G.R. No.

71782 April 14, 1988

HADJI IBRAHIM SOLAY PANGANDAMAN,
MAGAMBAAN PANGANDAMAN, MACARIAN
PANGANDAMAN, MAMINTAL
PANGANDAMAN, PACALUNDO
PANGANDAMAN, MANGORAMAS
PANGANDAMAN, MACADAOB P.
PANGORANGAN KILATUN
PANGANDAMAN, MARIO PANGANDAMAN,
MACABIDAR PANGANDAMAN, PUYAT P.
ROMAMPAT, SANTORANI P. DIMAPENGEN,
NASSER P. DIMAPENGEN and DIAMA
OPAO petitioners, 
vs.
DIMAPORO T. CASAR, AS MUNICIPAL
CIRCUIT TRIAL JUDGE OF
POONABAYABAO, TAMPARAN AND MASIU,
LANAO DEL SUR and THE PEOPLE OF THE
PHILIPPINES, respondents.

NARVASA, J.:
The petitioners ask this Court:
1) to annul the warrant for their arrest issued by
respondent Judge Dimaporo T. Casar of the
Municipal Circuit Court of Masiu, Lanao del Sur,
in Criminal Case No. 1748 entitled People vs.
Hadji Ibrahim Solay Pangandaman et al.;
2) to prohibit the Judge from taking further
cognizance of said Criminal Case No. 1748;
and
3) to compel the Judge to forward the entire
record of Criminal Case No. 1748 to the
Provincial Fiscal of Lanao del Sur for proper
disposition. 
1

Their plea is essentially grounded on the claim

that the warrant for their arrest was issued by
the respondent Judge without a proper
preliminary investigation.   The Solicitor General
2

agrees and recommends that their petition be

granted and the warrant of arrest voided.  3

On July 27, 1985, a shooting incident occurred

in Pantao, Masiu, Lanao del Sur, which left at
least five persons dead and two others
wounded. What in fact transpired is still unclear.
According to one version, armed men had
attacked a residence in Pantao, Masiu, with
both attackers and defenders suffering
casualties.   Another version has it that a group
4

that was on its way to another place, Lalabuan,

also in Masiu, had been ambushed. 5

On the following day, Atty. Mangurun

Batuampar, claiming to represent the widow of
one of the victims, filed a letter-complaint with
the Provincial Fiscal at Marawi City, asking for a
"full blast preliminary investigation" of the
incident.  The letter adverted to the possibility of
6

innocent persons being implicated by the

parties involved on both sides — none of whom
was, however, identified — and promised that
supporting affidavits would shortly be filed.
Immediately the Provincial Fiscal addressed a
"1st indorsement" to the respondent Judge,
transmitting Atty. Batuampar's letter and
requesting that "all cases that may be filed
relative .. (to the incident) that happened in the
afternoon of July 27, 1985," be forwarded to his
office, which "has first taken cognizance of said
cases." 7
No case relative to the incident was, however,
presented to the respondent Judge until
Saturday, August 10, 1985, when a criminal
complaint for multiple murder was filed before
him by P.C. Sgt. Jose L. Laruan, which was
docketed as Case No. 1748.   On that same
8

day, the respondent Judge "examined

personally all (three) witnesses (brought by the
sergeant) under oath thru .. (his) closed and
direct supervision," reducing to writing the
questions to the witnesses and the latter's
answers.   Thereafter the Judge "approved the
9

complaint and issued the corresponding

warrant of arrest" against the fourteen (14)
petitioners (who were named by the witnesses)
and fifty (50) "John Does." 
10

An "ex-parte" motion for reconsideration was

filed on August 14, 1985 by Atty. Batuampar
(joined by Atty. Pama L. Muti), seeking recall of
the warrant of arrest and subsequent holding of
a "thorough investigation" on the ground that
the Judge's initial investigation had been "hasty
and manifestly haphazard" with "no searching
questions" having been propounded.   The
11
respondent Judge denied the motion for "lack of
basis;"  hence the present petition.
12

While they concede the authority of the

respondent Judge to conduct a preliminary
investigation of the offenses involved, which are
cognizable by Regional Trial Courts, the
petitioners and the Solicitor General argue that
the Judge in the case at bar failed to conduct
the investigation in accordance with the
procedure prescribed in Section 3, Rule 112 of
the Rules of Court ;   and that that failure
13

constituted a denial to petitioners of due

process which nullified the proceedings leading
to the issuance of the warrant for the
petitioners' arrest.   It is further contended that
14

August 10, 1985 was a Saturday during which

"Municipal Trial Courts are open from 8:00 a.m.
to 1:00 p.m. only, ..." and "... it would hardly
have been possible for respondent Judge to
determine the existence of probable cause
against sixty- four (64) persons whose
participations were of varying nature and
degree in a matter of hours and issue the
warrant of arrest in the same day;"   and that
15

there was undue haste and an omission to ask

searching questions by the Judge who relied
"mainly on the supporting affidavits which were
obviously prepared already when presented to
him by an enlisted PC personnel as
investigator." 
16

The petitioners further assert that the

respondent Judge conducted the preliminary
investigation of the charges "... in total
disregard of the Provincial Fiscal ..." who, as
said respondent well knew, had already taken
cognizance of the matter twelve (12) days
earlier and was poised to conduct his own
investigation of the same;   and that issuance of
17

a warrant of arrest against fifty (50) "John Does"

transgressed the Constitutional provision
requiring that such warrants should particularly
describe the persons or things to be seized. 18

There can be no debate about the proposition

that in conducting a pre investigation of any
crime cognizable by the Regional Trial Courts,
a judge of an inferior court (other than in Metro-
Manila or the chartered cities, where no
authority to conduct preliminary investigation is
vested in such officials) must observe the
procedure prescribed in Section 3 of Rule 112,
1985 Rules on Criminal Procedure. And
although not specifically so declared, the
procedure mandated by the Rule actually
consists of two phases or stages.
The first phase consists of an ex-parte inquiry
into the sufficiency of the complaint and the
affidavits and other documents offered in
support thereof. And it ends with the
determination by the Judge either: (1) that there
is no ground to continue with the inquiry, in
which case he dismisses the complaint and
transmits the order of dismissal, together with
the records of the case, to the provincial fiscal;
or (2) that the complaint and the supporting
documents show sufficient cause to continue
with the inquiry and this ushers in the second
phase.
This second phase is designed to give the
respondent notice of the complaint, access to
the complainant's evidence and an opportunity
to submit counter-affidavits and supporting
documents. At this stage also, the Judge may
conduct a hearing and propound to the parties
and their witnesses questions on matters that,
in his view, need to be clarified. The second
phase concludes with the Judge rendering his
resolution, either for dismissal of the complaint
or holding the respondent for trial, which shall
be transmitted, together with the record, to the
provincial fiscal for appropriate action.
The procedure above described must be
followed before the complaint or information is
filed in the Regional Trial Court. Failure to do so
will result in a denial of due process. 
19

Here, no information has as yet been filed with

the Regional Trial Court. There is no pretense
that the preliminary investigation has been
completed, insofar as the respondent Judge is
concerned, and that he does not intend to
undertake the second phase. In this situation, it
cannot be said that he has failed to observe the
prescribed procedure. What has happened is
simply that after receiving the complaint and
examining the complainant's witnesses, and
having come to believe, on the basis thereof,
that the offenses charged had been committed,
the respondent Judge issued the warrant now
complained of against the fourteen (14)
respondents (now petitioners) named and
Identified by the witnesses as the perpetrators
of the killings and injuries, as well as against 50
"John Does."
The real question, therefore, is whether or not
the respondent Judge had the power to issue
the warrant of arrest without completing the
entire prescribed procedure for preliminary
investigation. Stated otherwise, is completion of
the procedure laid down in Section 3 of Rule
112 a condition sine qua non for the issuance of
a warrant of arrest?
There is no requirement that the entire
procedure for preliminary investigation must be
completed before a warrant of arrest may be
issued. What the Rule   provides is that no
20

complaint or information for an offense

cognizable by the Regional Trial Court may be
filed without completing that procedure. But
nowhere is it provided that the procedure must
be completed before a warrant of arrest may
issue. Indeed, it is the contrary that is true. The
present Section 6 of the same Rule 112 clearly
authorizes the municipal trial court to order the
respondent's arrest even before opening the
second phase of the investigation if said court is
satisfied that a probable cause exists and there
is a necessity to place the respondent under
immediate custody in order not to frustrate the
ends of justice.
Sec. 6. When warrant of arrest may
issue.-
xxx xxx xxx
(b) By the Municipal Trial Court. If the
municipal trial judge conducting the
preliminary investigation is satisfied after
an examination in writing and under
oath of the complainant and his
witnesses in the form of searching
question and answers, that a probable
cause exists and that there is a
necessity of placing the respondent
under immediate custody in order not to
frustrate the ends of justice, he shag
issue a warrant of arrest. 21
This was equally true under the former rules,
where the first phase of the investigation was
expressly denominated "preliminary
examination" to distinguish it from the second
phase, or preliminary investigation proper.
Thus, the former Section 6 of Rule 112
provided:
SEC. 6. Warrant of arrest, when issued.
— If the judge be satisfied from the
preliminary e petition conducted by him
or by the investigating officer that the
offense complained of has been
committed and that there is reasonable
ground to believe that the accused has
committed it, he must issue a warrant or
order for his arrest.
In Mayuga vs. Maravilla,   this Court found
22

occasion to dwell in some detail on the process

of preliminary investigation and, incidentally, to
affirm the power of a justice of the peace or
municipal judge conducting a preliminary
investigation to order the arrest of the accused
after the first stage (preliminary examination),
saying:
Appellant should bear in mind that
a preliminary investigation such as was
conducted by the Justice of the Peace
has for its purpose only the
determination of whether a crime has
been committed and whether there is
probable cause to believe the accused
guilty thereof, and if so, the issuance of
a warrant of arrest. And it should not be
forgotten that a preliminary investigation
has two stages: First, a preliminary
examination of the complainant and his
witnesses prior to the arrest of the
accused; and, second, the reading to
the accused after his arrest of the
complaint or information filed against
him, and his being informed of the
substance of the evidence against him,
after which he is allowed to present
evidence in his favor, if he so desires.
Probable cause, in regard to the first
stage of preliminary investigation,
depends on the discretion of the judge
or magistrate empowered to issue the
warrant of arrest. It suffices that facts
 are presented to him to convince him,
not that a person has committed the
crime, but that there is probable cause
to believe that such person committed
the crime charged. The proceeding is
generally ex parte unless the defendant
desires to be present and while under
the old Rules the Justice of the Peace or
investigating officer must take the
testimony of the complainant and the
latter's witnesses under oath, only the
testimony of the complainant shall be in
writing and only an abstract of the
testimony of the other is required.
Regarding preliminary investigation, it
has thus been ruled that 'the occasion is
not for the full and exhaustive display of
the parties' evidence; it is for the
presentation of such evidence only as
may engender well-grounded belief that
an offense has been committed and that
the accused is probably guilty
thereof. ... 
23

The rule on arrest after preliminary examination

has, of course, been modified somewhat since
the occurrence of the facts upon
which Mayuga was decided, but not to abrogate
the authority of the investigating judge to order
such arrest, and only to prescribe the
requirement that before he may do so, he must
examine the witnesses to the complaint, the
examination to be under oath and reduced to
writing in the form of searching questions and
answers. This modification was introduced by
Republic Act 3838, approved June 22, 1963,
amending Section 87 of the Judiciary Act of
1948, and the "searching questions and
answers" requirement is incorporated in the
present Section 6 of Rule 112 already quoted.
The argument, therefore, must be rejected that
the respondent Judge acted with grave abuse
of discretion in issuing the warrant of arrest
against petitioners without first completing the
preliminary investigation in accordance with the
prescribed procedure. The rule is and has
always been that such issuance need only
await a finding of probable cause, not the
completion of the entire procedure of
preliminary investigation .
Also without appreciable merit is petitioners'
other argument that there was scarcely time to
determine probable cause against sixty-four
persons (the fourteen petitioners and fifty
"Does") within a matter of hours on a Saturday
when municipal trial courts are open only from
8:00 a.m. to 1:00 p.m. That argument founders
upon the respondent Judge's positive
affirmations that he had personally and closely
examined under oath the three witnesses to the
complaint   and that he had issued the warrant
24

of arrest "believing that the offense thus filed

had been committed."   Nothing in the record
25

before this Court belies or discredits those

affirmations which have, besides, the benefit of
the legal presumption that official duty has been
regularly performed.   The contention that the
26

witnesses to the complaint had merely sworn

before the respondent Judge to statements
prepared beforehand and submitted by a
military investigator   must, in view of the
27

foregoing considerations and for lack of any

support in the record, be dismissed as mere
speculation.
The same argument also unwarrantedly
assumes that the respondent Judge limited the
proceedings on preliminary examination to the
usual Saturday office hours of 8:00 a.m. to 1:00
p.m., in addition to not making any persuasive
showing that such proceedings could not have
been completed within that time-frame. For all
that appears, said respondent could have put
off the 1:00 p.m. adjournment until he had
finished interrogating the witnesses to his
satisfaction. And there is really nothing unusual
in completing within a three-hour period the
questioning of three witnesses in a preliminary
examination to determine the existence of
probable cause.
The record which, lacking proof to the contrary,
must be accepted as an accurate chronicle of
the questioned proceedings, shows prima
facie that the respondent Judge had personally
examined the witnesses to the complaint, and a
consideration of the latter's sworn answers to
his questions satisfies this Court that the finding
of probable cause against the petitioners was
neither arbitrary nor unfounded.
The three witnesses to the complaint,
Misandoning Monasprang, a student,
Lawandato Ripors, an engineering graduate,
and Sanny Monib a farmer gave mutually
corroborative accounts of the incident. Under
separate questioning, they declared that they
were members of a party that was passing by
Pantao on its way to Lalabuan from Talaguian,
all in Masiu, Lanao del Sur, at about 10:00 a.m.
on July 27, 1985, when they were ambushed
and fired upon by an armed group which
included the petitioners and about fifty other
unidentified persons; that five of the party had
been killed and two (the witnesses Lawandato
Ripors and Sanny Monib) wounded; that even
after they had killed their victims, the
ambushers had continued to fire at the dead
bodies; that the witnesses managed to escape
their attackers and return to Talaguian, where
they informed their relatives about what had
happened, and thence went to the municipal
hall in Masiu to report to the authorities; that the
dead victims were recovered only late in the
afternoon of that day because the authorities
could not "penetrate" the area and the
ambushers refused to release the bodies; and
that the ambush was an offshoot of a grudge
between the families of the ambushers and
those of the victims.  28

The witnesses named and Identified the dead

victims as Cadar Monasprang, Macacrao
Guiling Macrang Hadji Alawi, Alicman Ripors
and Malabato Diator. All of them also Identified
by name each of the fourteen petitioners as
members of the ambush group. The respondent
Judge can hardly be faulted for finding enough
cause to hold the petitioners named in the
statements of three eyewitnesses to killings
perpetrated in broad daylight.
In Luna vs. Plaza,   this Court ruled that the
29

term "searching questions and answers" means

—
...only, taking into consideration the
purpose of the preliminary examination
which is to determine "whether there is a
reasonable ground to believe that an
offense has been committed and the
accused is probably guilty thereof so
 that a warrant of arrest may be issued
and the accused held for trial," such
questions as have tendency to show the
commission of a crime and the
perpetuator thereof. What would be
searching questions would depend on
what is sought to be inquired into, such
as: the nature of the offense, the date,
time, and place of its commission, the
possible motives for its commission; the
subject, his age, education, status,
financial and social circumstances, his
attitude toward the investigation, social
attitudes, opportunities to commit the
offense; the victim, his age, status,
family responsibilities, financial and
social circumstances, characteristics,
etc. The points that are the subject of
inquiry may differ from case to case.
The questions, therefore must to a great
degree depend upon the Judge making
the investigation. ...
Upon this authority, and considering what has
already been stated above, this Court is not
prepared to question the propriety of the
respondent Judge's finding of probable cause
or substitute its judgment for his in the matter of
what questions to put to the witnesses during
the preliminary examination.
Upon the facts and the law, therefore, the
warrant of arrest in question validly issued
against the petitioners, such issuance having
been ordered after proceedings, to which no
irregularity has been shown to attach, in which
the respondent Judge found sufficient cause to
commit the petitioners to answer for the crime
complained of.
Insofar, however, as said warrant is issued
against fifty (50) "John Does" not one of whom
the witnesses to the complaint could or would
Identify, it is of the nature of a general warrant,
one of a class of writs long proscribed as
unconstitutional and once anathematized as
"totally subversive of the liberty of the
subject."   Clearly violative of the constitutional
30

injunction that warrants of arrest should

particularly describe the person or persons to
be seized,  the warrant must, as regards its
31

unidentified subjects, be voided.

The fact that the Provincial Fiscal may have
announced his intention of investigating the
incident himself did not, in the view of the Court,
legally inhibit the respondent Judge from
conducting his own inquiry into the matter if, as
is made to appear here, it was regularly brought
before him and no formal complaint was filed
before the Fiscal. Courtesy may have dictated
that in those circumstances he leave the
investigation to the Fiscal and simply endorse
to the latter the complaint filed with him; duty
did not, and if he nonetheless chose to conduct
his own investigation, nothing in the rules states
or implies that he could not do so.
Be that as it may, since the action and final
resolution of the respondent Judge after
completing the second stage of the preliminary
investigation are subject to review by the
Provincial Fiscal, practical considerations of
expediency and the avoidance of duplication of
work dictate that the latter official be permitted
to take over the investigation even in its present
stage.
WHEREFORE, the warrant complained of is
upheld and declared valid insofar as it orders
the arrest of the petitioners. Said warrant is
voided to the extent that it is issued against fifty
(50) "John Does." The respondent Judge is
directed to forward to the Provincial Fiscal of
Lanao del Sur the record of the preliminary
investigation of the complaint in Criminal Case
No. 1728 of his court for further appropriate
action. Without pronouncement as to costs.
SO ORDERED.

.R. No. 136396               September 21, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, 
vs.
ROLANDO ZASPA and JULIUS
GALVAN, accused-appellants.
DECISION
VITUG, J.:
Elevated and certified by the Court of Appeals
to this Court for review is the decision, dated 08
January 1996, of the Regional Trial Court of
Mati, Davao Oriental, Branch 5, penned by
Judge Ricardo M. Berba. The case, docketed
Criminal Case No. 2621 before the trial court,
has charged Rolando Zaspa, a.k.a. "Tata," and
Julius Galvan with violation of Section 8 of
Republic Act No. 6425, otherwise also known
as the Dangerous Drugs Act of 1972, as
amended.
The case originated from an Information, dated
13 October 1994, which read:
"That on or about April 29, 1994, in the
Municipality of Tarragona, Province of Davao
Oriental, Philippines and within the jurisdiction
of this Honorable Court, the abovenamed
accused, with intent to use did then and there
wilfully, unlawfully, feloniously own and possess
five point six (5.6) kilos of marijuana dried
leaves with stalks, a prohibited dangerous
drugs, without proper license or permit from the
authorities."
1

Upon arraignment, both accused pled "not

guilty" to the charge.
Culled from the findings of the trial judge, as
well as the decision of the Court of
Appeals, promulgated on 09 November 1998
2 

and penned by Associate Justice Delilah

Vidallon-Magtolis, the facts could be gathered,
thusly:
At about two o'clock in the morning of 29 April
1994, Chief of Police Rosauro Francisco of
Tarragona, Davao Oriental, received a tip from
a police informer that Rolando Zaspa and a
companion were bringing dried marijuana
leaves bound for Mati, somewhere at Crossing
Banhawan, Tarragona, Davao Oriental. The
police chief promptly organized and dispatched
to the area a team composed of SPO2 Honorio
Carasca (the team leader), PO1 Letecio Rafael
and SPO1 Cesar Travelegio. The group
immediately proceeded to Crossing Banhawan,
arriving thereat at about five o'clock in the
morning. There, the team saw Zaspa and his
companion standing by the side of the road with
a big black "loalde" bag in front of them. Just as
SPO2 Carasca and PO1 Rafael, who were both
in uniform, proceeded to approach the two men,
Zaspa tried to flee. He was intercepted by the
policemen. Zaspa claimed that the contents of
the bag did not belong to them. When the bag
was opened, Zaspa told the policemen that the
dried marijuana leaves were owned by one Bito
Mangandan. Zaspa and his companion, who
turned out to be Julius Galvan, were arrested
and brought to the Tarragona police station for
investigation. Samples of the leaves taken from
the bag were sent to the PNP Crime Laboratory
in Ecoland, Davao City, where the specimen
were tested and confirmed to be marijuana
leaves. Chemistry Report No. 035-94,
submitted by Police Senior Inspector Noem;
Austero, a forensic expert, contained the
following findings:
"Qualitative examination conducted on the
above-mentioned specimen gave positive result
to the tests for marijuana, a prohibited drug."
3

Zaspa, taking the witness stand in his defense,

testified that sometime in January 1994 he was
hired by Maturino Masanguid to cut an Antipolo
round timber for the amount of P5,000.00. He
was paid P3,500.00 and was about to get the
balance of P1,500.00 on 29 April 1994 when
the incident transpired. He stated that he was
walking towards Barrio Sambarangay when an
armed man in civilian outfit pointed a gun at him
and proceeded to examine the brown bag he
was holding. He was thereafter dragged to the
side of the road and questioned whether a
black bag also belonged to him. He denied
either ownership or possession of the bag. He
was brought to the police station in Tarragona
with another man whom he later learned to be
Julius Galvan. At the police station, a certain
Francisco slapped him and made him and
Galvan crawl on the floor. The man also tried to
smash the face of Galvan. He was detained in
Tarragona Municipal jail from 29 April until he
was brought, on 02 May 1994, to the PC
Barracks at Menzi, Mati, Davao Oriental.
Galvan corroborated the testimony of Zaspa.
He asserted that on 12 April 1994, he was
contracted by Algin Divinagracia to spray their
mango trees in Banhawan. The first spray was
made on 15 April; he returned to Mati on the
same day. The second spray was made on 28
April but, unable to finish the work that day, he
stayed overnight with Divinagracia. At about
four o'clock in the morning, he was on his way
to Banhawan crossing when he was stopped by
a man holding a gun. He was brought to a place
where some police officers were questioning a
man about the ownership of a black bag. The
two were brought to the police station where
they were investigated and detained until they
were brought the following day to the P.C.
Barracks at Mati.
After trial, the court a quo found the two
accused guilty of the crime with which they
were charged; the trial court held:
"WHEREFORE, the Court finds the accused
Rolando Zaspa alias `Tata' and Julius Galvan
both GUILTY beyond reasonable doubt of
violation of Section 8 in relation to Section 20 of
the Republic Act 6425, as amended by R.A.
7659, and hereby imposes upon each of them
the penalty of RECLUSION PERPETUA and to
pay a fine of P500,000.00, with the accessory
penalties provided by law, and to pay the costs
of the proceedings.
"The marijuana leaves subject hereof (Exhs.
`D,' `D-1' and `D-2') are hereby ordered turned
over to the Dangerous Drugs Board, thru the
National Bureau of Investigation (NBI), for
disposition in accordance with law.
"SO ORDERED." 4

