; and Kakim and Akun or Amay Indo, P22.50 and P20,
seven and five days, respectively, before the day of the crime. These four witnesses are all
relatives of the appellant; and if it were true that the latter had enough money several days prior
to the aggression and death of Tan Why, the natural thing to assume is that he would have not
redeemed the two bracelets Exhibit A, precisely on the very morning in question. Furthermore,
their testimony did not destroy the unexplained finding in the appellant's possession, of the
deceased Tan Why's pocketbook, containing much money, and the latter's personal papers. In
the absence of an explanation of how one has come into the possession of stolen effects
belonging to a person wounded and treacherously killed, he must necessarily be considered the
author of the aggression and death of said person and of the robbery committed on him
(U.S. vs.Merin, 2 Phil., 88; U.S. vs. Divino, 18 Phil., 425).

The facts which we consider as having been fully established in view of the foregoing
considerations, constitute the crime of robbery with homicide defined and punished
with reclusion perpetua to death in article 249, subsection 1, of the Revised Penal Code.
Inasmuch as no aggravating circumstance had been proven and the penalty imposed by the
lower court is in accordance with law, taking into consideration the rules prescribed in article 63
of said Code, the appealed judgment is hereby affirmed, except that part thereof containing a
pronouncement in favor of the Mindanao Rice Industrial Company, a strange party to the case,
which should be entirely eliminated; and it is ordered that Exhibits B (pocketbook), C (money), D
(memorandum of amounts) and Tan Why's identification card be delivered to the latter's heirs,
with costs against the appellant. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Imperial, Recto, and Laurel, JJ., concur.

THE COURT OF FIRST INSTANCE OF TAYABAS and THE ANTI-USURY

BOARD, respondents.
Godofredo Reyes for petitioner.
Adolfo N. Feliciano for respondents Anti-Usury Board.
No appearance for other respondent.
IMPERIAL, J.:
The petitioner asks that the warrant of June 3, 1936, issued by the Court of First Instance of
Tayabas, ordering the search of his house and the seizure, at any time of the day or night, of
certain accounting books, documents and papers belonging to him in his residence situated in
Infanta, Province of Tayabas, as well as the order of a later date, authorizing the agents of the
Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that
all the articles in question be returned to him.
On the date above-mentioned, the chief of the secret service of the Anti-Usury Board, of the
Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the
Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, the
petitioner kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other
papers used by him in connection with his activities as a money-lender charging usurious rates
of interest in violation of the law. In his oath at the and of the affidavit, the chief of the secret
service stated that his answers to the questions were correct to the best of his knowledge and
belief. He did not swear to the truth of his statements upon his own knowledge of the facts but
upon the information received by him from a reliable person. Upon the affidavit in question the
Judge, on said date, issued the warrant which is the subject matter of the petition, ordering the
search of the petitioner's house at nay time of the day or night, the seizure of the books and
documents above-mentioned and the immediate delivery thereof to him to be disposed of in
accordance with the law.
With said warrant, several agents of the Anti-Usury Board entered the petitioner's store and
residence at seven o'clock on the night of June 4, 1936, and seized and took possession of the
following articles: internal revenue licenses for the years 1933 to 1936, one ledger, two journals,
two cashbooks, nine order books, four notebooks, four checks stubs, two memorandums, three
bankbooks, two contracts, four stubs, forty-eight stubs of purchases of copra, two inventories,
two bundles of bills of lading, one bundle of credit receipts, one bundle of stubs of purchases of
copra, two packages of correspondence, one receipt book belonging to Luis Fernandez,
fourteen bundles of invoices and other papers many documents and loan contracts with security
and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong &
Shanghai Banking Corporation.

G.R. No. L-45358

January 29, 1937

NARCISO ALVAREZ, petitioner,

vs.

The search for and a seizure of said articles were made with the opposition of the petitioner who
stated his protest below the inventories on the ground that the agents seized even the originals
of the documents. As the articles had not been brought immediately to the judge who issued the
search warrant, the petitioner, through his attorney, filed a motion on June 8, 1936, praying that
the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized
articles in the office of the clerk of court and that said agent be declared guilty of contempt for
having disobeyed the order of the court. On said date the court issued an order directing Emilio
L.

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

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

responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034; In
re Sage, 24 Oh. Cir. Ct. [N. S.], 7; Pumphery vs. State, 122 N. W., 19; Priest vs. State,
6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 So., 865). The
oath required must refer to the truth of the facts within the personal knowledge of the
petitioner or his witnesses, because the purpose thereof is to convince the committing
magistrate, not the individual making the affidavit and seeking the issuance of the
warrant, of the existence of probable cause (U. S. vs.Tureaud, 20 Fed., 621; U.
S. vs. Michalski, 265 Fed., 8349; U. S. vs. Pitotto, 267 Fed., 603; U. S. vs. Lai Chew,
298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a
search warrant is whether it has been drawn in such a manner that perjury could be
charged thereon and affiant be held liable for damages caused (State vs. Roosevelt
Country 20th Jud. Dis. Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).
It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution
prohibits unreasonable searches and seizure. Unreasonable searches and seizures
are a menace against which the constitutional guarantee afford full protection. The
term "unreasonable search and seizure" is not defined in the Constitution or in
General Orders No. 58, and it is said to have no fixed, absolute or unchangeable
meaning, although the term has been defined in general language. All illegal searches
and seizure are unreasonable while lawful ones are reasonable. What constitutes a
reasonable or unreasonable search or seizure in any particular case is purely a
judicial question, determinable from a consideration of the circumstances involved,
including the purpose of the search, the presence or absence or probable cause, the
manner in which the search and seizure was made, the place or thing searched, and
the character of the articles procured (Go-Bart Importing Co. vs. U. S. 75 Law. ed.,
374; Peru vs. U. S., 4 Fed., [2d], 881;U. S. vs. Vatune, 292 Fed., 497; Angelo vs. U. S.
70 Law, ed., 145; Lambert vs. U. S. 282 Fed., 413; U. S. vs.Bateman, 278 Fed., 231;
Mason vs. Rollins, 16 Fed. Cas. [No. 9252], 2 Biss., 99).
In view of the foregoing and under the above-cited authorities, it appears that the
affidavit, which served as the exclusive basis of the search warrant, is insufficient and
fatally defective by reason of the manner in which the oath was made, and therefore, it
is hereby held that the search warrant in question and the subsequent seizure of the
books, documents and other papers are illegal and do not in any way warrant the
deprivation to which the petitioner was subjected.
IV. Another ground alleged by the petitioner in asking that the search warrant be
declared illegal and cancelled is that it was not supported by other affidavits aside
from that made by the applicant. In other words, it is contended that the search
warrant cannot be issued unless it be supported by affidavits made by the applicant
and the witnesses to be presented necessity by him. Section 1, paragraph 3, of Article
III of the Constitution provides that no warrants shall issue but upon probable cause,
to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 98 of General Orders, No. 58
provides that the judge or justice must, before issuing the warrant, examine under
oath the complainant and any witnesses he may produce and take their depositions in
writing. It is the practice in this jurisdiction to attach the affidavit of at least the
applicant or complainant to the application. It is admitted that the judge who issued the
search warrant in this case, relied exclusively upon the affidavit made by agent
Mariano G. Almeda and that he did not require nor take the deposition of any other
witness. Neither the Constitution nor General Orders. No. 58 provides that it is of
imperative necessity to take the deposition of the witnesses to be presented by the
applicant or complainant in addition to the affidavit of the latter. The purpose of both in

requiring the presentation of depositions is nothing more than to satisfy the committing
magistrate of the existence of probable cause. Therefore, if the affidavit of the
applicant or complainant is sufficient, the judge may dispense with that of other
witnesses. Inasmuch as the affidavit of the agent in this case was insufficient because
his knowledge of the facts was not personal but merely hearsay, it is the duty of the
judge to require the affidavit of one or more witnesses for the purpose of determining
the existence of probable cause to warrant the issuance of the search warrant. When
the affidavit of the applicant of the complaint contains sufficient facts within his
personal and direct knowledge, it is sufficient if the judge is satisfied that there exist
probable cause; when the applicant's knowledge of the facts is mere hearsay, the
affidavit of one or more witnesses having a personal knowledge of the fact is
necessary. We conclude, therefore, that the warrant issued is likewise illegal because
it was based only on the affidavit of the agent who had no personal knowledge of the
facts.
V. The petitioner alleged as another ground for the declaration of the illegality of the
search warrant and the cancellation thereof, the fact that it authorized its execution at
night. Section 101 of General Orders, No. 58 authorizes that the search be made at
night when it is positively asserted in the affidavits that the property is on the person or
in the place ordered to be searched. As we have declared the affidavits insufficient
and the warrant issued exclusively upon it illegal, our conclusion is that the contention
is equally well founded and that the search could not legally be made at night.
VI. One of the grounds alleged by the petitioner in support of his contention that the
warrant was issued illegally is the lack of an adequate description of the books and
documents to be seized. Section 1, paragraphs 3, of Article III of the Constitution, and
section 97 of General Orders, No. 58 provide that the affidavit to be presented, which
shall serve as the basis for determining whether probable cause exist and whether the
warrant should be issued, must contain a particular description of the place to be
searched and the person or thing to be seized. These provisions are mandatory and
must be strictly complied with (Munchvs. U. S., 24 Fed. [2d], 518; U. S. vs. Boyd, 1
Fed. [2d], 1019; U. S. vs. Carlson, 292 Fed., 463; U. S. vs.Borkowski, 268 Fed., 408;
In re Tri-State Coal & Coke Co., 253 Fed., 605; People vs. Mayen, 188 Cal., 237;
People vs. Kahn, 256 Ill. App., 4125); but where, by the nature of the goods to be
seized, their description must be rather generally, it is not required that a technical
description be given, as this would mean that no warrant could issue
(People vs. Rubio, 57 Phil., 284; People vs. Kahn, supra). The only description of the
articles given in the affidavit presented to the judge was as follows: "that there are
being kept in said premises books, documents, receipts, lists, chits and other papers
used by him in connection with his activities as money-lender, charging a usurious rate
of interest, in violation of the law." Taking into consideration the nature of the article so
described, it is clear that no other more adequate and detailed description could have
been given, particularly because it is difficult to give a particular description of the
contents thereof. The description so made substantially complies with the legal
provisions because the officer of the law who executed the warrant was thereby
placed in a position enabling him to identify the articles, which he did.
VII. The last ground alleged by the petitioner, in support of his claim that the search
warrant was obtained illegally, is that the articles were seized in order that the AntiUsury Board might provide itself with evidence to be used by it in the criminal case or
cases which might be filed against him for violation of the Anti-usury Law. At the
hearing of the incidents of the case raised before the court it clearly appeared that the
books and documents had really been seized to enable the Anti-Usury Board to

conduct an investigation and later use all or some of the articles in question as
evidence against the petitioner in the criminal cases that may be filed against him. The
seizure of books and documents by means of a search warrant, for the purpose of
using them as evidence in a criminal case against the person in whose possession
they were found, is unconstitutional because it makes the warrant unreasonable, and
it is equivalent to a violation of the constitutional provision prohibiting the compulsion
of an accused to testify against himself (Uy Kheytin vs.Villareal, 42 Phil,, 886;
Brady vs. U. S., 266 U. S., 620; Temperani vs. U. S., 299 Fed., 365; U. S. vs.Madden,
297 Fed., 679; Boyd vs. U. S.,116 U. S., 116; Caroll vs. U. S., 267 U. S., 132).
Therefore, it appearing that at least nineteen of the documents in question were
seized for the purpose of using them as evidence against the petitioner in the criminal
proceeding or proceedings for violation against him, we hold that the search warrant
issued is illegal and that the documents should be returned to him.
The Anti-Usury Board insinuates in its answer that the petitioner cannot now question the validity
of the search warrant or the proceedings had subsequent to the issuance thereof, because he
has waived his constitutional rights in proposing a compromise whereby he agreed to pay a fine
of P200 for the purpose of evading the criminal proceeding or proceedings. We are of the
opinion that there was no such waiver, first, because the petitioner has emphatically denied the
offer of compromise and, second, because if there was a compromise it reffered but to the
institution of criminal proceedings fro violation of the Anti-Usury Law. The waiver would have
been a good defense for the respondents had the petitioner voluntarily consented to the search
and seizure of the articles in question, but such was not the case because the petitioner
protested from the beginning and stated his protest in writing in the insufficient inventory
furnished him by the agents.
Said board alleges as another defense that the remedy sought by the petitioner does not lie
because he can appeal from the orders which prejudiced him and are the subject matter of his
petition. Section 222 of the Code of Civil Procedure in fact provides that mandamus will not
issue when there is another plain, speedy and adequate remedy in the ordinary course of law.
We are of the opinion, however, that an appeal from said orders would have to lapse before he
recovers possession of the documents and before the rights, of which he has been unlawfully
deprived, are restored to him (Fajardo vs. Llorente, 6 Phil., 426; Manotoc vs. McMicking and
Trinidad, 10 Phil., 119; Cruz Herrera de Lukban vs. McMicking, 14 Phil., 641; Lamb vs. Phipps,
22 Phil., 456).
Summarizing the foregoing conclusions, we hold:
1. That the provisions of the Constitution and General Orders, No. 58, relative to search and
seizure, should be given a liberal construction in favor of the individual in order to maintain the
constitutional guaranties whole and in their full force;
2. That since the provisions in question are drastic in their form and fundamentally restrict the
enjoyment of the ownership, possession and use of the personal property of the individual, they
should be strictly construed;
3. That the search and seizure made are illegal for the following reasons: (a) Because the
warrant was based solely upon the affidavit of the petitioner who had no personal knowledge of
the facts of probable cause, and (b) because the warrant was issued for the sole purpose of
seizing evidence which would later be used in the criminal proceedings that might be instituted
against the petitioner, for violation of the Anti-Usury Law;

4. That as the warrant had been issued unreasonably, and as it does not appear positively in the
affidavit that the articles were in the possession of the petitioner and in the place indicated,
neither could the search and seizure be made at night;
5. That although it is not mandatory to present affidavits of witnesses to corroborate the
applicant or a complainant in cases where the latter has personal knowledge of the facts, when
the applicant's or complainant's knowledge of the facts is merely hearsay, it is the duty of the
judge to require affidavits of other witnesses so that he may determine whether probable cause
exists;
6. That a detailed description of the person and place to be searched and the articles to be
seized is necessary, but whereby, by the nature of the articles to be seized, their description
must be rather general, but is not required that a technical description be given, as this would
mean that no warrant could issue;
7. That the petitioner did not waive his constitutional rights because the offer of compromise or
settlement attributed to him, does not mean, if so made, that he voluntarily tolerated the search
and seizure; and
8. That an appeal from the orders questioned by the petitioner, if taken by him, would not be an
effective, speedy or adequate remedy in the ordinary course of law, and, consequently, the
petition for mandamusfiled by him, lies.
For the foregoing considerations, the search warrant and the seizure of June 3, 1936, and the
orders of the respondent court authorizing the relation of the books and documents, are
declared illegal and are set aside, and it is ordered that the judge presiding over the Court of
First Instance of Tayabas direct the immediate return to the petitioner of the nineteen (19)
documents designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25,26, 27, 30, 31,
34, 36, 37, 38, 39, 40, 41, 42, 43 and 45, without special pronouncement as to costs. So
ordered.
Avancea, C.J., Villa-Real, Diaz and Concepcion, JJ., concur.

G.R. No. L-45950

June 20, 1938

LEONA PASION VIUDA DE GARCIA, petitioner,

vs.
DIEGO LOCSIN, Judge of First Instance of Tarlac,
FELIX IMPERIAL, Provincial Fiscal of Tarlac, and the ANTI-USURY BOARD, respondents.
Benigo S. Aquino and Marcial P. Lichauco for petitioner
Adolfo N. Feliciano for the respondent Anti-Usury Board.
Office of the Solicitor-General Tuason for other respondents.
LAUREL, J.:
This is a petition for mandamus presented to secure the annulment of a search warrant and two
orders of the respondent judge, and the restoration of certain documents alleged to have been
illegally seized by an agent of the Anti-Usuary Board.
It appears that on November 10, 1934, Mariano G. Almeda, an agent of the Anti-Usuary Board,
obtained from the justice of the peace of Tarlac, Tarlac, a search warrant(Exhibit B) commanding
any officer of the law to search the person, house or store of the petitioner at Victoria, Tarlac, for
"certain books, lists, chits, receipts, documents and other papers relating to her activities as
usurer." The search warrant was issued upon an affidavit given by the said Almeda "that he has
and there (is) just and probable cause to believe and he does believe that Leona Pasion de
Garcia keeps and conceals in her house and store at Victoria, Tarlac, certain books, lists, chits,
receipts, documents, and other papers relating to her activities as usurer, all of which is contrary
to the statute in such cases made and provided." On the same date, the said Mariano G.
Almeda, accompanied by a captain of the Philippine Constabulary, went to the office of the
petitioner in Victoria, Tarlac and, after showing the search warrant to the petitioner's bookkeeper,
Alfredo Salas, and, without the presence of the petitioner who was ill and confined at the time,
proceeded with the execution thereof. Two packages of records and a locked filing cabinet
containing several Papers and documents were seized by Almeda and a receipt therefor issued
by him to Salas. The papers and documents seized were kept for a considerable length of time
by the Anti-Usury Board and thereafter were turned over by it to the respondent fiscal who
subsequently filed, in the Court of First Instance of Tarlac, six separate criminal cases against
the herein petitioner for violation of the Anti-Usury Law.

On several occasions, after seizure, the petitioner, through counsel, demanded from the
respondent Anti-Usury Board the return of the documents seized. On January 7. and, by motion,
on June 4, 1937, the legality of the search warrant was challenged by counsel for the petitioner
in the six criminal cases and the devolution of the documents demanded. By resolution of
October 5, 1937, the respondent Judge of First Instance denied the petitioner's motion of June 4
for the reason that though the search warrant was illegal, there was a waiver on the part of the
petitioner. "En el caso presente," declared the respondent judge, "teniendo en cuenta que la
acusada Por si o por medio de su representante, no presento protests alguna contra el registro
de autos, at verificarse el mismo, o despues de un tiempo rezonable, el juzgado declare que la
citada con su silencio y conducta, ha renunciado implicitanmente a su derecho a no ser
sometido a un registro irrazonable, por lo que no le es pemitido quejarse despues, puesto que
cualquier defecto queha adolecido lo expedicion de la orden de registro y su ejecucion, ha
quidado implilcitamente subsanado." A motion for reconsideration was presented but was denied
by order of January 3, 1938. Petitioner registered her exception. The resolution of October 5,
1937 and the order of January 3, 1938 are sought, together with the search warrant, Exhibit B,
to be nullified in these proceedings.
Paragraph 3, section 1 of the bill of right of our Constitution provides 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 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.
Freedom from unreasonable searches and seizures is declared a popular right and for a search
warrant to be valid, (1) it must be issued upon probable cause; (2) the probable cause must be
determined by the judge himself and not by the applicant or any other person; (3) in the
determination of probable cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4) the warrant issued must
particularly describe the place to be searched and persons or things to be seized. These
requirements are complemented by the Code of Criminal Procedure (G. O. No. 58), particularly
with reference to the duration of the validity of the search warrant and the obligation of the officer
seizing the property to deliver the same to the corresponding court (secs. 102-104). On more
than one occasion, since the approval of the Constitution, we had emphasized the necessity of
adherence to the constitutional requirements on this subject (Alvarez vs. Court of First Instance
of Tayabas and Anti-Usury Board [1937], 35 Off. Gaz., 1183; People vs. Sy Juco [1937], G.R.
No. 41957; Rodriguez vs. Villamiel [1937], G.R. No. 44328; and Molo vs. Yatco [1936], 35 Off.
Gaz., 1935) and we do not deem it necessary to reiterate what has been said or observed in
these cases.
In the instant case the existence of probable cause was determined not by the judge himself but
by the applicant. All that the judge did was to accept as true the affidavit made by agent Almeda.
He did not decide for himself. It does not appear that he examined the applicant and his
witnesses, if any. Even accepting the description of the properties to be seized to be sufficient
and on the assumption that the receipt issued is sufficiently detailed within the meaning of the
law, the properties seized were not delivered to the court which issued the warrant, as required
by law. (See, secs. 95 and 104, G. O. No. 58.) instead, they were turned over to the respondent
provincial fiscal and used by him in building up cases against the petitioner. Considering that at
the time the warrant was issued there was no case pending against the petitioner, the averment
that the warrant was issued primarily for exploration purposes is not without basis. The lower

court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was
illegally issued by the justice of the peace of Tarlac, Tarlac.
The important question presented is whether upon the facts and under the circumstances of the
present case, there has been a waiver by the petitioner of her constitutional immunity against
unreasonable searches and seizures. While the Solicitor-General admits that, in the light of
decisions of this court, the search warrant was illegally issued, he maintains "(1) that the
petitioner had waived her constitutional right by her acquiescence after the search and seizure,
and (2) that the application for the return of the documents illegally seized was made after an
unreasonable length of time after the date of seizure." Doubtless, the constitutional immunity
against unreasonable searches and seizures is a personal right which may be waived. (People
vs. Kagui Malasugui, 34 Off. Gaz., pp. 2163, 2164; 56 C.J., pp. 1178, 1179; Cf. Rodriguez vs.
Villamiel, supra.) The waiver may be either express or implied (67 C.J., p. 304). No express
waiver has been made in the case before us. It is urged, however, that there has been a waiver
by implication. It is well-settled that to constitute a waiver of a constitutional right, it must appear,
first, that the right exists; secondly, that the persons involved had knowledge, either actual or
constructive, of the existence of such right; and, lastly, that said person had an actual intention to
relinquish the right. (67 C. J., 299.)
It is true that the petitioner did not object to the legality of the search when it was made. She
could not have objected because she was sick and was not present when the warrant was
served upon Alfredo Salas. Certainly, the constitutional immunity from unreasonable searches
and seizures, being a personal one, cannot be waived by anyone except the person whose
rights are invaded or one who is expressly authorized to do so in his or her behalf. (56 C. J., p.
1183.) Of course, the petitioner came to know later of the seizure of some of her papers and
documents. But this was precisely the reason why she sent her attorneys to the office of the
Anti-Usuary Board to demand the return of the documents seized. In any event, the failure on
the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant
does not constitute an implied waiver of constitutional right. It is, as Judge Cooley observes, but
a submission to the authority of the law. (Const. Lim., 8th ed., Vol., I, p. 630.) As the
constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not
place the citizen in the position of either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy
of the law. (56 C.J., pp. 1180, 1181.)
As a general proposition, it may be admitted that waiver may be the result of a failure to object
within a reasonable time to a search and seizure illegally made. It must be observed, however,
that the petitioner, on several occasions, and prior to the filing of criminal actions against her,
had demanded verbally, through counsel, the return by the Anti-Usuary Board of the properties
seized. This is admitted by Adolfo N. Feliciano, acting chief of the board, who said that the
demand was refused simply because no habiamos terminado con nuestra investigacion. (T.s.n.,
pp. 24-25.) On July 7, 1936, counsel for the petitioner wrote a letter to the Anti-Usuary Board
demanding again the return of the documents withheld. And in connection with the criminal
cases pending against the petitioner, similar demands were made on January 7, 1937 and on
June 4, 1937. In the light of these circumstances, we find that the petitioner did not waive her
constitutional right. The delay in making demand for the return of the documents seized is not
such as to result in waiver by implication.
In view of the foregoing, the writ prayed for is granted. The search warrant, Exhibit B, is hereby
declared void and of no effect; the orders of October 5, 1937 and January 3, 1938 of the
respondent judge are set aside; and the respondents Anti-Usuary Board and the provincial fiscal

of Tarlac or those acting in their behalf, are hereby ordered to return and restore to the petitioner
all the properties, documents, papers and effects illegally seized from her, within forty-eight (48)
hours from the time this decision becomes final. Without costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.