Zaspa and Galvan appealed their

conviction, albeit the penalty imposed, to the
Court of Appeals for review. The appellate court
upheld the conviction; it said:
"Regarding the first issue, the appellee
asseverates that there is entirely no merit in
appellants' claim that they were not in
possession of marijuana when the police
authorities apprehended them at Banhawan
Crossing. The testimonial evidence submitted
by the prosecution clearly pointed out that the
two appellants were standing by the side of the
road, with the black bag containing the
prohibited marijuana just 1/2 foot away. The
absence of any other person within the vicinity
indicates that the contraband belonged to the
appellants and to no one else. Now, the
appellants could not sufficiently explain the
presence of the bag in their possession. Neither
could they explain why the police would `plant'
the same as evidence. Likewise, they did not
substantiate the alleged `maltreatment' suffered
in the hands of the law enforcers. Moreover, no
improper motive was attributed to the police as
to why they would testify falsely against the
appellants -- if such was the fact.
"With respect to the alleged unlawful and
warrantless arrest, the People manifests that
Section 5, Rule 113 of the Revised Rules of
Court authorizes an arrest without a warrant
when the person to be arrested has committed
a crime, is actually committing or about to
commit a crime in the presence of the police
officers. As the appellants were found to be in
possession of the prohibited drug at the time of
their arrest, the same is admissible as
evidence.
"We agree with the appellee. Well-settled is the
rule that peace officers may pursue and arrest
without a warrant any person under
circumstances reasonably tending to show that
such person has committed or is about to
commit any crime or breach of the peace
(People vs. Bautista, 227 SCRA 152). In the
case at bench, the facts and circumstances
leading to the arrest of the accused at dawn of
April 29, 1994 would show that the arresting
officers have proper and justifiable reasons to
arrest the two (2) suspects. First, they received
a confidential information from a police informer
that a certain Rolando Zaspa with a companion
were bringing dried marijuana leaves bound for
Mati. Second, when the police arrived at the
crime scene, the two (2) suspects were
suspiciously at the side of the road with a big
black bag in front of them. Third, there were no
other people in sight and it is therefore safe to
conclude that the bag containing the
contraband belonged to no one else but the
suspects. Lastly, when the police officers were
approaching, the appellant Zaspa attempted to
escape.
"A warrantless arrest and seizure was valid
where it was done by the police team
dispatched to look for persons responsible for
the crime (People vs. Acol, 232 SCRA 406). In
any case, in accordance with settled
jurisprudence, any objection, defect or
irregularity attending an arrest must be made
before the accused enters his plea (Padilla vs.
Court of Appeals, 269 SCRA 402). Thus, any
irregularity attendant to the arrest of the
accused was cured when they voluntarily
submitted to the jurisdiction of the trial court by
entering a plea of not guilty and by participating
in the trial (People vs. De Guzman, 224 SCRA
93).
"As to the seized marijuana, the same is
admissible in evidence, for trite is the
jurisprudence that the search of the appellant's
person and the seizure of the marijuana in his
possession were valid because they were
incident to a lawful warrantless arrest (People
vs. Gerente, 219 SCRA 756). As the appellant
Zaspa opened the black bag containing the
prohibited drug, then it is a consented search.
Settled is the rule that drugs discovered as a
result of a consented search is admissible in
evidence (People vs. Cuizon, 256 SCRA 325).
"In the case at bench, it is clear that the
appellants were really in possession of the
seized marijuana. Prosecution witness SPO2
Honorio Carasca's testimony that the black bag
containing the contraband was just 1/2 foot
from infront of the appellants (TSN, 4/25/95, p.
10), apart from the fact that there were no other
people in the vicinity, would clearly show that
the two (2) appellants were the possessors of
the prohibited item. The appellants' respective
defenses denying the ownership and
possession of the marijuana cannot topple the
evidence proffered by the prosecution. In
the first place, denial, like an alibi, is a weak
defense which becomes even weaker in the
face of positive identification of the accused by
prosecution witnesses (People vs. Ompad, 233
SCRA 62). Second, the appellants failed to
present any receipts proving that on different
occasions, they were at the crime scene merely
by chance. It must be noted that the appellant
Zaspa failed to present any evidence to show
that he collected the sum of P3,500.00, or that
he was to collect the balance of P1,500.00 from
the witness, Mr. Maturino Masanguid. In the
same manner, the appellant Galvan failed to
present the receipts for the medicine he
purportedly bought for the spraying of the
mango trees (TSN, 7/19/95, p. 22). Third, if the
appellants were really maltreated in order to
confess to the crime charged, then why is it that
they failed to submit to a medical examination
or treatment? (TSN, 6/8/95, p. 48 and TSN,
7/19/95, p. 36). Why is it that the appellants
filed a case before the Ombudsman and the
Commission on Human Rights only after almost
a year from the time of the incident (Exhibit `1'
and `2')? In any case, there is nothing on record
which indicates that the police operatives were
actuated by improper motive against the
appellants. Credence can be given to the
narration of the incident by the prosecution
witnesses, who as police officers are presumed
to have performed their duties in a regular
manner in the absence of proof to the contrary
(People vs. Bautista, 227 SCRA 152). Lastly, as
the seized items were positive for marijuana,
then, the corpus delicti of the crime had been
fully proved with certainty and conclusiveness
(People vs. Simon, 234 SCRA 555).
"In sum, the guilt of the accused-appellants has
been established by proof beyond reasonable
doubt; hence, the affirmance of the appealed
judgment is in order. However, considering that
the applicable penalty is reclusion perpetua,
the second paragraph of Section 13, Rule 124
of the Rules of Court shall apply.
"WHEREFORE, the judgment appealed from
is AFFIRMED in toto. Let this case
be CERTIFIED  and ELEVATED to the
Honorable Supreme Court for review.
"SO ORDERED." 5

Although the appeal from the decision of the

trial court imposing reclusion perpetua should
have been directly appealed to this Court,
considering the penalty involved, the Court has
decided to ignore this breach of technicality and
to nevertheless consider the appeal and
evaluate the case.
The testimony given by the witnesses for the
prosecution and that of the defense are
diametrically opposed to each other on almost
every point. In resolving such a conflict, so
dealing as it does on the credibility of the
witnesses, the Court relies heavily on findings
of the trial court being in the best position,
certainly more than the appellate court, in
making that judgment. Thus, often repeated, is
the standing rule that absent any showing that
the trial judge has overlooked, misunderstood
or misappreciated any evidence that could
otherwise alter the result of the case, the Court
would adhere to the assessment made by the
trial court on the question. Parenthetically, the
Court of Appeals has basically done likewise in
finding no reason to alter the conclusion of the
trial judge.
In almost every case involving a buy-bust
operation, the accused would put up the
defense of frame-up.  The Court views such a
1âwphi1

claim with disfavor for, like alibi, the frame-up

theory can easily be concocted. In the instant
6 

case, the police informer has particularly

mentioned the name of Rolando Zaspa as
being one of those who would be bringing the
bag containing the marijuana, thus paving the
7 

way for the authorities to conduct their

operation. When Zaspa, indeed, has made an
attempt to run away upon seeing the police
officers, he inadvertently has also confirmed the
information given to the police. It bears to
repeat that absent any convincing proof of an
intent on the part of police authorities to falsely
impute a serious crime against an accused, the
presumption of regularity in the performance of
official duty will ordinarily have to prevail.
8

On the validity of the warrantless arrest, along

with the corresponding search and seizure,
suffice it to say that any objection regarding the
regularity of an arrest must be made before the
accused enters his plea; otherwise, the defect
9 

shall be deemed cured by the voluntary

submission by the accused to the jurisdiction of
the trial court.
10

No significant value could be given to the

allegations of accused-appellants that they
were maltreated. Zaspa only decided to file
charges against the apprehending police
officers after almost a year following the
incident. For his part, Galvan chose to remain
silent. Neither one of the two accused-
appellants submitted himself to medical
examination. The attendant circumstances
scarcely augur well to support the asseveration
of maltreatment allegedly suffered by accused-
appellants from the police authorities.
WHEREFORE, the decision of the trial court is
AFFIRMED in toto. Costs against accused-
appellants.
SO ORDERED.

G.R. No. 104879 May 6, 1994

ELIZALDE MALALOAN and MARLON
LUAREZ, petitioners, 
vs.
COURT OF APPEALS; HON. ANTONIO J.
FINEZA, in his capacity as Presiding Judge,
Branch 131, Regional Trial Court of
Kalookan City; HON. TIRSO D.C. VELASCO,
in his capacity as Presiding Judge, Branch
88, Regional Trial Court of Quezon City; and
PEOPLE OF THE PHILIPPINES, respondents.
Alexander A. Padilla for petitioners.
The Solicitor General for the People of the
Philippines.

REGALADO, J.:
Creative legal advocacy has provided this Court
with another primae impressionis case through
the present petition wherein the parties have
formulated and now pose for resolution the
following issue: Whether or not a court may
take cognizance of an application for a search
warrant in connection with an offense
committed outside its territorial boundary and,
thereafter, issue the warrant to conduct a
search on a place outside the court's supposed
territorial jurisdiction. 
1

The factual background and judicial

antecedents of this case are best taken from
the findings of respondent Court of Appeals   on
2

which there does not appear to be any dispute,

to wit:
From the pleadings and supporting
documents before the Court, it can be
gathered that on March 22, 1990, 1st Lt.
Absalon V. Salboro of the CAPCOM
Northern Sector (now Central Sector)
filed with the Regional Trial Court of
Kalookan City an application for search
warrant. The search warrant was sought
for in connection with an alleged
violation of P.D. 1866 (Illegal
Possession of Firearms and
Ammunitions) perpetrated at No. 25
Newport St., corner Marlboro St.,
Fairview, Quezon City. On March 23,
1990, respondent RTC Judge of
Kalookan City issued Search Warrant
No. 95-90. On the same day, at around
2:30 p.m., members of the CAPCOM,
armed with subject search warrant,
proceeded to the situs of the offense
alluded to, where a labor seminar of the
Ecumenical Institute for Labor Education
and Research (EILER) was then taking
place. According to CAPCOM's
"Inventory of Property Seized," firearms,
explosive materials and subversive
documents, among others, were seized
and taken during the search. And all the
sixty-one (61) persons found within the
premises searched were brought to
Camp Karingal, Quezon City but most of
them were later released, with the
exception of the herein petitioners,
EILER Instructors, who were indicated
for violation of P.D. 1866 in Criminal
Case No. Q-90-11757 before Branch 88
of the Regional Trial Court of Quezon
City, presided over by respondent Judge
Tirso D.C. Velasco.
On July 10, 1990, petitioners presented
a "Motion for Consolidation, Quashal of
Search Warrant and For the
Suppression of All Illegally Acquired
Evidence" before the Quezon City court;
and a "Supplemental Motion to the
Motion for Consolidation, Quashal of
Search Warrant and Exclusion of
Evidence Illegally Obtained.
On September 21, 1990, the respondent
Quezon City Judge issued the
challenged order, consolidating subject
cases but denying the prayer for the
quashal of the search warrant under
attack, the validity of which warrant was
upheld; opining that the same falls
under the category of Writs and
Processes, within the contemplation of
paragraph 3(b) of the Interim Rules and
Guidelines, and can be served not only
within the territorial jurisdiction of the
issuing court but anywhere in the judicial
region of the issuing court (National
Capital Judicial Region);. . .
Petitioner's motion for reconsideration of
the said Order under challenge, having
been denied by the assailed Order of
October 5, 1990, petitioners have come
to this Court via the instant petition,
raising the sole issue:
WHETHER OR NOT A COURT
MAY TAKE COGNIZANCE OF
AN APPLICATION FOR A
SEARCH WARRANT IN
CONNECTION WITH AN
OFFENSE ALLEGEDLY
COMMITTED OUTSIDE ITS
 TERRITORIAL JURISDICTION
AND TO ISSUE A WARRANT
TO CONDUCT A SEARCH ON
A PLACE LIKEWISE OUTSIDE
ITS TERRITORIAL
JURISDICTION.
x x x           x x x          x x x
Respondent Court of Appeals rendered
judgment,   in effect affirming that of the trial
3

court, by denying due course to the petition

for certiorari and lifting the temporary
restraining order it had issued on November 29,
1990 in connection therewith. This judgment of
respondent court is now impugned in and
sought to be reversed through the present
recourse before us.
We are not favorably impressed by the
arguments adduced by petitioners in support of
their submissions. Their disquisitions postulate
interpretative theories contrary to the letter and
intent of the rules on search warrants and which
could pose legal obstacles, if not dangerous
doctrines, in the area of law enforcement.
Further, they fail to validly distinguish, hence
they do not convincingly delineate the
difference, between the matter of (1) the court
which has the competence to issue a search
warrant under a given set of facts, and (2) the
permissible jurisdictional range in the
enforcement of such search warrant vis-a-
vis the court's territorial jurisdiction. These
issues while effectively cognate are essentially
discrete since the resolution of one does not
necessarily affect or preempt the other.
Accordingly, to avoid compounding the seeming
confusion, these questions shall be
discussed seriatim.
I
Petitioners invoke the jurisdictional rules in the
institution of criminal actions to invalidate the
search warrant issued by the Regional Trial
Court of Kalookan City because it is directed
toward the seizure of firearms and ammunition
allegedly cached illegally in Quezon City. This
theory is sought to be buttressed by the fact
that the criminal case against petitioners for
violation of Presidential Decree No. 1866 was
subsequently filed in the latter court. The
application for the search warrant, it is claimed,
was accordingly filed in a court of improper
venue and since venue in criminal actions
involves the territorial jurisdiction of the court,
such warrant is void for having been issued by
a court without jurisdiction to do so.
The basic flaw in this reasoning is in
erroneously equating the application for and the
obtention of a search warrant with the institution
and prosecution of a criminal action in a trial
court. It would thus categorize what is only a
special criminal process, the power to issue
which is inherent in all courts, as equivalent to
a criminal action, jurisdiction over which is
reposed in specific courts of indicated
competence. It ignores the fact that the
requisites, procedure and purpose for the
issuance of a search warrant are completely
different from those for the institution of a
criminal action.
For, indeed, a warrant, such as a warrant of
arrest or a search warrant, merely constitutes
process.  A search warrant is defined in our
4
jurisdiction as an order in writing issued in the
name of the People of the Philippines signed by
a judge and directed to a peace officer,
commanding him to search for personal
property and bring it before the court.  A search
5

warrant is in the nature of a criminal process

akin to a writ of discovery. It is a special and
peculiar remedy, drastic in its nature, and made
necessary because of a public necessity.  6

In American jurisdictions, from which we have

taken our jural concept and provisions on
search warrants,   such warrant is definitively
7

considered merely as a process, generally

issued by a court in the exercise of its ancillary
jurisdiction, and not a criminal action to be
entertained by a court pursuant to its original
jurisdiction. We emphasize this fact for
purposes of both issues as formulated in this
opinion, with the catalogue of authorities herein.
Invariably, a judicial process is defined as a
writ, warrant, subpoena, or other formal writing
issued by authority of law; also the means of
accomplishing an end, including judicial
proceedings,   or all writs, warrants,
8
summonses, and orders of courts of justice or
judicial officers.   It is likewise held to include a
9

writ, summons, or order issued in a judicial

proceeding to acquire jurisdiction of a person or
his property, to expedite the cause or enforce
the judgment,   or a writ, warrant, mandate, or
10

other process issuing from a court of justice.  11

2. It is clear, therefore, that a search warrant is

merely a judicial process designed by the Rules
to respond only to an incident in the main case,
if one has already been instituted, or in
anticipation thereof. In the latter contingency, as
in the case at bar, it would involve some judicial
clairvoyance to require observance of the rules
as to where a criminal case may eventually be
filed where, in the first place, no such action
having as yet been instituted, it may ultimately
be filed in a territorial jurisdiction other than that
wherein the illegal articles sought to be seized
are then located. This is aside from the
consideration that a criminal action may be filed
in different venues under the rules for delitos
continuados or in those instances where
different trial courts have concurrent original
jurisdiction over the same criminal offense.
In fact, to illustrate the gravity of the problem
which petitioners' implausible position may
create, we need not stray far from the
provisions of Section 15, Rule 110 of the Rules
of Court on the venue of criminal actions and
which we quote:
Sec. 15. Place where action to be
instituted. —
(a) Subject to existing laws, in all
criminal prosecutions the action shall be
instituted and tried in the court of the
municipality or territory wherein the
offense was committed or any one of
the essential ingredients thereof took
place.
(b) Where an offense is committed on a
railroad train, in an aircraft, or any other
public or private vehicle while in the
course of its trip, the criminal action may
be instituted and tried in the court of any
municipality or territory where such train,
aircraft or other vehicle passed during
 such trip, including the place of
departure and arrival.
(c) Where an offense is committed on
board a vessel in the course of its
voyage, the criminal action may be
instituted and tried in the proper court of
the first port of entry or of any
municipality or territory through which
the vessel passed during such voyage,
subject to the generally accepted
principles of international law.
(d) Other crimes committed outside of
the Philippines but punishable therein
under Article 2 of the Revised Penal
Code shall be cognizable by the proper
court in which the charge is first filed.
(14a)
It would be an exacting imposition upon the law
enforcement authorities or the prosecutorial
agencies to unerringly determine where they
should apply for a search warrant in view of the
uncertainties and possibilities as to the ultimate
venue of a case under the foregoing rules. It
would be doubly so if compliance with that
requirement would be under pain of nullification
of said warrant should they file their application
therefor in and obtain the same from what may
later turn out to be a court not within the ambit
of the aforequoted Section 15.
Our Rules of Court, whether of the 1940, 1964
or the present vintage, and, for that matter, the
Judiciary Act of 1948   or the recent Judiciary
12

Reorganization Act,   have never required the

13

jurisdictional strictures that the petitioners'

thesis would seek to be inferentially drawn from
the silence of the reglementary provisions. On
the contrary, we are of the view that said
statutory omission was both deliberate and
significant. It cannot but mean that the
formulators of the Rules of Court, and even
Congress itself, did not consider it proper or
correct, on considerations of national policy and
the pragmatics of experience, to clamp a legal
manacle on those who would ferret out the
evidence of a crime. For us to now impose such
conditions or restrictions, under the guise of
judicial interpretation, may instead be
reasonably construed as trenching on judicial
legislation. It would be tantamount to a judicial
act of engrafting upon a law something that has
been omitted but which someone believes
ought to have been embraced therein.  14