[G.R. No. L-37641 : July 31, 1981.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANTONIO AGBOT, DefendantAppellee.

DECISION
DE CASTRO, J.:

Charged with murder in the Court of First Instance of Davao Oriental, Antonio Agbot was, after
due trial, convicted of the crime charged, and sentenced to death and ordered to indemnify the
heirs of the deceased, Leona Agbot Subat, in the sum of P12,000.00. Hence this mandatory
review of the death sentence.:onad
The facts upon which appellant was convicted, as quoted from the Peoples brief are as follows:
At about 4:00 oclock in the afternoon of October 8, 1972, the accused Antonio Agbot
went to the house of his sister Leona Agbot, married to Asisclo Subat, in sitio
Panganudan, barrio Lamiawan, Carraga, Davao Oriental, and demanded from her the
return of his twelve-year old daughter Milagrosa, who bad been under the care and
custody of Leona Agbot Subat since she was two years old. Leona refused to
surrender the child to the accused because of her sacrifices and expenses in the
upbringing and education of Milagrosa. The accused left angrily, saying tighten
your belt, a phrase which, in the custom of the Mandayan tribe to which they belong,

meant something bad will be forthcoming to you

now. chanroblesvirtualawlibrary(tsn, pp. 45-47, Mar. 26, 1973).

not

long

from

At about 7:30 oclock in the evening of October 8, 1972, while Asisclo Subat and
Francisco Baucan, step-son of the victim, were relaxing at the porch of their house,
and Leona Agbot Subat was preparing supper in the kitchen, a gun explosion was
heard. Asisclo Subat and Francisco Baucan tried to ascertain where the gun report
came from. Suddenly, Francisco called out - Mama, mama, directing his call to his
step-mother Leona Subat who came rushing from the kitchen, wounded and bleeding
on the right breast. In a few seconds, the latter dropped on the floor and
expired. cranad(tsn, pp. 48-50, Mar. 26, 1973).
At about 5:00 oclock in the following morning, October 9, 1972, Francisco Baucan,
who was a councilor of the place, went to barrio captain Pacifico Sobiaco and reported
the incident. The latter sent a note to Patrolman Manuel Quiros who was assigned in a
nearby police checkpoint and, together, they proceeded to the house of the
victim. cranad(tsn, pp. 5-6, Mar. 26, 1973) A joint investigation was conducted by
Sobiaco and Pat. Quiros. They found the cadaver already dressed up and ready for
burial. They also saw gunshot wounds on the right breast of the deceased. cranad(tsn,
pp. 6-7, id.) Patrolman Quiros drew a sketch cranad(Exh. D) indicating the place
where the victim was found dead and the location of the wounds sustained by the
deceased. cranad(tsn, pp. 117-118, June 21, 1973) No post-mortem examination was
conducted on the cadaver of Leona Subat.
While thus conducting their investigation in the house of the victim, the accused
arrived thereat and admitted to Sobiaco that he was the one who shot the victim using
a paltik shotgun. cranad(tsn, pp. 11-12, 16-18, Mar. 26, 1973) Whereupon, Sobiaco
ordered two of his barrio councilmen, Luis Ligasan and Adolfo Benaming, who were
present to proceed to the house of the accused and get the firearm. After getting the
firearm, the same was shown to the accused who identified it as the weapon he used
in shooting the deceased.cranad(tsn, pp. 8-13, Mar. 26, 1973) Thereafter, Barrio
Captain Sobiaco turned over the shotgun and empty shell, as well as the person of the
accused to Patrolman Quiros cranad(tsn, pp. 23-24, Mar. 26, 1973).
On October 16, 1972, appellant executed an extrajudicial confession before the
police authorities of Caraga cranad(Exh. C) which was subscribed and sworn to by
him before Municipal Judge Manuel B. Castro. cranad(tsn, pp. 107-108, June 21,
1973; pp. 34-35, Mar. 26, 1973)
From the fact that no post-mortem examination was made, nor was a ballistic examination
conducted, appellant would dispute the sufficiency of the evidence to support his conviction.
Thus, he would claim that no competent proof was adduced that the wounds were caused by a
gunshot, or that assuming that they were, the home-made gun cranad(paltik) belonging to
appellant was the gun that fired the shots.:onad
That a gun explosion was heard just seconds before the deceased was wounded while she was
alone in the kitchen is by itself an almost undisputable evidence that the wounds were caused
by that same gunshot. No one was seen near her who could have inflicted the wounds with a
weapon that could find its mark only if the victim was within physical reach of the assailant. Only
a gun could have caused the wounds which can reach its target even from an appreciable
distance.
The wounds themselves, as seen by the state witnesses, particularly Barrio Captain Pacifico
Sobiaco and Patrolman Manuel Quiros, were readily described by them as gunshot wounds, one
as big as one and one-half inches in diameter and six cranad(6) smaller ones obviously caused
by pellets of a bullet fired from appellants kind of a gun, a shotgun. There can hardly be any
ground for doubt as to their competence in identifying the wounds as caused by a gun as
distinguished from one caused by a sharp-bladed weapon, much less a blunt instrument. The
existence of exits of the wounds, as testified to by Patrolman Quiros 1 bolsters the conclusion or
finding that the wounds sustained by the victim were gun-inflicted.

In an effort to discredit the testimony of Patrolman Quiros and Barrio Captain Sobiaco, appellant
points to Patrolman Quiros allegedly saying that he saw one cranad(1) big penetrating wound
while Barrio Captain Sobiaco, as well as Asisclo Subat, declared he saw six cranad(6). An
examination of Patrolman Quiros testimony will show that he did NOT say that he saw only
one cranad(1) wound with no other wounds sustained by the deceased. The small wounds
caused evidently by tiny pellets bursting out of a shotgun bullet may not have been noticed by
Patrolman Quiros, and so, he made mention only of the one cranad(1) big penetrating wound.
The lack of ballistic examination can neither detract from the weight of the evidence presented
showing that appellants gun was the offending weapon. It fits the nature of the wounds inflicted
on the deceased, being a shotgun whose bullet emits pellets, and the empty shell which was
found with the shotgun cranad(paltik) taken from appellants house. Ballistic experts are not
needed to establish the relation between the wounds and appellants paltik shotgun in the face
of the evidence that the weapon is admittedly one that belonged to appellant, and the empty
shell found in his house even smelled gun powder which was proof of recent firing. The
shotgun cranad(Exh. A) and the empty shell cranad(Exh. B) were indeed retrieved from
appellants house the morning following the night of the shooting made possible by appellants
own admission of authorship of the shooting, without which these objects could not have been
traced to, and recovered from, his house.
Appellants denial of having made the foregoing admission and of having mentioned anything
about the shotgun to Barrio Captain Sobiaco is unworthy of belief. If he did not make the
admission when confronted by the barrio captain at the victims own house, how could the
two cranad(2) barrio councilmen, Luis Ligasan and Adolfo Benaning, have been sent to recover
appellants firearm at the latters house? A fact related to what part the weapon had in the killing
and the person who actively played the role in using it, must have surfaced. No other fact
suggests itself more than the appellants owning the shooting when confronted by the barrio
captain to whom report of the shooting had been earlier made, and to whom the only suspect
was mentioned, together with the circumstance that drew suspicion to appellant the threat of
harm befalling the deceased with. the meaningful words tighten your belt.
The verity of appellants admission of guilt having been firmly established, the contention that the
confiscation or seizure of the gun was illegal, there being no search warrant and its use as
evidence is not permissible, clearly becomes devoid of factual or legal basis. With his
confessions, his voluntarily surrendering the weapon with which he committed the offense would
be but a natural consequence of his having admitted guilt. The taking of the gun from his house
was, therefore, with consent and acquiescence that would not constitute a violation of the
constitutional guaranty against the admissibility of illegally seized objects as evidence against an
accused. 2
Appellants claim of his confession having been extracted by force and maltreatment would,
likewise, be completely unbelievable. Having readily admitted his guilt when confronted by the
investigators right in the house of the victim, the very presence of his own departed sister lying
in state perhaps unnerving him in his vile desire to conceal the truth, how could he still try to
deny and turn back from his earlier admission made to a barrio official when he later was
formally investigated by the police? No less than the Municipal Judge Manuel B. Castro, testified
to appellant having answered in the affirmative when asked if he was willing to swear to the truth
of his confession. 3
The confession itself, by the facts with which it is so replete, which appellant alone could have
supplied and the obvious attempt to mitigate his liability by alleging that the did not act in fit of
vengeance because the victim was the one who ordered the killing of his brother Ansog Agbot,
bears the earmarks of voluntariness. 4 The police investigators could not have just conceived of
this alleged fact from pure imagination to be placed in appellants confession, considering the
extreme improbability of a sister order the killing of a brother. For the motive of the killing, what
should have found its way to the confession is the incident just before the shooting when
appellant hurled a threat at his sister, as narrated by the victims husband to the barrio captain,
had appellant not been allowed full freedom to tell his story.:onad

With appellants confession fulfilling all elements of admissibility, and supported as it is by

independent evidence of corpus delicti, which is the fact of the crime having been committed, 5
together with the finding in appellants house of the weapon that undisputably inflicted the fatal
wounds sustained by the deceased, it would be futile to argue against the sufficiency of the
evidence to prove guilt beyond reasonable doubt, as counsel had tried to do, and commendably
so, had it not been for his manifest misreading of the evidence. Thus, he would aver that corpus
delicti has not been proven 6 when the fact of death due to foul means has been so undeniably
established by the lifeless body bearing wounds that undisputably caused the death to the
victim.
The crime committed is murder, qualified by treachery and with the aggravating circumstances
of dwelling 7 and relationship, the victim being the sister of appellant. 8
Evident premeditation cannot be appreciated against appellant it appearing that no time
sufficient for calm reflection of the consequences of the crime committed intervened between
planning and execution. 9 Neither sex could be taken against appellant there being no proof that
there was deliberate intention to offend or insult the sex of the victim. 10
While lack of instruction may not be appreciated in favor of appellant as argued by counsel, the
offense of taking ones life being forbidden by natural law and therefore within the instinctive
knowledge and feeling of any human being not deprived of reason 11 appellant being a member
of the cultural minority may be considered in his favor, pursuant to Sec. 106 of the Administrative
Code of Mindanao and Sulu and entitle him, regardless of the attending circumstances, to life
imprisonment instead of death. 12 It is no legal obstacle to accord to him this benefit of the law
because he failed to invoke same in the court a quo, for in an appeal of a criminal case, same is
thrown open for a complete review of all errors, by commission or omission, as may be
imputable to the trial court.
WHEREFORE, the judgment of conviction is affirmed, but the death sentence is hereby reduced
to life imprisonment, taking also into account the length of time he had already been in the death
row. Cost de oficio.
SO ORDERED.

392 U.S. 1
Terry v. Ohio (No. 67)
Argued: December 12, 1967
Decided: June 10, 1968

Opinion
WARREN, C.J., Opinion of the Court
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the
confrontation on the street between the citizen and the policeman investigating suspicious
circumstances.
Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily
prescribed term of one to three years in the penitentiary. [n1] Following [p5] the denial of a pretrial
motion to suppress, the prosecution introduced in evidence two revolvers and a number of
bullets seized from Terry and a codefendant, Richard Chilton, [n2] by Cleveland Police Detective
Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden
testified that, while he was patrolling in plain clothes in downtown Cleveland at approximately
2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and
Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men
before, and he was unable to say precisely what first drew his eye to them. However, he testified
that he had been a policeman for 39 years and a detective for 35, and that he had been
assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30
years. He explained that he had developed routine habits of observation over the years, and that
he would "stand and watch people or walk and watch people at many intervals of the day." He
added: "Now, in this case, when I looked over, they didn't look right to me at the time."
His interest aroused, Officer McFadden took up a post of observation in the entrance to a store
300 to 400 feet[p6] away from the two men. "I get more purpose to watch them when I seen
their movements," he testified. He saw one of the men leave the other one and walk southwest
on Huron Road, past some stores. The man paused for a moment and looked in a store window,
then walked on a short distance, turned around and walked back toward the corner, pausing
once again to look in the same store window. He rejoined his companion at the corner, and the
two conferred briefly. Then the second man went through the same series of motions, strolling
down Huron Road, looking in the same window, walking on a short distance, turning back,
peering in the store window again, and returning to confer with the first man at the corner. The
two men repeated this ritual alternately between five and six times apiece -- in all, roughly a
dozen trips. At one point, while the two were standing together on the corner, a third man
approached them and engaged them briefly in conversation. This man then left the two others
and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering,
and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together,
heading west on Euclid Avenue, following the path taken earlier by the third man.
By this time, Officer McFadden had become thoroughly suspicious. He testified that, after
observing their elaborately casual and oft-repeated reconnaissance of the store window on
Huron Road, he suspected the two men of "casing a job, a stick-up," and that he considered it
his duty as a police officer to investigate further. He added that he feared "they may have a gun."
Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker's store
to talk to the same man who had conferred with them earlier on the street corner. Deciding that
the situation was ripe for direct action, Officer McFadden approached the three men,
identified [p7] himself as a police officer and asked for their names. At this point, his knowledge
was confined to what he had observed. He was not acquainted with any of the three men by
name or by sight, and he had received no information concerning them from any other source.
When the men "mumbled something" in response to his inquiries, Officer McFadden grabbed
petitioner Terry, spun him around so that they were facing the other two, with Terry between
McFadden and the others, and patted down the outside of his clothing. In the left breast pocket
of Terry's overcoat, Officer McFadden felt a pistol. He reached inside the overcoat pocket, but
was unable to remove the gun. At this point, keeping Terry between himself and the others, the
officer ordered all three men to enter Zucker's store. As they went in, he removed Terry's
overcoat completely, removed a .38 caliber revolver from the pocket and ordered all three men
to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer

clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of
Chilton's overcoat, but no weapons were found on Katz. The officer testified that he only patted
the men down to see whether they had weapons, and that he did not put his hands beneath the
outer garments of either Terry or Chilton until he felt their guns. So far as appears from the
record, he never placed his hands beneath Katz' outer garments. Officer McFadden seized
Chilton's gun, asked the proprietor of the store to call a police wagon, and took all three men to
the station, where Chilton and Terry were formally charged with carrying concealed weapons.
On the motion to suppress the guns, the prosecution took the position that they had been seized
following a search incident to a lawful arrest. The trial court rejected this theory, stating that it
"would be stretching the facts beyond reasonable comprehension" to find that
Officer [p8] McFadden had had probable cause to arrest the men before he patted them down
for weapons. However, the court denied the defendants' motion on the ground that Officer
McFadden, on the basis of his experience,
had reasonable cause to believe . . . that the defendants were conducting themselves
suspiciously, and some interrogation should be made of their action.
Purely for his own protection, the court held, the officer had the right to pat down the outer
clothing of these men, who he had reasonable cause to believe might be armed. The court
distinguished between an investigatory "stop" and an arrest, and between a "frisk" of the outer
clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was
essential to the proper performance of the officer's investigatory duties, for, without it, "the
answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is
admissible."
After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded
not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial
District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966).
The Supreme Court of Ohio dismissed their appeal on the ground that no "substantial
constitutional question" was involved. We granted certiorari,387 U.S. 929 (1967), to determine
whether the admission of the revolvers in evidence violated petitioner's rights under the Fourth
Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S.
643 (1961). We affirm the conviction.
I
The Fourth Amendment provides that "the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated. . . ." This inestimable right of[p9] personal security belongs as much to the citizen on
the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.
For as this Court has always recognized,
No right is held more sacred, or is more carefully guarded, by the common law than the right of
every individual to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law.
Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). We have recently held that "the Fourth
Amendment protects people, not places," Katz v. United States, 389 U.S. 347, 351 (1967), and
wherever an individual may harbor a reasonable "expectation of privacy," id. at 361 (MR.
JUSTICE HARLAN, concurring), he is entitled to be free from unreasonable governmental

intrusion. Of course, the specific content and incidents of this right must be shaped by the
context in which it is asserted. For "what the Constitution forbids is not all searches and
seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222
(1960). Unquestionably petitioner was entitled to the protection of the Fourth Amendment as he
walked down the street in Cleveland. Beck v. Ohio, 379 U.S. 89 (1964); Rios v. United
States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959); United States v. Di
Re, 332 U.S. 581 (1948); Carroll v. United States, 267 U.S. 132 (1925). The question is whether,
in all the circumstances of this on-the-street encounter, his right to personal security was
violated by an unreasonable search and seizure.
We would be less than candid if we did not acknowledge that this question thrusts to the fore
difficult and troublesome issues regarding a sensitive area of police activity -- issues which have
never before been squarely[p10] presented to this Court. Reflective of the tensions involved are
the practical and constitutional arguments pressed with great vigor on both sides of the public
debate over the power of the police to "stop and frisk" -- as it is sometimes euphemistically
termed -- suspicious persons.
On the one hand, it is frequently argued that, in dealing with the rapidly unfolding and often
dangerous situations on city streets, the police are in need of an escalating set of flexible
responses, graduated in relation to the amount of information they possess. For this purpose, it
is urged that distinctions should be made between a "stop" and an "arrest" (or a "seizure" of a
person), and between a "frisk" and a "search." [n3] Thus, it is argued, the police should be allowed
to "stop" a person and detain him briefly for questioning upon suspicion that he may be
connected with criminal activity. Upon suspicion that the person may be armed, the police should
have the power to "frisk" him for weapons. If the "stop" and the "frisk" give rise to probable cause
to believe that the suspect has committed a crime, then the police should be empowered to
make a formal "arrest," and a full incident "search" of the person. This scheme is justified in part
upon the notion that a "stop" and a "frisk" amount to a mere "minor inconvenience and petty
indignity," [n4] which can properly be imposed upon the [p11] citizen in the interest of effective law
enforcement on the basis of a police officer's suspicion. [n5]
On the other side, the argument is made that the authority of the police must be strictly
circumscribed by the law of arrest and search as it has developed to date in the traditional
jurisprudence of the Fourth Amendment. [n6] It is contended with some force that there is not -and cannot be -- a variety of police activity which does not depend solely upon the voluntary
cooperation of the citizen, and yet which stops short of an arrest based upon probable cause to
make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe
requirement of specific justification for any intrusion upon protected personal security, coupled
with a highly developed system of judicial controls to enforce upon the agents of the State the
commands of the Constitution. Acquiescence by the courts in the compulsion inherent [p12] in
the field interrogation practices at issue here, it is urged, would constitute an abdication of
judicial control over, and indeed an encouragement of, substantial interference with liberty and
personal security by police officers whose judgment is necessarily colored by their primary
involvement in "the often competitive enterprise of ferreting out crime." Johnson v. United
States, 333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate policecommunity tensions in the crowded centers of our Nation's cities. [n7]
In this context, we approach the issues in this case mindful of the limitations of the judicial
function in controlling the myriad daily situations in which policemen and citizens confront each
other on the street. The State has characterized the issue here as

the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for
weapons (known in street vernacular as "stop and frisk"). [n8]
But this is only partly accurate. For the issue is not the abstract propriety of the police conduct,
but the admissibility against petitioner of the evidence uncovered by the search and seizure.
Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment
has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v.
United States, 232 U.S. 383, 391-393 (1914). Thus, its major thrust is a deterrent one, see
Linkletter v. Walker, 381 U.S. 618, 629-635 (1965), and experience has taught that it is the only
effective deterrent to police misconduct in the criminal context, and that, without it, the
constitutional guarantee against unreasonable searches and seizures would be a mere "form of
words." Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function -"the imperative of judicial integrity." Elkins [p13] v. United States, 364 U.S. 206, 222 (1960).
Courts which sit under our Constitution cannot and will not be made party to lawless invasions of
the constitutional rights of citizens by permitting unhindered governmental use of the fruits of
such invasions. Thus, in our system, evidentiary rulings provide the context in which the judicial
process of inclusion and exclusion approves some conduct as comporting with constitutional
guarantees and disapproves other actions by state agents. A ruling admitting evidence in a
criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced
the evidence, while an application of the exclusionary rule withholds the constitutional
imprimatur.
The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly
be invoked to exclude the products of legitimate police investigative techniques on the ground
that much conduct which is closely similar involves unwarranted intrusions upon constitutional
protections. Moreover, in some contexts, the rule is ineffective as a deterrent. Street encounters
between citizens and police officers are incredibly rich in diversity. They range from wholly
friendly exchanges of pleasantries or mutually useful information to hostile confrontations of
armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not
all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon
the injection of some unexpected element into the conversation. Encounters are initiated by the
police for a wide variety of purposes, some of which are wholly unrelated to a desire to
prosecute for crime.[n9] Doubtless some [p14] police "field interrogation" conduct violates the
Fourth Amendment. But a stern refusal by this Court to condone such activity does not
necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule
may be where obtaining convictions is an important objective of the police, [n10] it is powerless to
deter invasions of constitutionally guaranteed rights where the police either have no interest in
prosecuting or are willing to forgo successful prosecution in the interest of serving some other
goal.
Proper adjudication of cases in which the exclusionary rule is invoked demands a constant
awareness of these limitations. The wholesale harassment by certain elements of the police
community, of which minority groups, particularly Negroes, frequently complain, [n11] will not
be [p15] stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and
unthinking application of the exclusionary rule, in futile protest against practices which it can
never be used effectively to control, may exact a high toll in human injury and frustration of
efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street
encounter, and we can only judge the facts of the case before us. Nothing we say today is to be
taken as indicating approval of police conduct outside the legitimate investigative sphere. Under
our decision, courts still retain their traditional responsibility to guard against police conduct
which is overbearing or harassing, or which trenches upon personal security without the
objective evidentiary justification which the Constitution requires. When such conduct is
identified, it must be condemned by the judiciary, and its fruits must be excluded from evidence

in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct
undertaken on the basis of ample factual justification should in no way discourage the
employment of other remedies than the exclusionary rule to curtail abuses for which that
sanction may prove inappropriate.
Having thus roughly sketched the perimeters of the constitutional debate over the limits on
police investigative conduct in general and the background against which this case presents
itself, we turn our attention to the quite narrow question posed by the facts before us: whether it
is always unreasonable for a policeman to seize a person and subject him to a limited search for
weapons unless there is probable cause for an arrest. [p16] Given the narrowness of this
question, we have no occasion to canvass in detail the constitutional limitations upon the scope
of a policeman's power when he confronts a citizen without probable cause to arrest him.
II
Our first task is to establish at what point in this encounter the Fourth Amendment becomes
relevant. That is, we must decide whether and when Officer McFadden "seized" Terry, and
whether and when he conducted a "search." There is some suggestion in the use of such terms
as "stop" and "frisk" that such police conduct is outside the purview of the Fourth Amendment
because neither action rises to the level of a "search" or "seizure" within the meaning of the
Constitution. [n12] We emphatically reject this notion. It is quite plain that the Fourth Amendment
governs "seizures" of the person which do not eventuate in a trip to the stationhouse and
prosecution for crime -- "arrests" in traditional terminology. It must be recognized that, whenever
a police officer accosts an individual and restrains his freedom to walk away, he has "seized"
that person. And it is nothing less than sheer torture of the English language to suggest that a
careful exploration of the outer surfaces of a person's clothing all over his or her body in an
attempt to find weapons is not a "search." Moreover, it is simply fantastic to urge that such a
procedure [p17] performed in public by a policeman while the citizen stands helpless, perhaps
facing a wall with his hands raised, is a "petty indignity."[n13] It is a serious intrusion upon the
sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is
not to be undertaken lightly. [n14]
The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or
"seizure" of the person, and between a "frisk" and a "search," is twofold. It seeks to isolate from
constitutional scrutiny the initial stages of the contact between the policeman and the citizen.
And, by suggesting a rigid all-or-nothing model of justification and regulation under the
Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of
police action as a means of constitutional regulation. [n15] This Court has held, in [p18] the past
that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of
its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart
Importing Co. v. [p19] United States, 282 U.S. 344, 356-358 (1931); see United States v. Di
Re, 332 U.S. 581, 586-587 (1948). The scope of the search must be "strictly tied to and justified
by" the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S.
294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e.g., Preston v. United States, 376
U.S. 364, 367-368 (1964); Agnello v. United States, 269 U.S. 20, 30-31 (1925).
The distinctions of classical "stop-and-frisk" theory thus serve to divert attention from the central
inquiry under the Fourth Amendment -- the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal security. "Search" and "seizure" are not
talismans. We therefore reject the notions that the Fourth Amendment does not come into play
at all as a limitation upon police conduct if the officers stop short of something called a "technical
arrest" or a "full-blown search."

In this case, there can be no question, then, that Officer McFadden "seized" petitioner and
subjected him to a "search" when he took hold of him and patted down the outer surfaces of his
clothing. We must decide whether, at that point, it was reasonable for Officer McFadden to have
interfered with petitioner's personal security as he did. [n16] And, in determining whether the
seizure and search were "unreasonable," our inquiry[p20] is a dual one -- whether the officer's
action was justified at its inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.
III
If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we
would have to ascertain whether "probable cause" existed to justify the search and seizure
which took place. However, that is not the case. We do not retreat from our holdings that the
police must, whenever practicable, obtain advance judicial approval of searches and seizures
through the warrant procedure, see, e.g., Katz v. United States, 389 U.S. 347 (1967); Beck v.
Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610(1961), or that, in most
instances, failure to comply with the warrant requirement can only be excused by exigent
circumstances, see, e.g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v.
United States, 376 U.S. 364, 367-368 (1964). But we deal here with an entire rubric of police
conduct -- necessarily swift action predicated upon the on-the-spot observations of the officer on
the beat -- which historically has not been, and, as a practical matter, could not be, subjected to
the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth
Amendment's general proscription against unreasonable searches and seizures. [n17]
Nonetheless, the notions which underlie both the warrant procedure and the requirement of
probable cause remain fully relevant in this context. In order to assess the reasonableness of
Officer McFadden's conduct as a general proposition, it is necessary "first to focus
upon [p21] the governmental interest which allegedly justifies official intrusion upon the
constitutionally protected interests of the private citizen," for there is
no ready test for determining reasonableness other than by balancing the need to search [or
seize] against the invasion which the search [or seizure] entails.
Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 (1967). And, in justifying the
particular intrusion, the police officer must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that
intrusion. [n18] The scheme of the Fourth Amendment becomes meaningful only when it is
assured that, at some point, the conduct of those charged with enforcing the laws can be
subjected to the more detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the particular circumstances. [n19] And,
in making that assessment, it is imperative that the facts be judged against an objective
standard: would the facts[p22] available to the officer at the moment of the seizure or the search
"warrant a man of reasonable caution in the belief" that the action taken was appropriate? Cf.
Carroll v. United States, 267 U.S. 132 (1925);Beck v. Ohio, 379 U.S. 89, 96-97
(1964). [n20] Anything less would invite intrusions upon constitutionally guaranteed rights based
on nothing more substantial than inarticulate hunches, a result this Court has consistently
refused to sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S.
253 (1960);Henry v. United States, 361 U.S. 98 (1959). And simple
"good faith on the part of the arresting officer is not enough." . . . If subjective good faith alone
were the test, the protections of the Fourth Amendment would evaporate, and the people would
be "secure in their persons, houses, papers, and effects," only in the discretion of the police.

Beck v. Ohio, supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the
governmental interests involved. One general interest is, of course, that of effective crime
prevention and detection; it is this interest which underlies the recognition that a police officer
may, in appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possibly criminal behavior even though there is no probable cause to
make an arrest. It was this legitimate investigative function Officer McFadden was discharging
when he decided to approach petitioner and his companions. He had observed Terry, Chilton,
and Katz go through a series of acts, each of them perhaps innocent in itself, but which, taken
together, warranted further investigation. There is nothing unusual in two men standing together
on a street corner, perhaps waiting for someone. Nor is there anything suspicious about
people [p23] in such circumstances strolling up and down the street, singly or in pairs. Store
windows, moreover, are made to be looked in. But the story is quite different where, as here, two
men hover about a street corner for an extended period of time, at the end of which it becomes
apparent that they are not waiting for anyone or anything; where these men pace alternately
along an identical route, pausing to stare in the same store window roughly 24 times; where
each completion of this route is followed immediately by a conference between the two men on
the corner; where they are joined in one of these conferences by a third man who leaves swiftly,
and where the two men finally follow the third and rejoin him a couple of blocks away. It would
have been poor police work indeed for an officer of 30 years' experience in the detection of
thievery from stores in this same neighborhood to have failed to investigate this behavior further.
The crux of this case, however, is not the propriety of Officer McFadden's taking steps to
investigate petitioner's suspicious behavior, but, rather, whether there was justification for
McFadden's invasion of Terry's personal security by searching him for weapons in the course of
that investigation. We are now concerned with more than the governmental interest in
investigating crime; in addition, there is the more immediate interest of the police officer in taking
steps to assure himself that the person with whom he is dealing is not armed with a weapon that
could unexpectedly and fatally be used against him. Certainly it would be unreasonable to
require that police officers take unnecessary risks in the performance of their duties. American
criminals have a long tradition of armed violence, and every year in this country many law
enforcement officers are killed in the line of duty, and thousands more are
wounded. [p24] Virtually all of these deaths and a substantial portion of the injuries are inflicted
with guns and knives. [n21]
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to
protect themselves and other prospective victims of violence in situations where they may lack
probable cause for an arrest. When an officer is justified in believing that the individual whose
suspicious behavior he is investigating at close range is armed and presently dangerous to the
officer or to others, it would appear to be clearly unreasonable to deny the officer the power to
take necessary measures to determine whether the person is, in fact, carrying a weapon and to
neutralize the threat of physical harm.
We must still consider, however, the nature and quality of the intrusion on individual rights which
must be accepted if police officers are to be conceded the right to search for weapons in
situations where probable cause to arrest for crime is lacking. Even a limited search of the outer
clothing for weapons constitutes a severe, [p25] though brief, intrusion upon cherished personal
security, and it must surely be an annoying, frightening, and perhaps humiliating experience.
Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for
a crime involving the possession of weapons or for a crime the commission of which led the
officer to investigate in the first place. However, this argument must be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of
suspicious circumstances until such time as he has probable cause to make an arrest; nor does
he deny that police officers, in properly discharging their investigative function, may find
themselves confronting persons who might well be armed and dangerous. Moreover, he does
not say that an officer is always unjustified in searching a suspect to discover weapons. Rather,
he says it is unreasonable for the policeman to take that step until such time as the situation
evolves to a point where there is probable cause to make an arrest. When that point has been
reached, petitioner would concede the officer's right to conduct a search of the suspect for
weapons, fruits or instrumentalities of the crime, or "mere" evidence, incident to the arrest.
There are two weaknesses in this line of reasoning, however. First, it fails to take account of
traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose,
character, and extent between a search incident to an arrest and a limited search for weapons.
The former, although justified in part by the acknowledged necessity to protect the arresting
officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367
(1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive
exploration of the person. A search for weapons in the absence of probable cause
to[p26] arrest, however, must, like any other search, be strictly circumscribed by the exigencies
which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS,
concurring). Thus, it must be limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby, and may realistically be characterized
as something less than a "full" search, even though it remains a serious intrusion.
A second, and related, objection to petitioner's argument is that it assumes that the law of arrest
has already worked out the balance between the particular interests involved here -- the
neutralization of danger to the policeman in the investigative circumstance and the sanctity of
the individual. But this is not so. An arrest is a wholly different kind of intrusion upon individual
freedom from a limited search for weapons, and the interests each is designed to serve are
likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to
vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future
interference with the individual's freedom of movement, whether or not trial or conviction
ultimately follows.[n22] The protective search for weapons, on the other hand, constitutes a brief,
though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that,
because an officer may lawfully arrest a person only when he is apprised of facts sufficient to
warrant a belief that the person has committed or is committing a crime, the officer is equally
unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a
perfectly reasonable apprehension of danger may arise long before the officer is possessed of
adequate information to justify taking a person into custody for [p27] the purpose of prosecuting
him for a crime. Petitioner's reliance on cases which have worked out standards of
reasonableness with regard to "seizures" constituting arrests and searches incident thereto is
thus misplaced. It assumes that the interests sought to be vindicated and the invasions of
personal security may be equated in the two cases, and thereby ignores a vital aspect of the
analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See
Camara v. Municipal Court, supra.
Our evaluation of the proper balance that has to be struck in this type of case leads us to
conclude that there must be a narrowly drawn authority to permit a reasonable search for
weapons for the protection of the police officer, where he has reason to believe that he is dealing
with an armed and dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime. The officer need not be absolutely certain that the individual is armed;
the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the
belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91
(1964); Brinegar v. United States, 338 U.S. 160, 174-176 (1949); Stacey v. Emery, 97 U.S. 642,

645 (1878). [n23] And in determining whether the officer acted reasonably in such circumstances,
due weight must be given not to his inchoate and unparticularized suspicion or "hunch," but to
the specific reasonable inferences which he is entitled to draw from the facts in light of his
experience. Cf. Brinegar v. United States supra.
IV
We must now examine the conduct of Officer McFadden in this case to determine whether his
search and seizure of petitioner were reasonable, both at their inception [p28] and as
conducted. He had observed Terry, together with Chilton and another man, acting in a manner
he took to be preface to a "stick-up." We think, on the facts and circumstances Officer
McFadden detailed before the trial judge, a reasonably prudent man would have been warranted
in believing petitioner was armed, and thus presented a threat to the officer's safety while he
was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with
McFadden's hypothesis that these men were contemplating a daylight robbery -- which, it is
reasonable to assume, would be likely to involve the use of weapons -- and nothing in their
conduct from the time he first noticed them until the time he confronted them and identified
himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio
had departed the original scene, there was nothing to indicate abandonment of an intent to
commit a robbery at some point. Thus, when Officer McFadden approached the three men
gathered before the display window at Zucker's store, he had observed enough to make it quite
reasonable to fear that they were armed, and nothing in their response to his hailing them,
identifying himself as a police officer, and asking their names served to dispel that reasonable
belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons
was the product of a volatile or inventive imagination, or was undertaken simply as an act of
harassment; the record evidences the tempered act of a policeman who, in the course of an
investigation, had to make a quick decision as to how to protect himself and others from possible
danger, and took limited steps to do so.
The manner in which the seizure and search were conducted is, of course, as vital a part of the
inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by
limitations upon the [p29]scope of governmental action as by imposing preconditions upon its
initiation. Compare Katz v. United States, 389 U.S. 347, 354-356 (1967). The entire deterrent
purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the
assumption that "limitations upon the fruit to be gathered tend to limit the quest itself." United
States v. Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930); see, e.g., Linkletter v. Walker, 381 U.S. 618,
629-635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206, 216221 (1960). Thus, evidence may not be introduced if it was discovered by means of a seizure
and search which were not reasonably related in scope to the justification for their
initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).
We need not develop at length in this case, however, the limitations which the Fourth
Amendment places upon a protective seizure and search for weapons. These limitations will
have to be developed in the concrete factual circumstances of individual cases. See Sibron v.
New York, post, p. 40, decided today. Suffice it to note that such a search, unlike a search
without a warrant incident to a lawful arrest, is not justified by any need to prevent the
disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364,
367 (1964). The sole justification of the search in the present situation is the protection of the
police officer and others nearby, and it must therefore be confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault
of the police officer.

The scope of the search in this case presents no serious problem in light of these standards.
Officer McFadden patted down the outer clothing of petitioner and his two companions. He did
not place his hands in their pockets or under the outer surface of their garments until he
had [p30] felt weapons, and then he merely reached for and removed the guns. He never did
invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his
pat-down which might have been a weapon. Officer McFadden confined his search strictly to
what was minimally necessary to learn whether the men were armed and to disarm them once
he discovered the weapons. He did not conduct a general exploratory search for whatever
evidence of criminal activity he might find.
V
We conclude that the revolver seized from Terry was properly admitted in evidence against him.
At the time he seized petitioner and searched him for weapons, Officer McFadden had
reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary
for the protection of himself and others to take swift measures to discover the true facts and
neutralize the threat of harm if it materialized. The policeman carefully restricted his search to
what was appropriate to the discovery of the particular items which he sought. Each case of this
sort will, of course, have to be decided on its own facts. 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. [p31] Such a search is a reasonable search under the Fourth Amendment,
and any weapons seized may properly be introduced in evidence against the person from whom
they were taken.
Affirmed.

Syllabus

A patrolman in a police cruiser stopped an automobile occupied by respondent and seized

marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal
possession of a controlled substance. At a hearing on respondent's motion to suppress the
marihuana, the patrolman testified that, prior to stopping the vehicle, he had observed neither
traffic or equipment violations nor any suspicious activity, and that he made the stop only in
order to check the driver's license and the car's registration. The patrolman was not acting
pursuant to any standards, guidelines, or procedures pertaining to document spot checks,
promulgated by either his department or the State Attorney General. The trial court granted the
motion to suppress, finding the stop and detention to have been wholly capricious, and therefore
violative of the Fourth Amendment. The Delaware Supreme Court affirmed.

Held:

Delaware v. Prouse

No. 77-1571

Argued January 17, 1979

1. This Court has jurisdiction in this case even though the Delaware Supreme Court held that the
stop at issue not only violated the Federal Constitution but also was impermissible under the
Delaware Constitution. That court's opinion shows that, even if the State Constitution would
have provided an adequate basis for the judgment below, the court did not intend to rest its
decision independently on the State Constitution, its holding instead depending upon its view of
the reach of the Fourth and Fourteenth Amendments. Pp. 440 U. S. 651-653.

2. Except where there is at least articulable and reasonable suspicion that a motorist is
unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is
otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver
in order to check his driver's license and the registration of the automobile are unreasonable
under the Fourth Amendment. Pp. 440 U. S. 653-663.

Decided March 27, 1979

440 U.S. 648

CERTIORARI TO THE SUPREME COURT OF DELAWARE

(a) Stopping an automobile and detaining its occupants constitute a "seizure" within the meaning
of the Fourth and Fourteenth Amendments, even though the purpose of the stop is limited and
the resulting detention quite brief. The permissibility of a particular law enforcement practice is
judged by balancing its intrusion on the individual's Fourth Amendment interests against its
promotion of legitimate governmental interests. Pp. 440 U. S. 653-655.

Page 440 U. S. 649

(b) The State's interest in discretionary spot checks as a means of ensuring the safety of its
roadways does not outweigh the resulting intrusion on the privacy and security of the persons
detained. Given the physical and psychological intrusion visited upon the occupants of a vehicle
by a random stop to check documents, cf. United States v. Brignoni-Ponce, 422 U. 3. 873;
United States v. Martinez-Fuerte,428 U. S. 543, the marginal contribution to roadway safety
possibly resulting from a system of spot checks cannot justify subjecting every occupant of every
vehicle on the roads to a seizure at the unbridled discretion of law enforcement officials. Pp. 440
U. S. 655-661.

(c) An individual operating or traveling in an automobile does not lose all reasonable expectation
of privacy simply because the automobile and its use are subject to government regulation.
People are not shorn of all Fourth Amendment protection when they step from their homes onto
the public sidewalk; nor are they shorn of those interests when they step from the sidewalks into
their automobiles. Pp. 440 U. S. 662-663.

(d) The holding in this case does not preclude Delaware or other States from developing
methods for spot checks that involve less intrusion or that do not involve the unconstrained
exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible
alternative. P. 440 U. S. 663.

The question is whether it is an unreasonable seizure under the Fourth and Fourteenth
Amendments to stop an automobile, being driven on a public highway, for the purpose of
checking the driving license of the operator and the registration of the car, where there is neither
probable cause to believe nor reasonable suspicion that the car is being driven contrary to the
laws governing the operation of motor vehicles or that either the car or any of its occupants is
subject to seizure or detention in connection with the violation of any other applicable law.

At 7:20 p.m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser
stopped the automobile occupied by respondent. [Footnote 1] The patrolman smelled marihuana
smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on
the car floor. Respondent was subsequently indicted for illegal possession of a controlled
substance. At a hearing on respondent's motion to suppress the marihuana seized as a result of
the stop, the patrolman testified that, prior to stopping the vehicle, he had observed neither traffic
or equipment violations nor any suspicious activity, and that he made the stop only in order to
check the driver's license and registration. The patrolman was not acting pursuant to any
standards, guidelines, or procedures pertaining to document spot checks, promulgated by either
his department or the State Attorney General. Characterizing the stop as "routine," the patrolman
explained, "I saw the car

Page 440 U. S. 651

382 A.2d 1359, affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN,
STEWART, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. BLACKMUN, J.,
filed a concurring opinion, in which POWELL, J., joined, post, p. 440 U. S. 663. REHNQUIST, J.,
filed a dissenting opinion, post, p. 440 U. S. 664.

in the area and wasn't answering any complaints, so I decided to pull them off." App. A9. The
trial court granted the motion to suppress, finding the stop and detention to have been wholly
capricious, and therefore violative of the Fourth Amendment.

The Delaware Supreme Court affirmed, noting first that

Page 440 U. S. 650
"[t]he issue of the legal validity of systematic, roadblock-type stops of a number of vehicles for
license and vehicle registration check is not now before the Court,"
MR. JUSTICE WHITE delivered the opinion of the Court.

382 A.2d 1359, 1362 (1978) (emphasis in original). The court held that

"a random stop of a motorist in the absence of specific articulable facts which justify the stop by
indicating a reasonable suspicion that a violation of the law has occurred is constitutionally
impermissible and violative of the Fourth and Fourteenth Amendments to the United States
Constitution."

Page 440 U. S. 653

the various decisions interpreting the Federal Constitution, concluded that the Fourth
Amendment foreclosed spot checks of automobiles, and summarily held that the State
Constitution was therefore also infringed. This is one of those cases where,
Id. at 1364. We granted certiorari to resolve the conflict between this decision, which is in accord
with decisions in five other jurisdictions, [Footnote 2] and the contrary determination in six
jurisdictions [Footnote 3] that the Fourth Amendment does not prohibit the kind of automobile
stop that occurred here. 439 U.S. 816 (1978).

"at the very least, the [state] court felt compelled by what it understood to be federal
constitutional considerations to construe . . . its own law in the manner it did."

II

Because the Delaware Supreme Court held that the stop at issue not only violated the Federal
Constitution but also

Zacchini v. Scripps-Howard Broadcasting Co.,433 U. S. 562, 433 U. S. 568 (1977). Had state
law not been mentioned at all, there would be no question about our jurisdiction, even though
the State Constitution might have provided an independent and adequate state ground. Ibid. The
same result should follow here, where the state constitutional holding depended upon the state
court's view of the reach of the Fourth and Fourteenth Amendments. If the state court
misapprehended federal law, "[i]t should be freed to decide . . . these suits according to its own
local law." Missouri ex rel. Southern R. Co. v. Mayfield,340 U. S. 1, 340 U. S. 5 (1950).

Page 440 U. S. 652

III
was impermissible under Art. I, 6, of the Delaware Constitution, it is urged that the judgment
below was based on an independent and adequate state ground, and that we therefore have no
jurisdiction in this case. Fox Film Corp. v. Muller,296 U. S. 207, 296 U. S. 210 (1935). At least, it
is suggested, the matter is sufficiently uncertain that we should remand for clarification as to the
ground upon which the judgment rested. California v. Krivda,409 U. S. 33, 409 U. S. 35 (1972).
Based on our reading of the opinion, however, we are satisfied that, even if the State
Constitution would have provided an adequate basis for the judgment, the Delaware Supreme
Court did not intend to rest its decision independently on the State Constitution, and that we
have jurisdiction of this case.