Concededly, the problem of venue would be

relatively easier to resolve if a criminal case has
already been filed in a particular court and a
search warrant is needed to secure evidence to
be presented therein. Obviously, the court
trying the criminal case may properly issue the
warrant, upon proper application and due
compliance with the requisites therefor, since
such application would only be an incident in
that case and which it can resolve in the
exercise of its ancillary jurisdiction. If the
contraband articles are within its territorial
jurisdiction, there would appear to be no further
complications. The jurisdictional problem would
resurrect, however, where such articles are
outside its territorial jurisdiction, which aspect
will be addressed hereafter.
3. Coming back to the first issue now under
consideration, petitioners, after discoursing on
the respective territorial jurisdictions of the
thirteen Regional Trial Courts which correspond
to the thirteen judicial regions,   invite our
15

attention to the fact that this Court, pursuant to

its authority granted by
law,   has defined the territorial jurisdiction of
16

each branch of a Regional Trial Court   over

17

which the particular branch concerned shall

exercise its
authority.   From this, it is theorized that "only
18

the branch of a Regional Trial Court which has

jurisdiction over the place to be searched could
grant an application for and issue a warrant to
search that place." Support for such position is
sought to be drawn from issuances of this
Court, that is, Circular No. 13 issued on
October 1, 1985, as amended by Circular No.
19 on August 4, 1987.
We reject that proposition. Firstly, it is evident
that both circulars were not intended to be of
general application to all instances involving
search warrants and in all courts as would be
the case if they had been adopted as part of the
Rules of Court. These circulars were issued by
the Court to meet a particular exigency, that is,
as emergency guidelines on applications for
search warrants filed only in the courts of
Metropolitan Manila and other courts with
multiple salas and only with respect to
violations of the Anti-Subversion Act, crimes
against public order under the Revised Penal
Code, illegal possession of firearms and/or
ammunitions, and violations of the Dangerous
Drugs Act. In other words, the aforesaid theory
on the court's jurisdiction to issue search
warrants would not apply to single-
sala courts and other crimes. Accordingly, the
rule sought by petitioners to be adopted by the
Court would actually result in a bifurcated
procedure which would be vulnerable to legal
and constitutional objections.
For that matter, neither can we subscribe to
petitioners' contention that Administrative Order
No. 3 of this Court, supposedly "defining the
limits of the territorial jurisdiction of the Regional
Trial Courts," was the source of the subject
matter jurisdiction of, as distinguished from
the exercise of jurisdiction by, the courts. As
earlier observed, this administrative order was
issued pursuant to the provisions of Section 18
of Batas Pambansa Blg. 129, the pertinent
portion of which states:
Sec. 18. Authority to define territory
appurtenant to each branch. — The
Supreme Court shall define the territory
over which a branch of the Regional
Trial Court shall exercise its authority.
The territory thus defined shall be
deemed to be the territorial area of
the branch concerned for purposes of
determining the venue of all writs,
proceedings or actions, whether civil or
criminal, . . . . (Emphasis ours.)
Jurisdiction is conferred by substantive law, in
this case Batas Pambansa Blg. 129, not by a
procedural law and, much less, by an
administrative order or circular. The jurisdiction
conferred by said Act on regional trial courts
and their judges is basically regional in scope.
Thus, Section 17 thereof provides that "(e)very
Regional Trial Judge shall be appointed to
a region which shall be his permanent station,"
and he "may be assigned by the Supreme
Court to any branch or city or municipality within
the same region as public interest may require,
and such assignment shall not be deemed an
assignment to another station . . ." which,
otherwise, would necessitate a new
appointment for the judge.
In fine, Administrative Order No. 3 and, in like
manner, Circulars Nos. 13 and 19, did not per
se confer jurisdiction on the covered regional
trial court or its branches, such that non-
observance thereof would nullify their judicial
acts. The administrative order merely defines
the limits of the administrative area within which
a branch of the court may exercise its authority
pursuant to the jurisdiction conferred by Batas
Pambansa Blg. 129. The circulars only
allocated to the three executive judges
the administrative areas for which they may
respectively issue search warrants under the
special circumstance contemplated therein, but
likewise pursuant to the jurisdiction vested in
them by Batas Pambansa Blg, 129.
Secondly, and more importantly, we definitely
cannot accept the conclusion that the grant of
power to the courts mentioned therein, to
entertain and issue search warrants where the
place to be searched is within their territorial
jurisdiction, was intended to exclude other
courts from exercising the same power. It will
readily be noted that Circular No. 19 was
basically intended to provide prompt action on
applications for search warrants. Its
predecessor, Administrative Circular No. 13,
had a number of requirements, principally a
raffle of the applications for search warrants, if
they had been filed with the executive judge,
among the judges within his administrative
area. Circular No. 19 eliminated, by
amendment, that required raffle and ordered
instead that such applications should
immediately be "taken cognizance of and acted
upon by the Executive Judges of the Regional
Trial Court, Metropolitan Trial Court, and
Municipal Trial Court under whose jurisdiction
the place to be searched is located," or by their
substitutes enumerated therein.
Evidently, that particular provision of Circular
No. 19 was never intended to confer exclusive
jurisdiction on said executive judges. In view of
the fact, however, that they were themselves
directed to personally act on the applications,
instead of farming out the same among the
other judges as was the previous practice, it
was but necessary and practical to require them
to so act only on applications involving search
of places located within their respective
territorial jurisdictions. The phrase above
quoted was, therefore, in the nature of an
allocation in the assignment of applications
among them, in recognition of human
capabilities and limitations, and not a mandate
for the exclusion of all other courts. In truth,
Administrative Circular No. 13 even specifically
envisaged and anticipated the non-exclusionary
nature of that provision, thus:
4. If, in the implementation of the search
warrant properties are seized
thereunder and the corresponding case
is filed in court, said case shall be
distributed conformably with Circular No.
7 dated September 23, 1974, of this
Court, and thereupon tried and decided
by the judge to whom it has been
assigned, and not necessarily by the
 judge who issued the search warrant.
(Emphasis supplied.)
It is, therefore, incorrect to say that only
the court which has jurisdiction over the criminal
case can issue the search warrant, as would be
the consequence of petitioners' position that
only the branch of the court with jurisdiction
over the place to be searched can issue a
warrant to search the same. It may be
conceded, as a matter of policy, that where a
criminal case is pending, the court wherein it
was filed, or the assigned branch thereof,
has primaryjurisdiction to issue the search
warrant; and where no such criminal case has
yet been filed, that the executive judges or their
lawful substitutes in the areas and for the
offenses contemplated in Circular No. 19 shall
have primary jurisdiction.
This should not, however, mean that a court
whose territorial jurisdiction does not embrace
the place to be searched cannot issue a search
warrant therefor, where the obtention of that
search warrant is necessitated and justified by
compelling considerations of urgency, subject,
time and place. Conversely, neither should a
search warrant duly issued by a court which
has jurisdiction over a pending criminal case, or
one issued by an executive judge or his lawful
substitute under the situations provided for by
Circular No. 19, be denied enforcement or
nullified just because it was implemented
outside the court's territorial jurisdiction.
This brings us, accordingly, to the second issue
on the permissible jurisdictional range of
enforcement of search warrants.
II
As stated in limine, the affiliated issue raised in
this case is whether a branch of a regional trial
court has the authority to issue a warrant for the
search of a place outside its territorial
jurisdiction. Petitioners insistently answer the
query in the negative. We hold otherwise.
1. We repeat what we have earlier stressed: No
law or rule imposes such a limitation on search
warrants, in the same manner that no such
restriction is provided for warrants of arrest.
Parenthetically, in certain states within the
American jurisdiction, there were limitations of
the time wherein a warrant of arrest could be
enforced. In our jurisdiction, no period is
provided for the enforceability of warrants of
arrest, and although within ten days from the
delivery of the warrant of arrest for execution a
return thereon must be made to the issuing
judge,   said warrant does not become functus
19

officio but is enforceable indefinitely until the

same is enforced or recalled. On the other
hand, the lifetime of a search warrant has been
expressly set in our Rules at ten days   but
20

there is no provision as to the extent of the

territory wherein it may be enforced, provided it
is implemented on and within the premises
specifically described therein which may or may
not be within the territorial jurisdiction of the
issuing court.
We make the foregoing comparative
advertence to emphasize the fact that when the
law or rules would provide conditions,
qualifications or restrictions, they so state.
Absent specific mention thereof, and the same
not being inferable by necessary implication
from the statutory provisions which are
presumed to be complete and expressive of the
intendment of the framers, a contrary
interpretation on whatever pretext should not be
countenanced.
A bit of legal history on this contestation will be
helpful. The jurisdictional rule heretofore was
that writs and processes of the so-called inferior
courts could be enforced outside the province
only with the approval of the former court of first
instance.   Under the Judiciary Reorganization
21

Act, the enforcement of such writs and

processes no longer needs the approval of the
regional trial court.   On the other hand, while,
22

formerly, writs and processes of the then courts

of first instance were enforceable throughout
the Philippines,   under the Interim or
23

Transitional Rules and Guidelines,

certain specified writs issued by a regional trial
court are now enforceable only within its judicial
region. In the interest of clarity and contrast, it is
necessary that said provision be set out in full:
3. Writs and processes. —
 (a) Writs of certiorari, prohibition
mandamus, quo warranto, habeas
corpus and injunction issued by a
regional trial court may be enforced in
any part of the region.
(b) All other processes, whether issued
by a regional trial court or a metropolitan
trial court, municipal trial court or
municipal circuit trial court may be
served anywhere in the Philippines, and,
in the last three cases, without a
certification by the judge of the regional
trial court. (Emphasis ours.)
We feel that the foregoing provision is too clear
to be further belabored or enmeshed in
unwarranted polemics. The rule enumerates the
writs and processes which, even if issued by a
regional trial court, are enforceable only within
its judicial region. In contrast, it unqualifiedly
provides that all other writs and processes,
regardless of which court issued the same,
shall be enforceable anywhere in the
Philippines. As earlier demonstrated, a search
warrant is but a judicial process, not a criminal
action. No legal provision, statutory or
reglementary, expressly or impliedly provides a
jurisdictional or territorial limit on its area of
enforceability. On the contrary, the above-
quoted provision of the interim
Rules expressly authorizes its enforcement
anywhere in the country, since it is not among
the processes specified in paragraph (a) and
there is no distinction or exception made
regarding the processes contemplated in
paragraph (b).
2. This is but a necessary and inevitable
consequence of the nature and purpose of a
search warrant. The Court cannot be blind to
the fact that it is extremely difficult, as it
undeniably is, to detect or elicit information
regarding the existence and location of illegally
possessed or prohibited articles. The Court is
accordingly convinced that it should not make
the requisites for the apprehension of the
culprits and the confiscation of such illicit items,
once detected, more onerous if not impossible
by imposing further niceties of procedure or
substantive rules of jurisdiction through
decisional dicta. For that matter, we are
unaware of any instance wherein a search
warrant was struck down on objections based
on territorial jurisdiction. In the landmark case
of Stonehill, et al. vs. Diokno, et al.,   the
24

searches in the corporate offices in Manila and

the residences in Makati of therein petitioners
were conducted pursuant to search warrants
issued by the Quezon City and Pasig branches
of the Court of First Instance of Rizal and by the
Municipal Courts of Manila and Quezon
City,   but the same were never challenged on
25

jurisdictional grounds although they were

subsequently nullified for being general
warrants.
3. A clarion call supposedly of libertarian import
is further sounded by petitioners, dubiously
invoking the constitutional proscription against
illegal searches and seizures. We do not
believe that the enforcement of a search
warrant issued by a court outside the territorial
jurisdiction wherein the place to be searched is
located would create a constitutional question.
Nor are we swayed by the professed
apprehension that the law enforcement
authorities may resort to what could be a
permutation of forum shopping, by filing an
application for the warrant with a "friendly"
court. It need merely be recalled that a search
warrant is only a process, not an action.
Furthermore, the constitutional mandate is
translated into specifically enumerated
safeguards in Rule 126 of the 1985 Rules on
Criminal Procedure for the issuance of a search
warrant,   and all these have to be observed
26

regardless of whatever court in whichever

region is importuned for or actually issues a
search warrant. Said requirements, together
with the ten-day lifetime of the warrant   would
27

discourage resort to a court in another judicial

region, not only because of the distance but
also the contingencies of travel and the danger
involved, unless there are really compelling
reasons for the authorities to do so. Besides, it
does seem odd that such constitutional protests
have not been made against warrants of arrest
which are enforceable indefinitely and
anywhere although they involve, not only
property and privacy, but persons and liberty.
On the other hand, it is a matter of judicial
knowledge that the authorities have to contend
now and then with local and national criminal
syndicates of considerable power and
influence, political or financial in nature, and so
pervasive as to render foolhardy any attempt to
obtain a search warrant in the very locale under
their sphere of control. Nor should we overlook
the fact that to do so will necessitate the
transportation of applicant's witnesses to and
their examination in said places, with the
attendant risk, danger and expense. Also, a
further well-founded precaution, obviously born
of experience and verifiable data, is articulated
by the court a quo, as quoted by respondent
court:
This court is of the further belief that the
possible leakage of information which is
of utmost importance in the issuance of
a search warrant is secured (against)
where the issuing magistrate within the
region does not hold court sessions in
the city or municipality, within the region,
where the place to be searched is
located.  28
The foregoing situations may also have
obtained and were taken into account in the
foreign judicial pronouncement that, in
the absence of statutory restrictions, a justice of
the peace in one district of the county may
issue a search warrant to be served in another
district of the county and made returnable
before the justice of still another district or
another court having jurisdiction to deal with the
matters involved.   In the present state of our
29

law on the matter, we find no such statutory

restrictions both with respect to the court which
can issue the search warrant and the
enforcement thereof anywhere in the
Philippines.
III
Concern is expressed over possible conflicts of
jurisdiction (or, more accurately, in
the exercise of jurisdiction) where the criminal
case is pending in one court and the search
warrant is issued by another court for the
seizure of personal property intended to be
used as evidence in said criminal case. This
arrangement is not unknown or without
precedent in our jurisdiction. In fact, as
hereinbefore noted, this very situation was
anticipated in Circular No. 13 of this Court
under the limited scenario contemplated
therein.
Nonetheless, to put such presentiments to rest,
we lay down the following policy guidelines:
1. The court wherein the criminal case is
pending shall have primary jurisdiction to issue
search warrants necessitated by and for
purposes of said case. An application for a
search warrant may be filed with another court
only under extreme and compelling
circumstances that the applicant must prove to
the satisfaction of the latter court which may or
may not give due course to the application
depending on the validity of the justification
offered for not filing the same in the court with
primary jurisdiction thereover.
2. When the latter court issues the search
warrant, a motion to quash the same may be
filed in and shall be resolved by said court,
without prejudice to any proper recourse to the
appropriate higher court by the party aggrieved
by the resolution of the issuing court. All
grounds and objections then available, existent
or known shall be raised in the original or
subsequent proceedings for the quashal of the
warrant, otherwise they shall be deemed
waived.
3. Where no motion to quash the search
warrant was filed in or resolved by the issuing
court, the interested party may move in the
court where the criminal case is pending for the
suppression as evidence of the personal
property seized under the warrant if the same is
offered therein for said purpose. Since two
separate courts with different participations are
involved in this situation, a motion to quash a
search warrant and a motion to suppress
evidence are alternative and not cumulative
remedies. In order to prevent forum shopping, a
motion to quash shall consequently be
governed by the omnibus motion rule, provided,
however, that objections not available, existent
or known during the proceedings for the
quashal of the warrant may be raised in the
hearing of the motion to suppress. The
resolution of the court on the motion to
suppress shall likewise be subject to any proper
remedy in the appropriate higher court.
4. Where the court which issued the search
warrant denies the motion to quash the same
and is not otherwise prevented from further
proceeding thereon, all personal property
seized under the warrant shall forthwith be
transmitted by it to the court wherein the
criminal case is pending, with the necessary
safeguards and documentation therefor.
5. These guidelines shall likewise be observed
where the same criminal offense is charged in
different informations or complaints and filed in
two or more courts with concurrent original
jurisdiction over the criminal action. Where the
issue of which court will try the case shall have
been resolved, such court shall be considered
as vested with primary jurisdiction to act on
applications for search warrants incident to the
criminal case.
WHEREFORE, on the foregoing premises, the
instant petition is DENIED and the assailed
judgment of respondent Court of Appeals in
CA-G.R. SP No. 23533 is hereby AFFIRMED.
SO ORDERED.

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION
FOR HABEAS CORPUS OF ROBERTO UMIL,
ROLANDO DURAL and RENATO
VILLANUEVA, MANOLITA O. UMIL and
NICANOR P. DURAL, FELICITAS V.
SESE, petitioners, 
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE
VILLA, BRIG. GEN. RAMON MONTANO,
BRIG. GEN. ALEXANDER
AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO
BUENAOBRA, petitioners, 
vs.
GEN. RENATO DE VILLA and GEN, RAMON
MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION
FOR HABEAS CORPUS OF ATTY. DOMINGO
T. ANONUEVO and RAMON CASIPLE:
DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners, 
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S.
DE VILLA, COL. EVARISTO CARIÑO, LT.
COL. REX D. PIAD, T/SGT. CONRADO DE
TORRES, S/SGT. ARNOLD DURIAN, and
Commanding Officer, PC-INP Detention
Center, Camp Crame, Quezon
City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION
FOR HABEAS CORPUS OF VICKY A.
OCAYA AND DANNY RIVERA: VIRGILIO A.
OCAYA, petitioners, 
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL.
HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION
FOR HABEAS CORPUS OF DEOGRACIAS
ESPIRITU, petitioner, 
vs.
BRIG. GEN.ALFREDO S. LIM, COL.
RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF NARCISO B.
NAZARENO: ALFREDO
NAZARENO,petitioner, 
vs.
THE STATION COMMANDER OF THE
MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO
MEDINA, P/SGT. ELADIO TAGLE, P/SGT.
LEVI SOLEDAD, and P/SGT. MALTRO
AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No.
81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R.
Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in
G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R.
No. 85727.
The Solicitor General for the respondents.
RESOLUTION

PER CURIAM: p

Before the Court are separate motions filed by

the petitioners in the above-entitled petitions,
seeking reconsideration of the Court's decision
promulgated on 9 July 1990 (the decision, for
brevity) which dismissed the petitions, with the
following dispositive part:
WHEREFORE, the petitions are hereby
DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for
petitioner's provisional liberty is hereby
 ordered reduced from P60,000.00 to
P10,000.00. No costs.
The Court avails of this opportunity to clarify its
ruling a begins with the statement that the
decision did not rule — as many misunderstood
it to do — that mere suspicion that one is
Communist Party or New People's Army
member is a valid ground for his arrest without
warrant. Moreover, the decision merely
applied long existing laws to the factual
situations obtaining in the several petitions.
Among these laws are th outlawing the
Communist Party of the Philippines (CPP)
similar organizations and penalizing
membership therein be dealt with shortly). It is
elementary, in this connection, if these laws no
longer reflect the thinking or sentiment of the
people, it is Congress as the elected
representative of the people — not the Court —
that should repeal, change or modify them.
In their separate motions for reconsideration,
petitioners, in sum, maintain:
 1. That the assailed decision, in upholding
the validity of the questioned arrests made
without warrant, and in relying on the
provisions of the Rules of Court, particularly
Section 5 of Rule 113 (Arrest), disregards
the fact that such arrests violated the
constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs.
Enrile  1 and Ilagan vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the

persons arrested as to their membership in the Communist Party of the
Philippines/New People's Army, and their ownership of the unlicensed
firearms, ammunitions and subversive documents found in their possession
at the time of arrest, inasmuch as those confessions do not comply with the
requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and
academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules

 The writ of habeas corpus exists as a

of Court. 3

speedy and effective remedy to relieve persons

from unlawful restraint.   Therefore, the function 4

of the special proceedings of habeas corpus is

to inquire into the legality of one's detention,  5 so that

if detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was illegal or
not, the Court before rendering decision dated 9 July 1990, looked into whether
their questioned arrests without warrant were made in accordance with law. For, if
the arrests were made in accordance with law, would follow that the detention
resulting from such arrests also in accordance with law.

There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a

 The law expressly

warrant of arrest, except in those cases express authorized by law. 6

allowing arrests witho warrant is found in

Section 5, Rule 113 of the Rules of Court which
states the grounds upon which a valid arrest,
without warrant, can be conducted.
In the present cases, the focus is
understandably on Section 5, paragraphs (a)
and (b) of the said Rule 113, which read:
 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 he
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
arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that
the arrest Rolando Dural (G.R. No.
81567) without warrant is justified it can be said
that, within the contemplation of Section 5 Rule
113, he (Dural) was committing an offense,
when arrested because Dural was arrested for
being a member of the New People's Army, an
outlawed organization, where membership
penalized,   and for subversion which, like
7

rebellion is, under the doctrine of Garcia vs.

Enrile,  a continuing offense, thus:
8
 The crimes of insurrection or rebellion,
subversion, conspiracy or proposal to
commit such crimes, and other crimes and
offenses committed in the furtherance (sic)
on the occasion thereof, or incident thereto,
or in connection therewith under
Presidential Proclamation No. 2045, are all
in the nature of continuing offenses which
set them apart from the common offenses,
aside from their essentially involving a
massive conspiracy of nationwide
magnitude. . . .
Given the ideological content of membership in
the CPP/NPA which includes armed struggle for
the overthrow of organized government, Dural
did not cease to be, or became less of a
subversive, FOR PURPOSES OF ARREST,
simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. Dural was
identified as one of several persons who the
day before his arrest, without warrant, at the St.
Agnes Hospital, had shot two (2) CAPCOM
policemen in their patrol car. That Dural had
shot the two (2) policemen in Caloocan City as
part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural,
given another opportunity, would have shot or
would shoot other policemen anywhere as
agents or representatives of organized
government. It is in this sense that subversion
like rebellion (or insurrection) is perceived here
as a continuing offense. Unlike other so-called
"common" offenses, i.e. adultery, murder,
arson, etc., which generally end upon their
commission, subversion and rebellion are
anchored on an ideological base which compels
the repetition of the same acts of lawlessness
and violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was
grounded on mere suspicion by the arresting
officers of his membership in the CPP/NPA. His
arrest was based on "probable cause," as
supported by actual facts that will be shown
hereafter.
Viewed from another but related perspective, it
may also be said, under the facts of the Umil
case, that the arrest of Dural falls under Section
5, paragraph (b), Rule 113 of the Rules of
Court, which requires two (2) conditions for a
valid arrestt without warrant: first, that the
person to be arrested has just committed an
offense, and second, that the arresting peace
officer or private person has personal
knowledge of facts indicating that the person to
be arrested is the one who committed the
offense. Section 5(b), Rule 113, it will be noted,
refers to arrests without warrant, based on
"personal knowledge of facts" acquired by the
arresting officer or private person.
It has been ruled that "personal knowledge of
facts," in arrests without warrant must be based
upon probable cause, which means an actual
belief or reasonable grounds of suspicion  9

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances

 A
sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10

reasonable suspicion therefore must be

founded on probable cause, coupled with good
faith on the part of the peace officers making
the arrest.  11
These requisites were complied with in the Umil case and in the other cases at
bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue,
Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who
had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the
said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31
January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based
on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22)
years old of Block 10, Lot 4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect that an
NPA member ("sparrow unit") was being treated for a gunshot wound in the named
hospital, is deemed reasonable and with cause as it was based on actual facts and
supported by circumstances sufficient to engender a belief that an NPA member
was truly in the said hospital. The actual facts supported by circumstances
are:  first — the day before, or on 31 January 1988, two (2) CAPCOM soldiers
were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including
Dural; second — a wounded person listed in the hospital records as "Ronnie
Javellon" was actually then being treated in St. Agnes Hospital for a gunshot
wound; third — as the records of this case disclosed later, "Ronnie Javellon" and
his address entered in the hospital records were fictitious and the wounded man
was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it

was found to be true. Even the petitioners in their motion for reconsideration, 13
 believe that the
confidential information of the arresting officers
to the effect that Dural was then being treated
in St. Agnes Hospital was actually received
from the attending doctor and hospital
management in compliance with the directives
of the law,   and, therefore, came from reliable
14

sources.
As to the condition that "probable cause" must
also be coupled with acts done in good faith by
the officers who make the arrest, the Court
notes that the peace officers wno arrested
Dural are deemed to have conducted the same
in good faith, considering that law enforcers are
presumed to regularly perform their official
duties. The records show that the arresting
officers did not appear to have been ill-
motivated in arresting Dural.   It is therefore
15

clear that the arrest, without warrant, of Dural

was made in compliance with the requirements
of paragraphs (a) and (b) of Section 5, Rule
113.
Parenthetically, it should be mentioned here
that a few day after Dural's arrest, without
warrant, an information charging double murder
with assault against agents of persons in
authority was filed against Dural in the Regional
Trial Court of Caloocan City (Criminal Case No.
C-30112). He was thus promptly placed under
judicial custody (as distinguished fro custody of
the arresting officers). On 31 August 1988, he
wa convicted of the crime charged and
sentenced to reclusion perpetua. The judgment
of conviction is now on appeal before this Court
in G.R. No. 84921.
As to Amelia Roque and Wilfredo
Buenaobra (G.R. Nos. 84581-82), Domingo
Anonuevo and Ramon Casiple (G.R. Nos.
84583-84) and Vicky Ocaya (G.R. No. 83162),
their arrests, without warrant, are also justified.
They were searched pursuant to search
warrants issued by a court of law and were
found wit unlicensed firearms, explosives
and/or ammunition in their persons. They were,
therefore, caught in flagrante delicto which
justified their outright arrests without warrant,
under Sec 5(a), Rule 113, Rules of Court.
Parenthetically, it should be mentioned here
that a few davs after their arrests without
warrant, informations were filed in court against
said petitioners, thereby placing them within
judicial custody and disposition. Furthermore,
Buenaobra mooted his own petition fo habeas
corpus by announcing to this Court during the
hearing of these petitions that he had chosen to
remain in detention in the custody of the
authorities.
More specifically, the antecedent facts in the
"in flagrante" cases are:
1. On 27 June 1988, the military agents
received information imparted by a former
NPA about the operations of the CPP and
NPA in Metro Manila and that a certain
house occupied by one Renato
Constantine, located in the Villaluz
Compound, Molave St., Marikina Heights,
Marikina, Metro Manila was being used as
their safehouse; that in view of this
information, the said house was placed
under military surveillance and on 12
August 1988, pursuant to a search warrant
duly issued by court, a search of the house
was conducted; that when Renato
Constantine was then confronted he could
 not produce any permit to possess the
firearms, ammunitions, radio and other
communications equipment, and he
admitted that he was a ranking member of
the CPP.  16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato

Constantino in the evening of 12 August 1988, and admitted that he was an
NPA courier and he had with him letters to Renato Constantine and other
members of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his
possession papers leading to the whereabouts of Roque;17 that, at the time of her arrest, the military agents found
subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when
they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them,
subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess
them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises
ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of
a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and
Investigation found ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and

Ocaya) that the reason which compelled the military agents to make the arrests
without warrant was the information given to the military authorities that two (2)
safehouses (one occupied by Renato Constantine and the other by Benito
Tiamzon) were being used by the CPP/NPA for their operations, with information
as to their exact location and the names of Renato Constantine and Benito
Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded said
arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief
of the military agents that the information they had received was true and the
persons to be arrested were probably guilty of the commission of certain
crimes:  first: search warrant was duly issued to effect the search of the
Constantine safehouse; second: found in the safehouse was a person named
Renato Constantine, who admitted that he was a ranking member of the CPP, and
found in his possession were unlicensed firearms and communications
equipment; third: at the time of their arrests, in their possession were unlicensed
firearms, ammunitions and/or subversive documents, and they admitted ownership
thereof as well as their membership in the CPP/NPA. And then, shortly after their
arrests, they were positively identified by their former comrades in the organization
as CPP/NPA members. In view of these circumstances, the corresponding
informations were filed in court against said arrested persons. The records also
show that, as in the case of Dural, the arrests without warrant made by the military
agents in the Constantino safehouse and later in the Amelia Roque house, do not
appear to have been ill-motivated or irregularly performed.

With all these facts and circumstances existing before, during and after the arrest
of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and
Ocaya), no prudent an can say that it would have been better for the military
agents not to have acted at all and made any arrest. That would have been an
unpardonable neglect of official duty and a cause for disciplinary action against the
peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial
authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and

 An arrest is therefore in the nature

secure the punishment therefor. 21

of an administrative measure. The power to

arrest without warrant is without limitation as
long as the requirements of Section 5, Rule 113
are met. This rule is founded on an
overwhelming public interest in peace and order
in our communities.
In ascertaining whether the arrest without
warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this
Court determines not whether the persons
arrested are indeed guilty of committing the
crime for which they were arrested.   Not 22

evidence of guilt, but "probable cause" is the

reason that can validly compel the peace
officers, in the performance of their duties and
in the interest of public order, to conduct an
arrest without warrant.  23
The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5,
Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the

 But if they do not strictly comply

arresting officers are not liable. 24

with the said conditions, the arresting officers

can be held liable for the crime of arbitrary
detention,   for damages under Article 32 of the
25

Civil Code   and/or for other administrative

26

sanctions.
In G.R. No. 85727, Espiritu, on 23 November
1988, was arrested without warrant, on the
basis of the attestation of certain witnesses:
that about 5:00 o'clock in the afternoon of 22
November 1988, at the corner of Magsaysay
Boulevard and Velencia St., Sta. Mesa, Manila,
Espiritu spoke at a gathering of drivers and
sympathizers, where he said, among other
things:
Bukas tuloy ang welga natin . . . hanggang
sa magkagulona.  27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November

1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28
 Espiritu
was arrested without warrant, not for
subversion or any "continuing offense," but for
uttering the above-quoted language which, in
the perception of the arresting officers,
was inciting to sedition.
Many persons may differ as to the validity of
such perception and regard the language as
falling within free speech guaranteed by the
Constitution. But, then, Espiritu had not lost the
right to insist, during the pre-trial or trial on the
merits, that he was just exercising his right to
free speech regardless of the charged
atmosphere in which it was uttered. But, the
authority of the peace officers to make the
arrest, without warrant, at the time the words
were uttered, or soon thereafter, is still another
thing. In the balancing of authority and freedom,
which obviously becomes difficult at times, the
Court has, in this case, tilted the scale in favor
of authority but only for purposes of the
arrest(not conviction). Let it be noted that the
Court has ordered the bail for Espiritu's release
to be reduced from P60,000.00 to P10,000.00.
Let it also be noted that supervening events
have made the Espiritu case moot and
academic. For Espiritu had before arraignment
asked the court a quo for re-investigation, the
peace officers did not appear. Because of this
development, the defense asked the court a
quo at the resumption of the hearings to
dismiss the case. Case against Espiritu
(Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond
cancelled.
In G.R. No. 86332 (Nazareno), the records
show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men
in Alabang, Muntinlupa, Metro Manila; that at
about 5:00 o'clock in the morning of 28
December 1988, Ramil Regala, one of the
suspects in the said killing, was arrested and he
pointed to Narciso Nazareno as one of his
companions during the killing of Bunye II; that
at 7:20 of the same morning (28 December
1988), the police agents arrested Nazareno,
without warrant, for investigation.  29

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's

arrest without warrant was made only on 28 December 1988, or 14 days later, the
arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988
that the police authorities came to know that Nazareno was probably one of those
guilty in the killing of Bunye II and the arrest had to be made promptly, even
without warrant, (after the police were alerted) and despite the lapse of fourteen
(14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the arrest
without warrant of Nazareno noted several facts and events surrounding his arrest
and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an
information charging Narciso Nazareno, Ramil Regala and two (2) others,
with the killing of Romulo Bunye II was filed wit the Regional Trial Court of
Makati, Metro Manila. The case is dock eted therein as Criminal Case No.
731.

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

On 13 January 1989, a petition for habeas corpus was filed with this Court

on behalf of Narciso Nazareno and on 13 January 1989, the Court issued
the writ of habeas corpus, retumable to the Presiding Judge of the Regional
Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case
on 30 January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge

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

This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the

corresponding informations against them were filed in court. The arrests of Espiritu
and Nazareno were based on probable cause and supported by factual
circumstances. They complied with conditions set forth in Section 5(b) of Rule 113.
They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted
by the court a quo for murder and sentenced to reclusion perpetua. He has
appealed the judgment of conviction to the Court of Appeals where it is pending as
of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution
requisiteds for admissibility of an extrajudicial admission.

 that he was an NPA

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30

courier. On the other hand, in the case

of Amelia Roque, she admitted   that the 31

unlicensed firearms, ammunition and

subversive documents found in her possession
during her arrest, belonged to her.
The Court, it is true, took into account the
admissions of the arrested persons of their
membership in the CPP/NPA, as well as their
ownership of the unlicensed firearms,
ammunitions and documents in their
possession. But again, these admissions, as
revealed by the records, strengthen the Court's
perception that truly the grounds upon which
the arresting officers based their arrests without
warrant, are supported by probable cause, i.e.
that the persons arrested were probably guilty
of the commission of certain offenses, in
compliance with Section 5, Rule 113 of the
Rules of Court. To note these admissions, on
the other hand, is not to rule that the persons
arrested are already guilty of the offenses upon
which their warrantless arrests were predicated.
The task of determining the guilt or innocence
of persons arrested without warrant is not
proper in a petition for habeas corpus. It
pertains to the trial of the case on the merits.
As to the argument that the doctrines in Garcia
vs. Enrile, and Ilagan vs. Enrile should be
abandoned, this Court finds no compelling
reason at this time to disturb the same,
particularly ln the light of prevailing conditions
where national security and liability are still
directly challenged perhaps with greater vigor
from the communist rebels. What is important is
that everv arrest without warrant be tested as to
its legality via habeas corpus proceeding. This
Court. will promptly look into — and all other
appropriate courts are enjoined to do the same
— the legality of the arrest without warrant so
that if the conditions under Sec. 5 of Rule 113,
Rules of Court, as elucidated in this Resolution,
are not met, then the detainee shall forthwith be
ordered released; but if such conditions are
met, then the detainee shall not be made to
languish in his detention but must be promptly
tried to the end that he may be either acquitted
or convicted, with the least delay, as warranted
by the evidence.
A Final Word
This Resolution ends as it began, reiterating
that mere suspicion of being a Communist
Party member or a subversive is absolutely
not a ground for the arrest without warrant of
the suspect. The Court predicated the validity of
the questioned arrests without warrant in these
petitions, not on mere unsubstantiated
suspicion, but on compliance with the
conditions set forth in Section 5, Rule 113,
Rules of Court, a long existing law, and which,
for stress, are probable cause and good faith of
the arresting peace officers, and, further, on the
basis of, as the records show, the actual facts
and circumstances supporting the arrests. More
than the allure of popularity or palatability to
some groups, what is important is that the
Court be right.
ACCORDINGLY, the motions for
reconsideration of the decision dated 9 July
1990, are DENIED. This denial is FINAL.
SO ORDERED.

G.R. No. 93828 December 11, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, 
vs.
SANTIAGO EVARISTO and NOLI
CARILLO, accused-appellants.
 
PADILLA, J.:
This is an appeal from the decision of the
Regional Trial Court of Trece Martires,
Cavite, * in Criminal Case No. NC-267, entitled
"People of the Philippines v. Santiago Evaristo
and Noli Carillo," finding the accused guilty of
illegal possession of firearms in violation of
Presidential Decree No. 1866 and accordingly
sentencing them to the penalty of life
imprisonment.
The information indicting the accused-
appellants (hereinafter referred to as the
appellants) reads:
The undersigned Assistant Provincial
Fiscal accuses SANTIAGO EVARISTO
AND NOLI CARILLO of the crime of
VIOLATION of P.D. 1866, committed as
follows:
That on or about the 23rd. day of August
1988, in the Municipality of Mendez,
Province of Cavite, Philippines and
within the jurisdiction of this Honorable
Court, the above-named accused being
private persons not authorized by law
did then and there, willfully, unlawfully
and feloniously manufacture, repair and
kept (sic) in their possession, custody
and control one (1) caliber 38 revolver
(paltik) with two live ammunition and
one (1) empty shell of said caliber, two
(2) 12 gauge home made shot guns,
one (1) caliber 22 revolver (sumpak)
and two (2) vise grips and one (1) plier
use (sic) in the manufacture and repair
of said firearms without any permit or
license from competent (sic) authority.
CONTRATRY (sic) TO LAW.
Cavite City, August 30, 1988.  1
Appellants having entered a plead of not guilty,
trial thereupon commenced, with the
prosecution and the defense presenting their
respective witnesses and evidence to support
their divergent versions of the events leading to
the arrest of the appellants.
A careful review of the records and the
testimony of the prosecution witnesses, Sgt.
Eladio Romeroso and CIC Edgardo Vallarta of
the Philippine Constabulary, indicates that on
the day in question, a contingent composed of
Romeroso and Vallarta, together with a Sgt.
Daniel Maligaya, also of the Philippine
Constabulary, and two (2) members of the
Integrated National Police, were on routine
patrol duty in Barangay III, Mendez, Cavite. At
or about 5:50 in the afternoon, successive
bursts of gunfire were heard in the vicinity.
Proceeding to the approximate source of the
same, they came upon one Barequiel Rosillo
who was firing a gun into the air.
Seeing the patrol, Rosillo ran to the nearby
house of appellant Evaristo prompting the
lawmen to pursue him. Upon approaching the
immediate perimeter of the house, specifically a
cement pavement or porch leading to the same,
the patrol chanced upon the slightly inebriated
appellants, Evaristo and Carillo. Inquiring as to
the whereabouts of Rosillo, the police patrol
members were told that he had already
escaped through a window of the house. Sgt.
Vallarta immediately observed a noticeable
bulge around the waist of Carillo who, upon
being frisked, admitted the same to be a .38
revolver. After ascertaining that Carillo was
neither a member of the military nor had a valid
license to possess the said firearm, the gun
was confiscated and Carillo invited for
questioning.
As the patrol was still in pursuit of Rosillo, Sgt.
Romeroso sought Evaristo's permission to
scour through the house, which was granted. In
the sala, he found, not Rosillo, but a number of
firearms and paraphernalia supposedly used in
the repair and manufacture of firearms, all of
which, thereafter, became the basis for the
present indictment against Evaristo.
For their part, the appellants dispute the above
narration of the events in question, alleging that
they were forcibly taken into custody by the
police officers and even subjected to physical
and mental indignities. They denied ownership
or knowledge of any of the firearms presented
in evidence, contending that these were
purposely planted in their possession by the
prosecution witnesses and other police
authorities.
After evaluation of all the evidence, the trial
court rendered the now-assailed decision dated
18 April 1990, the dispositive portion of which
reads:
Wherefore, for having possessed
firearms in violation of P.D. No. 1866,
accused Santiago Evaristo and Noli
Carillo are hereby sentenced to serve
the penalty provided for under Sec. 1
thereof. The full period of their
preventive imprisonment shall be
deducted from the aforementioned
penalty.
 With costs de oficio.
SO ORDERED.  2

Hence, this petition, assigning the following as

errors of the trial court:
1. The lower court gravely erred in
admitting Exhibits "B" to "F" in evidence
considering that those are illegally
seized evidence;
2. The lower court gravely erred in
finding that said illegally seized
evidence are firearms as contemplated
in Presidential Decree No. 1866; and
3. The lower court gravely erred in
giving credence to the arresting officer's
testimonies which are patently
contradictory and half truths (sic)
testimonies.  3

First, on the issue of illegal search. The

pertinent rule on the matter is Article III of the
Constitution, the relevant portion of 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 under
oath or affirmation of the complainant
and the witnesses he may produce, and
particularly describing the place to be
searched and the persons or things to
be seized.
Sec. 3. (1) . . . .
(2) Any evidence obtained in violation of
this or the preceding section shall be
inadmissible for any purpose in any
proceeding.
It is to be noted that what the above
constitutional provisions prohibit
are unreasonable searches and seizures. For a
search to be reasonable under the law, there
must, as a rule, be a search warrant validly
issued by an appropriate judicial officer. Yet,
the rule that searches and seizures must be
supported by a valid search warrant is not an
absolute and inflexible rule, for jurisprudence
has recognized several exceptions to the
search warrant requirement. Among
these exceptions is the seizure of evidence in
plain view, adopted by this jurisdiction from the
pronouncements of the United States
Supreme Court in Harris vs. U.S.  and Coolidge
4

vs. New Hampshire.   Thus, it is recognized

5

that objects inadvertently falling in the plain

view of an officer who has the right to be in the
position to have that view, are subject to
seizure and may be introduced in evidence.  6

The records in this case show that Sgt.

Romerosa was granted permission by the
appellant Evaristo to enter his house. The
officer's purpose was to apprehend Rosillo
whom he saw had sought refuge therein.
Therefore, it is clear that the search for firearms
was not Romerosa's purpose in entering the
house, thereby rendering his discovery of the
subject firearms as inadvertent and even
accidental.
With respect to the firearms seized from the
appellant Carillo, the Court sustains the validly
of the firearm's seizure and admissibility in
evidence, based on the rule on authorized
warrantless arrests. Section 5, Rule 113 of the
1985 Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when
lawful. — A peace officer or a private
person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to
be arrested has committed, is actually
committing, or is attempting to commit
an offense;
(b) When an offense has in fact just
been committed, and he has personal
knowledge of facts indicating that the
person to be arrested has committed it;
and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is
serving final judgment or temporarily
 confined while his case is pending, or
has escaped while being transferred
from one confinement to another.
For purposes of the present case, the second
circumstance by which a warrantless arrest
may be undertaken is applicable. For, as
disclosed by the records, the peace officers,
while on patrol, heard bursts of gunfire and this
proceeded to investigate the matter. This
incident may well be within the "offense"
envisioned by par. 5 (b) of Rule 113, Rules of
Court. As the Court held in People of the
Philippines v. Sucro,   "an offense is committed
7

in the presence or within the view of an officer,

within the meaning of the rule authorizing an
arrest without a warrant, when the officer sees
the offense, although at a distance, or HEARS
THE DISTURBANCES CREATED THEREBY
AND PROCEEDS AT ONCE TO THE SCENE
THEREOF." 8

The next inquiry is addressed to the existence

of personal knowledge on the part of the peace
officer of facts pointing to the person to be
arrested as the perpetrator of the offense.
Again, reference to the records resolves said
query. Giving chase to Rosillo, the peace
officers came upon the two (2) appellants who
were then asked concerning Rosillo's
whereabouts. At that point, Sgt. Vallarta
discerned the bulge on the waist of Carillo. This
visual observation along with the earlier report
of gunfire, as well as the peace officer's
professional instincts, are more than sufficient
to pass the test of the Rules. Consequently,
under the facts, the firearm taken from Carillo
can be said to have been seized incidental to a
lawful and valid arrest.
The next area to be addressed is the allegation
of the appellants that the statute's coverage
does not extend to firearms that are not
functional or serviceable. The Court does not
agree.
Section 1 of P.D. No. 1866 penalizes "any
person who shall unlawfully manufacture, deal
in, acquire, dispose, orpossess any firearms,
PART OF FIREARM, ammunition or machinery,
tool or instrument used or intended to be used
in the manufacture of any firearm or
ammunition."   It is clear that the law makes no
9

distinction as to serviceable or functional

firearms. Indeed, the possession of even a part
of a firearm is sufficient to come within the
prohibitive ambit of the statute. Ubi lex non
distinguit nec nos distinguere debemus.
Lastly, the appellants challenge the veracity of
the testimonies of the prosecution witnesses,
maintaining that these were inconsistent with
each other, thereby giving rise to the conclusion
that the entire incident was a contrivance on
their part. Specifically, they point to the
apparent conflict in the statement of the
prosecution witnesses that there were only
three (3) individuals in the vicinity (aside from
the peace officers) as opposed to the testimony
of another peace officer, testifying as a hostile
witness, that aside from the appellants, and
Rosillo, there were also other people in the
vicinity, such as Evaristo's mother, brother and
other farmers.
The Court sees no such conflict. A recourse to
the trial court proceedings easily shows that the
two (2) prosecution witnesses, Sgt. Romerosa
and CIC Vallarta, testified in a straightforward
and candid manner, categorically identifying the
appellants as the two (2) individuals they had
apprehended and clearly narrating the
circumstances of such apprehension. The
defense has given no possible reason or
motivation for these peace officers to make
false accusations against the appellants.
Absent the presentation of such defense
evidence, the testimony of the peace officers
should deserve full credence.
WHEREFORE, the judgment of the trial court of
Trece Martires, Cavite in Criminal Case No.
NC-267 finding the accused Santiago Evaristo
and Noel Carillo guilty beyond reasonable
doubt for Illegal Possession of Firearms as
defined in Presidential Decree No. 1866, is
hereby AFFIRMED.
The Court orders the forfeiture of the firearms
and other incidental paraphernalia found in the
possession of the appellants, in favor of the
Philippine National Police (PNP) to be disposed
of in accordance with law.
No pronouncement as to costs.
SO ORDERED.

[G.R. NO. 181546 : September 3, 2008]

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, v. RICARDO

ALUNDAY, Accused-Appellant.

DECISION

CHICO-NAZARIO, J.:

Before Us is the Decision1 of the Court of Appeals in CA-G.R. CR-

H.C. No. 01164 dated 9 October 2007 which affirmed the Decision
of the Regional Trial Court (RTC) of Bontoc, Mountain Province,
Branch 35, in Criminal Case No. 1528, finding accused-appellant
Ricardo Alunday guilty of violation of Section 9, Republic Act No.
6425, otherwise known as "The Dangerous Drugs Act of 1972."

On 7 August 2000, two informations were filed against accused-

appellant before the RTC of Bontoc, Mountain Province, for violating
the provisions of Section 9 of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972,2 and Section 1 of
Presidential Decree No. 1866.

In Criminal Case No. 1528, accused-appellant was charged with

violation of Section 9 of Republic Act No. 6425, committed in the
following manner:

That on or about August 3, 2000, in the morning thereof at a

marijuana plantation with an area of TEN (10) hectares, more or
less, and which form part of the public domain at Mount Churyon,
Betwagan, Sadanga, Mountain Province, and within the jurisdiction
of this Honorable Court, the above-named accused, without being
authorized by law, and with intent to plant and cultivate, did then
and there willfully, unlawfully and feloniously plant, cultivate and
culture marijuana fruiting tops weighing more than 750 grams, with
an estimated value of TEN MILLION (P10,000,000.00) Pesos,
Philippine Currency, knowing fully well that the same is a prohibited
drug or from which a dangerous drug maybe manufactured or
derived.3

On the other hand, in Criminal Case No. 1529, accused-appellant

was additionally charged with violation of Section 1 of Presidential
Decree No. 1866,4 committed as follows:

That on or about August 3, 2000, in the morning therof at a

marijuana plantation situated at Mount Churyon, Betwagan,
Sadanga, Mountain Province, and within the jurisdiction of this
Honorable Court, the above-named accused, without any license or
permit thereof, did then and there willfully, unlawfully and
feloniously have in his possession an M16 Rifle, a high powered
firearm, bearing Serial No. 108639, with engraved marks of "COREY
BOKZ" on the left side of the gun butt and six (6) letter "x" on the
handgrip which he carried outside his residence without any written
authority or permit previously acquired from the authorities to carry
or transport the same.5

On 22 November 2000, accused-appellant assisted by a counsel de

oficio pleaded not guilty6 to both charges. Thereafter, a joint trial
ensued.