As we understand the opinion below, Art I, 6, of the Delaware Constitution will automatically be
interpreted at least as broadly as the Fourth Amendment; [Footnote 4] that is, every police
practice authoritatively determined to be contrary to the Fourth and Fourteenth Amendments will,
without further analysis, be held to be contrary to Art. I, 6. This approach, which is consistent
with previous opinions of the Delaware Supreme Court, [Footnote 5] was followed in this case.
The court analyzed

The Fourth and Fourteenth Amendments are implicated in this case because stopping an
automobile and detaining its occupants constitute a "seizure" within the meaning of those
Amendments, even though the purpose of the stop is limited and the resulting detention quite
brief. United States v. Martinez-Fuerte,428 U. S. 543, 428 U. S. 556-558 (1976); United States v.
Brignoni-Ponce,422 U. S. 873, 422 U. S. 878 (1975); cf. Terry v. Ohio,392 U. S. 1, 392 U. S. 16
(1968). The essential purpose of the proscriptions in the Fourth Amendment is to impose a
standard

Page 440 U. S. 654

of "reasonableness" [Footnote 6] upon the exercise of discretion by government officials,

including law enforcement agents, in order "to safeguard the privacy and security of individuals
against arbitrary invasions. . . .'" Marshall v. Barlow's, Inc.,436 U. S. 307, 436 U. S. 312 (1978),

quoting Camara v. Municipal Court,387 U. S. 523, 387 U. S. 528 (1967). [Footnote 7] Thus, the
permissibility of a particular law enforcement practice is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of legitimate governmental
interests. [Footnote 8] Implemented in this manner, the reasonableness standard usually
requires, at a minimum, that the facts upon which an intrusion is based be capable of
measurement against "an objective standard," [Footnote 9] whether this be probable cause
[Footnote 10] or a less stringent test. [Footnote 11] In those situations in which the balance of
interests precludes insistence upon "some quantum

422 U.S. at 422 U. S. 881, the Court analogized the roving patrol stop to the on-the-street
encounter addressed in Terry v. Ohio, supra, and held:

Page 440 U. S. 655

Page 440 U. S. 656

of individualized suspicion," [Footnote 12] other safeguards are generally relied upon to assure
that the individual's reasonable expectation of privacy is not "subject to the discretion of the
official in the field," Camara v. Municipal Court, 387 U.S. at 387 U. S. 532. See id. at 387 U. S.
534-535; Marshall v. Barlow's, Inc., supra at 436 U. S. 320-321; United States v. United States
District Court,407 U. S. 297, 407 U. S. 322-323 (1972) (requiring warrants).

aware of specific articulable facts, together with rational inferences from those facts, that
reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the
country."

"Except at the border and its functional equivalents, officers on roving patrol may stop vehicles
only if they are

422 U.S. at 422 U. S. 884 (footnote omitted). Because

In this case, however, the State of Delaware urges that patrol officers be subject to no
constraints in deciding which automobiles shall be stopped for a license and registration check
because the State's interest in discretionary spot checks as a means of ensuring the safety of its
roadways outweighs the resulting intrusion on the privacy and security of the persons detained.

IV

We have only recently considered the legality of investigative stops of automobiles where the
officers making the stop have neither probable cause to believe nor reasonable suspicion that
either the automobile or its occupants are subject to seizure under the applicable criminal laws.
In United State v. Brignoni-Ponce, supra, Border Patrol agents conducting roving patrols in areas
near the international border asserted statutory authority to stop at random any vehicle in order
to determine whether it contained illegal aliens or was involved in smuggling operations. The
practice was held to violate the Fourth Amendment, but the Court did not invalidate all
warrantless automobile stops upon less than probable cause. Given

"the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and
the absence of practical alternatives for policing the border,"

"the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate
articulable grounds for identifying violators,"

id. at 422 U. S. 883,

"a requirement of reasonable suspicion for stops allows the Government adequate means of
guarding the public interest and also protects residents of the border areas from indiscriminate
official interference."

Ibid.

The constitutionality of stops by Border Patrol agents was again before the Court in United
States v. Martinez-Fuerte, supra, in which we addressed the permissibility of checkpoint
operations. This practice involved slowing all oncoming traffic "to a virtual, if not a complete,
halt," 428 U.S. at 428 U. S. 546, at a highway roadblock, and referring vehicles chosen at the

discretion of Border Patrol agents to an area for secondary inspection. See id. at 428 U. S. 546,
428 U. S. 558. Recognizing that the governmental interest involved was the same as that
furthered by roving patrol stops, the Court nonetheless sustained the constitutionality of the
Border Patrol's checkpoint operations. The crucial distinction was the lesser intrusion upon the
motorist's Fourth Amendment interests:

"At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see
visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by
the intrusion."

Id. at 894-895, quoted in United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 558.
"[The] objective intrusion -- the stop itself, the questioning, and the visual inspection -- also
existed in roving patrol stops. But we view checkpoint stops in a different light because the
subjective intrusion -- the generating of concern or even freight on the part of lawful traveler -- is
appreciably less in the case of a checkpoint stop."

Page 440 U. S. 658

Id. at 428 U. S. 558.

Although not dispositive, [Footnote 13] these decisions undoubtedly provide

But the State of Delaware urges that, even if discretionary spot checks such as occurred in this
case intrude upon motorists as much as or more than do the roving patrols held impermissible in
Brignoni-Ponce, these stops are reasonable under the Fourth Amendment because the State's
interest in the practice as a means of promoting public safety upon its roads more than
outweighs the intrusion entailed. Although the record discloses no statistics concerning the
extent of the problem of lack of highway safety, in Delaware or in the Nation as a whole, we are
aware of the danger to life [Footnote 14] and property posed by vehicular traffic, and of the
difficulties that even a cautious and an experienced driver may encounter. We agree that the
States have a vital interest in ensuring that only those qualified to do so are permitted to operate
motor vehicles, that these vehicles are fit for safe operation, and hence that licensing,
registration, and vehicle inspection requirements are being observed. Automobile licenses are
issued periodically to evidence that the drivers holding them are sufficiently familiar with the
rules of the road and are physically qualified to operate a motor vehicle. [Footnote 15] The
registration requirement and, more pointedly, the related annual inspection requirement in
Delaware, [Footnote 16] are designed to keep dangerous automobiles off the road.
Unquestionably, these provisions, properly administered, are essential elements in a highway
safety program. Furthermore, we note that the State of Delaware requires a minimum amount of
insurance

Page 440 U. S. 657

guidance in balancing the public interest against the individual's Fourth Amendment interests
implicated by the practice of spot checks such as occurred in this case. We cannot agree that
stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving patrol
stop on a major highway, and that it bears greater resemblance to a permissible stop and
secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce
was not limited to roving patrol stops on limited-access roads, but applied to any roving patrol
stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See
422 U.S. at 422 U. S. 882-883; United States v. Ortiz,422 U. S. 891, 422 U. S. 894 (1975). We
cannot assume that the physical and psychological intrusion visited upon the occupants of a
vehicle by a random stop to check documents is of any less moment than that occasioned by a
stop by border agents on roving patrol. Both of these stops generally entail law enforcement
officers signaling a moving automobile to pull over to the side of the roadway, by means of a
possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient,
and consume time. Both may create substantial anxiety. For Fourth Amendment purposes, we
also see insufficient resemblance between sporadic and random stops of individual vehicles
making their way through city traffic and those stops occasioned by roadblocks where all
vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police
power of the community.

Page 440 U. S. 659

coverage as a condition to automobile registration, [Footnote 17] implementing its legitimate

interest in seeing to it that its citizens have protection when involved in a motor vehicle accident.
[Footnote 18]

The question remains, however, whether, in the service of these important ends, the
discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon
Fourth Amendment interests which such stops entail. On the record before us, that question
must be answered in the negative. Given the alternative mechanisms available, both those in
use and those that might be adopted, we are unconvinced that the incremental contribution to
highway safety of the random spot check justifies the practice under the Fourth Amendment.

The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is
acting upon observed violations. Vehicle stops for traffic violations occur countless times each
day; and on these occasions, licenses and registration papers are subject to inspection, and
drivers without them will be ascertained. Furthermore, drivers without licenses are presumably
the less safe drivers whose propensities may well exhibit themselves. [Footnote 19] Absent
some empirical data to the contrary, it must be assumed that finding an unlicensed driver among
those who commit traffic violations is a much more likely event than finding an unlicensed driver
by choosing randomly from the entire universe of drivers. If this were not so, licensing of drivers
would hardly be an effective means of promoting roadway safety. It seems common sense that
the

Page 440 U. S. 660

percentage of all drivers on the road who are driving without a license is very small, and that the
number of licensed drivers who will be stopped in order to find one unlicensed operator will be
large indeed. The contribution to highway safety made by discretionary stops selected from
among drivers generally will therefore be marginal, at best. Furthermore, and again absent
something more than mere assertion to the contrary, we find it difficult to believe that the
unlicensed driver would not be deterred by the possibility of being involved in a traffic violation or
having some other experience calling for proof of his entitlement to drive, but that he would be
deterred by the possibility that he would be one of those chosen for a spot check. In terms of
actually discovering unlicensed drivers or deterring them from driving, the spot check does not
appear sufficiently productive to qualify as a reasonable law enforcement practice under the
Fourth Amendment.

Page 440 U. S. 661

show that a significant percentage of automobiles from other States do not also require license
plates indicating current registration, there is no basis for concluding that stopping even out-ofstate cars for document checks substantially promotes the State's interest.

The marginal contribution to roadway safety possibly resulting from a system of spot checks
cannot justify subjecting every occupant of every vehicle on the roads to a seizure -- limited in
magnitude compared to other intrusions, but nonetheless constitutionally cognizable -- at the
unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual
basis for suspicion directed at a particular automobile nor upon some other substantial and
objective standard or rule to govern the exercise of discretion "would invite intrusions upon
constitutionally guaranteed rights based on nothing more substantial than inarticulate
hunches. . . ." Terry v. Ohio, 392 U.S. at 392 U. S. 22. By hypothesis, stopping apparently safe
drivers is necessary only because the danger presented by some drivers is not observable at
the time of the stop. When there is not probable cause to believe that a driver is violating any
one of the multitude of applicable traffic and equipment regulations [Footnote 24] -- or other
articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle
unregistered -- we cannot conceive of any legitimate basis upon which a patrolman could decide
that stopping a particular driver for a spot check would be more productive than stopping any
other driver. This kind of standardless and unconstrained discretion is the evil the Court has
discerned when, in previous cases, it has insisted that the discretion of the official in the field be
circumscribed, at least to some extent. Almeida-Sanchez v. United States,413 U. S. 266, 413 U.
S. 270 (1973); Camara v. Municipal Court, 387 U.S. at 387 U. S. 532-533.

Page 440 U. S. 662

VI
Much the same can be said about the safety aspects of automobiles, as distinguished from
drivers. Many violations of minimum vehicle safety requirements are observable, and something
can be done about them by the observing officer, directly and immediately. Furthermore, in
Delaware, as elsewhere, vehicles must carry and display current license plates, [Footnote 20]
which themselves evidence that the vehicle is properly registered; [Footnote 21] and, under
Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection
[Footnote 22] and be properly insured. [Footnote 23] It does not appear, therefore, that a stop of
a Delaware-registered vehicle is necessary in order to ascertain compliance with the State's
registration requirements; and, because there is nothing to

The "grave danger" of abuse of discretion, United States v. Martinez-Fuerte, 428 U.S. at 428 U.
S. 559, does not disappear simply because the automobile is subject to state regulation resulting
in numerous instances of police-citizen contact, Cady v. Dombrowski,413 U. S. 433, 413 U. S.
441 (1973). Only last Term, we pointed out that,

"if the government intrudes . . . the privacy interest suffers whether the government's motivation
is to investigate violations of criminal laws or breaches of other statutory or regulatory
standards."

Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 312-313. There are certain "relatively unique
circumstances," id. at 436 U. S. 313, in which consent to regulatory restrictions is presumptively
concurrent with participation in the regulated enterprise. See United States v. Biswell,406 U. S.
311 (1972) (federal regulation of firearms); Colonnade Catering Corp. v. United States,397 U. S.
72 (1970) (federal regulation of liquor). Otherwise, regulatory inspections unaccompanied by any
quantum of individualized, articulable suspicion must be undertaken pursuant to previously
specified "neutral criteria." Marshall v. Barlow's, Inc., supra at 436 U. S. 323.

intrusion or that do not involve the unconstrained exercise of discretion. [Footnote 26]
Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold
only that persons in automobiles on public roadways may not, for that reason alone, have their
travel and privacy interfered with at the unbridled discretion of police officers. The judgment
below is affirmed.

So ordered.

An individual operating or traveling in an automobile does not lose all reasonable expectation of
privacy simply because the automobile and its use are subject to government regulation.
[Footnote 25] Automobile travel is a basic, pervasive, and often necessary mode of
transportation to and from one's home, workplace, and leisure activities. Many people spend
more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a
greater sense of security and privacy in traveling in an automobile than they do in exposing
themselves by pedestrian or other modes of travel. Were the

Page 440 U. S. 663

individual subject to unfettered governmental intrusion every time he entered an automobile, the
security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v.
Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they
step from their homes onto the public sidewalks. Nor are they shorn of those interests when they
step from the sidewalks into their automobiles. See Adams v. Williams,407 U. S. 143, 407 U. S.
148 (1972).

VII

Accordingly, we hold that, except in those situations in which there is at least articulable and
reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that
either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an
automobile and detaining the driver in order to check his driver's license and the registration of
the automobile are unreasonable under the Fourth Amendment. This holding does not preclude
the State of Delaware or other States from developing methods for spot checks that involve less

G.R. No. 136292

January 15, 2002

RUDY CABALLES y TAIO, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PUNO, J.:
This is an appeal by certiorari from the decision1 of respondent Court of Appeals dated
September 15, 1998 which affirmed the judgment rendered by the Regional Trial Court of Santa
Cruz, Laguna, finding herein petitioner, Rudy Caballes y Taio, guilty beyond reasonable doubt
of the crime of theft, and the resolution2 dated November 9, 1998 which denied petitioner's
motion for reconsideration.
In an Information3 dated October 16, 1989, petitioner was charged with the crime of theft
committed as follows:

"That on or about the 28th day of June, 1989, in the Municipality of Pagsanjan, and/or elsewhere
in the Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent of gain, and without the knowledge and consent of the owner thereof, the
NATIONAL POWER CORPORATION, did then and there wilfully, unlawfully and feloniously take,
steal and carry away about 630-kg of Aluminum Cable Conductors, valued at P27, 450.00,
belonging to and to the damage and prejudice of said owner National Power Corp., in the
aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial on the merits ensued.
The facts are summarized by the appellate court as follows:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a
routine patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep
unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the two police officers flagged down
the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep, he did
not answer; he appeared pale and nervous.
With appellant's consent, the police officers checked the cargo and they discovered bundles of
3.08 mm aluminum/galvanized conductor wires exclusively owned by National Power
Corporation (NPC). The conductor wires weighed 700 kilos and valued at P55, 244.45. Noceja
asked appellant where the wires came from and appellant answered that they came from
Cavinti, a town approximately 8 kilometers away from Sampalucan. Thereafter, appellant and
the vehicle with the high-voltage wires were brought to the Pagsanjan Police Station. Danilo
Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over
to the Police Station Commander of Pagsanjan, Laguna. Appellant was incarcerated for 7 days
in the Municipal jail.
In defense, appellant interposed denial and alibi. He testified that he is a driver and resident of
Pagsanjan, Laguna; a NARCOM civilian agent since January, 1988 although his identification
card (ID) has already expired. In the afternoon of June 28, 1989, while he was driving a
passenger jeepney, he was stopped by one Resty Fernandez who requested him to transport in
his jeepney conductor wires which were in Cavinti, Laguna. He told Resty to wait until he had
finished his last trip for the day from Santa Cruz, Laguna. On his way to Santa Cruz, Laguna, he
dropped by the NARCOM headquarters and informed his superior, Sgt. Callos, that something
unlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires
and that the former would act as back-up and intercept the vehicle at the Sambat Patrol Base in
Pagsanjan.

TEN (10) YEARS of Prision Mayor, as maximum, to indemnify the complainant National Power
Corporation in the amount of P55, 244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for
damages on the ground that the stolen materials were recovered and modified the penalty
imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant
RUDY CABALLES is found guilty beyond reasonable doubt as principal in theft, defined and
penalized under Articles 308 and 309, par. 1, Revised Penal Code, and there being no modifying
circumstances, he is hereby meted an indeterminate penalty of Four (4) years, Nine (9) months
and Eleven (11) days of prision correccional, as minimum term, to Eight (8) years, Eight (8)
months and one (1) day of prision mayor, as maximum term. No civil indemnity and no costs."6
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was violated when the police officers
searched his vehicle and seized the wires found therein without a search warrant and when
samples of the wires and references to them were admitted in evidence as basis for his
conviction;
(b) Whether or not respondent Court erred in rejecting petitioner's defense that he was engaged
in an entrapment operation and in indulging in speculation and conjecture in rejecting said
defense; and
(c) Whether or not the evidence of the prosecution failed to establish the guilt of petitioner
beyond reasonable doubt and thus failed to overcome the constitutional right of petitioner to
presumption of innocence."
The conviction or acquittal of petitioner hinges primarily on the validity of the warrantless search
and seizure made by the police officers, and the admissibility of the evidence obtained by virtue
thereof.
In holding that the warrantless search and seizure is valid, the trial court ruled that:

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

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

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of
property worth P55,244.45, the Court hereby sentences him to suffer imprisonment from TWO
(2) [YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision Correccional, as minimum, to

Petitioner contends that the flagging down of his vehicle by police officers who were on routine
patrol, merely on "suspicion" that "it might contain smuggled goods," does not constitute
probable cause that will justify a warrantless search and seizure. He insists that, contrary to the

After receiving those instructions, he went back to see Resty. Although Resty had his own
vehicle, its tires were old so the cable wires were loaded in appellant's jeep and covered with
kakawati leaves. The loading was done by about five (5) masked men. He was promised
P1,000.00 for the job. Upon crossing a bridge, the two vehicles separated but in his case, he
was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered the cables, he told
the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But
despite his explanation, he was ordered to proceed to police headquarters where he was
interrogated. The police officers did not believe him and instead locked him up in jail for a
week."4

findings of the trial court as adopted by the appellate court, he did not give any consent, express
or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his right
against unreasonable search and seizure shall be deemed inadmissible.

territory and in the absence of probable cause.18 Still and all, the important thing is that there
was probable cause to conduct the warrantless search, which must still be present in such a
case.

Enshrined in our Constitution is the inviolable right of the people to be secure in their persons
and properties against unreasonable searches and seizures, as defined under Section 2, Article
III thereof, which reads:

Although the term eludes exact definition, probable cause signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious
man's belief that the person accused is guilty of the offense with which he is charged; or the
existence of such facts and circumstances which could lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the items, articles or objects sought
in connection with said offense or subject to seizure and destruction by law is in the place to be
searched.19 The required probable cause that will justify a warrantless search and seizure is not
determined by a fixed formula but is resolved according to the facts of each case.20

"Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The exclusionary rule under Section 3(2), Article III of the Constitution bars the admission of
evidence obtained in violation of such right.
The constitutional proscription against warrantless searches and seizures is not absolute but
admits of certain exceptions, namely: (1) warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence;8
(2) seizure of evidence in plain view;9 (3) search of moving vehicles;10 (4) consented
warrantless search;11 (5) customs search; (6) stop and frisk situations (Terry search);12 and (7)
exigent and emergency circumstances.13
In cases where warrant is necessary, the steps prescribed by the Constitution and reiterated in
the Rules of Court must be complied with. In the exceptional events where warrant is not
necessary to effect a valid search or seizure, or when the latter cannot be performed except
without a warrant, what constitutes a reasonable or unreasonable search or seizure is purely a
judicial question, determinable from the uniqueness of the circumstances involved, including the
purpose of the search or seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched and the character of the
articles procured.14
It is not controverted that the search and seizure conducted by the police officers in the case at
bar was not authorized by a search warrant. The main issue is whether the evidence taken from
the warrantless search is admissible against the appellant. Without said evidence, the
prosecution cannot prove the guilt of the appellant beyond reasonable doubt.1wphi1.nt
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent mobility reduces expectation of
privacy especially when its transit in public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the occupant committed a criminal activity.15 Thus,
the rules governing search and seizure have over the years been steadily liberalized whenever a
moving vehicle is the object of the search on the basis of practicality. This is so considering that
before a warrant could be obtained, the place, things and persons to be searched must be
described to the satisfaction of the issuing judge a requirement which borders on the
impossible in the case of smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity. We might add that a warrantless search of
a moving vehicle is justified on the ground that it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be
sought.16 Searches without warrant of automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such searches are made at borders or
'constructive borders' like checkpoints near the boundary lines of the State.17
The mere mobility of these vehicles, however, does not give the police officers unlimited
discretion to conduct indiscriminate searches without warrants if made within the interior of the

One such form of search of moving vehicles is the "stop-and-search" without warrant at military
or police checkpoints which has been declared to be not illegal per se,21 for as long as it is
warranted by the exigencies of public order22 and conducted in a way least intrusive to
motorists.23 A checkpoint may either be a mere routine inspection or it may involve an extensive
search.
Routine inspections are not regarded as violative of an individual's right against unreasonable
search. The search which is normally permissible in this instance is limited to the following
instances: (1) where the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds;24 (2) simply looks into a vehicle;25 (3) flashes a light therein
without opening the car's doors;26 (4) where the occupants are not subjected to a physical or
body search;27 (5) where the inspection of the vehicles is limited to a visual search or visual
inspection;28 and (6) where the routine check is conducted in a fixed area.29
None of the foregoing circumstances is obtaining in the case at bar. The police officers did not
merely conduct a visual search or visual inspection of herein petitioner's vehicle. They had to
reach inside the vehicle, lift the kakawati leaves and look inside the sacks before they were able
to see the cable wires. It cannot be considered a simple routine check.
In the case of United States vs. Pierre,30 the Court held that the physical intrusion of a part of
the body of an agent into the vehicle goes beyond the area protected by the Fourth Amendment,
to wit:
"The Agent . . . stuck his head through the driver's side window. The agent thus effected a
physical intrusion into the vehicle. . . [W]e are aware of no case holding that an officer did not
conduct a search when he physically intruded part of his body into a space in which the suspect
had a reasonable expectation of privacy. [The] Agent['s] . . . physical intrusion allowed him to see
and to smell things he could not see or smell from outside the vehicle. . . In doing so, his
inspection went beyond that portion of the vehicle which may be viewed from outside the vehicle
by either inquisitive passersby or diligent police officers, and into the area protected by the
Fourth amendment, just as much as if he had stuck his head inside the open window of a
home."
On the other hand, when a vehicle is stopped and subjected to an extensive search, such a
warrantless search would be constitutionally permissible only if the officers conducting the
search have reasonable or probable cause to believe, before the search, that either the motorist
is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the
vehicle to be searched.31
This Court has in the past found probable cause to conduct without a judicial warrant an
extensive search of moving vehicles in situations where (1) there had emanated from a package
the distinctive smell of marijuana; (2) agents of the Narcotics Command ("Narcom") of the
Philippine National Police ("PNP") had received a confidential report from informers that a
sizeable volume of marijuana would be transported along the route where the search was
conducted; (3) Narcom agents had received information that a Caucasian coming from Sagada,

Mountain Province, had in his possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian, because of a conspicuous bulge in his waistline, he failed to
present his passport and other identification papers when requested to do so; (4) Narcom
agents had received confidential information that a woman having the same physical
appearance as that of the accused would be transporting marijuana;32 (5) the accused who
were riding a jeepney were stopped and searched by policemen who had earlier received
confidential reports that said accused would transport a large quantity of marijuana; and (6)
where the moving vehicle was stopped and searched on the basis of intelligence information
and clandestine reports by a deep penetration agent or spy - one who participated in the drug
smuggling activities of the syndicate to which the accused belonged - that said accused were
bringing prohibited drugs into the country.33
In the case at bar, the vehicle of the petitioner was flagged down because the police officers who
were on routine patrol became suspicious when they saw that the back of the vehicle was
covered with kakawati leaves which, according to them, was unusual and uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q
Now on said date and time do you remember of any unusual incident while you were
performing your duty?

cruise over the Bacnotan seas, CHUA's illegal entry into the Philippines x x x, CHUA's
suspicious behavior, i.e., he attempted to flee when he saw the police authorities, and the
apparent ease by which CHUA can return to and navigate his speedboat with immediate
dispatch towards the high seas, beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited drug,
confidential report and/or positive identification by informers of courier of prohibited drug and/or
the time and place where they will transport/deliver the same, suspicious demeanor or behavior,
and suspicious bulge in the waist - accepted by this Court as sufficient to justify a warrantless
arrest exists in this case. There was no classified information that a foreigner would disembark
at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not identified
as a drug courier by a police informer or agent. The fact that the vessel that ferried him to shore
bore no resemblance to the fishing boats of the area did not automatically mark him as in the
process of perpetrating an offense. x x x." (emphasis supplied)
In addition, the police authorities do not claim to have received any confidential report or tipped
information that petitioner was carrying stolen cable wires in his vehicle which could otherwise
have sustained their suspicion. Our jurisprudence is replete with cases where tipped information
has become a sufficient probable cause to effect a warrantless search and seizure.37
Unfortunately, none exists in this case.
II. Plain view doctrine

A
Yes, sir, at that time and date myself and Police Sgt. Noceja were conducting patrol in the
said place when we spotted a suspicious jeepney so we stopped the jeepney and searched the
load of the jeepney and we found out (sic) these conductor wires.
Q
You mentioned about the fact that when you saw the jeepney you became suspicious, why
did you become suspicious?
A

Because the cargo was covered with leaves and branches, sir.

Q
When you became suspicious upon seeing those leaves on top of the load what did you
do next, if any?
A

We stopped the jeepney and searched the contents thereof, sir."34

The testimony of Victorino Noceja did not fare any better:

"ATTY SANTOS
Q

When you saw the accused driving the said vehicle, what did you do?

A
Because I saw that the vehicle being drawn by Caballes was covered by kakawati leaves, I
became suspicious since such vehicle should not be covered by those and I flagged him, sir."35
We hold that the fact that the vehicle looked suspicious simply because it is not common for
such to be covered with kakawati leaves does not constitute "probable cause" as would justify
the conduct of a search without a warrant.
In People vs. Chua Ho San,36 we held that the fact that the watercraft used by the accused was
different in appearance from the usual fishing boats that commonly cruise over the Bacnotan
seas coupled with the suspicious behavior of the accused when he attempted to flee from the
police authorities do not sufficiently establish probable cause. Thus:
"In the case at bar, the Solicitor General proposes that the following details are suggestive of
probable cause - persistent reports of rampant smuggling of firearm and other contraband
articles, CHUA's watercraft differing in appearance from the usual fishing boats that commonly

It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view,
making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed
to sight. Where the object seized was inside a closed package, the object itself is not in plain
view and therefore cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its contents are obvious
to an observer, then the contents are in plain view and may be seized. In other words, if the
package is such that an experienced observer could infer from its appearance that it contains
the prohibited article, then the article is deemed in plain view. It must be immediately apparent to
the police that the items that they observe may be evidence of a crime, contraband or otherwise
subject to seizure.38
It is clear from the records of this case that the cable wires were not exposed to sight because
they were placed in sacks39 and covered with leaves. The articles were neither transparent nor
immediately apparent to the police authorities. They had no clue as to what was hidden
underneath the leaves and branches. As a matter of fact, they had to ask petitioner what was
loaded in his vehicle. In such a case, it has been held that the object is not in plain view which
could have justified mere seizure of the articles without further search.40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the vehicle "with
the consent of the accused" is too vague to prove that petitioner consented to the search. He
claims that there is no specific statement as to how the consent was asked and how it was
given, nor the specific words spoken by petitioner indicating his alleged "consent." At most, there
was only an implied acquiescence, a mere passive conformity, which is no "consent" at all within
the purview of the constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable searches and seizures is a
personal right which may be waived. The consent must be voluntary in order to validate an
otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion.41 Hence, consent to a search is not to be
lightly inferred, but must be shown by clear and convincing evidence.42 The question whether a

consent to a search was in fact voluntary is a question of fact to be determined from the totality
of all the circumstances.43 Relevant to this determination are the following characteristics of the
person giving consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the
search or passively looked on;44 (4) the education and intelligence of the defendant; (5) the
presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence
will be found;45 (7) the nature of the police questioning; (8) the environment in which the
questioning took place; and (9) the possibly vulnerable subjective state of the person
consenting.46 It is the State which has the burden of proving, by clear and positive testimony,
that the necessary consent was obtained and that it was freely and voluntarily given.47
In the case at bar, Sgt. Victorino Noceja testified on the manner in which the search was
conducted in this wise:
"WITNESS
Q

On June 28, 1989, where were you?

We were conducting patrol at the poblacion and some barangays, sir.

xxx

xxx

xxx

Q
After conducting the patrol operation, do you remember of any unusual incident on said
date and time?
A

Yes, sir.

What is that incident?

A
While I was conducting my patrol at barangay Sampalucan, I saw Rudy Caballes driving a
vehicle and the vehicle contained aluminum wires, sir.
xxx
Q

xxx

xxx

When you saw the accused driving the said vehicle, what did you do?

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

Did the vehicle stop?

A
Yes, sir, and after said vehicle stop[ped], I removed the cover of said vehicle and by so
doing, I saw the aluminum wires.
Q

Before you saw the aluminum wires, did you talk to the accused?

Yes, sir, I asked him what his load was.

What was the answer of Caballes?

A
He did not answer and I observed him to be pale, "nagpapamutla" (sic), so I told him I will
look at the contents of his vehicle and he answered in the positive.
Q

And after you saw for yourself the aluminum wires loaded on the jeep, what did you do?

A
I asked him where those wires came from and he answered those came from the Cavinti
area, sir."48

This Court is not unmindful of cases upholding the validity of consented warrantless searches
and seizure. But in these cases, the police officers' request to search personnel effects was
orally articulated to the accused and in such language that left no room for doubt that the latter
fully understood what was requested. In some instance, the accused even verbally replied to the
request demonstrating that he also understood the nature and consequences of such request.49
In Asuncion vs. Court of Appeals,50 the apprehending officers sought the permission of
petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his
consent to said search. In People vs. Lacerna,51 the appellants who were riding in a taxi were
stopped by two policemen who asked permission to search the vehicle and the appellants
readily agreed. In upholding the validity of the consented search, the Court held that appellant
himself who was "urbanized in mannerism and speech" expressly said that he was consenting to
the search as he allegedly had nothing to hide and had done nothing wrong. In People vs.
Cuizon,52 the accused admitted that they signed a written permission stating that they freely
consented to the search of their luggage by the NBI agents to determine if they were carrying
shabu. In People vs. Montilla,53 it was held that the accused spontaneously performed
affirmative acts of volition by himself opening the bag without being forced or intimidated to do
so, which acts should properly be construed as a clear waiver of his right. In People vs.
Omaweng,54 the police officers asked the accused if they could see the contents of his bag to
which the accused said "you can see the contents but those are only clothings." Then the
policemen asked if they could open and see it, and accused answered "you can see it." The
Court said there was a valid consented search.1wphi1.nt
In case of consented searches or waiver of the constitutional guarantee against obtrusive
searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists;
(2) that the person involved had knowledge, either actual or constructive, of the existence of
such right; and (3) the said person had an actual intention to relinquish the right.55
In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right
against unreasonable searches. The manner by which the two police officers allegedly obtained
the consent of petitioner for them to conduct the search leaves much to be desired. When
petitioner's vehicle was flagged down, Sgt. Noceja approached petitioner and "told him I will look
at the contents of his vehicle and he answered in the positive." We are hard put to believe that
by uttering those words, the police officers were asking or requesting for permission that they be
allowed to search the vehicle of petitioner. For all intents and purposes, they were informing,
nay, imposing upon herein petitioner that they will search his vehicle. The "consent" given under
intimidating or coercive circumstances is no consent within the purview of the constitutional
guaranty. In addition, in cases where this Court upheld the validity of consented search, it will be
noted that the police authorities expressly asked, in no uncertain terms, for the consent of the
accused to be searched. And the consent of the accused was established by clear and positive
proof. In the case of herein petitioner, the statements of the police officers were not asking for
his consent; they were declaring to him that they will look inside his vehicle. Besides, it is
doubtful whether permission was actually requested and granted because when Sgt. Noceja
was asked during his direct examination what he did when the vehicle of petitioner stopped, he
answered that he removed the cover of the vehicle and saw the aluminum wires. It was only
after he was asked a clarificatory question that he added that he told petitioner he will inspect
the vehicle. To our mind, this was more of an afterthought. Likewise, when Pat. de Castro was
asked twice in his direct examination what they did when they stopped the jeepney, his
consistent answer was that they searched the vehicle. He never testified that he asked petitioner
for permission to conduct the search.56
Neither can petitioner's passive submission be construed as an implied acquiescence to the
warrantless search. In People vs. Barros,57 appellant Barros, who was carrying a carton box,
boarded a bus where two policemen were riding. The policemen inspected the carton and found
marijuana inside. When asked who owned the box, appellant denied ownership of the box and
failed to object to the search. The Court there struck down the warrantless search as illegal and
held that the accused is not to be presumed to have waived the unlawful search conducted
simply because he failed to object, citing the ruling in the case of People vs. Burgos,58 to wit:

"As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the
courts do not place the citizens in the position of either contesting an officer's authority by force,
or waiving his constitutional rights; but instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for
the supremacy of the law."
Casting aside the cable wires as evidence, the remaining evidence on record are insufficient to
sustain petitioner's conviction. His guilt can only be established without violating the
constitutional right of the accused against unreasonable search and seizure.
WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy
Caballes is hereby ACQUITTED of the crime charged. Cost de oficio.
SO ORDERED.

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. 1 As part of its duty to maintain peace and order, the NCRDC installed
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; 2 and, instances have occurred 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.

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, 7 or simply looks into a vehicle, 8 or flashes a light
therein, 9 these do not constitute unreasonable search.
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
howeverreasonably 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.
G.R. No. 113447 October 9, 1997

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for
People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who
do not allege that any of their rights were 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, 4 or threatened to be infringed. What
constitutes a reasonable or unreasonable search and seizure in any particular case is purely a
judicial question, determinable from a consideration of the circumstances involved. 5

ALAIN MANALILI y DIZON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J.:

When dealing with a rapidly unfolding and potentially criminal situation in the city streets where
unarguably there is no time to secure an arrest or a search warrant, policemen should employ
limited, flexible responses like "stop-and-frisk" which are graduated in relation to the
amount of information they possess, the lawmen being ever vigilant to respect and not to violate
or to treat cavalierly the citizen's constitutional rights against unreasonable arrest, search and
seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the
Rules of Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993
and its Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the
Philippines vs. Alain Manalili y Dizon."
In an Information dated April 11, 1988, 1 Petitioner Alain Manalili y Dizon was charged by
Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of
Republic Act No. 6425, allegedly committed as follows: 2
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused without any
authority of law, did then and there wilfully, unlawfully and feloniously have in his
custody, possession and control crushed marijuana residue, which is a prohibited drug
and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the
agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail
bond. 4 After trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as
a Special Criminal Court, rendered on May 19, 1989 a decision 5 convicting appellant of illegal
possession of marijuana residue. The dispositive portion of the decision reads: 6
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN
MANALILI Y DIZON guilty beyond reasonable doubt of violation of Section 8, Article II,
of Republic Act No. 6425, as amended (Illegal Possession of Marijuana residue), and
hereby sentences (sic) said accused to suffer imprisonment of SIX (6) YEARS and
ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the costs.
xxx xxx xxx
Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a
Notice of Appeal 8dated May 31, 1989. On April 19, 1993, Respondent Court 9 promulgated its
assailed Decision, denying the appeal and affirming the trial court: 10
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant.
Respondent Court 11 denied reconsideration via its assailed Resolution dated January 20, 1994,
disposing:

ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby

DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows: 12
At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the AntiNarcotics Unit of the Kalookan City Police Station were conducting a surveillance
along A. Mabini street, Kalookan City, in front of the Kalookan City Cemetery. The
policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named
Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the Police
Station of Kalookan City. The surveillance was being made because of information
that drug addicts were roaming the area in front of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle.
They then chanced upon a male person in front of the cemetery who appeared high
on drugs. The male person was observed to have reddish eyes and to be walking in a
swaying manner. When this male person tried to avoid the policemen, the latter
approached him and introduced themselves as police officers. The policemen then
asked the male person what he was holding in his hands. The male person tried to
resist. Pat Romeo Espiritu asked the male person if he could see what said male
person had in his hands. The latter showed the wallet and allowed Pat. Romeo
Espiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found
suspected crushed marijuana residue inside. He kept the wallet and its marijuana
contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City
Police Headquarters and was turned over to Cpl. Wilfredo Tamondong for
investigation. Pat. Espiritu also turned over to Cpl. Tamondong the confiscated wallet
and its suspected marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl.
Tamondong wrapped the same with a white sheet of paper on which he wrote
"Evidence "A" 4/11/88 Alain Manalili". The white sheet of paper was marked as Exhibit
"E-3". The residue was originally wrapped in a smaller sheet of folded paper. (Exhibit
"E-4").
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana residue
(Exhibit "D"). Cpl. Tamondong thereafter prepared a Joint Affidavit of the apprehending
policemen (Exhibit "A"). Pat. Angel Lumabas handcarried the referral slip (Exhibit "D")
to the National Bureau of Investigation (NBI), including the subject marijuana residue
for chemical analysis. The signature of Pat. Lumabas appears on the left bottom
corner of Exhibit "D".

The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the
subject marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on
the stamped portion of Exhibit "D".
It was NBI Aida Pascual who conducted the microscopic and chemical examinations
of the specimen which she identified. (Exhibit
"E") 13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in
her Certification dated April 11, 1988 (Exhibit "F"). 14 These crushed marijuana leaves
gave positive results for marijuana, according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this
examination, she also found that the "crushed marijuana leaves" gave positive results
for marijuana. She then prepared a Final Report of her examinations (Exhibit "G").
After conducting the examinations, Ms. Pascual placed the specimen in a white letterenvelope and sealed it. (Exhibit "E"). She then wrote identification notes on this letterenvelope. (Exhibit "E-1").
Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong
prepared a referral slip addressed to the City Fiscal of Kalookan City. (Exhibit "C")
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front
of the cemetery when he was apprehended. 15
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI
was aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way
to his boarding house. Three policemen ordered the driver of the tricycle to stop
because the tricycle driver and his lone passenger were under the influence of
marijuana. The policemen brought the accused and the tricycle driver inside the Ford
Fiera which the policemen were riding in. The policemen then bodily searched the
accused and the tricycle driver. At this point, the accused asked the policemen why he
was being searched and the policemen replied that he (accused) was carrying
marijuana. However, nothing was found on the persons of the accused and the driver.
The policemen allowed the tricycle driver to go while they brought the accused to the
police headquarters at Kalookan City where they said they would again search the
accused.
On the way to the police headquarters, the accused saw a neighbor and signalled the
latter to follow him. The neighbor thus followed the accused to the Kalookan City
Police Headquarters. Upon arrival thereat, the accused was asked to remove his
pants in the presence of said neighbor and another companion. The policemen turned
over the pants of the accused over a piece of bond paper trying to look for marijuana.
However, nothing was found, except for some dirt and dust. This prompted the
companion of the neighbor of the accused to tell the policemen to release the

accused. The accused was led to a cell. The policemen later told the accused that
they found marijuana inside the pockets of his pants.
At about 5:00 o'clock in the afternoon on the same day, the accused was brought
outside the cell and was led to the Ford Fiera. The accused was told by the policemen
to call his parents in order to "settle" the case. The policemen who led the accused to
the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas
was the policeman who told the accused to call his parents. The accused did not call
his parents and he told the policemen that his parents did not have any telephone.
At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the
office of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was
found on his person but the Fiscal told the accused not to say anything. The accused
was then brought back to the Kalookan City Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and
the accused were stopped by policemen and then bodily searched on April 11, 1988,
testified. He said that the policemen found nothing either on his person or on the
person of the accused when both were searched on April 11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the
Kalookan City Police Headquarters on April 11, 1988. He said that the police searched
the accused who was made to take off his pants at the police headquarters but no
marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures
showing that tricycles were allowed to ply in front of the Caloocan Cemetery. 17
The Rulings of the Trail and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on the
strength of the arresting officers' testimony. Patrolmen Espiritu and Lumabas were "neutral and
disinterested" witnesses, testifying only on what transpired during the performance of their
duties. Substantially they asserted that the appellant was found to be in possession of a
substance which was later identified as crushed marijuana residue.
The trial court disbelieved appellant's defense that this charge was merely "trumped up,"
because the appellant neither took any legal action against the allegedly erring policemen nor
moved for a reinvestigation before the city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was based on
speculations, surmises or conjectures. On the alleged "serious" discrepancies in the testimonies
of the arresting officers, the appellate court ruled that the said inconsistencies were insubstantial
to impair the essential veracity of the narration. It further found petitioner's contention that he
could not be convicted of illegal possession of marijuana residue to be without merit, because
the forensic chemist reported that what she examined were marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:

I
The Court of Appeals erred in upholding the findings of fact of the
trial court.
II
The Court of Appeals erred in upholding the conviction of (the)
accused (and) in ruling that the guilt of the accused had been
proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in
the testimonies of the prosecution witnesses were material and
substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that
the accused was framed for the purpose of extorting money.
V
The Court of Appeals erred in not acquitting the accused when
the evidence presented is consistent with both innocence and
guilt.
VI
The Court of Appeals erred in admitting the evidence of the
prosecution which are inadmissible in evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence against him,
(2) the credibility of prosecution witnesses and the rejection by the trial and the appellate courts
of the defense of extortion, and (3) the sufficiency of the prosecution evidence to sustain his
conviction.
The Court's Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized
During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession, contending
that they were products of an illegal search. The Solicitor General, in his Comment dated July 5,

1994, which was adopted as memorandum for respondent, counters that the inadmissibility of
the marijuana leaves was waived because petitioner never raised this issue in the proceedings
below nor did he object to their admissibility in evidence. He adds that, even
assuming arguendo that there was no waiver, the search was legal because it was incidental to
a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In
the landmark case of Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular
designation of the right of a police officer to stop a citizen on the street, interrogate him, and pat
him for weapon(s):
. . . (W)here a police officer observes an unusual conduct which leads him reasonably
to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identified himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might be used
to assault him. Such a search is a reasonable search under the Fourth Amendment,
and any weapon seized may properly be introduced in evidence against the person
from whom they were taken. 19
In allowing such a search, the United States Supreme Court held that the interest of effective
crime prevention and detection allows a police officer to approach a person, in appropriate
circumstances and manner, for purposes of investigating possible criminal behavior even though
there is insufficient probable cause to make an actual arrest. This was the legitimate
investigative function which Officer McFadden discharged in that case, when he approached
petitioner and his companion whom he observed to have hovered alternately about a street
corner for an extended period of time, while not waiting for anyone; paused to stare in the same
store window roughly 24 times; and conferred with a third person. It would have been sloppy
police work for an officer of 30 years' experience to have failed to investigate this behavior
further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held
that what justified the limited search was the more immediate interest of the police officer in
taking steps to assure himself that the person with whom he was dealing was not armed with a
weapon that could unexpectedly and fatally be used against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain advance
judicial approval of searches and seizures through the warrant procedure, excused only by
exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a
previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and
subject to challenge. 20Section 2, Article III of the 1987 Constitution, gives this guarantee:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after

examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence
as a "fruit of the poisonous tree," falling under the exclusionary rule:

A Because there were some informations that some drug

dependents were roaming around at A. Mabini Street in front of
the Caloocan Cemetery, Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with Pat.
Angel Lumabas and one Arnold Enriquez, what happened, if any?

Sec. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
inadmissible for any purpose in any proceeding.
This right, however, is not absolute. 21 The recent case of People vs. Lacerna enumerated five
recognized exceptions to the rule against warrantless search and seizure, viz.: "(1) search
incidental to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs
search, and (5) waiver by the accused themselves of their right against unreasonable search
and seizure." 22 In People vs. Encinada, 23 the Court further explained that "[i]n these cases, the
search and seizure may be made only with probable cause as the essential requirement.
Although the term eludes exact definition, probable cause for a search is, at best, defined as a
reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to
warrant a cautious man in the belief that the person accused is guilty of the offense with which
he is charged; or the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the item(s),
article(s) or object(s) sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched."
Stop-and-frisk has already been adopted as another exception to the general rule against a
search without a warrant. In Posadas vs. Court of Appeals, 24 the Court held that there were
many instances where a search and seizure could be effected without necessarily being
preceded by an arrest, one of which was stop-and-frisk. In said case, members of the Integrated
National Police of Davao stopped petitioner, who was carrying a buri bag and acting
suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of live
ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the
legality of the search, the Court said that to require the police officers to search the bag only
after they had obtained a search warrant might prove to be useless, futile and much too late
under the circumstances. In such a situation, it was reasonable for a police officer to stop a
suspicious individual briefly in order to determine his identity or to maintain the status quo while
obtaining more information, rather than to simply shrug his shoulders and allow a crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their surveillance
that appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery,
which according to police information was a popular hangout of drug addicts. From his
experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious
behavior was characteristic of drug addicts who were "high." The policemen therefore had
sufficient reason to stop petitioner to investigate if he was actually high on drugs. During such
investigation, they found marijuana in petitioner's possession: 25

A We chanced upon one male person there in front of the

Caloocan Cemetery then when we called his attention, he tried to
avoid us, then prompting us to approach him and introduce
ourselves as police officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that person when
you chanced upon him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that you
chanced upon was high on drug?
A Because his eyes were red and he was walking on a swaying
manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided
you?
A We approached him and introduced ourselves as police officers
in a polite manner, sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?

FISCAL RALAR:

A We asked him what he was holding in his hands, sir.

Q And why were you conducting surveillance in front of the

Caloocan Cemetery, Sangandaan, Caloocan City?

Q And what was the reaction of the person when you asked him
what he was holding in his hands?