During the trial, the prosecution presented the following witnesses:

(a) Senior Police Officer (SPO) 1 George Saipen; (b) SPO1 Felix
Angitag; (c) Police Officer (PO) 2 Joseph Aspilan; (d) Police Senior
Inspector Andrew Cayad, Chief, Intelligence Section, Police
Provincial Office, Mountain Province; (e) PO2 Roland Ateo-an; (f)
Edward Sacgaca, Philippine Information Agency; (g) SPO1 Celestino
Victor Matias; and (h) Emilia Gracia Montes, Forensic Analyst,
Philippine National Police (PNP), Crime Laboratory, Camp MBAdo
Dangwa, La Trinidad, Benguet.

The defense, on the other hand, presented accused-appellant

Ricardo Alunday, Wayto Alunday and Linda Dalasnac, aunt and
daughter respectively, of accused-appellant.
The prosecution's version of the case is as follows:

Sometime in May 2000, the Intelligence Section of the Police

Provincial Office of Mountain Province received a report from a
confidential informant of an existing marijuana plantation within the
vicinity of Mount Churyon, Sadanga, Mountain Province. Acting on
the confidential information, Chief of the Intelligence Section of
Mountain Province, Police Senior Inspector Andrew Cayad (Cayad),
engaged the services of another confidential informant to validate
said report. After a series of validations, the confidential informant
confirmed the existence of the subject plantation.7

Cayad reported the matter to the Provincial Director, who

immediately directed Cayad to lead a 70-men police contingent to
make an operation plan. A joint operation from the whole Mountain
Province Police Force was formed.8 The police operation was termed
Operation Banana.

On 2 August 2000, a contingent composed of policemen from

Bauko, Sabangan, Tadian, Sadanga, Provincial Headquarters and
Bontoc Municipal Headquarters proceeded to Mount Churyon.
Edward Sacgaca of the Philippine Information Agency (PIA) was
invited to videotape the operation.9 The team left Bontoc for
Betwagan, Sadanga, in the afternoon of 2 August 2000.10 They
reached Betwagan at about 6 o'clock in the afternoon and slept
there up to midnight. Thereafter, they proceeded to Mount Churyon
where they arrived at around 6 o'clock in the morning of the
following day or on 3 August 2000.11 A group of policemen, one of
whom was SPO1 George Saipen (Saipen) of the Bontoc PNP, was
dispatched to scout the area ahead of the others, while the rest
stayed behind as back-up security. At a distance of 30 meters,
Saipen, together with the members of his group, saw Ricardo
Alunday (Alunday) herein accused-appellant, cutting and gathering
marijuana plants. SPO1 Saipen and others approached Alunday and
introduced themselves as members of the PNP.12 SPO1 Saipen,
together with the other policemen, brought said accused-appellant
to a nearby hut.

Inside the hut, the operatives saw an old woman, an M16 rifle and
some dried marijuana leaves. The other members of the raiding
team uprooted and thereafter burned the marijuana plants, while
the team from the Provincial Headquarters got some samples of the
marijuana plants and brought the same to their headquarters. The
samples were turned over by Police Superintendent Rodolfo
Anagaran to the PNP Crime Laboratory for examination. Emilia
Gracia Montes, Forensic Analyst, PNP Crime Laboratory, Camp
MBAdo Dangwa, La Trinidad, Benguet, received 17 pieces of fully
grown suspected marijuana plants for laboratory examination and
analyses. She tested the subject specimens and found all to be
positive for marijuana.13

Accused-appellant presented a disparate narration of the incident.

He vehemently denied the accusations. He maintained that on 2

August 2000, he went to Mount Churyon to haul the lumber that he
had cut and left by the river. He spent the night at the hut of an old
woman named Ligka Baydon.

At around 6:00 o'clock in the morning of the following day or on 3

August 2000, he went out of the hut to search for squash to cook
for breakfast. A group of policemen suddenly came. Two of them
approached him and asked if he owned the marijuana plants
growing around the premises and the land on which these were
planted. He answered in the negative and further stated that he did
not even know how a marijuana plant looked like. The policemen
then proceeded to uproot and burn the supposed marijuana plants.
Subsequently, the policemen took him with them to the PNP
Headquarters in Bontoc despite his refusal to go with them.

Wayto Alunday and Linda Dalasnac, the aunt and daughter of

Ricardo Alunday, respectively, corroborated the latter's testimony
that he was indeed at Mount Churyon on 3 August 2000 to get some
lumber.14

After trial, the court a quo found accused-appellant guilty in Crim.

Case No. 1528 but was acquitted in Crim. Case No. 1529. The
dispositive portion of the trial court's Decision, dated 8 May 2003
reads:

WHEREFORE, a Joint Judgment is hereby rendered -

1. Sentencing Ricardo Alunday alias "Kayad" in Criminal Case 1528,
to suffer the penalty of reclusion perpetua and to pay a fine of Five
Hundred Thousand Pesos-the land involved in the commission of the
offense not having been shown to be part of the public domain;
andcralawlibrary

2. Acquitting the above-named accused in Criminal Case 1529 on

reasonable doubt.15

From the decision of conviction, accused-appellant filed a Notice of

Appeal.16

On 11 November 2004, accused-appellant filed an appellant's

brief17before the Supreme Court. On 4 March 2005, the Office of the
Solicitor General filed the People's Brief.18

Since the penalty imposed by the trial court was reclusion perpetua,

the case was remanded to the Court of Appeals for appropriate
action and disposition pursuant to our ruling in People v. Mateo.19

On 9 October 2007, the Court of Appeals affirmed the findings and

conclusion of the RTC, the fallo of which reads:

WHEREFORE, the assailed Decision dated 8 May 2003 of the

Regional Trial Court, First Judicial Region, Branch 35, Bontoc,
Mountain Province is hereby AFFIRMED.20

Accused-appellant filed a Notice of Appeal21 on 5 November 2007.

Thus, the Court of Appeals forwarded the records of the case to us
for further review.

In our Resolution22 dated 19 March 2008, the parties were notified

that they may file their respective supplemental briefs, if they so
desired, within 30 days from notice. People23 opted not to file a
supplemental brief on the ground that it had exhaustively argued all
the relevant issues in its brief, and the filing of a supplemental brief
would only entail a repetition of the arguments already discussed
therein. Accused-appellant submitted his supplemental brief on 12
June 2008.
In the beginning, accused-appellant raised a lone error, thus:

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE

ACCUSED-APPELLANT HAS BEEN PROVEN BEYOND REASONABLE
DOUBT.24

Later, in his supplemental brief dated 11 June 2008, he added

another alleged error, thus:

THE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO

THE PROSECUTION'S EVIDENCE DESPITE ITS INADMISSIBILITY
FOR BEING THE RESULT OF AN UNLAWFUL ARREST.25

As regards the guilt of accused-appellant, we find the expostulations

of the Court of Appeals worth reiterating:

It is jurisprudential that factual findings of trial courts especially

those which revolve on matters of credibility of witnesses deserve to
be respected when no glaring errors bordering on a gross
misapprehension of the facts, or where no speculative, arbitrary and
unsupported conclusions, can be gleaned from such findings. The
evaluation of the credibility of witnesses and their testimonies are
best undertaken by the trial court because of its unique opportunity
to observe the witnesses' deportment, demeanor, conduct and
attitude under grilling examination.

We have carefully scrutinized the record and found no cogent

reason to depart from this rule.

xxx

Indeed, in the case at bench, the prosecution was able to establish

the following with conviction:

(1) On 3 August 2000, a police continent raided a marijuana

plantation located in Mount Churyon, Sadanga, Mountain Province.

(2) In the course thereof, appellant was seen cutting and gathering
marijuana plants from the premises.
(3) There were no other plants except marijuana which were
growing in the said area.

(4) There was a hut apparently used by appellant and an old woman
as a camp or temporary dwelling which existed alone within the
area of the subject plantation.

(5) The samples taken from the said plantation were all found to be
positive for marijuana.

On the face of these positive testimonies of the prosecution

witnesses, appellant's bare denials must necessarily fail. Moreover,
it is interesting to note that appellant never mentioned his aunt,
Wayto Alunday, in his testimony. In fact, she contradicted
appellant's testimony when she said that he ate and slept in her
hut. This only bolsters the conclusion that Wayto Alunday was not
present when appellant was captured by the police.26

Needless to state, the defense of denial cannot prevail over the

positive identification of the accused.27

Contrarily, we find accused-appellant's posturings tenuous. Again,

we cannot deviate from the Court of Appeals' valid observation:

Aside from appellant's preposterous claim that he was looking for

squash in the subject area where only marijuana plants were
planted, he did not advance any explanation for his presence
thereat. Besides, prosecution witness Saipen categorically stated
that he caught appellant red-handed harvesting marijuana plants.
Thus, We find it facetious that appellant did not even know what a
marijuana plant looked like.

Appellant asserts that the plantation in question was maintained by

the Cordillera People's Liberation Army which witness Cayad
confirmed likewise. Thus, appellant theorizes that he could not have
been the perpetrator of the crime charged.

We find appellant's assertion specious. A perusal of Section 9, Art.

II of R.A. No. 6425 shows that a violation exists when a person shall
cultivate, plant or culture on any medium Indian hemp, opium
poppy (papaver somniferum) or any other plant which may
hereafter be classified as dangerous drug. Indeed, ownership of the
land where the marijuana seedlings are planted, cultivated and
cultured is not a requisite of the offense.28

Accused-appellant further assails his conviction for being improper

and illegal asserting that the court a quo never acquired jurisdiction
over his person because he was arrested without a warrant and that
his warrantless arrest was not done under any of the circumstances
enumerated in Section 5, Rule 113 of the 1985 Rules of Court. He
insists that the arresting officers had three months within which to
secure a warrant from the time they received the information about
an existing marijuana plantation in Mount Churyon, Sadanga, in
May 2000, until they effected accused-appellant's arrest on 3
August 2000. Also, accused maintains that the arresting officers'
failure to secure a warrant can never be justified by the urgency of
the situation.

Accused-appellant's claim of irregularity in his arrest is, at the most,

limp.

Section 5, Rule 113 of the Rules of Court provides:

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

private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense;

(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it;
andcralawlibrary

(c) When the person to be arrested is a prisoner who has escaped

from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
Section 5(a) provides that 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. Section 5(a) refers to arrest
in flagrante delicto.29 In flagrante delicto means caught in the act of
committing a crime. This rule, which warrants the arrest of a person
without warrant, requires that the person arrested has just
committed a crime, or is committing it, or is about to commit an
offense, in the presence or within view of the arresting officer.30

It must be recalled that the Intelligence Section of the Provincial

Office of the Mountain Province received the information sometime
in May 2000, and accused-appellant was arrested by SPO1 Saipen
during the police raid at the plantation at Mount Churyon, Sadanga,
only on 3 August 2000. This is so because the arrest was effected
only after a series of validations31 conducted by the team to verify
or confirm the report that indeed a marijuana plantation existed at
the area and after an operation plan was formed. As admitted by
the accused in his supplemental brief, the information about the
existing marijuana plantation was finally confirmed only on 2
August 2000.32 On 3 August 2000, the arresting team of SPO1
Saipen proceeded to the marijuana plantation. SPO1 Saipen saw
accused-appellant personally cutting and gathering marijuana
plants. Thus, accused-appellant's arrest on 3 August 2000 was
legal, because he was caught in flagrante delicto; that is, the
persons arrested were committing a crime in the presence of the
arresting officers.33

In People v. Sucro34 we held that when a police officer sees the

offense, although at a distance, or hears the disturbances created
thereby, and proceeds at once to the scene thereof, he may effect
an arrest without a warrant on the basis of Section 5, par. (a), Rule
113 of the Rules of Court as the offense is deemed committed in his
presence or within his view. In essence, Section 5, par. (a), Rule
113, requires that the accused be caught in flagrante delicto or
caught in the act of committing a crime.

SPO1 George Saipen testified on direct examination, thus:

Q.       When you reached that Mount Churyon at about 6:00 o'clock
in the morning of August 3, 2000, what did you see there Mr.
Witness, if any? cralawred

A.       We were able to see a man cutting plants which we

came to know as marijuana plants.

Q.       You said we, who were you companions when you saw a
man cutting marijuana? cralawred

A.       The Bontoc Operatives.

Q.       All of you? cralawred

A.       Yes, sir.

Q.       You mentioned a while back about marijuana plantation, will

you describe to us why you say that [it] is a marijuana plantation? cralawred

A.       That is marijuana plantation because I think, more or less

four (4) hectares were planted with marijuana plants.

Q.       And how tall were these marijuana plants in that marijuana

plantation Mr. Witness? cralawred

A.       Some are fully grown around 4 to 5 feet while some are still
young about 2 feet while some are still seedling.

Q.       And you said that you saw a man gathering marijuana

plants, how far were you when you saw this man? Could you give us
an estimate? cralawred

A.       From this witness stand up to there.

COURT:

You stipulate counsel.

PROS. DOMINGUEZ:

About 30 meters, Your Honor.

PROS. DOMINGUEZ:

And how was the terrain of that Mount Churyon, is it flat?

A.       Where the plantation is located it is somewhat slope and a

little bit flat.

Q.       You mean rolling hills? cralawred

A.       Yes, sir.

Q.       What did you do when you saw a man cutting or gathering

marijuana plants? cralawred

A.       Upon seeing that man cutting marijuana plants, I cautioned

my companions at my back telling them that there is a man down
cutting marijuana which prompted them to move; that others
proceeded to the camp while me and my one companion went to
the man and cautioned him not to make unnecessary movements.35

The Court has consistently ruled that any objection involving a

warrant of arrest or the procedure for the acquisition by the court of
jurisdiction over the person of the accused must be made before he
enters his plea; otherwise, the objection is deemed waived.36 We
have also ruled that an accused may be estopped from assailing the
illegality of his arrest if he fails to move for the quashing of the
information against him before his arraignment.37 And since the
legality of an arrest affects only the jurisdiction of the court over the
person of the accused, any defect in the arrest of the accused may
be deemed cured when he voluntarily submits to the jurisdiction of
the trial court.38 We have also held in a number of cases that the
illegal arrest of an accused is not a sufficient cause for setting aside
a valid judgment rendered upon a sufficient complaint after a trial
free from error; such arrest does not negate the validity of the
conviction of the accused.

Herein, accused-appellant went into arraignment and entered a plea

of not guilty. Thereafter, he actively participated in his trial. He
raised the additional issue of irregularity of his arrest only during his
appeal to this Court. He is, therefore, deemed to have waived such
alleged defect by submitting himself to the jurisdiction of the court
by his counsel-assisted plea during his arraignment; by his actively
participating in the trial and by not raising the objection before his
arraignment.

It is much too late in the day to complain about the warrantless

arrest after a valid information has been filed, the accused
arraigned, trial commenced and completed, and a judgment of
conviction rendered against him.39

Accused-appellant was not even denied due process by virtue of his

alleged illegal arrest, because of his voluntary submission to the
jurisdiction of the trial court, as manifested by the voluntary and
counsel-assisted plea he entered during arraignment and by his
active participation in the trial thereafter.40

In challenging the existence of a legitimate buy-bust operation,

appellant casts questionable, if not improper, motive on the part of
the police officers. Unfortunately for appellant, jurisprudence
instructs us that in cases involving illegal drugs, credence is given to
prosecution witnesses who are police officers, for they are
presumed to have performed their duties in a regular manner,
unless there is evidence to the contrary.41 Where there is nothing to
indicate that the witnesses for the prosecution were moved by
improper motives, the presumption is that they were not so moved
and their testimony, therefore, is entitled to full faith and credit.42 In
this case, the records are bereft of any indication which even
remotely suggests ill motive on the part of the police officers. The
following observations of the trial court are, indeed, appropriate,
thus:

Absent as it is in the record indications of personal interest or

improper motive on their part to testify against the accused, the
witnesses for the prosecution being government law enforcers
and/or officials, actually present during the incident in question in
the performance of their duties, are trustworthy sources. And the
recollections in open court of such witnesses of the events that
transpired on the occasion, given in clear and direct manner,
corroborating and complimenting each other on material points, and
highly probable in the natural order of things, are easy to believe
and thus accorded full credence.

In contrast, the accused himself, his aunt, and his daughter who
testified in behalf of the former are obviously biased and unreliable
witnesses on account of self-interest and blood kinship. Situated as
they are, their inclination to be truthful is highly suspect. And quite
aside from being self-serving and dubious, their testimonies are
inconsistent, and manifestly concocted or improbable to be seriously
considered.43

All told, the cultivation of marijuana fruiting tops by accused-

appellant having been established beyond reasonable doubt, we are
constrained to uphold appellant's conviction. The penalty imposed
by the RTC, as affirmed by the Court of Appeals, being in accord
with law, is likewise affirmed.

WHEREFORE, premises considered, the Decision dated 9 October

2007 of the Court of Appeals in CA-G.R. CR-H.C. No. 01164,
affirming in toto the Decision of the Regional Trial Court, First
Judicial Region, Branch 35, Bontoc, Mountain Province, in Criminal
Case No. 1528, is hereby AFFIRMED.

SO ORDERED.

G.R. No. 186529 : August 3, 2010

PEOPLE OF THE
PHILIPPINES,Appellee, v. JACK RACHO y
RAQUERO,Appellant.
DECISION
NACHURA, J.:
On appeal is the Court of Appeals (CA)
Decision1  dated May 22, 2008 in CA-G.R. CR-
cra1aw

H.C. No. 00425 affirming the Regional Trial

Court2  (RTC) Joint Decision3  dated July 8, 2004
cra1aw cra1aw

finding appellant Jack Racho y Raquero guilty

beyond reasonable doubt of Violation of Section
5, Article II of Republic Act (R.A.) No. 9165.
The case stemmed from the following facts:
On May 19, 2003, a confidential agent of the
police transacted through cellular phone with
appellant for the purchase of shabu. The agent
later reported the transaction to the police
authorities who immediately formed a team
composed of member of the Philippine Drug
Enforcement Agency (PDEA), the Intelligence
group of the Philippine Army and the local police
force to apprehend the appellant.4  The agent
cra1aw

gave the police appellant's name, together with

his physical description. He also assured them
that appellant would arrive in Baler, Aurora the
following day.
On May 20, 2003, at 11:00 a.m., appellant
called up the agent and informed him that he
was on board a Genesis bus and would arrive in
Baler, Aurora, anytime of the day wearing a red
and white striped T-shirt. The team members
then posted themselves along the national
highway in Baler, Aurora. At around 3:00 p.m.
of the same day, a Genesis bus arrived in Baler.
When appellant alighted from the bus, the
confidential agent pointed to him as the person
he transacted with earlier. Having alighted from
the bus, appellant stood near the highway and
waited for a tricycle that would bring him to his
final destination. As appellant was about to
board a tricycle, the team approached him and
invited him to the police station on suspicion of
carrying shabu. Appellant immediately denied
the accusation, but as he pulled out his hands
from his pants' pocket, a white envelope slipped
therefrom which, when opened, yielded a small
sachet containing the suspected drug.5 cra1aw

The team then brought appellant to the police

station for investigation. The confiscated
specimen was turned over to Police Inspector
Rogelio Sarenas De Vera who marked it with his
initials and with appellant's name. The field test
and laboratory examinations on the contents of
the confiscated sachet yielded positive results
for methamphetamine hydrochloride.6 cra1aw

Appellant was charged in two separate

Informations, one for violation of Section 5 of
R.A. 9165, for transporting or delivering; and
the second, of Section 11 of the same law for
possessing, dangerous drugs, the accusatory
portions of which read: chan robles virtual law library

"That at about 3:00 o'clock (sic) in the

afternoon on May 20, 2003 in Baler, Aurora and
within the jurisdiction of this Honorable Court,
the said accused, did then and there, unlawfully,
feloniously and willfully have in his possession
five point zero one (5.01) [or 4.54] grams of
Methamphetamine Hydrochloride commonly
known as "Shabu", a regulated drug without any
permit or license from the proper authorities to
possess the same.
CONTRARY TO LAW."7 cra1aw

"That at about 3:00 o'clock (sic) in the

afternoon on May 20, 2003 in Baler, Aurora, the
said accused did then and there, unlawfully,
feloniously and willfully transporting or
delivering dangerous drug of 5.01 [or 4.54]
grams of shabu without any permit or license
from the proper authorities to transport the
same.
CONTRARY TO LAW."8 cra1aw
During the arraignment, appellant pleaded "Not
Guilty" to both charges.
At the trial, appellant denied liability and
claimed that he went to Baler, Aurora to visit his
brother to inform him about their ailing father.
He maintained that the charges against him
were false and that no shabu was taken from
him. As to the circumstances of his arrest, he
explained that the police officers, through their
van, blocked the tricycle he was riding in; forced
him to alight; brought him to Sea Breeze Lodge;
stripped his clothes and underwear; then
brought him to the police station for
investigation.9 cra1aw

On July 8, 2004, the RTC rendered a Joint

Judgment10  convicting appellant of Violation of
cra1aw

Section 5, Article II, R.A. 9165 and sentencing

him to suffer the penalty of life imprisonment
and to pay a fine of P500,000.00; but acquitted
him of the charge of Violation of Section 11,
Article II, R.A. 9165. On appeal, the CA affirmed
the RTC decision.11 cra1aw

Hence, the present appeal.