A He tried to resist, sir.

Q When he tried to resist, what did you do?
A I requested him if I can see what was he was (sic) holding in his
hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was a
marijuana (sic) crushed residue.
Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived
the inadmissibility of any evidence illegally obtained when he failed to raise this issue or to
object thereto during the trial. A valid waiver of a right, more particularly of the constitutional right
against unreasonable search, requires the concurrence of the following requirements: (1) the
right to be waived existed; (2) the person waiving it had knowledge, actual or constructive,
thereof; and (3) he or she had an actual intention to relinquish the right. 26Otherwise, the Courts
will indulge every reasonable presumption against waiver of fundamental safeguards and will not
deduce acquiescence from the failure to exercise this elementary right. In the present case,
however, petitioner is deemed to have waived such right for his failure to raise its violation
before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of
criminal cases where the whole case is opened for review, the appeal is generally limited to the
errors assigned by petitioner. Issues not raised below cannot be pleaded for the first time on
appeal. 27
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers' testimony contained "polluted,
irreconcilable and unexplained" contradictions which did not support petitioner's conviction.
We disagree. Time and again, this Court has ruled that the trial court's assessment of the
credibility of witnesses, particularly when affirmed by the Court of Appeals as in this case, is
accorded great weight and respect, since it had the opportunity to observe their demeanor and
deportment as they testified before it. Unless substantial facts and circumstances have been
overlooked or misappreciated by the trial court which, if considered, would materially affect the
result of the case, we will not countenance a departure from this rule. 28
We concur with Respondent Court's ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies
in the prosecution witnesses' testimonies, We do not find them substantial enough to
impair the essential veracity of their narration. In People vs. Avila, it was held that

"As long as the witnesses concur on the material points, slight differences in their
remembrance of the details, do not reflect on the essential veracity of their
statements.
However, we find that, aside from the presumption of regularity in the performance of duty, the
bestowal of full credence on Pat. Espiritu's testimony is justified by tangible evidence on record.
Despite Pat. Lumabas' contradictory testimony, that of Espiritu is supported by the Joint
Affidavit 29 signed by both arresting policemen. The question of whether the marijuana was found
inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not
deny possession of said substance. Failure to present the wallet in evidence did not negate that
marijuana was found in petitioner's possession. This shows that such contradiction is minor and
does not destroy Espiritu's credibility.30
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in possession of an item
or object which is identified to be a prohibited drug; (b) such possession is not authorized by law;
and (c) the accused freely and consciously possessed the said drug. 31
The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida
Pascual to be crushed marijuana leaves. Petitioner's lack of authority to possess these leaves
was established. His awareness thereof was undeniable, considering that petitioner was high on
drugs when stopped by the policemen and that he resisted when asked to show and identify the
thing he was holding. Such behavior clearly shows that petitioner knew that he was holding
marijuana and that it was prohibited by law.
Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to
believe the extortion angle in this case. Petitioner did not file any administrative or criminal case
against the arresting officers or present any evidence other than his bare claim. His argument
that he feared for his life was lame and unbelievable, considering that he was released on bail
and continued to be on bail as early as April 26, 1988. 32Since then, he could have made the
charge in relative safety, as he was no longer in the custody of the police. His defense of frameup, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and fabricate. 33
The Proper Penalty
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as
amended) by sentencing petitioner to a straight penalty of six years and one day of
imprisonment, aside from the imposed fine of six thousand pesos. This Act requires the
imposition of an indeterminate penalty:
Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the rules of the said Code,
and the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is punished by any other
law, the court shall sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same. (As amended by Act No.
4225.)

Sec. 2. This Act shall not apply to persons convicted of offenses punished with death
penalty or life-imprisonment; to those convicted of treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have escaped from
confinement or evaded sentence; to those who having been granted conditional
pardon by the Chief Executive shall have violated the terms thereof; to those whose
maximum term of imprisonment does not exceed one year, not to those already
sentenced by final judgment at the time of approval of this Act, except as provided in
Section 5 hereof. (Emphasis supplied)
The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty
for illegal possession of marijuana:
Sec. 8. . . . .
The penalty of imprisonment ranging from six years and one day to twelve years and
a fine ranging from six thousand to twelve thousand pesos shall be imposed upon any
person who, unless authorized by law, shall possess or use Indian hemp.
Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate
sentence of imprisonment ranging from six years and one day to twelve years. 34
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as
minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE of SIX THOUSAND
PESOS. Costs against petitioner.
SO ORDERED.

That on or about September 12, 1992, in the City of Manila, Philippines, the
said accused, not being authorized by law to sell, deliver or give away to
another or distribute any prohibited drug, did then and there wilfully,
unlawfully and jointly sell, deliver or give away to another the following, to
wit:
Eighteen (18) blocks of marijuana
flowering tops weight 18.235 kilograms
which is a prohibited drug.

G.R. No. 109250 September 5, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORIEL LACERNA y CORDERO & MARLON LACERNA y ARANADOR, accused.
MARLON LACERNA y ARANADOR, accused-appellant.

When the case was called for arraignment on October 7, 1992, appellant and his co-accused
appeared without counsel but they alleged that they had engaged the services of a certain Atty.
Kangleon. Thus, the trial court provisionally appointed Atty. Rodolfo P. Libatique of the Public
Attorney's Office as counsel de oficio, in case Atty. Kangleon did not appear for the arraignment
on October 28, 1992. 5 Because the alleged counsel de parte failed to show up during the
arraignment on that date, Atty. Libatique assisted the accused who pleaded "not guilty." 6
After trial on the merits, the court a quo promulgated the assailed Decision, the dispositive
portion of which reads:7
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:

PANGANIBAN, J.:
The unrelenting and pervading war against illegal drugs has absorbed the attention of all
branches of government, both national and local, as well as media, parents, educators,
churches and the public at large. This case is one more intrepid battle in such all-out war. Herein
appellant seeks acquittal on the ground that his acts did not constitute the crime of "giving away
prohibited drugs" penalized by Section 4 of Republic Act No. 6425, as amended (The Dangerous
Drugs Act). Nonetheless, he cannot escape the law because the very same deeds, which
appellant admits to have performed, show his culpability for "illegal possession of prohibited
drugs" penalized in Section 8 of R.A. 6425, as amended which is necessarily included in
the crime charged in the Information.
Statement of the Case
This ruling is explained by the Court as it resolves this appeal from the Decision, 1 dated
February 24, 1993, of the Regional Trial Court of Manila, Branch 16, 2 convicting Appellant
Marlon Lacerna y Aranador "of violation of Section 4 of Republic Act No. 6425, as
amended . . . ."
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and Noriel Lacerna in an
Information, 3dated September 16, 1992, which reads as follows: 4
The undersigned accuses NORIEL LACERNA Y CORDERO and MARLON
LACERNA Y ARANADOR of a violation of Section 4 Art. II, in relation to
Section 21, Art. IV of Republic Act 6425, as amended by Presidential
Decree No. 1675, . . .

I. The guilt of the accused Marlon Lacerna having been established beyond
reasonable doubt for the crime of violation of Section 4 of RA 6425, as
amended, he is found guilty of the same, sentencing him to life
imprisonment and to pay a fine of P20,000. With costs.
II. The guilt for the crime charged of accused Noriel Lacerna not having
been established beyond reasonable doubt he is hereby ACQUITTED. The
warden of the Manila City Jail is ordered to release his person, unless held
on other charges.
The evidence seized in this case is to remain in the custody of the NBI
Director as Drugs Custodian of the Dangerous Drugs Board. (RA 425, Sec.
36; Supreme Court Circular No. 9 dated July 18, 1973) to be properly
disposed of after the final disposition of this case.
Hence, only Marlon Lacerna (his co-accused having been acquitted) interposed this appeal
direct to the Supreme Court in view of the life penalty imposed. 8
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3 Carlito P. Valenzuela, Forensic Chemist
Aida A. Pascual, and PO3 Rafael Melencio. Their testimonies are summarized by the Solicitor
General in the Appellee's Brief as follows: 9

On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a

member of the Mobile Patrol Division of the Western Police District (WPD),
was assigned to man the checkpoint and patrol the area somewhere along
the sidestreets of Radial Road near Moriones Street. The assignment to
monitor strategic places in the city and barangays of Manila was a direct
order from General Nazareno. Thus, he and his companion PO3 Angelito
Camero went about cruising the area in their Mobile Patrolcar, with PO3
Valenzuela at the helm. At about 2:00 p.m., appellant and co-accused, who
were aboard a taxicab, passed by PO3 Valenzuela's place of assignment,
which was then heavy with traffic, looking suspicious (t.s.n., PO3
Valenzuela, Nov. 11, 1992, pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-accused was seated at
the left back seat of the taxi. When PO3 Valenzuela looked at the occupants
of said taxi, the latter bowed their heads and slouched, refusing to look at
him. Feeling that something was amiss, PO3 Valenzuela and his companion
stopped the vehicle, signalling the driver to park by the side of the road
(t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 3-4).
PO3 Valenzuela and his co-police officer asked permission to search the
vehicle. As the occupants readily agreed, the police officers went about
searching the luggages in the vehicle which consisted of a knapsack and a
dark blue plastic grocery bag. They asked appellant what the contents of the
plastic bag were. Co-accused Noriel Lacerna immediately answered that the
bag contained his vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as regards the
contents of the plastic bag, PO3 Valenzuela made a hole in the bag and
peeped inside. He found several blocks wrapped in newspaper, with the
distinct smell of marijuana emanating from it. PO3 Valenzuela opened one
of the boxes and saw dried marijuana leaves. He told appellant and coaccused that the contents of the bag were marijuana, which co-accused
readily affirmed. According to both Lacernas, the bag was a "padala" of their
uncle. Specifically, they claimed that the bag was sent by their uncle, who
happened to be in Baguio City, for shipment to Iloilo (t.s.n., PO3 Valenzuela,
Nov. 11, 1992, pp. 5-7; Nov. 20, 1992, pp. 8-10).
Appellant and co-accused, and the plastic bag containing blocks of
marijuana were brought by PO3 Valenzuela and PO3 Camero to the WPD
Headquarters on UN Avenue, Manila. 10 At about 9:00 p.m. of the same day,
both appellant and co-accused were turned over to PO3 Rafael Melencio for
investigation while the blocks were turned over to Lt. de Soto (tsn., PO3
Melencio, Dec. 11, 1992, pp. 3-5, 20).

Lt. de Soto counted the blocks of marijuana, numbering eighteen (18) in all.
Each block was wrapped in newspaper. After seeing what the contents of
the blocks were, the specimens (Exhs. "B" to "B-19) were brought to the
National Bureau of Investigation (NBI) for further examination. 11 On the
other hand, PO3 Melencio investigated appellant and co-accused, informing
them of their constitutional rights during a custodial investigation. Thereafter,
he prepared the Affidavit of Apprehension and the Booking Sheet and Arrest
Report (Exhs. "A", "G", List of Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec.
11, 1992, pp. 15-24).
NBI Forensic Chemist Aida A. Pascual examined the eighteen (18)
confiscated blocks which tested positive of containing marijuana (Exhs. "C",
"F" to "F-9". List of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992, pp. 25).
Version of the Defense
Appellant sets up the defense of denial, alleging that the blue plastic bag was owned by his
uncle who requested him to bring it to Iloilo. He also denied knowing that it contained marijuana.
In his Brief prepared by the Public Attorney's Office, he narrated his version of the factual
circumstances of this case, as follows: 12
On September 12, 1992, at about 2:00 P.M., accused Marlon and Noriel
Lacerna were riding in a taxicab on their way to (the) North Harbor to board
a boat bound for Iloilo City. While plying along Pier 15 their taxicab was
flagged down by a patrol mobile car. Accused Marlon Lacerna (appellant
herein) was sitting in front while accused Noriel Lacerna was at the back of
the taxicab. The accused carried two bags. One bag contained their
personal belongings and the other bag contained things which their uncle
Edwin Lacerna asked them to bring along. When their taxicab was stopped,
the two policemen in the Mobile car requested them that they and their
baggage be searched. Confident that they have not done anything wrong,
they allowed to be searched. During the (search), the two accused were not
allowed to alight from the taxicab. The knapsack bag which contained their
clothes was first examined in front of them. The second bag was taken out
from the taxi and was checked at the back of the taxicab. The accused were
not able to see the checking when the policemen brought the plastic bag at
the back of the taxi. After checking, the policemen told them its "positive".
The accused were (asked) to alight and go to the patrol car. They were
brought to the WPD Headquarters at United Nations. While there, they were
brought inside a room. They asked what wrong they have done but the
policemen told them to wait for Major Rival. At about 8:00 o'clock P.M.,
Major Rival talked to them and asked them where the baggage came from
and they answered that it was given to them by their uncle. Then Major
Rival asked them to hold the marijuana and pictures were taken. Later, they
were brought inside the cell where they were maltreated by the "Kabo". The
"Kabo" forced them to admit ownership of the marijuana. Noriel was boxed
on the chest, blindfolded and a plastic (bag) was placed on his neck and
was strangled. The mauling took place for about 30 minutes inside the toilet.
They refused to sign the Booking and Arrest Report but they impressed their
fingerprint on a white bond paper. They were brought by Melencio to the
Inquest Prosecutor at the City Hall. On the way to the Inquest Prosecutor,

Melencio told them to admit the charge against them before the Inquest
Fiscal, because if they will deny, something (would happen) to them in the
afternoon and Melencio even uttered to them "vulva of your mother."
Because they were apprehensive and afraid, they admitted the charge
before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Munoz
Market. The second time was on September 11, 1992, when his uncle went
to his brother's house in Caloocan City and requested him to bring his
(uncle) personal belongings upon learning that he (Marlon) is leaving for
Iloilo city the next day, September 12, 1992. He told his uncle to bring his
personal belongings either in the evening of that day or the following day at
the (Grand) Central (Station), Monumento because he was going to buy a
ticket for Noriel as he intend (sic) to bring the latter with him in going home
to the province. His uncle already gave a ticket for him. When he and Noriel
(arrived) at the Grand Central at about 10:00 o'clock A.M. on September 12,
1992, their uncle was already there. The latter placed the plastic bag
besides their baggages. They no longer inspected the contents of the bag
as the same was twisted and knotted on top. After getting a ticket from the
office of Don Sulpicio Lines, Marlon told Noriel to hail a taxi and then they
proceeded to the pier.
(Appellant's) purpose in going home to Iloilo was to get all the requirements
needed in his application to enter the Marines.
Accused Noriel just arrived in Manila three days before September 12, 1992
to look for a job and was staying with (appellant) at Caloocan City. In the
evening of September 11, 1992, (appellant) requested him to come . . . with
him to Iloilo and assured him that he (would) be the one to pay for (Noriel's)
fare. (TSN., January 6, 1993, pp. 3-23; January 8, 1993, pp. 2-12; January
11, 1993, pp. 2-18; January 20, 1992, pp. 2-6; January 22, 1993, pp. 2-14)
Ruling of the Trial Court
The court a quo observed that appellant could not be convicted of "delivering" prohibited drugs
because the Information did not allege that he knowingly delivered marijuana. Neither could he
be convicted of "transporting or dispatching in transit" such prohibited drugs because these acts
were not alleged in the Information. The trial court mused further that appellant could not be
convicted of "selling" marijuana because the elements constituting this crime were not proven.
However, the Information charged appellant with "giving away to another" prohibited drugs, a
charge which was different from "delivery" defined under Section 2 (f) 13 of RA. 6245, as
amended. Citing People vs. Lo Ho Wing, 14 the trial court ruled that "giving away" to another is
akin to "transporting" prohibited drugs, a malum prohibitum established by the mere commission
of said act. Thus, the court a quo convicted appellant of "giving away" marijuana to another on
the following premise: 15
It is not denied by (appellant) that he did give to his co-accused cousin
Noriel Lacerna the bundled 18 blocks of marijuana who thereupon seated
himself at the rear of the taxi with the marijuana. His claim that he did not
know the contents of the blue plastic bag can hardly be believed because it
is within judicial notice that the marijuana contents readily emits a pungent
odor so characteristic of marijuana as what happened when the 18 blocks

were displayed in open Court. But as stated, guilty knowledge is not

required by the phrase "GIVE AWAY TO ANOTHER" (Sec. 4). It was clearly
established that he gave the stuff to another, that is, to his co-accused
Noriel Lacerna. The law does not distinguish as to whether the word
"another" refers to a third person other than a co-accused or to a coaccused. The information, as in the case at bar, need not allege guilty
knowledge on the part of Marlon Lacerna in "giving away" to another the
marijuana. (Appellant) should, therefor be found culpable for violating
Section 4 of RA 6425, as amended, as charged for "giving away to another"
the marijuana.
Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency of evidence. The
court a quo reasoned that "it cannot be said that he did 'give away to another' the marijuana for it
was (appellant) who gave the marijuana to (Noriel)." Besides, unlike appellant who was
urbanized in mannerism and speech, Noriel Lacerna manifested probinsyano traits and was,
thus, unlikely to have dealt in prohibited drugs.
The Issues
Appellant objects to the trial court's Decision and assigns the following errors:

16

I
The lower court erred in making a sweeping statement that the act of "giving
away to another(') is not defined under R.A. 6425 specifically
requiring knowledge what intent one (sic) is passing is a dangerous drug, as
contradistinguished from the term "deliver; where knowledge is required.
II
The lower court erred in not giving credence to the assertion of accusedappellant that he had no knowledge that what were inside the plastic bag
given to him by his uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant despite failure of the
prosecution to prove his guilt beyond reasonable doubt.
The Court's Ruling
After meticulously reviewing the records of the case and taking into account the alleged errors
cited above and the argument adduced in support thereof, the Court believes that the issues can
be restated as follows: (1) Was appellant's right against warrantless arrest and seizure violated?
(2) Was the trial court correct in convicting appellant for "giving away to another" 18 blocks of
marijuana? and (3) May the appellant be held guilty of "illegal possession" of prohibited drugs?
The Court answers the first two questions in the negative and the third in the affirmative.

First Issue: Appellant's Right Against

Warrantless Search and Seizure
The defense argues that the bricks of marijuana were inadmissible in evidence as they were
obtained through illegal search and seizure. Appellant alleges that at the time of the search and
seizure, he and his co-accused were not committing any crime as they were merely riding a
taxicab on the way to Pier 15, North Harbor in Manila. Hence, the precipitate arrest and seizure
violated their constitutional right and the marijuana seized constituted "fruits of the poisonous
tree."
The Solicitor General disagrees, contending that the search and seizure were consistent with
recent jurisprudential trend liberalizing warrantless search and seizure where the culprits are
riding moving vehicles, because a warrant cannot be secured in time to apprehend the mobile
target.
Both contentions are inaccurate. In the recent case of People vs.
Cuison, 17 this Court reiterated the principles governing arrest, search and seizure. To
summarize, let us begin with Section 2, Article III of the 1987 Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.
The Constitution further decrees that any evidence obtained in violation of the provision
mentioned is inadmissible in evidence:
Sec. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be
inadmissible for any purpose in any proceeding .
However, not being absolute, this right is subject to legal and judicial exceptions. The Rules of
Court, Section 12 of Rule 126, provides that a person lawfully arrested may be searched for
"dangerous weapons or anything which may be used as proof of the commission of an offense,
without a search warrant."

Five generally accepted exceptions to the rule against warrantless arrest have also been
judicially formulated as follows: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs searches, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure. 18Search and seizure
relevant to moving vehicles are allowed in recognition of the impracticability of securing a
warrant under said circumstances. In such cases, however, the search and seizure may be
made only upon probable cause, i.e., upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains an item, article or
object which by law is subject to seizure and destruction. 19 Military or police checkpoints have
also been declared to be not illegal per se as long as the vehicle is neither searched nor its
occupants subjected to body search, and the inspection of the vehicle is merely visual. 20
In the case at bar, the taxicab occupied by appellant was validly stopped at the police checkpoint
by PO3 Valenzuela. It should be stressed as a caveat that the search which is normally
permissible in this instance is limited to routine checks visual inspection or flashing a light
inside the car, without the occupants being subjected to physical or body searches. A search of
the luggage inside the vehicle would require the existence of probable cause. 21
In applicable earlier Decisions, this Court held that there was probable cause in the following
instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by
the accused; 22 (b) where an informer positively identified the accused who was observed to
have been acting suspiciously; 23 (c) where the accused fled when accosted by policemen; 24 (d)
where the accused who were riding a jeepney were stopped and searched by policemen who
had earlier received confidential reports that said accused would transport a large quantity of
marijuana; 25 and (e) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent or spy one who
participated in the drug smuggling activities of the syndicate to which the accused belonged
that said accused were bringing prohibited drugs into the country. 26
In the case at hand, however, probable cause is not evident. First, the radio communication from
General Nazareno, which the arresting officers received and which they were implementing at
that time, concerned possible cases of robbery and holdups in their area. 27 Second, Noriel
Lacerna's suspicious reactions of hiding his face and slouching in his seat when PO3
Valenzuela's car passed alongside the taxicab might have annoyed the latter, or any other law
enforcer, and might have caused him to suspect that something was amiss. But these bare acts
do not constitute probable cause to justify the search and seizure of appellant's person and
baggage. Furthermore, the Claudio ruling cannot be applied to this case because the marijuana
was securely packed inside an airtight plastic bag and no evidence, e.g., a distinctive marijuana
odor, was offered by the prosecution.
Nonetheless, we hold that appellant and his baggage were validly searched, not because he
was caught inflagrante delicto, but because he freely consented to the search. True, appellant
and his companion were stopped by PO3 Valenzuela on mere suspicion not probable cause
that they were engaged in a felonious enterprise. But Valenzuela expressly sought appellant's
permission for the search. Only after appellant agreed to have his person and baggage checked
did the actual search commence. It was his consent which validated the search, waiver being a
generally recognized exception to the rule against warrantless search. 28
We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a search based on
an implied acquiescence, because such acquiescence was not consent within the purview of the
constitutional guaranty, but was merely passive conformity to the search given under intimidating
and coercive circumstances. 29 In the case before us, however, appellant himself who was

"urbanized in mannerism and speech" expressly said that he was consenting to the search as he
allegedly had nothing to hide and had done nothing wrong. 30 In his brief, appellant explicitly,
even if awkwardly, reiterated this: "Confident that they [the accused] have not done anything
wrong, they allowed to be searched." This declaration of appellant is a confirmation of his
intelligent and voluntary acquiescence to the search. The marijuana bricks were, therefore,
obtained legally through a valid search and seizure. They were admissible in evidence; there
was no poisonous tree to speak of.
Second Issue: Did Appellant
"Give Away" the Prohibited Drug?
The trial court justified the conviction of appellant for "giving away to another" the prohibited
drugs, because he literally handed to Noriel the plastic bag containing marijuana, manually
transferring the plastic bag from the front seat to the backseat of the taxicab. We hold, however,
that this is not the act penalized by the Dangerous Drugs Act of 1972.
Section 4 of R.A. 6425, as amended, the violation of which is charged in the Information,
penalizes "any person who, unless authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in
any of such transactions."
The phrase "give away" is commonly defined as "to make a present of; to donate, or to make a
sacrifice." 31 As used in a statute making it an offense to "sell, give away, or otherwise dispose
of" liquor without a license, this phrase was construed as extending only to a disposition
in ejusdem generis with a sale or a gift. 32 It is synonymous with "to furnish," a broad term
embracing the acts of selling and giving away with the intent of transferring ownership. Selling
by itself is one distinct mode of committing the offense, and furnishing is intended only to include
other modes of affording something to others besides selling it. 33
As distinguished from "delivery," which is an incident of sale, "giving away" is a disposition other
than a sale. It is, therefore, an act short of a sale which involves no consideration. The prohibited
drug becomes an item or merchandise presented as a gift or premium (giveaway), where
ownership is transferred.
According to appellant, he gave the plastic bag and the knapsack to Noriel because the latter
got into the taxicab first and because there was more room in the backseat than in the front. By
handing the plastic bag to Noriel, appellant cannot be punished for giving away marijuana as a
gift or premium to another. In Cuison, 34 this Court acquitted an accused of carrying and
transporting prohibited drugs because the act per se of handing over a baggage at the airport
cannot in any way be considered criminal.
Further, adopting the trial court's interpretation would lead to absurd conclusions. Following the
trial court's line of reasoning, Noriel should have been held liable for the same crime when he
gave the plastic bag to PO3 Valenzuela for the latter's inspection. And yet, the trial court
inexplicably acquitted him. Valenzuela would similarly be criminally culpable, as he testified that
he turned over the plastic bag to his superior, Lt. de Soto. It is a well-settled rule that statutes
should receive a sensible construction so as to give effect to the legislative intention and to avoid
an unjust or an absurd conclusion. 35

Third Issue:
May Appellant Be Convicted
of Illegal Possession?
Appellant's exoneration from giving away a prohibited drug to another under Section 4 of the
Dangerous Drugs Act does not, however, spell freedom from all criminal liability. A conviction for
illegal possession of prohibited drugs, punishable under Section 8 of the same Act, is clearly
evident.
In People vs. Tabar, 36 the Court convicted appellant of illegal possession under Section 8 of
said Act, although he was charged with "selling" marijuana under Section 4, Article II thereof.