In his brief,12  appellant attacks the credibility of
cra1aw

the witnesses for the prosecution. He likewise

avers that the prosecution failed to establish the
identity of the confiscated drug because of the
team's failure to mark the specimen
immediately after seizure. In his supplemental
brief, appellant assails, for the first time, the
legality of his arrest and the validity of the
subsequent warrantless search. He questions
the admissibility of the confiscated sachet on
the ground that it was the fruit of the poisonous
tree.
The appeal is meritorious.
We have repeatedly held that the trial court's
evaluation of the credibility of witnesses and
their testimonies is entitled to great respect and
will not be disturbed on appeal. However, this is
not a hard and fast rule. We have reviewed such
factual findings when there is a showing that the
trial judge overlooked, misunderstood, or
misapplied some fact or circumstance of weight
and substance that would have affected the
case.13
cra1aw

Appellant focuses his appeal on the validity of

his arrest and the search and seizure of the
sachet of shabu and, consequently, the
admissibility of the sachet. It is noteworthy that
although the circumstances of his arrest were
briefly discussed by the RTC, the validity of the
arrest and search and the admissibility of the
evidence against appellant were not squarely
raised by the latter and thus, were not ruled
upon by the trial and appellate courts.
It is well-settled that an appeal in a criminal
case opens the whole case for review. This
Court is clothed with ample authority to review
matters, even those not raised on appeal, if we
find them necessary in arriving at a just
disposition of the case. Every circumstance in
favor of the accused shall be considered. This is
in keeping with the constitutional mandate that
every accused shall be presumed innocent
unless his guilt is proven beyond reasonable
doubt.14cra1aw

After a thorough review of the records of the

case and for reasons that will be discussed
below, we find that appellant can no longer
question the validity of his arrest, but the sachet
of shabu seized from him during the warrantless
search is inadmissible in evidence against him.
The records show that appellant never objected
to the irregularity of his arrest before his
arraignment. In fact, this is the first time that
he raises the issue. Considering this lapse,
coupled with his active participation in the trial
of the case, we must abide with jurisprudence
which dictates that appellant, having voluntarily
submitted to the jurisdiction of the trial court, is
deemed to have waived his right to question the
validity of his arrest, thus curing whatever
defect may have attended his arrest. The
legality of the arrest affects only the jurisdiction
of the court over his person. Appellant's
warrantless arrest therefore cannot, in itself, be
the basis of his acquittal. 15cra1aw

As to the admissibility of the seized drug in

evidence, it is necessary for us to ascertain
whether or not the search which yielded the
alleged contraband was lawful.16 cra1aw

The 1987 Constitution states that a search and

consequent seizure must be carried out with a
judicial warrant; otherwise, it becomes
unreasonable and any evidence obtained
therefrom shall be inadmissible for any purpose
in any proceeding.17  Said proscription, however,
cra1aw

admits of exceptions, namely: chan robles virtual law library

1. Warrantless search incidental to a lawful

arrest;
2. Search of evidence in "plain view;"
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.18 cra1aw

What constitutes a reasonable or unreasonable

warrantless 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.19 cra1aw

The RTC concluded that appellant was caught in

flagrante delicto, declaring that he was caught
in the act of actually committing a crime or
attempting to commit a crime in the presence of
the apprehending officers as he arrived in Baler,
Aurora bringing with him a sachet of
shabu.20  Consequently, the warrantless search
cra1aw

was considered valid as it was deemed an

incident to the lawful arrest.
Recent jurisprudence holds that in searches
incident to a lawful arrest, the arrest must
precede the search; generally, the process
cannot be reversed. Nevertheless, a search
substantially contemporaneous with an arrest
can precede the arrest if the police have
probable cause to make the arrest at the outset
of the search.21  Thus, given the factual milieu of
cra1aw

the case, we have to determine whether the

police officers had probable cause to arrest
appellant. Although probable cause eludes exact
and concrete definition, it ordinarily signifies a
reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves
to warrant a cautious man to believe that the
person accused is guilty of the offense with
which he is charged.22 cra1aw

The determination of the existence or absence

of probable cause necessitates a reexamination
of the established facts. On May 19, 2003, a
confidential agent of the police transacted
through cellular phone with appellant for the
purchase of shabu. The agent reported the
transaction to the police authorities who
immediately formed a team to apprehend the
appellant. On May 20, 2003, at 11:00 a.m.,
appellant called up the agent with the
information that he was on board a Genesis bus
and would arrive in Baler, Aurora anytime of the
day wearing a red and white striped T-shirt. The
team members posted themselves along the
national highway in Baler, Aurora, and at around
3:00 p.m. of the same day, a Genesis bus
arrived in Baler. When appellant alighted from
the bus, the confidential agent pointed to him as
the person he transacted with, and when the
latter was about to board a tricycle, the team
approached him and invited him to the police
station as he was suspected of carrying shabu.
When he pulled out his hands from his pants'
pocket, a white envelope slipped therefrom
which, when opened, yielded a small sachet
containing the suspected drug.23 The team then
cra1aw

brought appellant to the police station for

investigation and the confiscated specimen was
marked in the presence of appellant. The field
test and laboratory examinations on the
contents of the confiscated sachet yielded
positive results for methamphetamine
hydrochloride.
Clearly, what prompted the police to apprehend
appellant, even without a warrant, was the tip
given by the informant that appellant would
arrive in Baler, Aurora carrying shabu. This
circumstance gives rise to another question:
whether that information, by itself, is sufficient
probable cause to effect a valid warrantless
arrest.
The long standing rule in this jurisdiction is that
"reliable information" alone is not sufficient to
justify a warrantless arrest. The rule requires, in
addition, that the accused perform some overt
act that would indicate that he has committed,
is actually committing, or is attempting to
commit an offense.24  We find no cogent reason
cra1aw

to depart from this well-established doctrine.

The instant case is similar to People v.
Aruta,25  People v. Tudtud,26  and People v.
cra1aw cra1aw

Nuevas.27 cra1aw

In People v. Aruta, a police officer was tipped off

by his informant that a certain "Aling Rosa"
would be arriving from Baguio City the following
day with a large volume of marijuana. Acting on
said tip, the police assembled a team and
deployed themselves near the Philippine
National Bank (PNB) in Olongapo City. While
thus positioned, a Victory Liner Bus stopped in
front of the PNB building where two females and
a man got off. The informant then pointed to
the team members the woman, "Aling Rosa,"
who was then carrying a traveling bag.
Thereafter, the team approached her and
introduced themselves. When asked about the
contents of her bag, she handed it to the
apprehending officers. Upon inspection, the bag
was found to contain dried marijuana leaves.28cra1aw

The facts in People v. Tudtud show that in July

and August, 1999, the Toril Police Station,
Davao City, received a report from a civilian
asset that the neighbors of a certain Noel
Tudtud (Tudtud) were complaining that the
latter was responsible for the proliferation of
marijuana in the area. Reacting to the report,
the Intelligence Section conducted surveillance.
For five days, they gathered information and
learned that Tudtud was involved in illegal
drugs. On August 1, 1999, the civilian asset
informed the police that Tudtud had headed to
Cotabato and would be back later that day with
a new stock of marijuana. At around 4:00 p.m.
that same day, a team of police officers posted
themselves to await Tudtud's arrival. At 8:00
p.m., two men disembarked from a bus and
helped each other carry a carton. The police
officers approached the suspects and asked if
they could see the contents of the box which
yielded marijuana leaves.29cra1aw
In People v. Nuevas, the police officers received
information that a certain male person, more or
less 5'4" in height, 25 to 30 years old, with a
tattoo mark on the upper right hand, and
usually wearing a sando and maong pants,
would make a delivery of marijuana leaves.
While conducting stationary surveillance and
monitoring of illegal drug trafficking, they saw
the accused who fit the description, carrying a
plastic bag. The police accosted the accused and
informed him that they were police officers.
Upon inspection of the plastic bag carried by the
accused, the bag contained marijuana dried
leaves and bricks wrapped in a blue cloth. In his
bid to escape charges, the accused disclosed
where two other male persons would make a
delivery of marijuana leaves. Upon seeing the
two male persons, later identified as Reynaldo
Din and Fernando Inocencio, the police
approached them, introduced themselves as
police officers, then inspected the bag they were
carrying. Upon inspection, the contents of the
bag turned out to be marijuana leaves.30 cra1aw

In all of these cases, we refused to validate the

warrantless search precisely because there was
no adequate probable cause. We required the
showing of some overt act indicative of the
criminal design.
As in the above cases, appellant herein was not
committing a crime in the presence of the police
officers. Neither did the arresting officers have
personal knowledge of facts indicating that the
person to be arrested had committed, was
committing, or about to commit an offense. At
the time of the arrest, appellant had just
alighted from the Gemini bus and was waiting
for a tricycle. Appellant was not acting in any
suspicious manner that would engender a
reasonable ground for the police officers to
suspect and conclude that he was committing or
intending to commit a crime. Were it not for the
information given by the informant, appellant
would not have been apprehended and no
search would have been made, and
consequently, the sachet of shabu would not
have been confiscated.
We are not unaware of another set of
jurisprudence that deems "reliable information"
sufficient to justify a search incident to a lawful
warrantless arrest. As cited in People v. Tudtud,
these include People v. Maspil, Jr.,31  People v.
cra1aw

Bagista,32  People v. Balingan,33  People v.

cra1aw cra1aw
Lising,34  People v. Montilla,35  People v.
cra1aw cra1aw

Valdez,36  and People v. Gonzales.37  In these

cra1aw cra1aw

cases, the Court sustained the validity of the

warrantless searches notwithstanding the
absence of overt acts or suspicious
circumstances that would indicate that the
accused had committed, was actually
committing, or attempting to commit a crime.
But as aptly observed by the Court, except in
Valdez and Gonzales, they were covered by the
other exceptions to the rule against warrantless
searches.38 cra1aw

Neither were the arresting officers impelled by

any urgency that would allow them to do away
with the requisite warrant. As testified to by
Police Officer 1 Aurelio Iniwan, a member of the
arresting team, their office received the "tipped
information" on May 19, 2003. They likewise
learned from the informant not only the
appellant's physical description but also his
name. Although it was not certain that appellant
would arrive on the same day (May 19), there
was an assurance that he would be there the
following day (May 20). Clearly, the police had
ample opportunity to apply for a warrant.39 cra1aw
Obviously, this is an instance of seizure of the
"fruit of the poisonous tree," hence, the
confiscated item is inadmissible in evidence
consonant with Article III, Section 3(2) of the
1987 Constitution, "any evidence obtained in
violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding."
Without the confiscated shabu, appellant's
conviction cannot be sustained based on the
remaining evidence. Thus, an acquittal is
warranted, despite the waiver of appellant of his
right to question the illegality of his arrest by
entering a plea and his active participation in
the trial of the case. As earlier mentioned, the
legality of an arrest affects only the jurisdiction
of the court over the person of the accused. A
waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless
arrest.40
cra1aw

One final note. As clearly stated in People v.

Nuevas,41 cra1aw

x x x In the final analysis, we in the

administration of justice would have no right to
expect ordinary people to be law-abiding if we
do not insist on the full protection of their
rights. Some lawmen, prosecutors and judges
may still tend to gloss over an illegal search and
seizure as long as the law enforcers show the
alleged evidence of the crime regardless of the
methods by which they were obtained. This kind
of attitude condones law-breaking in the name
of law enforcement. Ironically, it only fosters the
more rapid breakdown of our system of justice,
and the eventual denigration of society. While
this Court appreciates and encourages the
efforts of law enforcers to uphold the law and to
preserve the peace and security of society, we
nevertheless admonish them to act with
deliberate care and within the parameters set by
the Constitution and the law. Truly, the end
never justifies the means.42cra1aw

WHEREFORE, premises considered, the Court of

Appeals Decision dated May 22, 2008 in CA-G.R.
CR-H.C. No. 00425 is REVERSED and SET
ASIDE. Appellant Jack Raquero Racho is
ACQUITTED for insufficiency of evidence.
The Director of the Bureau of Corrections is
directed to cause the immediate release of
appellant, unless the latter is being lawfully held
for another cause; and to inform the Court of
the date of his release, or the reasons for his
confinement, within ten (10) days from notice.
No costs.
SO ORDERED.

G.R. No. 200334               July 30, 2014

THE PEOPLE OF THE
PHILIPPINES, Respondent-Appellee, 
vs.
VICTOR COGAED y ROMANA, Accused-
Appellant.
DECISION
LEONEN, J.:
The mantle of protection upon one's person and
one's effects through Article III, Section 2 of the
Constitution is essential to allow citizens to
evolve their autonomy and, hence, to avail
themselves of their right to privacy. The alleged
compromise with the battle against dangerous
drugs is more apparent than real. Often, the
compromise is there because law enforcers
neglect to perform what could have been done
to uphold the Constitution as they pursue those
who traffic this scourge of society.
Squarely raised in· this appeal  is the
1

admissibility of the evidence seized as a result

of a warrantless arrest. The police officers
identified the alleged perpetrator through facts
that were not based on their personal
knowledge. The information as to the accused’s
whereabouts was sent through a text message.
The accusedwho never acted suspicious was
identified by a driver. The bag that allegedly
contained the contraband was required to be
opened under intimidating circumstances and
without the accused having been fully apprised
of his rights. This was not a reasonable search
within the meaning of the Constitution. There
was no reasonable suspicion that would allow a
legitimate "stop and frisk" action. The alleged
waiver of rights by the accused was not done
intelligently, knowingly, and without improper
pressure or coercion.
The evidence, therefore, used against the
accused should be excluded consistent with
Article III, Section 3 (2) of the Constitution.
There being no possible admissible evidence,
the accused should be acquitted.
I
According to the prosecution, at about 6:00
a.m. of November 25, 2005, Police Senior
Inspector Sofronio Bayan (PSI Bayan) of the
San Gabriel Police Station in San Gabriel,La
Union, "received a text message from an
unidentified civilian informer"  that one Marvin
2

Buya (also known as Marvin Bugat) "[would]be

transporting marijuana"  from Barangay LunOy,
3

San Gabriel, La Union to the Poblacion of San

Gabriel, La Union.4

PSI Bayan organized checkpoints in order "to

intercept the suspect."  PSI Bayan ordered
5

SPO1 Jaime Taracatac, Jr. (SPO1 Taracatac),

a member of the San Gabriel Police, to set up a
checkpoint in the waiting area of passengers
from San Gabriel bound for San Fernando
City.  A passenger jeepney from Barangay Lun-
6

Oy arrived at SPO1 Taracatac’s

checkpoint.  The jeepney driver disembarked
7
and signalled to SPO1 Taracatac indicating the
two male passengers who were carrying
marijuana.  SPO1 Taracatac approached the
8

two male passengers who were later identified

as Victor RomanaCogaed and Santiago Sacpa
Dayao.  Cogaed was carrying a blue bag and a
9

sack while Dayao was holding a yellow bag. 10

SPO1 Taracatac asked Cogaed and Dayao

about the contents of their bags.  Cogaed and
11

Dayao told SPO1 Taracatac that they did not

know since they were transporting the bags as
a favor for their barriomatenamed Marvin.  After
12

this exchange, Cogaed opened the blue bag,

revealing three bricks of what looked like
marijuana. Cogaed then muttered, "nagloko
13

daytoy nga Marvinen, kastoymet gayam ti

nagyanna,"which translates to "Marvin is a fool,
this is what [is] contained in the bag."  "SPO1
14

Taracatac arrested [Cogaed] and . . . Dayao

and brought them to the police
station."  Cogaed and Dayao "were still carrying
15

their respective bags"  inside the station.

16 17

While at the police station, the Chief of Police

and Investigator PO3 Stanley Campit (PO3
Campit) requested Cogaed and Dayao to empty
their bags.  Inside Cogaed’s sack was "four (4)
18

rolled pieces of suspected marijuana fruiting

tops,"  and inside Dayao’s yellow bag was a
19

brick of suspected marijuana. 20

PO3 Campit prepared the suspected marijuana

for laboratory testing.  PSI Bayan personally
21

delivered the suspected marijuana to the PNP

Crime Laboratory.  Forensic Chemical Officer
22

Police Inspector Valeriano Panem Laya II

performed the tests and found that the objects
obtained were indeed marijuana.  The 23

marijuana collected from Cogaed’s blue bag

had a total weight of 8,091.5 grams.  The 24

marijuana from Cogaed’s sack weighed 4,246.1

grams.  The marijuana collected from Dayao’s
25

bag weighed 5,092 grams.  A total of 17,429.6

26

grams werecollected from Cogaed’s and

Dayao’s bags. 27

According to Cogaed’s testimony during trial, he

was at Balbalayan, La Union, "waiting for a
jeepney to take him" to the Poblacion of San
28

Gabriel so he could buy pesticide.  He boarded 29

a jeepney and recognized Dayao, his younger

brother’s friend.  Upon arrival at the Poblacion
30

of San Gabriel, Dayao and Cogaed alighted

from the jeepney.  Dayao allegedly "asked for
31

[Cogaed’s] help in carrying his things, which

included a travelling bag and a sack."  Cogaed
32

agreed because they were both going to the

market.  This was when SPO1 Taracatac
33

approached them, and when SPO1 Taracatac

asked Cogaed what was inside the bags,
Cogaed replied that he did not know. SPO1 34

Taracatac then talked to Dayao, however,

Cogaed was not privy to their
conversation.  Thereafter, SPO1 Taracatac
35

arrested Dayao and Cogaed and brought them

to the police station.  These facts were
36

corroborated by an eyewitness,Teodoro Nalpu-

ot, who was standing across the parking lot
where Cogaed was apprehended. 37

At the police station, Cogaed said that "SPO1

Taracatac hit [him] on the head."  The bags
38

were also opened, but Cogaed never knew

what was inside. 39

It was only later when Cogaed learned that it

was marijuana when he and Dayao were
charged with illegal possession of dangerous
drugs under Republic Act No. 9165.  The
40

information against them states:

That on or about the 25th day of November,
2005, in the Municipality of San Gabriel,
Province of La Union, and within the jurisdiction
of this Honorable Court, the above-named
accused VICTOR COGAED Y ROMANA and
SANTIAGO DAYAO Y SACPA (who acted with
discernment) and JOHN DOE,conspiring,
confederating and mutually helping one
another, did then there wilfully, unlawfully,
feloniously and knowingly, without being
authorized by law, have in their control, custody
and possession dried marijuana, a dangerous
drug, with a total weight of seventeen
thousand,four hundred twenty-nine and
sixtenths (17, 429.6) grams.
CONTRARY TO Section 11 (Possession of
Dangerous Drugs), Article II, of Republic Act
No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of
2002").41
The case was raffled to Regional Trial Court,
Branch 28 of San Fernando City, La
Union.  Cogaed and Dayao pleaded not
42

guilty.  The case was dismissed against Dayao

43

because he was only 14 years old at that time

and was exempt from criminal liability under the
Juvenile Justice and Welfare Act of 2006 or
Republic Act No. 9344.  Trial against Cogaed
44

ensued. In a decision  dated May 21, 2008, the

45

Regional Trial Court found Cogaed guilty. The

dispositive portion of the decision states:
WHEREFORE, the Court finds accused Victor
Cogaed y Romana GUILTY beyond reasonable
doubt for Violation of Section 11, Article II of
Republic Act No. 9165 (otherwise known as the
"Comprehensive Dangerous Drugs Act of
2002") and sentences him to suffer life
imprisonment, and to pay a fine of one million
pesos (Php 1,000,000.00). 46

The trial court judge initiallyfound Cogaed’s

arrest illegal considering that "Cogaed at that
time was not, at the moment of his arrest,
committing a crime nor was shown that hewas
about to do so or that had just done so. He just
alighted from the passenger jeepney and there
was no outward indication that called for his
arrest."  Since the arrest was illegal, the
47

warrantless search should also be considered

illegal.  However, the trial court stated that
48

notwithstanding the illegality of the arrest,

Cogaed "waived his right to object to such
irregularity"  when "he did not protest when
49

SPO1 Taracatac, after identifying himself,

asked him to open his bag." 50

Cogaed appealed  the trial court’s

51

decision.However, the Court of Appeals denied

his appeal and affirmed the trial court’s
decision.  The Court of Appeals found that
52

Cogaed waived his right against warrantless

searches when "[w]ithout any prompting from
SPO1 Taracatac, [he] voluntarily opened his
bag."  Hence, this appeal was filed.
53

The following errors were assigned by Cogaed

in his appellant’s brief:
I
THE TRIAL COURT GRAVELY ERRED IN
ADMITTING THE SEIZED DANGEROUS
DRUGS AS EVIDENCE AGAINST THE
ACCUSED-APPELLANT DESPITE BEING THE
RESULT OF AN UNLAWFUL WARRANTLESS
SEARCH AND SEIZURE.
II
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
DESPITE THE ARRESTING OFFICER’S NON-
COMPLIANCE WITH THE REQUIREMENTS
FOR THE PROPER CUSTODY OF SEIZED
DANGEROUS DRUGS UNDER REPUBLIC
ACT NO. 9165.
III
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
DESPITE THE ARRESTING OFFICER’S
FAILURE TO PRESERVE THE INTEGRITY
AND EVIDENTIARY VALUE OF THE SEIZED
DANGEROUS DRUGS. 54

For our consideration are the following issues:

(1) whether there was a valid search and
seizure of marijuana as against the appellant;
(2) whether the evidence obtained through the
search should be admitted; and (3) whether
there was enough evidence to sustain the
conviction of the accused.
In view of the disposition of this case, we deem
that a discussion with respect to the
requirements on the chain of custody of
dangerous drugs unnecessary. 55

We find for the accused.

II
The right to privacy is a fundamental right
enshrined by implication in our Constitution. It
has many dimensions. One of its dimensions is
its protection through the prohibition of
unreasonable searches and seizures in Article
III, Section 2 of the Constitution:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause
to be determinedpersonally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce, and particularly describing the place to
be searched and the persons or things to be
seized.
This provision requires that the court examine
with care and diligence whether searches and
seizures are "reasonable." As a general rule,
searches conducted with a warrant that meets
all the requirements of this provision are
reasonable. This warrant requires the existence
of probable cause that can only be determined
by a judge. The existence of probable cause
56

must be established by the judge after asking

searching questions and answers. Probable
57

cause at this stage can only exist if there is an

offense alleged to be committed. Also, the
warrant frames the searches done by the law
enforcers. There must be a particular
description of the place and the things to be
searched. 58

However, there are instances when searches

are reasonable even when warrantless.  In the
59
Rules of Court, searchesincidental to lawful
arrests are allowed even without a separate
warrant.  This court has taken into account the
60

"uniqueness of circumstances involved

including the purpose of the search or seizure,
the presence or absence of probable cause, the
manner in which the search and seizure was
made, the place or thing searched, and the
character of the articles procured."  The known
61

jurisprudential instances of reasonable

warrantless searches and seizures are:
1. Warrantless search incidental to a lawful
arrest. . . ;
2. Seizure of evidence in "plain view," . . . ;
3. Search of a moving vehicle. Highly
regulated by the government, the vehicle’s
inherent mobility reduces expectation of
privacy especially when its transit in public
thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that
the occupant committed a criminal activity;
4. Consentedwarrantless search;
 5. Customs search;
6. Stop and frisk; and
7. Exigent and emergency
circumstances.  (Citations omitted)
62

III
One of these jurisprudential exceptionsto
search warrants is "stop and frisk". "Stop and
frisk" searches are often confused with
searches incidental to lawful arrests under the
Rules of Court.  Searches incidental to a lawful
63

arrest require that a crime be committed in

flagrante delicto, and the search conducted
within the vicinity and withinreach by the person
arrested is done to ensure that there are no
weapons, as well as to preserve the evidence. 64

On the other hand, "stop and frisk"searches are

conducted to prevent the occurrence of a crime.
For instance, the search in Posadas v. Court of
Appeals  was similar "to a ‘stop and frisk’
65

situation whose object is either to determine the

identity of a suspicious individual or to maintain
the status quomomentarily while the police
officer seeks to obtain more information."  This
66

court stated that the "stop and frisk" search

should be used "[w]hen dealing with a rapidly
unfolding and potentially criminal situation in the
city streets where unarguably there is no time to
secure . . . a search warrant."67

The search involved in this case was initially a

"stop and frisk" search, but it did not comply
with all the requirements of reasonability
required by the Constitution.
"Stop and frisk" searches (sometimes referred
to as Terrysearches ) are necessary for law
68

enforcement. That is, law enforcers should be

given the legal arsenal to prevent the
commission of offenses. However, this should
be balanced with the need to protect the privacy
of citizens in accordance with Article III, Section
2 of the Constitution.
The balance lies in the concept
of"suspiciousness" present in the situation
where the police officer finds himself or herself
in. This may be undoubtedly based on the
experience ofthe police officer. Experienced
police officers have personal experience
dealing with criminals and criminal behavior.
Hence, they should have the ability to discern
— based on facts that they themselves observe
— whether an individual is acting in a
suspicious manner. Clearly, a basic criterion
would be that the police officer, with his or her
personal knowledge, must observe the facts
leading to the suspicion of an illicit act.
In Manalili v. Court of Appeals,  the police
69

officers were initially informed about a place

frequented by people abusing drugs.  When
70

they arrived, one of the police officers saw a

man with "reddish eyes and [who was] walking
in a swaying manner."  The suspicion increased
71

when the man avoided the police

officers.  These observations led the police
72

officers to conclude that the man was high on

drugs.  These were sufficient facts observed by
73

the police officers "to stop[the] petitioner [and]

investigate." 74

In People v. Solayao,  police officers noticed a

75

man who appeared drunk.  This man was also

76

"wearing a camouflage uniform or a jungle

suit."  Upon seeing the police, the man
77

fled.  His flight added to the suspicion. After

78 79

stopping him, the police officers found an

unlicensed "homemade firearm"  in his
80

possession.  This court ruled that "[u]nder the

81

circumstances, the government agents could

not possibly have procured a search warrant
first."  This was also a valid search.
82

In these cases, the police officers using their

senses observed facts that led to the suspicion.
Seeing a man with reddish eyes and walking in
a swaying manner, based on their experience,
is indicative of a person who uses dangerous
and illicit drugs. A drunk civilian in guerrilla wear
is probably hiding something as well.
The case of Cogaed was different. He was
simply a passenger carrying a bag and traveling
aboarda jeepney. There was nothing
suspicious, moreover, criminal, about riding a
jeepney or carrying a bag. The assessment of
suspicion was not made by the police officer but
by the jeepney driver. It was the driver who
signalled to the police that Cogaed was
"suspicious."
This is supported by the testimony of SPO1
Taracatac himself:
COURT:
Q So you don’t know what was the content
while it was still being carried by him in the
passenger jeep?
WITNESS:
A Not yet, Your Honor. 83

SPO1 Taracatac likewise stated:

COURT:
Q If the driver did not make a gesture pointing
to the accused, did you have reason to believe
that the accused were carrying marijuana?
WITNESS:
A No, Your Honor. 84

The jeepney driver had to point toCogaed. He

would not have been identified by the police
officers otherwise.
It is the police officer who should observe facts
that would lead to a reasonable degree of
suspicion of a person. The police officer should
not adopt the suspicion initiated by another
person. This is necessary to justify that the
person suspected be stopped and reasonably
searched.  Anything less than this would be an
85

infringementupon one’s basic right to security of

one’s person and effects.
IV
Normally, "stop and frisk" searches do not give
the law enforcer an opportunity to confer with a
judge to determine probable cause. In Posadas
v. Court of Appeals,  one of the earliest cases
86

adopting the "stop and frisk" doctrine in

Philippine jurisprudence, this court
approximatedthe suspicious circumstances as
probable cause:
The probable causeis that when the petitioner
acted suspiciously and attempted to flee with
the buri bag there was a probable cause that he
was concealing something illegal in the bag and
it was the right and duty of the police officers to
inspect the same.  (Emphasis supplied)
87

For warrantless searches, probable cause was

defined as "a reasonable ground of
suspicionsupported by circumstances
sufficiently strong in themselves to warrant a
cautious man to believe that the person
accused is guilty of the offense with which he is
charged." 88

Malacat v. Court of Appeals  clarifies the

89

requirement further. It does not have to be

probable cause,but it cannot be mere
suspicion.  It has to be a "genuine reason"  to
90 91

serve the purposes of the "stop and frisk"

exception: 92

Other notable points of Terryare that while

probable cause is not required to conduct a
"stop and frisk," it nevertheless holds that mere
suspicion or a hunch will not validate a "stop
and frisk." A genuine reason must exist, in light
of the police officer’s experience and
surrounding conditions, to warrant the belief
that the person detained has weapons
concealed about him.  (Emphasis supplied,
93

footnotes omitted)
In his dissent for Esquillo v. People,  Justice
94

Bersamin reminds us that police officers must

not rely on a single suspicious
circumstance.  There should be "presence of
95

more than oneseemingly innocent activity,

which, taken together, warranted a reasonable
inference of criminal activity."  The Constitution
96

prohibits "unreasonable searches and

seizures."  Certainly, reliance on only one
97

suspicious circumstance or none at all will not

result in a reasonable search. 98

There was not a single suspicious circumstance

in this case, and there was no approximation for
the probable cause requirement for warrantless
arrest. The person searched was noteven the
person mentioned by the informant. The
informant gave the name of Marvin Buya, and
the person searched was Victor Cogaed. Even
if it was true that Cogaed responded by saying
that he was transporting the bag to Marvin
Buya, this still remained only as one
circumstance. This should not have been
enough reason to search Cogaed and his
belongings without a valid search warrant.
V
Police officers cannot justify unbridled searches
and be shielded by this exception, unless there
is compliance with the "genuine reason"
requirement and that the search serves the
purpose of protecting the public. As stated in
Malacat:
[A] "stop-and-frisk" serves a two-fold interest:
(1) the general interest of effective crime
prevention and detection, which underlies the
recognition that a police officer may, under
appropriate circumstances and in an
appropriate manner, approach a person for
purposes of investigating possible criminal
behavior even without probable cause; and (2)
the more pressing interest of safety and self-
preservationwhich permit the police officer to
take steps to assure himself that the person
with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be
used against the police officer.  (Emphasis
99

supplied)
The "stop and frisk" searchwas originally limited
to outer clothing and for the purpose of
detecting dangerous weapons.  As in 100

Manalili,  jurisprudence also allows "stop and

101

frisk" for cases involving dangerous drugs.

The circumstances of thiscase are analogous to
People v. Aruta.  In that case, an informant told
102

the police that a certain "Aling Rosa" would be

bringing in drugs from Baguio City by bus.  At 103

the bus terminal, the police officers prepared

themselves.  The informant pointed at a
104

woman crossing the street  and identified her

105

as "Aling Rosa."  The police apprehended

106

"Aling Rosa," and they alleged that she allowed

them to look inside her bag. The bag contained
107

marijuana leaves. 108

In Aruta, this court found that the search and

seizure conducted was illegal.  There were no
109

suspicious circumstances that preceded Aruta’s

arrest and the subsequent search and
seizure.  It was only the informant that
110
prompted the police to apprehend her.  The 111

evidence obtained was not admissible because

of the illegal search. Consequently, Aruta was
112

acquitted. 113

Arutais almost identical to this case, except that

it was the jeepney driver, not the police’s
informant, who informed the police that Cogaed
was "suspicious."
The facts in Arutaare also similar to the facts in
People v. Aminnudin.  Here, the National
114

Bureau ofInvestigation (NBI) acted upon a tip,

naming Aminnudin as somebody possessing
drugs.  The NBI waited for the vessel to arrive
115

and accosted Aminnudin while he was

disembarking from a boat.  Like in the case at
116

bar, the NBI inspected Aminnudin’s bag and

found bundles of what turnedout to be
marijuana leaves.  The court declared that the
117

searchand seizure was illegal.  Aminnudin was

118

acquitted. 119

People v. Chua  also presents almost the

120

same circumstances. In this case, the police

had been receiving information that the
accused was distributing drugs in "different
karaoke bars in Angeles City."  One night, the
121

police received information that thisdrug dealer

would be dealing drugs at the Thunder Inn
Hotel so they conducted a stakeout.  A car 122

"arrived and parked"  at the hotel. The

123 124

informant told the police that the man parked at

the hotel was dealing drugs.  The man alighted
125

from his car.  He was carrying a juice

126

box.  The police immediately apprehended him

127

and discovered live ammunition and drugs in

his person and in the juice box he was
holding. 128

Like in Aruta, this court did not find anything

unusual or suspicious about Chua’s situation
when the police apprehended him and ruled
that "[t]here was no valid‘stop-and-frisk’." 129

VI
None of the other exceptions to warrantless
searches exist to allow the evidence to be
admissible.The facts of this case do not qualify
as a search incidental to a lawful arrest.
Rule 126, Section 13 of the Rules of Court
allows for searches incidental to a lawful arrest.
For there to be a lawful arrest, there should be
either a warrant of arrest or a lawful warrantless
arrest as enumerated in Rule 113, Section 5 of
the Rules of Court:
Section 5. Arrest without warrant; when lawful.
– A peace officer or a private person may,
withouta warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or temporarily confined while
his case is pending, or has escaped while
 being transferred from one confinement to
another.
The apprehension of Cogaed was not effected
with a warrant of arrest. None of the instances
enumerated in Rule 113, Section 5 of the Rules
of Court were present whenthe arrest was
made. At the time of his apprehension, Cogaed
has not committed, was not committing, or was
about to commit a crime. As in People v. Chua,
for a warrantless arrest of in flagrante delictoto
be affected, "two elements must concur: (1) the
person to bearrested must execute anovert act
indicating that he has just committed, is actually
committing, or is attempting to commit a crime;
and (2) such overt act is done inthe presence or
within the view of the arresting officer."  Both
130

elements were missing when Cogaed was

arrested.  There were no overt acts within plain
131

view of the police officers that suggested that

Cogaed was in possession of drugs at that
time.
Also, Cogaed was not an escapee prisoner that
time; hence, he could not have qualified for the
last allowable warrantless arrest.
 VII
There can be no valid waiver of Cogaed’s
constitutional rights even if we assume that he
did not object when the police asked him to
open his bags. As this court previously stated:
Appellant’s silence should not be lightly taken
as consent to such search. The implied
acquiescence to the search, if there was any,
could not have been more than mere passive
conformity given under intimidating or coercive
circumstances and is thus considered no
consent at all within the purview of the
constitutional guarantee. (Citations omitted)
132

Cogaed’s silence or lack of aggressive

objection was a natural reaction to a coercive
environment brought about by the police
officer’s excessive intrusion into his private
space. The prosecution and the police carry the
burden of showing that the waiver of a
constitutional right is one which is knowing,
intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.
The coercive atmosphere created by the
presence of the police officer can be discerned
again from the testimony of SPO1 Taracatac
during cross-examination:
ATTY. BINWAG:
Q Now, Mr. witness, you claimed that you only
asked them what are the contents of their bags,
is it not?
WITNESS:
A Yes, ma’am.
Q And then without hesitation and voluntarily
they just opened their bags, is it not?
A Yes, ma’am.
Q So that there was not any order from you for
them to open the bags?
A None, ma’am.
Q Now, Mr. witness when you went near them
and asked them what were the contents ofthe
bag, you have not seen any signs of hesitation
or fright from them, is it not?
A It seems they were frightened, ma’am.
Q But you actually [claimed] that there was not
any hesitation from them in opening the bags, is
it not?
A Yes, ma’am but when I went near them it
seems that they were surprised.  (Emphasis
133

supplied)
The state of mind of Cogaed was further
clarified with SPO1 Taracatac’s responses to
Judge Florendo’s questions:
COURT:
....
Q Did you have eye contact with Cogaed?
A When I [sic] was alighting from the jeepney,
Your Honor I observed that he was somewhat
frightened.  He was a little apprehensive and
1âwphi1

when he was already stepping down and he put

down the bag I asked him, "what’s that," and he
answered, "I don’t know because Marvin only
asked me to carry." 134
For a valid waiver by the accused of his or her
constitutional right, it is not sufficient that the
police officerintroduce himself or herself, or be
known as a police officer.  The police officer
1âwphi1

must also inform the person to be searched that

any inaction on his orher part will amount to a
waiver of any of his or her objections that the
circumstances do not amount to a reasonable
search. The police officer must communicate
this clearly and in a language known to the
person who is about to waive his or her
constitutional rights. There must be
anassurance given to the police officer that the
accused fully understands his or her rights. The
fundamental nature of a person’s constitutional
right to privacy requires no less.
VIII
The Constitution provides:
Any evidence obtained in violation of [the right
against unreasonable searches and seizures]
shall be inadmissible for any purpose in any
proceeding. 135
Otherwise known as the exclusionary rule or
the fruit of the poisonous tree doctrine, this
constitutional provision originated from Stonehill
v. Diokno.  This rule prohibits the issuance of
136

general warrants that encourage law enforcers

to go on fishing expeditions. Evidence obtained
through unlawful seizures should be excluded
as evidence because it is "the only practical
means of enforcing the constitutional injunction
against unreasonable searches and
seizures."  It ensures that the fundamental
137

rights to one’s person, houses, papers, and

effects are not lightly infringed upon and are
upheld.
Considering that the prosecution and conviction
of Cogaed were founded on the search of his
bags, a pronouncement of the illegality of that
search means that there is no evidence left to
convict Cogaed.
Drugs and its illegal traffic are a scourgeto our
society. In the fight to eradicate this menace,
law enforcers should be equipped with the
resources to be able to perform their duties
better. However, we cannot, in any way,
compromise our society’s fundamental values
enshrined in our Constitution. Otherwise, we
will be seen as slowlydismantling the very
foundations of the society that we seek to
protect.
WHEREFORE, the decisions of the Regional
Trial Court, Branch 28, San Fernando City, La
Union and of the Court of Appeals in CA-G.R.
CR-HC No. 03394 are hereby REVERSEDand
SET ASIDE. For lack of evidence to establish
his guilt beyond reasonable doubt, accused-
appellant VICTOR COGAED Y ROMANA is
hereby ACQUITTED and ordered RELEASED
from confinement unless he is being heldfor
some other legal grounds. No costs.
SO ORDERED.

[G.R. NO. 182348 : November 20, 2008]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee v. CARLOS

DELA CRUZ, Accused-Appellant.

DECISION

VELASCO, JR., J.:

This is an appeal from the November 29, 2007 Decision of the Court
of Appeals (CA) in CA-G.R. CR-H.C. No. 02286 entitled People of the
Philippines v. Carlos Dela Cruzwhich affirmed the September 16,
2005 Decision of the Regional Trial Court (RTC), Branch 77 in San
Mateo, Rizal in Criminal Case Nos. 6517 (Illegal Possession of
Firearm and Ammunition) and 6518 (Possession of Dangerous
Drug). The RTC found accused - appellant Carlos Dela Cruz guilty
beyond reasonable doubt of violation of Section 11(2) of Republic
Act No. (RA) 9165 or The Comprehensive Dangerous Drugs Act of
2002.

The Facts

On November 15, 2002, charges against accused-appellant were

made before the RTC. The Informations read as follows:

Criminal Case No. 6517

That, on or about the 20th day of October 2002, in the Municipality

of San Mateo, Province of Rizal, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
being then a private citizen, without any lawful authority, did then
and there willfully, unlawfully, and knowingly have in his possession
and under his custody and control One (1) Gauge Shotgun marked
ARMSCOR with Serial No. 1108533 loaded with four (4) live
ammunition, which are high powered firearm and ammunition
respectively, without first securing the necessary license to possess
or permit to carry said firearm and ammunition from the proper
authorities.

Criminal Case No. 6518

That on or about the 20th day of October 2002, in the Municipality of

San Mateo, Province of Rizal, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, not being
authorized by law, did then and there willfully, unlawfully and
knowingly have in his possession, direct custody and control one (1)
heat-sealed transparent plastic bag weighing 49.84 grams of white
crystalline substance, which gave positive results for
Methamphetamine Hydrochloride, a dangerous drug.1

Accused-appellant entered a not guilty plea and trial ensued.

The facts, according to the prosecution, showed that in the morning
of October 20, 2002, an informant tipped off the Drug Enforcement
Unit of the Marikina Police Station that wanted drug pusher Wifredo
Loilo alias "Boy Bicol" was at his nipa hut hideout in San Mateo,
Rizal. A team was organized to arrest Boy Bicol. Once there, they
saw Boy Bicol by a table talking with accused-appellant. They
shouted "Boy Bicol sumuko ka na may warrant of arrest ka.
(Surrender yourself Boy Bicol you have a warrant of arrest.)" Upon
hearing this, Boy Bicol engaged them in a shootout and was fatally
shot. Accused-appellant was seen holding a shotgun through a
window. He dropped his shotgun when a police officer pointed his
firearm at him. The team entered the nipa hut and apprehended
accused-appellant. They saw a plastic bag of suspected shabu, a
digital weighing scale, drug paraphernalia, ammunition, and
magazines lying on the table. PO1 Calanoga, Jr. put the markings
"CVDC," the initials of accused-appellant, on the bag containing the
seized drug.

Accused-appellant was subsequently arrested. The substance seized

from the hideout was sent to the Philippine National Police crime
laboratory for examination and tested positive for
methamphetamine hydrochloride or shabu. He was thus separately
indicted for violation of RA 9165 and for illegal possession of
firearm.

According to the defense, accused-appellant was at Boy Bicol's

house having been asked to do a welding job for Boy Bicol's
motorcycle. While accused-appellant was there, persons who
identified themselves as police officers approached the place,
prompting accused-appellant to scamper away. He lied face down
when gunshots rang. The buy-bust team then helped him get up.
He saw the police officers searching the premises and
finding shabu and firearms, which were on top of a table or
drawer.2 When he asked the reason for his apprehension, he was
told that it was because he was a companion of Boy Bicol. He
denied under oath that the gun and drugs seized were found in his
possession and testified that he was only invited by Boy Bicol to get
the motorcycle from his house.3
The RTC acquitted accused-appellant of illegal possession of firearm
and ammunition but convicted him of possession of dangerous
drugs. The dispositive portion of the RTC Decision reads:

WHEREFORE, the Court based on insufficiency of evidence hereby

ACQUITS accused CARLOS DELA CRUZ Y VICTORINO in Criminal
Case No. 6517 for violation of P.D. 1866 as amended by RA 8294.

In Criminal Case No. 6518 for Possession of Dangerous Drug under

Section 11, 2ndparagraph of Republic Act 9165, the Court finds said
accused CARLOS DELA CRUZ Y VICTORINO, GUILTY beyond
reasonable doubt and is hereby sentenced to Life Imprisonment and
to Pay a Fine of FOUR HUNDRED THOUSAND PESOS (P400,000.00).

SO ORDERED.4

On December 7, 2005, accused-appellant filed a Notice of Appeal of

the RTC Decision.

In his appeal to the CA, accused-appellant claimed that: (1) the

version of the prosecution should not have been given full credence;
(2) the prosecution failed to prove beyond reasonable doubt that he
was guilty of possession of an illegal drug; (3) his arrest was
patently illegal; and (4) the prosecution failed to establish the chain
of custody of the illegal drug allegedly in his possession.

The CA sustained accused-appellant's conviction.5 It pointed out

that accused-appellant was positively identified by prosecution
witnesses, rendering his uncorroborated denial and allegation of
frame-up weak. As to accused-appellant's alleged illegal arrest, the
CA held that he is deemed to have waived his objection when he
entered his plea, applied for bail, and actively participated in the
trial without questioning such arrest.

On the supposedly broken chain of custody of the illegal drug, the

appellate court held that accused-appellant's claim is unpersuasive
absent any evidence showing that the plastic sachet of shabu had
been tampered or meddled with.
On December 20, 2007, accused-appellant filed his Notice of Appeal
of the CA Decision.

On June 25, 2008, this Court required the parties to submit

supplemental briefs if they so desired. The parties later signified
their willingness to submit the case on the basis of the records
already with the Court.

Accused-appellant presents the following issues before us:

THE COURT A QUO GRAVELY ERRED IN GIVING FULL CREDENCE TO

THE VERSION OF THE PROSECUTION

II

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY OF VIOLATION OF SECTION 11, ARTICLE II, RA
9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE
COMMISSION OF THE OFFENSE CHARGED BEYOND REASONABLE
DOUBT

III

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE

ACCUSED-APPELLANT OF THE OFFENSE CHARGED DESPITE THE
PATENT ILLEGALITY OF HIS ARREST

IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165
DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE
CHAIN OF CUSTODY OF THE ILLEGAL DRUG ALLEGEDLY FOUND IN
HIS POSSESSION

Accused-appellant claims that the presence of all the elements of

the offense of possession of dangerous drug was not proved beyond
reasonable doubt since both actual and constructive possessions
were not proved. He asserts that the shabu was not found in his
actual possession, for which reason the prosecution was required to
establish that he had constructive possession over the shabu. He
maintains that as he had no control and dominion over the drug or
over the place where it was found, the prosecution likewise failed to
prove constructive possession.