37

The prevailing doctrine is that possession of marijuana is absorbed in the sale thereof, except
where the seller is further apprehended in possession of another quantity of the prohibited drugs
not covered by or included in the sale and which are probably intended for some future dealings
or use by the seller. 38
Possession is a necessary element in a prosecution for illegal sale of prohibited drugs. It is
indispensable that the prohibited drug subject of the sale be identified and presented in
court. 39 That the corpus delicti of illegal sale could not be established without a showing that the
accused possessed, sold and delivered a prohibited drug clearly indicates that possession is an
element of the former. The same rule is applicable in cases of delivery of prohibited drugs and
giving them away to another.
In People vs. Manzano, 40 the Court identified the elements of illegal sale of prohibited drugs, as
follows: (1) the accused sold and delivered a prohibited drug to another, and (2) he knew that
what he had sold and delivered was a dangerous drug. Although it did not expressly state it, the
Court stressed delivery, which implies prior possession of the prohibited drugs. Sale of a
prohibited drug can never be proven without seizure and identification of the prohibited drug,
affirming that possession is a condition sine qua non.
It being established that illegal possession is an element of and is necessarily included in the
illegal sale of prohibited drugs, the Court will thus determine appellant's culpability under Section
8.
From the penal provision under consideration and from the cases adjudicated, the elements of
illegal possession of prohibited drugs are as follows: (a) the accused is in possession of an item
or object which is identified to be a prohibited drug; (b) such possession is not authorized by law;
and (c) the accused freely and consciously possessed the prohibited drug. 41
The evidence on record established beyond any doubt that appellant was in possession of the
plastic bag containing prohibited drugs without the requisite authority. The NBI forensic chemist's
identification of the marijuana or Indian hemp was conclusive.
Appellant protests the trial court's finding that he knew that the plastic bag contained marijuana.
The lower court ruled that appellant could not have possibly missed the pervasive pungent smell
emitted by marijuana which was duly noted when the marijuana was exhibited in open court.
This reasoning, however, is not supported by the evidence; the plastic bag, at the time of the
search and seizure, was "twisted and tied at the top," and thus airtight. PO3 Valenzuela did not

even notice this pervasive characteristic smell until he poked a hole in the plastic bag and
unwrapped the newspaper covering one of the marijuana bricks.
It is well-settled that criminal intent need not be proved in the prosecution of acts mala prohibita.
On grounds of public policy and compelled by necessity, courts have always recognized the
power of the legislature, as "the greater master of things," to forbid certain acts in a limited class
of cases and to make their commission criminal without regard to the intent of the doer. 42 Such
legislative enactments are based on the experience that repressive measures which depend for
their efficiency upon proof of the dealer's knowledge or of his intent are of little use and rarely
accomplish their purposes; besides, the prohibited act is so injurious to the public welfare that,
regardless of the person's intent, it is the crime itself. 43

witness stand. 50 The defense failed to present sufficient reasons showing that the trial court had
overlooked or misconstrued any evidence of substance that would justify the reversal of its
rejection of appellant's defense of denial.
Appellant is, therefore, liable for illegal possession of prohibited drugs under Section 8 of the
Dangerous Drugs Act. 51
WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is CONVICTED of illegal
possession of prohibited drugs under Section 8 of R.A. 6425; SENTENCED, in accordance with
the Indeterminate Sentence Law, to eight (8) years as minimum to twelve (12) years as
maximum; and ORDERED to pay a fine of twelve thousand pesos (P12,000.00). Costs de oficio.

This, however, does not lessen the prosecution's burden because it is still required to show that
the prohibited act was intentional. 44 Intent to commit the crime and intent to perpetrate the act
must be distinguished. A person may not have consciously intended to commit a crime; but if he
did intend to commit an act, and that act is, by the very nature of things, the crime itself, then he
can be held liable for the malum prohibitum. 45 Intent to commit the crime is not necessary, but
intent to perpetrate the act prohibited by the special law must be shown. In Bayona, the Court
declared: 46

Carroll v. United States

No. 15
Argued December 4, 1923
Restored to docket for reargument January 28, 1924

. . . The law which the defendant violated is a statutory provision, and the
intent with which he violated it is immaterial. . . . . The act prohibited by the
Election Law was complete. The intention to intimidate the voters or to
interfere otherwise with the election is not made an essential element of the
offense. Unless such an offender actually makes use of his revolver, it
would be extremely difficult, if not impossible, to prove that he intended to
intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but in
those mala prohibita it is sufficient if the prohibited act was intentionally
done. "Care must be exercised in distinguishing the difference between the
intent to commit the crime and the intent to perpetrate the act. . . . (U.S. vs.
Go Chico, 14 Phil., 128).

Reargued March 14, 1924

Decided March 2, 1925
267 U.S. 132
ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF MICHIGAN
Syllabus

In illegal possession of prohibited drugs under Section 8 of the Dangerous Drugs Act, the
prosecution is not excused from proving that possession of the prohibited act was done "freely
and consciously," which is an essential element of the crime.
In the case at bar, appellant was found to have in his possession a plastic bag containing 18 kg
of marijuana formed into 18 bricks which were separately wrapped. His possession thereof gives
rise to a disputable presumption under Section 3[j], Rule 131 of the Rules of Court, 47 that he is
the owner of such bag and its contents. His bare, unpersuasive, feeble and uncorroborated
disavowal that the plastic bag was allegedly given to him by his uncle without his knowing the
contents amounts to a denial which by itself is insufficient to overcome this
presumption. 48Besides, this defense, unless substantiated by clear evidence, is invariably
viewed with disfavor by courts, for it can just as easily be concocted. Verily, it is a common and
standard defense ploy in most prosecutions involving dangerous drugs. 49
Further, the trial court did not give credence to appellant's denial. It is axiomatic that appellate
courts accord the highest respect to the assessment of witnesses' credibility by the trial court,
because the latter was in a better position to observe their demeanor and deportment on the

1. The legislative history of 6 of the act supplemental to the National Prohibition Act, November
23, 1921, c. 134, 42 Stat. 223, which makes it a misdemeanor for any officer of the United
States to search a private dwelling without a search warrant or to search any other building or
property without a search warrant, maliciously and without reasonable cause, shows clearly the
intent of Congress to make a distinction as to the necessity for a search warrant in the searching
of private dwellings and in the searching of automobiles or other road vehicles, in the
enforcement of the Prohibition Act. P. 267 U. S. 144.
2. The Fourth Amendment denounces only such searches or seizures as are unreasonable, and
it is to be construed in the light of what was deemed an unreasonable search and seizure when
it was adopted, and in a manner which will conserve public interests as well as the interests and
rights of individual citizens. P. 267 U. S. 147.

3. Search without a warrant of an automobile, and seizure therein of liquor subject to seizure
and destruction under the Prohibition Act, do not violate the Amendment, if made upon probable
cause, i.e., upon a belief, reasonably arising out of circumstances known to the officer, that the
vehicle contains such contraband liquor. P. 267 U. S. 149.

6. Probable cause held to exist where prohibition officers, while patrolling a highway much used
in illegal transportation of liquor, stopped and searched an automobile upon the faith of
information previously obtained by them that the car and its occupants, identified by the officers,
were engaged in the illegal business of "bootlegging." P. 267 U. S. 159.

4. Various acts of Congress are cited to show that, practically since the beginning of the
Government, the Fourth Amendment has been construed as recognizing a necessary difference
between a search for contraband in a store, dwelling-house, or other structure

Page 267 U. S. 134

Page 267 U. S. 133

for the search of which a warrant may readily be obtained, and a search of a ship, wagon,
automobile, or other vehicle which may be quickly moved out of the locality or jurisdiction in
which the warrant must be sought. P. 267 U. S. 150.
5. Section 26, Title II, of the National Prohibition Act, provides that, when an officer "shall
discover any person in the act" of transporting intoxicating liquor in any automobile, or other
vehicle, in violation of law, it shall be his duty to seize the liquor and thereupon to take
possession of the vehicle and arrest the person in charge of it, and that, upon conviction of such
person, the court shall order the liquor destroyed, and, except for good cause shown, shall order
a public sale, etc. of the other property seized.
Held:
(a) That the primary purpose is the seizure and destruction of the contraband liquor, and the
provisions for forfeiture of the vehicle and arrest of the transporter are merely incidental. P. 267
U. S. 153.
(b) Hence, the right to search an automobile for illicit liquor and to seize the liquor, if found, and
thereupon to seize the vehicle also and to arrest the offender, does not depend upon the right to
arrest the offender in the first instance, and therefore it is not determined by the degree of his
offence -- whether a misdemeanor under 29, Title II of the Act, because of being his first or
second offence, or a felony because it is his third, and the rule allowing arrest without warrant for
misdemeanor only when the offence is committed in the officer's presence, but for a felony when
the officer has reasonable cause to believe that the person arrested has committed a felony, is
not the test of the validity of such search and seizure. Pp. 267 U. S. 155, 267 U. S. 156.
(c) The seizure is legal if the officer, in stopping and searching the vehicle, has reasonable or
probable cause for believing that contraband liquor is being illegally transported in it. P. 267 U. S.
155.
(d) The language of 26 -- when an officer shall "discover " any person in the act of
transporting, etc. -- does not limit him to what he learns of the contents of a passing automobile
by the use of his senses at the time. P. 267 U. S. 158.
(e) The section thus construed is consistent with the Fourth Amendment. P. 267 U. S. 159.

7. When contraband liquor, seized from an automobile and used in the conviction of those in
charge of the transportation, was shown at the trial to have been taken in a search justified by
probable cause, held that the Court's refusal to return he liquor on defendants' motion before
trial, even if erroneous because probable cause was not then proven, was not a substantial
reason for . reversing the conviction. P.267 U. S. 162.
8. The Court notices judicially that Grand Rapids is about 152 miles from Detroit, and that
Detroit, and its neighborhood along the Detroit River, which is the international boundary, is one
of the most active centers for introducing illegally into this country spirituous liquors for
distribution into the interior. P. 267 U. S. 160.
Affirmed.
This is a writ of error to the District Court under Section 238 of the Judicial Code. The plaintiffs in
error, hereafter to be called the defendants, George Carroll and John Kiro, were indicted and
convicted for transporting in an automobile intoxicating spirituous liquor, to-wit: 68 quarts of socalled bonded whiskey and gin, in violation of the National Prohibition Act. The ground on which
they assail the conviction is that the trial court admitted in evidence two of the 68 bottles, one of
whiskey and one of gin, found by searching the automobile. It is contended that the search and
seizure were in violation of the Fourth Amendment, and therefore that use of the liquor as
evidence was not proper. Before the trial, a motion was made by the defendants that all the
liquor seized be returned to the defendant Carroll, who owned the automobile. This motion was
denied.
The search and seizure were made by Cronenwett, Scully and Thayer, federal prohibition
agents, and one Peterson, a state officer, in December, 1921, as the car was going westward on
the highway between Detroit and Grand Rapids at a point 16 miles outside of Grand Rapids. The
facts leading to the search and seizure were as follows: on September 29th, Cronenwett and
Scully were in an apartment in Grand Rapids. Three men came to that apartment, a man named
Kruska and the two defendants,
Page 267 U. S. 135
Carroll and Kiro. Cronenwett was introduced to them as one Stafford, working in the Michigan
Chair Company in Grand Rapids, who wished to buy three cases of whiskey. The price was fixed
at $13 a case. The three men said they had to go to the east end of Grand Rapids to get the
liquor and that they would be back in half or three-quarters of an hour. They went away, and in a
short time Kruska came back and said they could not get it that night, that the man who had it
was not in, but that they would deliver it the next day. They had come to the apartment in an
automobile known as an Oldsmobile Roadster, the number of which Cronenwett then identified,
a did Scully. The proposed vendors did not return the next day, and the evidence disclosed no
explanation of their failure to do so. One may surmise that it was suspicion of the real character
of the proposed purchaser, whom Carroll subsequently called by his first name when arrested in
December following. Cronenwett and his subordinates were engaged in patrolling the road

leading from Detroit to Grand Rapids, looking for violations of the Prohibition Act. This seems to
have been their regular tour of duty. On the 6th of October, Carroll and Kiro, going eastward from
Grand Rapids in the same Oldsmobile Roadster, passed Cronenwett and Scully some distance
out from Grand Rapids. Cronenwett called to Scully, who was taking lunch, that the Carroll boys
had passed them going toward Detroit, and sought with Scully to catch up with them to see
where they were going. The officers followed as far as East Lansing, half way to Detroit, but
there lost trace of them. On the 15th of December, some two months later, Scully and
Cronenwett, on their regular tour of duty, with Peterson, the State officer, were going from Grand
Rapids to Ionia, on the road to Detroit, when Kiro and Carroll met and passed them in the same
automobile, coming from the direction of Detroit to Grand Rapids. The government agents
turned
Page 267 U. S. 136
their car and followed the defendants to a point some sixteen miles east of Grand Rapids, where
they stopped them and searched the car. They found behind the upholstering of the seats, the
filling of which had been removed, 68 bottles. These had labels on them, part purporting to be
certificates of English chemists that the contents were blended Scotch whiskeys, and the rest
that the contents were Gordon gin made in London. When an expert witness was called to prove
the contents, defendants admitted the nature of them to be whiskey and gin. When the
defendants were arrested, Carroll said to Cronenwett, "Take the liquor and give us one more
chance and I will make it right with you," and he pulled out a roll of bills, of which one was for
$10. Peterson and another took the two defendants and the liquor and the car to Grand Rapids,
while Cronenwett, Thayer and Scully remained on the road looking for other cars of whose
coming they had information. The officers were not anticipating that the defendants would be
coming through on the highway at that particular time, but when they met them there, they
believed they were carrying liquor, and hence the search, seizure and arrest.
Page 267 U. S. 143

purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term 'private
dwelling' shall be construed to include the room or rooms used and occupied not transiently but
solely as
Page 267 U. S. 144
a residence in an apartment house, hotel, or boarding house."
Section 26, Title II, under which the seizure herein was made, provides in part as follows:
"When the commissioner, his assistants, inspectors, or any officer of the law shall discover any
person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy,
automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating
liquors found therein being transported contrary to law. Whenever intoxicating liquors
transported or possessed illegally shall be seized by an officer he shall take possession of the
vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall
arrest any person in charge thereof."
The section then provides that the court, upon conviction of the person so arrested, shall order
the liquor destroyed, and, except for good cause shown, shall order a sale by public auction of
the other property seized, and that the proceeds shall be paid into the Treasury of the United
States.
By Section 6 of an Act supplemental to the National Prohibition Act, c. 134, 42 Stat. 222, 223, it
is provided that, if any officer or agent or employee of the United States engaged in the
enforcement of the Prohibition Act or this Amendment, "shall search any private dwelling," as
defined in that Act, "without a warrant directing such search," or "shall without a search warrant
maliciously and without reasonable cause search any other building or property," he shall be
guilty of a misdemeanor and subject to fine or imprisonment or both.

MR. CHIEF JUSTICE TAFT, after stating the case as above, delivered the opinion of the Court.
The constitutional and statutory provisions involved in this case include the Fourth Amendment
and the National Prohibition Act.
The Fourth Amendment is in part 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, supported by Oath or affirmation, and particularly describing the place to
be searched, and the person, or things to be seized."
Section 25, Title II, of the National Prohibition Act, c. 85, 41 Stat. 305, 315, passed to enforce the
Eighteenth Amendment, makes it unlawful to have or possess any liquor intended for use in
violating the Act, or which has been so used, and provides that no property rights shall exist in
such liquor. A search warrant may issue and such liquor, with the containers thereof, may be
seized under the warrant and be ultimately destroyed. The section further provides:
"No search warrant shall issue to search any private dwelling occupied as such unless it is being
used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business

In the passage of the supplemental Act through the Senate, Amendment No. 32, known as the
Stanley Amendment, was adopted, the relevant part of which was as follows:
"Section 6. That any officer, agent or employee of the United States engaged in the enforcement
of this Act or
Page 267 U. S. 145
the National Prohibition Act, or any other law of the United States, who shall search or attempt to
search the property or premises of any person without previously securing a search warrant, as
provided by law, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not
to exceed $1000, or imprisoned not to exceed one year, or both so fined and imprisoned in the
discretion of the Court."
This Amendment was objected to in the House, and the Judiciary Committee, to whom it was
referred, reported to the House of Representatives the following as a substitute.
"Sec. 6. That no officer, agent or employee of the United States, while engaged in the
enforcement of this Act, the National Prohibition Act, or any law in reference to the manufacture

or taxation of, or traffic in, intoxicating liquor, shall search any private dwelling without a warrant
directing such search, and no such warrant shall issue unless there is reason to believe such
dwelling is used as a place in which liquor is manufactured for sale or sold. The term 'private
dwelling' shall be construed to include the room or rooms occupied not transiently, but solely as
a residence in an apartment house, hotel, or boarding house. Any violation of any provision of
this paragraph shall be punished by a fine of not to exceed $1000 or imprisonment not to exceed
one year, or both such fine and imprisonment, in the discretion of the court."
In its report, the Committee spoke in part as follows:
"It appeared to the committee that the effect of the Senate amendment No. 32, if agreed to by
the House, would greatly cripple the enforcement of the national prohibition act and would
otherwise seriously interfere with the Government in the enforcement of many other laws, as its
scope is not limited to the prohibition law,
Page 267 U. S. 146
but applies equally to all laws where prompt action is necessary. There are on the statute books
of the United States a number of laws authorizing search without a search warrant. Under the
common law and agreeably to the Constitution, search may in many cases be legally made
without a warrant. The Constitution does not forbid search, as some parties contend, but it does
forbid unreasonable search. This provision in regard to search is, as a rule, contained in the
various State constitutions, but notwithstanding that fact, search without a warrant is permitted in
many cases, and especially is that true in the enforcement of liquor legislation."
"The Senate amendment prohibits all search or attempt to search any property or premises
without a search warrant. The effect of that would necessarily be to prohibit all search, as no
search can take place if it is not on some property or premises."
"Not only does this amendment prohibit search of any lands, but it prohibits the search of all
property. It will prevent the search of the common bootlegger and his stock in trade, though
caught and arrested in the act of violating the law. But what is perhaps more serious, it will make
it impossible to stop the rum running automobiles engaged in like illegal traffic. It would take from
the officers the power that they absolutely must have to be of any service, for if they cannot
search for liquor without a warrant, they might as well be discharged. It is impossible to get a
warrant to stop an automobile. Before a warrant could be secured, the automobile would be
beyond the reach of the officer, with its load of illegal liquor disposed of."
The conference report resulted, so far as the difference between the two Houses was
concerned, in providing for the punishment of any officer, agent or employee of the Government
who searches a "private dwelling" without a warrant, and for the punishment of any such officer,
Page 267 U. S. 147
etc., who searches any "other building or property" where, and only where, he makes the search
without a warrant "maliciously and without probable cause." In other words, it left the way open
for searching an automobile, or vehicle of transportation, without a warrant, if the search was not
malicious or without probable cause.

The intent of Congress to make a distinction between the necessity for a search warrant in the
searching of private dwellings and in that of automobiles and other road vehicles is the
enforcement of the Prohibition Act is thus clearly established by the legislative history of the
Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that
it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are
unreasonable.
The leading case on the subject of search and seizure is Boyd v. United States,116 U. S. 616.
An Act of Congress of June 22, 1874, authorized a court of the United States, in revenue cases,
on motion of the government attorney, to require the defendant to produce in court his private
books, invoices and papers on pain in case of refusal of having the allegations of the attorney in
his motion taken as confessed. This was held to be unconstitutional and void as applied to suits
for penalties or to establish a forfeiture of goods, on the ground that, under the Fourth
Amendment, the compulsory production of invoices to furnish evidence for forfeiture of goods
constituted an unreasonable search even where made upon a search warrant, and that it was
also a violation of the Fifth Amendment, in that it compelled the defendant in a criminal case to
produce evidence against himself or be in the attitude of confessing his guilt.
In Weeks v. United States,232 U. S. 383, it was held that a court in a criminal prosecution could
not retain letters of the accused seized in his house, in his absence and without his authority, by
a United States marshal
Page 267 U. S. 148
holding no warrant for his arrest and none for the search of his premises, to be used as
evidence against him, the accused having made timely application to the court for an order for
the return of the letters.
In Silverthorne Lumber Company v. United States,251 U. S. 385, a writ of error was brought to
reverse a judgment of contempt of the District Court, fining the company and imprisoning one
Silverthorne, its president, until he should purge himself of contempt in not producing books and
documents of the company before the grand jury to prove violation of the statutes of the United
States by the company and Silverthorne. Silverthorne had been arrested, and, while under
arrest, the marshal had gone to the office of the company without a warrant and made a clean
sweep of all books, papers and documents found there, and had taken copies and photographs
of the papers. The District Court ordered the return of the originals, but impounded the
photographs and copies. This was held to be an unreasonable search of the property and
possessions of the corporation and a violation of the Fourth Amendment, and the judgment for
contempt was reversed.
In Gouled v. United States,255 U. S. 298, the obtaining through stealth by a representative of
the Government, from the office of one suspected of defrauding the Government, of a paper
which had no pecuniary value in itself, but was only to be used as evidence against its owner,
was held to be a violation of the Fourth Amendment. It was further held that, when the paper
was offered in evidence and duly objected to, it must be ruled inadmissible because obtained
through an unreasonable search and seizure, and also in violation of the Fifth Amendment
because working compulsory incrimination.
In Amos v. United States,255 U. S. 313, it was held that, where concealed liquor was found by
government officers without a search warrant in the home of the defendant,

Page 267 U. S. 149

in his absence, and after a demand made upon his wife, it was inadmissible as evidence against
the defendant because acquired by an unreasonable seizure.
In none of the cases cited is there any ruling as to the validity under the Fourth Amendment of a
seizure without a warrant of contraband goods in the course of transportation and subject to
forfeiture or destruction.
On reason and authority, the true rule is that, if the search and seizure without a warrant are
made upon probable cause, that is, upon a belief, reasonably arising out of circumstances
known to the seizing officer, that an automobile or other vehicle contains that which by law is
subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is
to be construed in the light of what was deemed an unreasonable search and seizure when it
was adopted, and in a manner which will conserve public interests as well as the interests and
rights of individual citizens.
In Boyd v. United States,116 U. S. 616, as already said, the decision did not turn on whether a
reasonable search might be made without a warrant; but for the purpose of showing the principle
on which the Fourth Amendment proceeds, and to avoid any misapprehension of what was
decided, the Court, speaking through Mr. Justice Bradley, used language which is of particular
significance and applicability here. It was there said (page 116 U. S. 623):
"The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed
to avoid the payment thereof, are totally different things from a search for and seizure of a man's
private books and papers for the purpose of obtaining information therein contained, or of using
them as evidence against him. The two things differ toto coelo. In the one case, the government
is entitled to the possession of the property; in the other, it is not. The seizure of stolen goods is
authorized by the
Page 267 U. S. 150
common law, and the seizure of goods forfeited for a breach of the revenue laws, or concealed
to avoid the duties payable on them, has been authorized by English statutes for at least two
centuries past, and the like seizures have been authorized by our own revenue acts from the
commencement of the government. The first statute passed by Congress to regulate the
collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As
this act was passed by the same Congress which proposed for adoption the original
amendments to the Constitution, it is clear that the members of that body did not regard
searches and seizures of this kind as 'unreasonable,' and they are not embraced within the
prohibition of the amendment. So, also, the supervision authorized to be exercised by officers of
the revenue over the manufacture or custody of excisable articles, and the entries thereof in
books required by law to be kept for their inspection, are necessarily excepted out of the
category of unreasonable searches and seizures. So, also, the laws which provide for the
search and seizure of articles and things which it is unlawful for a person to have in his
possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets,
implements of gambling, &c., are not within this category. Commonwealth v. Dana,2 Met.
(Mass.) 329. Many other things of this character might be enumerated."
It is noteworthy that the twenty-fourth section of the Act of 1789, to which the Court there refers,
provides:

"That every collector, naval officer and surveyor, or other person specially appointed by either of
them for that purpose, shall have full power and authority, to enter any ship or vessel, in which
they shall have reason to suspect any goods, wares or merchandise subject to duty shall be
concealed, and therein to search for, seize, and secure any such goods, wares or merchandise,
and if they shall have cause to suspect a concealment thereof, in any
Page 267 U. S. 151
particular dwelling-house, store, building, or other place, they or either of them shall, upon
application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter
such house, store, or other place (in the day time only) and there to search for such goods, and
if any shall be found, to seize and secure the same for trial, and all such goods, wares, and
merchandise, on which the duties shall not have been paid or secured, shall be forfeited."
Like provisions were contained in the Act of August 4, 1790, c. 35, Sections 451, 1 Stat. 145,
170; in Section 27 of the Act of February 18, 1793, c. 8, 1 Stat. 305, 315, and in Sections 68-71
of the Act of March 2, 1799, c. 22, 1 Stat. 627, 677, 678.
Thus, contemporaneously with the adoption of the Fourth Amendment, we find in the first
Congress, and in the following Second and Fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a
dwelling house or similar place, and like goods in course of transportation and concealed in a
movable vessel where they readily could be put out of reach of a search warrant. Compare
Hester v. United States,265 U. S. 57.
Again, by the second section of the Act of March 3, 1815, 3 Stat. 231, 232, it was made lawful
for customs officers not only to board and search vessels within their own and adjoining districts,
but also to stop, search and examine any vehicle, beast or person on which or whom they
should suspect there was merchandise which was subject to duty or had been introduced into
the United States in any manner contrary to law, whether by the person in charge of the vehicle
or beast or otherwise, and if they should find any goods, wares or merchandise thereon, which
they had probable cause to believe had been so unlawfully brought into the country, to seize and
secure the same, and the vehicle or beast as well, for trial
Page 267 U. S. 152
and forfeiture. This Act was renewed April 27, 1816, 3 Stat. 315, for a year and expired. The Act
of February 28, 1865, revived Section 2 of the Act of 1815, above described, c. 67, 13 Stat. 441.
The substance of this section was reenacted in the third section of the Act of July 18, 1866, c.
201, 14 Stat. 178, and was thereafter embodied in the Revised Statutes as Section 3061.
Neither Section 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated a operative by this Court
in Cotzhausen v. Nazro,107 U. S. 215, 107 U. S. 219. See also United States v. One Black
Horse, 129 Fed. 167.
Again, by Section 2140 of the Revised Statutes, any Indian agent, sub-agent or commander of a
military post in the Indian Country, having reason to suspect or being informed that any white
person or Indian is about to introduce, or has introduced, any spirituous liquor or wine into the
Indian Country, in violation of law, may cause the boats, stores, packages, wagons, sleds and
places of deposit of such person to be searched, and if any liquor is found therein, then it,
together with the vehicles, shall be seized and proceeded against by libel in the proper court and

forfeited. Section 2140 was the outgrowth of the Act of May 6, 1822, c. 58, 3 Stat. 682,
authorizing Indian agents to cause the goods of traders in the Indian Country to be searched
upon suspicion or information that ardent spirits were being introduced into the Indian Country,
to be seized and forfeited if found, and of the Act of June 30, 1834, Section 20, c. 161, 4 Stat.
729, 732, enabling an Indian agent having reason to suspect any person of having introduced or
being about to introduce liquors into the Indian Country to cause the boats, stores or places of
deposit of such person to be searched and the liquor found forfeited. This Court recognized the
statute of 1822 as justifying such a search and seizure in American Fur Co. v. United States, 2
Pet. 358. By the Indian
Page 267 U. S. 153
Appropriation Act of March 2, 1917, c. 146, 39 Stat. 969, 970, automobiles used in introducing or
attempting to introduce intoxicants into the Indian Territory may be seized, libeled and forfeited
as provided in the Revised Statutes, Section 2140.
And again, in Alaska, by Section 174 of the Act of March 3, 1899, c. 429, 30 Stat. 1253, 1280, it
is provided that collectors and deputy collectors, or any person authorized by them in writing,
shall be given power to arrest persons and seize vessels and merchandise in Alaska liable to
fine, penalties or forfeiture under the Act and to keep and deliver the same, and the Attorney
General, in construing the Act, advised the Government:

probable cause for believing that their vehicles are carrying contraband or illegal merchandise.
Section 26, Title II, of the National Prohibition Act, like the second section of the Act of 1789, for
the searching of vessels, like the provisions of the Act of 1815, and Section 3061, Revised
Statutes, for searching vehicles for smuggled goods, and like the Act of 1822, and that of 1834
and Section 2140, R.S., and the Act of 1917 for the search of vehicles and automobiles for liquor
smuggled into the Indian Country, was enacted primarily to accomplish the seizure and
destruction of contraband goods; secondly, the automobile was to be forfeited, and thirdly, the
driver was to be arrested. Under Section 29, Title II, of the Act the latter might be punished by
not more than $500 fine for the first offense, not more than $1,000 fine or 90 days' imprisonment
for the second offense, and by a fine of $500 or more and by not more than 2 years'
imprisonment for the third offense. Thus, he is to be arrested for a misdemeanor for his first and
second offenses and for a felony if he offends the third time. The main purpose of the Act
obviously was to deal with the liquor and its transportation and to destroy it. The mere
manufacture of liquor can do little to defeat the policy of the Eighteenth Amendment and the
Prohibition Act, unless the forbidden
Page 267 U. S. 155

26 Opinions Attorneys General 243.

product can be distributed for illegal sale and use. Section 26 was intended to reach and destroy
the forbidden liquor in transportation, and the provisions for forfeiture of the vehicle and the
arrest of the transporter were incidental. The rule for determining what may be required before a
seizure may be made by a competent seizing official is not to be determined by the character of
the penalty to which the transporter may be subjected. Under Section 28, Title II, of the
Prohibition Act, the Commissioner of Internal Revenue, his assistants, agents and inspectors are
to have the power and protection in the enforcement of the Act conferred by the existing laws
relating to the manufacture or sale of intoxicating liquors. Officers who seize under Section 26 of
the Prohibition Act are therefore protected by Section 970 of the Revised Statutes, providing
that:

We have made a somewhat extended reference to these statutes to show that the guaranty of
freedom from unreasonable searches and seizures by the Fourth Amendment has been
construed, practically since the beginning of the Government, as recognizing a necessary
difference between a search of a store, dwelling house or other structure in respect of which a
proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or
automobile, for contraband goods, where it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be
sought.

"When, in any prosecution commenced on account of the seizure of any vessel, goods, wares,
or merchandise, made by any collector or other officer, under any Act of Congress authorizing
such seizure, judgment is rendered for the claimant, but it appears to the court that there was
reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and
the claimant shall not, in such case, be entitled to costs, nor shall the person who made the
seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or
prosecution: Provided, That the vessel, goods, wares, or merchandise be, after judgment,
forthwith returned to such claimant or his agent."

Having thus established that contraband goods concealed and illegally transported in an
automobile or other vehicle may be searched for without a warrant, we come now to consider
under what circumstances such search may be made. It would be intolerable and unreasonable

It follows from this that, if an officer seizes an automobile or the liquor in it without a warrant and
the facts as subsequently developed do not justify a judgment of condemnation and forfeiture,
the officer may escape costs or a suit for damages by a showing that he had reasonable or
probable cause for the seizure. Stacey v. Emery,97 U. S. 642. The measure of legality of such a
seizure is,

"If your agents reasonably suspect that a violation of law has occurred, in my opinion they have
power to search any vessel within the 3-mile limit according to the practice of customs officers
when acting under Section 3059 of the Revised Statutes, and to seize such vessels."

Page 267 U. S. 154

if a prohibition agent were authorized to stop every automobile on the chance of finding liquor,
and thus subject all persons lawfully using the highways to the inconvenience and indignity of
such a search. Travelers may be so stopped in crossing an international boundary because of
national self protection reasonably requiring one entering the country to identify himself as
entitled to come in, and his belongings as effects which may be lawfully brought in. But those
lawfully within the country, entitled to use the public highways, have a right to free passage
without interruption or search unless there is known to a competent official authorized to search,

Page 267 U. S. 156

therefore, that the seizing officer shall have reasonable or probable cause for believing that the
automobile which he stops and seizes has contraband liquor therein which is being illegally
transported.

We here find the line of distinction between legal and illegal seizures of liquor in transport in
vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other
vehicle seized under Section 26, in absence of probable cause, a right to have restored to him
the automobile, it protects him under the Weeks and Amos cases from use of the liquor as
evidence against him, and it subjects the officer making the seizures to damages. On the other
hand, in a case showing probable cause, the Government and its officials are given the
opportunity which they should have, to make the investigation necessary to trace reasonably
suspected contraband goods and to seize them.
Such a rule fulfills the guaranty of the Fourth Amendment. In cases where the securing of a
warrant is reasonably practicable, it must be used, and when properly supported by affidavit and
issued after judicial approval, protects the seizing officer against a suit for damages. In cases
where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his
peril unless he can show the court probable cause. United States v. Kaplan, 286 Fed. 963, 972.
But we are pressed with the argument that, if the search of the automobile discloses the
presence of liquor and leads under the statute to the arrest of the person in charge of the
automobile, the right of seizure should be limited by the common law rule as to the
circumstances justifying an arrest without warrant for a misdemeanor. The usual rule is that a
police officer may arrest without warrant one believed by the officer upon reasonable cause to
have been guilty of a felony, and that he may only arrest without a warrant one guilty of
misdemeanor if committed
Page 267 U. S. 157
in his presence. Kurtz v. Moffitt,115 U. S. 487; Elk v. United States,177 U. S. 529. The rule is
sometimes expressed as follows:
"In cases of misdemeanor, a peace officer, like a private person, has at common law no power of
arresting without a warrant except when a breach of the peace has been committed in his
presence or there is reasonable ground for supposing that a breach of peace is about to be
committed or renewed in his presence."
Halsbury's Laws of England, Vol. 9, part III, 612.
The reason for arrest for misdemeanors without warrant at common law was promptly to
suppress breaches of the peace, 1 Stephen, History of Criminal Law, 193, while the reason for
arrest without warrant on a reliable report of a felony was because the public safety and the due
apprehension of criminals charged with heinous offenses required that such arrests should be
made at once without warrant.Rohan v. Sawan, 5 Cush. 281. The argument for defendants is
that, as the misdemeanor to justify arrest without warrant must be committed in the presence of
the police officer, the offense is not committed in his presence unless he can by his senses
detect that the liquor is being transported, no matter how reliable his previous information by
which he can identify the automobile as loaded with it.Elrod v. Moss, 278 Fed. 123; Hughes v.
State, 145 Tenn. 544.

So it is that, under the rule contended for by defendants, the liquor, if carried by one who has
been already twice convicted of the same offense, may be seized on information other than the
senses, while, if he has been only once convicted, it may not be seized unless the presence of
the liquor is detected by the senses as the automobile concealing it rushes by. This is certainly a
very unsatisfactory line of difference when the main object of the section is to forfeit and
suppress the liquor, the arrest of the individual being only incidental, as shown by the lightness
Page 267 U. S. 158
of the penalty. See Commonwealth v. Street, 3 Pa.Dist. & Co. Reports, 783. In England at the
common law, the difference in punishment between felonies and misdemeanors was very great.
Under our present federal statutes, it is much less important, and Congress may exercise a
relatively wide discretion in classing particular offenses as felonies or misdemeanors. As the
main purpose of Section 26 was seizure and forfeiture, it is not so much the owner as the
property that offends. Agnew v. Haymes, 141 Fed. 631, 641. The language of the section
provides for seizure when the officer of the law "discovers" anyone in the act of transporting the
liquor by automobile or other vehicle. Certainly it is a very narrow and technical construction of
this word which would limit it to what the officer sees, hears or smells as the automobile rolls by,
and exclude therefrom, when he identifies the car, the convincing information that he may
previously have received as to the use being made of it.
We do not think such a nice distinction is applicable in the present case. When a man is legally
arrested for an offense, whatever is found upon his person or in his control which it is unlawful
for him to have and which may be used to prove the offense may be seized and held as
evidence in the prosecution. Weeks v. United States,232 U. S. 383, 232 U. S. 392; Dillon v.
O'Brien and Davis, 16 Cox. C.C. 245;Getchell v. Page, 103 Me. 387; Kneeland v. Connally, 70
Ga. 424; 1 Bishop, Criminal Procedure, Sec. 211; 1 Wharton, Criminal Procedure (10th edition),
Sec. 97. The argument of defendants is based on the theory that the seizure in this case can
only be thus justified. If their theory were sound, their conclusion would be. The validity of the
seizure then would turn wholly on the validity of the arrest without a seizure. But the theory is
unsound. The right to search and the validity of the seizure are not dependent on the right to
arrest. They are dependent on the reasonable cause the seizing officer
Page 267 U. S. 159
has for belief that the contents of the automobile offend against the law. The seizure in such a
proceeding comes before the arrest, as Section 26 indicates. It is true that Section 26, Title II,
provides for immediate proceedings against the person arrested, and that, upon conviction, the
liquor is to be destroyed and the automobile or other vehicle is to be sold, with the saving of the
interest of a lienor who does not know of its unlawful use; but it is evident that, if the person
arrested is ignorant of the contents of the vehicle, or if he escapes, proceedings can be had
against the liquor for destruction or other disposition under Section 25 of the same title. The
character of the offense for which, after the contraband liquor is found and seized, the driver can
be prosecuted does not affect the validity of the seizure.
This conclusion is in keeping with the requirements of the Fourth Amendment and the principles
of search and seizure of contraband forfeitable property, and it is a wise one, because it leaves
the rule one which is easily applied and understood and is uniform. Holbck v. State, 106 Ohio
St.195, accords with this conclusion. Ash v. United States, 299 Fed. 277 and Milam v. United
States, 296 Fed. 629, decisions by the Circuit Court of Appeals for the fourth circuit, take the
same view. The Ash case is very similar in its facts to the case at bar, and both were by the
same court which decided Snyder v. United States, 285 Fed. 1, cited for the defendants. See

also Park v. United States (1st C.C.A.) 294 Fed. 776, 783, and Lambert v. United States, (9th
C.C.A.) 282 Fed. 413.

Locke v. United States, 7 Cranch 339; The George, 1 Mason, 24; The Thompson, 3 Wall. 155. It
was laid down by Chief Justice Shaw, in Commonwealth v. Carey, 12 Cush. 246, 251 that

Finally, was there probable cause? In The Apollon, 9 Wheat. 362, the question was whether the
seizure of a French vessel at a particular place was upon probable cause that she was there for
the purpose of smuggling. In this discussion, Mr. Justice Story, who delivered the judgment of
the Court, said (page 22 U. S. 374):

"if a constable or other peace officer arrest a person without a warrant, he is not bound to show
in his justification a felony actually committed, to render the arrest lawful; but if he suspects one
on his own knowledge of facts, or on facts communicated to him by others, and thereupon he
has reasonable ground to believe that the accused has been guilty of felony, the arrest is not
unlawful."

"It has been very justly observed at the bar that the Court is bound to take notice of public facts
and geographical
Page 267 U. S. 160
positions, and that this remote part of the country has been infested, at different periods, by
smugglers, is a matter of general notoriety, and may be gathered from the public documents of
the government."
We know in this way that Grand Rapids is about 152 miles from Detroit, and that Detroit and its
neighborhood along the Detroit River, which is the International Boundary, is one of the most
active centers for introducing illegally into this country spirituous liquors for distribution into the
interior. It is obvious from the evidence that the prohibition agents were engaged in a regular
patrol along the important highways from Detroit to Grand Rapids to stop and seize liquor
carried in automobiles. They knew or had convincing evidence to make them believe that the
Carroll boys, as they called them, were so-called "bootleggers" in Grand Rapids, i.e., that they
were engaged in plying the unlawful trade of selling such liquor in that city. The officers had soon
after noted their going from Grand Rapids half way to Detroit, and attempted to follow them to
that city to see where they went, but they escaped observation. Two months later, these officers
suddenly met the same men on their way westward, presumably from Detroit. The partners in
the original combination to sell liquor in Grand Rapids were together in the same automobile
they had been in the night when they tried to furnish the whisky to the officers which was thus
identified as part of the firm equipment. They were coming from the direction of the great source
of supply for their stock to Grand Rapids, where they plied their trade. That the officers, when
they saw the defendants, believed that they were carrying liquor we can have no doubt, and we
think it is equally clear that they had reasonable cause for thinking so. Emphasis is put by
defendants' counsel on the statement made by one of the officers that they were not looking for
defendants at the particular time when they appeared. We do not perceive that it has any weight.
As soon as they did appear,
Page 267 U. S. 161
the officers were entitled to use their reasoning faculties upon all the facts of which they had
previous knowledge in respect to the defendants.
The necessity for probable cause in justifying seizures on land or sea, in making arrests without
warrant for past felonies, and in malicious prosecution and false imprisonment cases has led to
frequent definition of the phrase. In Stacey v. Emery,97 U. S. 642, 97 U. S. 645, a suit for
damages for seizure by a collector, this Court defined probable cause as follows:
"If the facts and circumstances before the officer are such as to warrant a man of prudence and
caution in believing that the offense has been committed, it is sufficient."

Commonwealth v. Phelps, 209 Mass. 396; Rohan v. Sawin, 5 Cush. 281, 285. In McCarthy v. De
Armit, 99 Pa. St. 63, the Supreme Court of Pennsylvania sums up the definition of probable
cause in this way (page 69):
"The substance of all the definitions is a reasonable ground for belief in guilt."
In the case of the Director General v. Kastenbaum,263 U. S. 25, which was a suit for false
imprisonment, it was said by this Court (page263 U. S. 28):
"But, as we have seen, good faith is not enough to constitute probable cause. That faith must be
grounded on facts within knowledge of the Director General's agent,
Page 267 U. S. 162
which in the judgment of the court would make his faith reasonable."
See also Munn v. e Nemours, 3 Wash.C.C. 37.
In the light of these authorities, and what is shown by this record, it is clear the officers here had
justification for the search and seizure. This is to say that the facts and circumstances within
their knowledge and of which they had reasonably trustworthy information were sufficient, in
themselves, to warrant a man of reasonable caution in the belief that intoxicating liquor was
being transported in the automobile which they stopped and searched.
Counsel finally argue that the defendants should be permitted to escape the effect of the
conviction because the court refused on motion to deliver them the liquor when, as they say, the
evidence adduced on the motion was much less than that shown on the trial, and did not show
probable cause. The record does not make it clear what evidence was produced in support of or
against the motion. But, apart from this, we think the point is without substance here. If the
evidence given on the trial was sufficient, as we think it was, to sustain the introduction of the
liquor as evidence, it is immaterial that there was an inadequacy of evidence when application
was made for its return. A conviction on adequate and admissible evidence should not be set
aide on such a ground. The whole matter was gone into at the trial, so no right of the defendants
was infringed.
Counsel for the Government contend that Kiro, the defendant who did not own the automobile,
could not complain of the violation of the Fourth Amendment in the use of the liquor as evidence
against him, whatever the view taken as to Carroll's rights. Our conclusion as to the whole case
makes it unnecessary for us to discuss this aspect of it.

The judgment is
Affirmed.