The Court's Ruling

The appeal has merit.

The elements in illegal possession of dangerous drug are: (1) the

accused is in possession of an item or object which is identified to
be a prohibited drug; (2) such possession is not authorized by law;
and (3) the accused freely and consciously possessed the said
drug.6 On the third element, we have held that the possession must
be with knowledge of the accused or that animus possidendi existed
with the possession or control of said articles.7 Considering that as
to this knowledge, a person's mental state of awareness of a fact is
involved, we have ruled that:

Since courts cannot penetrate the mind of an accused and

thereafter state its perceptions with certainty, resort to other
evidence is necessary. Animus possidendi, as a state of mind, may
be determined on a case-to-case basis by taking into consideration
the prior or contemporaneous acts of the accused, as well as the
surrounding circumstances. Its existence may and usually must be
inferred from the attendant events in each particular case.8

The prior or contemporaneous acts of accused-appellant show that:

he was inside the nipa hut at the time the buy-bust operation was
taking place; he was talking to Boy Bicol inside the nipa hut; he was
seen holding a shotgun; when PO1 Calanoga, Jr. pointed his firearm
at accused-appellant, the latter dropped his shotgun; and when
apprehended, he was in a room which had the seized shabu, digital
weighing scale, drug paraphernalia, ammunition, and magazines.
Accused-appellant later admitted that he knew what the content of
the seized plastic bag was.9
Given the circumstances, we find that the prosecution failed to
establish possession of the shabu, whether in its actual or
constructive sense, on the part of accused-appellant.

The two buy-bust team members corroborated each other's

testimonies on how they saw Boy Bicol talking to accused-appellant
by a table inside the nipa hut. That table, they testified, was the
same table where they saw the shabuonce inside the nipa hut. This
fact was used by the prosecution to show that accused-appellant
exercised dominion and control over the shabu on the table. We,
however, find this too broad an application of the concept of
constructive possession.

In People v. Torres,10 we held there was constructive possession of

prohibited drugs even when the accused was not home when the
prohibited drugs were found in the master's bedroom of his house.

In People v. Tira,11 we sustained the conviction of the accused

husband and wife for illegal possession of dangerous drugs. Their
residence was searched and their bed was found to be concealing
illegal drugs underneath. We held that the wife cannot feign
ignorance of the drugs' existence as she had full access to the
room, including the space under the bed.

In Abuan v. People,12 we affirmed the finding that the accused was

in constructive possession of prohibited drugs which had been found
in the drawer located in her bedroom.

In all these cases, the accused was held to be in constructive

possession of illegal drugs since they were shown to enjoy dominion
and control over the premises where these drugs were found.

In the instant case, however, there is no question that accused-

appellant was not the owner of the nipa hut that was subject of the
buy-bust operation. He did not have dominion or control over the
nipa hut. Neither was accused-appellant a tenant or occupant of the
nipa hut, a fact not disputed by the prosecution. The target of the
operation was Boy Bicol. Accused-appellant was merely a guest of
Boy Bicol. But in spite of the lack of evidence pinning accused-
appellant to illegal possession of drugs, the trial court declared the
following:

It cannot be denied that when the accused was talking with Boy
Bicol he knew that the shabuwas on the table with other items that
were confiscated by the police operatives. The court [surmises] that
the accused and boy Bicol were members of a gang hiding in that
nipa hut where they were caught red-handed with prohibited items
and dangerous [drugs].13

The trial court cannot assume, based on the prosecution's evidence,

that accused-appellant was part of a gang dealing in illegal
activities. Apart from his presence in Boy Bicol's nipa hut, the
prosecution was not able to show his participation in any drug-
dealing. He was not even in possession of drugs in his person. He
was merely found inside a room with shabu, not as the room's
owner or occupant but as a guest. While he allegedly pointed a
firearm at the buy-bust team, the prosecution curiously failed to
produce the firearm that accused-appellant supposedly used.

The prosecution in this case clearly failed to show all the elements
of the crime absent a showing of either actual or constructive
possession by the accused-appellant.

Since accused-appellant was not in possession of the illegal drugs in

Boy Bicol's nipa hut, his subsequent arrest was also invalid. Rule
113 of the Rules on Criminal Procedure on warrantless arrest
provides:

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

private person may, without a warrant, arrest a person:

a) When, in his presence, the person to be arrested has committed,

is actually committing, or is attempting to commit an offense;

b) When an offense has just been committed, and he has probable

cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it;
andcralawlibrary
c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.

The warrantless arrest of accused-appellant was effected under Sec.

5(a), arrest of a suspect in flagrante delicto. For this type of
warrantless arrest to be valid, two requisites must concur: (1) the
person to be arrested must execute an overt act indicating that he
has just committed, is actually committing, or is attempting to
commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer.14

Accused-appellant's act of pointing a firearm at the buy-bust team

would have been sufficient basis for his arrest  in flagrante delicto;
however, the prosecution was not able to adequately prove that
accused-appellant was committing an offense. Although accused-
appellant merely denied possessing the firearm, the prosecution's
charge was weak absent the presentation of the alleged firearm. He
was eventually acquitted by the trial court because of this gaffe. His
arrest, independent of the buy-bust operation targeting Boy Bicol,
was therefore not lawful as he was not proved to be committing any
offense.

In sum, we find that there is insufficient evidence to show accused-

appellant's guilt beyond reasonable doubt. Having ruled on the lack
of material or constructive possession by accused-appellant of the
seized shabuand his succeeding illegal arrest, we deem it
unnecessary to deal with the other issue raised.

WHEREFORE, the appeal is GRANTED. The CA Decision dated

November 29, 2007 in CA-G.R. CR-H.C. No. 02286
is REVERSED and SET ASIDE. Accused-appellant Carlos Dela Cruz
is ACQUITTED of violation of Sec. 11(2) of RA 9165 in Criminal
Case No. 6518 of the RTC, Branch 77 in San Mateo, Rizal.

SO ORDERED.
G.R. No. 95847-48. March 10, 1993.
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. GABRIEL GERENTE y BULLO,
accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
ARREST WITHOUT WARRANT; LAWFUL
WHEN ARRESTING OFFICER HAS
PERSONAL KNOWLEDGE THAT THE
PERSON TO BE ARRESTED HAS
COMMITTED THE CRIME; CASE AT BAR. —
The policemen arrested Gerente only some
three (3) hours after Gerente and his
companions had killed Blace. They saw Blace
dead in the hospital and when they inspected
the scene of the crime, they found the
instruments of death: a piece of wood and a
concrete hollow block which the killers had
used to bludgeon him to death. The eye-
witness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under
those circumstances, since the policemen had
personal knowledge of the violent death of
Blace and of facts indicating that Gerente and
two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had
postponed his arrest until they could obtain a
warrant, he would have fled the law as his two
companions did.
2. ID.; ID.; SEARCH AND SEIZURE; VALID
EVEN WITHOUT A WARRANT WHEN MADE
AS AN INCIDENT TO LAWFUL ARREST;
RATIONALE. — The search conducted on
Gerente's person was likewise lawful because it
was made as an incident to a valid arrest. This
is in accordance with Section 12, Rule 126 of
the Revised Rules of Court which provides:
"Section 12. Search incident to lawful arrest. —
A person lawfully arrested may be searched for
dangerous weapons or anything which may be
used as proof of the commission of an offense,
without a search warrant." The frisk and search
of appellant's person upon his arrest was a
permissible precautionary measure of arresting
officers to protect themselves, for the person
who is about to be arrested may be armed and
might attack them unless he is first disarmed. In
Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law,
1991 Edition, p. 150, it was ruled that "the
individual being arrested may be frisked for
concealed weapons that may be used against
the arresting officer and all unlawful articles
found his person, or within his immediate
control may be seized."
3. CRIMINAL LAW; CONSPIRACY; LIABILITY
OF CONSPIRATORS; RULE; CASE AT BAR.
— There is no merit in appellant's allegation
that the trial court erred in convicting him of
having conspired and cooperated with Fredo
and Totoy Echigoren to kill Blace despite the
testimony of Dr. Valentin Bernales that the
fracture on the back of the victim's skull could
have been inflicted by one person only. what
Dr. Bernales stated was a mere possibility that
only one person dropped the concrete hollow
block on the head of the victim, smashing it.
That circumstance, even if true, does not
absolve the other two co-conspirators in the
murder of Blace for when there is a conspiracy
to commit a crime, the act of one conspirator is
the act of all. The conspiracy was proven by the
eyewitness-testimony of Edna Edwina Reyes,
that she overheard the appellant and his
companions conspire to kill Blace, that acting in
concert, they attacked their victim with a piece
of wood and a hollow block and caused his
death. "When there is no evidence indicating
that the principal witness for the prosecution
was moved by improper motive, the
presumption is that he was not so moved and
his testimony is entitled to full faith and credit"
(People vs. Belibet, 199 SCRA 587, 588).
Hence, the trial court did not err in giving full
credit to Edna Reyes' testimony.
4. ID.; CIVIL INDEMNITY FOR DEATH;
INCREASED TO P50,000.00. — The Solicitor
General correctly pointed out in the appellee's
brief that the award of P30,000.00 as civil
indemnity for the death of Clarito Blace should
be increased to P50,000.00 in accordance with
our ruling in People vs. Sison, 189 SCRA 643.
DECISION
GRIÑO-AQUINO, J p:
This is an appeal from the decision of the
Regional Trial Court of Valenzuela, Metro
Manila, Branch 172, which found the appellant
guilty of Violation of Section 8 of Republic Act
6425 (Dangerous Drugs Act of 1972) and
sentenced him to suffer the penalty of
imprisonment for a term of twelve (12) years
and one (1) day, as minimum, to twenty (20)
years, as maximum; and also found him guilty
of Murder for which crime he was sentenced to
suffer the penalty of reclusion perpetua. The
dispositive portion of the appealed decision
reads:
"WHEREFORE, in view of the foregoing the
Court finds the accused Gabriel Gerente in
Criminal Case No. 10255-V-90 guilty beyond
reasonable doubt of Violation of Section 8 of
R.A. 6425 and hereby sentences him to suffer
the penalty of imprisonment of twelve years and
one day as minimum to twenty years as
maximum, and a fine of twelve thousand,
without subsidiary imprisonment in case of
insolvency, and to pay the costs.
"In Criminal Case No. 10256-V-90, the Court
finds the accused Gabriel Gerente guilty
beyond reasonable doubt of the crime of
Murder, and there by (sic) no aggravating
circumstances nor mitigating circumstances, is
hereby sentenced to suffer the penalty of
reclusion perpetua; to indemnify the heirs of the
victim in the sum of P30,000.00, and in the
amount of P17,609.00 as funeral expenses,
without subsidiary imprisonment in case of
insolvency, and to pay the costs. The accused
Gabriel Gerente shall be credited with the full
term of his preventive imprisonment." (p. 25,
Rollo.)
Appellant Gabriel Gerente y Bullo was charged
with Violation of Section 8, Art. II of R.A. 6425,
which was docketed as Criminal Case No.
10255-V-90 of the Regional Trial Court of
Valenzuela, Metro Manila. The Information
reads:
"That on or about the 30th day of April, 1990, in
the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
without justification, did then and there wilfully,
unlawfully and feloniously have in his
possession and control dried flowering tops
wrapped in foil with markings and place in a
transparent plastic bag which are considered
prohibited drugs." (p. 2, Rollo.)
The same accused, together with Totoy and
Fredo Echigoren who are both at large, was
charged with Murder in Criminal Case No.
10256-V-90 in an information of the same date
and signed by the same Assistant Provincial
Prosecutor, as follows:
"That on or about the 30th day of April, 1990, in
the municipality of Valenzuela, Metro Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
together with two (2) others who are still at
large and against whom the preliminary
investigation has not yet been terminated by the
Office of the Provincial Prosecutor of Bulacan,
conspiring, confederating together and mutually
helping one another, armed with a piece of
wood and hallow (sic) block and with intent to
kill one Clarito B. Blace, did then and there
wilfully, unlawfully and feloniously, with evident
premeditation and treachery, attack, assault
and hit with the said piece of wood and hollow
block the said Clarito B. Blace, hitting the latter
on the different parts of his body, thereby
inflicting serious physical injuries which directly
caused the death of the said victim." (p. 3,
Rollo.)
Edna Edwina Reyes testified that at about 7:00
a.m. of April 30, 1990, appellant Gabriel
Gerente, together with Fredo Echigoren and
Totoy Echigoren, started drinking liquor and
smoking marijuana in the house of the appellant
which is about six (6) meters away from the
house of the prosecution witness who was in
her house on that day. She overheard the three
men talking about their intention to kill Clarito
Blace. She testified that she heard Fredo
Echigoren saying, "Gabriel, papatayin natin si
Clarito Blace," and Totoy Echigoren allegedly
seconded Fredo's suggestion saying:
"Papatayin natin 'yan mamaya." Appellant
allegedly agreed: "Sigue, papatayin natin
mamaya." (pp. 3-4, tsn, August 24, 1990.)
Fredo and Totoy Echigoren and Gerente
carried out their plan to kill Clarito Blace at
about 2:00 p.m. of the same day. The
prosecution witness, Edna Edwina Reyes,
testified that she witnessed the killing. Fredo
Echigoren struck the first blow against Clarito
Blace, followed by Totoy Echigoren and Gabriel
Gerente who hit him twice with a piece of wood
in the head and when he fell, Totoy Echigoren
dropped a hollow block on the victim's head.
Thereafter, the three men dragged Blace to a
place behind the house of Gerente.
At about 4:00 p.m. of the same day, Patrolman
Jaime Urrutia of the Valenzuela Police Station
received a report from the Palo Police
Detachment about a mauling incident. He went
to the Valenzuela District Hospital where the
victim was brought. He was informed by the
hospital officials that the victim died on arrival.
The cause of death was massive fracture of the
skull caused by a hard and heavy object. Right
away, Patrolman Urrutia, together with Police
Corporal Romeo Lima and Patrolman Alex
Umali, proceeded to Paseo de Blas where the
mauling incident took place. There they found a
piece of wood with blood stains, a hollow block
and two roaches of marijuana. They were
informed by the prosecution witness, Edna
Edwina Reyes, that she saw the killing and she
pointed to Gabriel Gerente as one of the three
men who killed Clarito.
The policemen proceeded to the house of the
appellant who was then sleeping. They told him
to come out of the house and they introduced
themselves as policemen. Patrolman Urrutia
frisked appellant and found a coin purse in his
pocket which contained dried leaves wrapped in
cigarette foil. The dried leaves were sent to the
National Bureau of Investigation for
examination. The Forensic Chemist found them
to be marijuana.
Only the appellant, Gabriel Gerente, was
apprehended by the police. The other suspects,
Fredo and Totoy Echigoren, are still at large.
On May 2, 1990, two separate informations
were filed by Assistant Provincial Prosecutor
Benjamin Caraig against him for Violation of
Section 8, Art. II, of R.A. 6425, and for Murder.
When arraigned on May 16, 1990, the appellant
pleaded not guilty to both charges. A joint trial
of the two cases was held. On September 24,
1990, the trial court rendered a decision
convicting him of Violation of Section 8 of R.A.
6425 and of Murder.
In this appeal of the appellant, the following
errors are ascribed to the trial court:
1. the court a quo gravely erred in admitting the
marijuana leaves adduced in evidence by the
prosecution; and
2. the court a quo gravely erred in convicting
the accused-appellant of the crimes charged
despite the absence of evidence required to
prove his guilt beyond reasonable doubt.
The appellant contends that the trial court erred
in admitting the marijuana leaves as evidence
in violation of his constitutional right not to be
subjected to illegal search and seizure, for the
dried marijuana leaves were seized from him in
the course of a warrantless arrest by the police
officers. We do not agree.
The search of appellant's person and the
seizure of the marijuana leaves in his
possession were valid because they were
incident to a lawful warrantless arrest.
Paragraphs (a) and (b), Section 5, Rule 113 of
the Revised Rules of Court provide:
'SECTION 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; . . .'
The policemen arrested Gerente only some
three (3) hours after Gerente and his
companions had killed Blace. They saw Blace
dead in the hospital and when they inspected
the scene of the crime, they found the
instruments of death: a piece of wood and a
concrete hollow block which the killers had
used to bludgeon him to death. The eye-
witness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her
neighbor, Gerente, as one of the killers. Under
those circumstances, since the policemen had
personal knowledge of the violent death of
Blace and of facts indicating that Gerente and
two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had
postponed his arrest until they could obtain a
warrant, he would have fled the law as his two
companions did.
In Umil vs. Ramos, 187 SCRA 311, the arrest of
the accused without a warrant was effected one
(1) day after he had shot to death two Capcom
soldiers. The arrest was held lawful by this
Court upon the rationale stated by us in People
vs. Malasugui, 63 Phil. 221, 228, thus:
"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 search conducted on Gerente's person was
likewise lawful because it was made as an
incident to a valid arrest. This is in accordance
with Section 12, Rule 126 of the Revised Rules
of Court which provides:
"SECTION 12. Search incident to lawful arrest.
— A person lawfully arrested may be searched
for dangerous weapons or anything which may
be used as proof of the commission of an
offense, without a search warrant."
The frisk and search of appellant's person upon
his arrest was a permissible precautionary
measure of arresting officers to protect
themselves, for the person who is about to be
arrested may be armed and might attack them
unless he is first disarmed. In Adams vs.
Williams, 47 U.S. 143, cited in Justice Isagani
A. Cruz's Constitutional Law, 1991 Edition, p.
150, it was ruled that "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."
There is no merit in appellant's allegation that
the trial court erred in convicting him of having
conspired and cooperated with Fredo and Totoy
Echigoren to kill Blace despite the testimony of
Dr. Valentin Bernales that the fracture on the
back of the victim's skull could have been
inflicted by one person only.
What Dr. Bernales stated was a mere possibility
that only one person dropped the concrete
hollow block on the head of the victim,
smashing it. That circumstance, even if true,
does not absolve the other two co-conspirators
in the murder of Blace for when there is a
conspiracy to commit a crime, the act of one
conspirator is the act of all. The conspiracy was
proven by the eyewitness-testimony of Edna
Edwina Reyes, that she overheard the
appellant and his companions conspire to kill
Blace, that acting in concert, they attacked their
victim with a piece of wood and a hollow block
and caused his death. "When there is no
evidence indicating that the principal witness for
the prosecution was moved by improper motive,
the presumption is that he was not so moved
and his testimony is entitled to full faith and
credit" (People vs. Belibet, 199 SCRA 587,
588). Hence, the trial court did not err in giving
full credit to Edna Reyes' testimony.
Appellant's failure to escape (because he was
very drunk) is no indicium of his innocence.
The Solicitor General correctly pointed out in
the appellee's brief that the award of
P30,000.00 as civil indemnity for the death of
Clarito Blace should be increased to
P50,000.00 in accordance with our ruling in
People vs. Sison, 189 SCRA 643.
WHEREFORE, the appealed decision is hereby
AFFIRMED, with modification of the civil
indemnity awarded to the heirs of the victim,
Clarito Blace, which is hereby increased to
P50,000.00.
SO ORDERED.

.R. No. 125299 January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, 
vs.
FLORENCIO DORIA y BOLADO and
VIOLETA GADDAO y CATAMA @
"NENETH," accused-appellants.

PUNO, J.:
On December 7, 1995, accused-appellants
Florencio Doria y Bolado and Violeta Gaddao y
Catama @ "Neneth" were charged with
violation of Section 4, in relation to Section 21
of the Dangerous Drugs Act of 1972.   The
1

information reads:
That on or about the 5th day of
December, 1995 in the City of
Mandaluyong, Philippines, a place
within the jurisdiction of this Honorable
Court, the above-named accused,
conspiring, confederating and mutually
helping and aiding one another and
without having been authorized by law,
did, then and there willfully, unlawfully
 and feloniously sell, administer, deliver
and give away to another eleven (11)
plastic bags of suspected marijuana
fruiting tops weighing 7,641.08 grams in
violation of the above-cited law.
CONTRARY TO LAW. 2

The prosecution contends the offense was

committed as follows: In November 1995,
members of the North Metropolitan District,
Philippine National Police (PNP) Narcotics
Command (Narcom), received information from
two (2) civilian informants (CI) that one "Jun"
was engaged in illegal drug activities in
Mandaluyong City. The Narcom agents decided
to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a
meeting between the Narcom agents and "Jun"
was scheduled on December 5, 1995 at E.
Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning,
the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-
bust operation. The Narcom agents formed
Team Alpha composed of P/Insp. Nolasco
Cortes as team leader and PO3 Celso
Manlangit, SPO1 Edmund Badua and four (4)
other policemen as members. P/Insp. Cortes
designated P03 Manlangit as the poseur-buyer
and SPO1 Badua as his back-up, and the rest
of the team as perimeter security.
Superintendent Pedro Alcantara, Chief of the
North Metropolitan District PNP Narcom, gave
the team P2, 000. 00 to cover operational
expenses. From this sum, PO3 Manlangit set
aside P1,600.00 — a one thousand peso bill
and six (6) one hundred peso bills   — as
3

money for the buy-bust operation. The market

price of one kilo of marijuana was then
P1,600.00. P03 Manlangit marked the bills with
his initials and listed their serial numbers in the
police blotter.  The team rode in two cars and
4

headed for the target area.

At 7:20 of the same morning, "Jun" appeared
and the CI introduced PO3 Manlangit as
interested in buying one (1) kilo of marijuana.
P03 Manlangit handed "Jun" the marked bills
worth P1,600.00. "Jun" instructed P03
Manlangit to wait for him at the corner of Shaw
Boulevard and Jacinto Street while he got the
marijuana from his associate.  An hour later,
5

"Jun" appeared at the agreed place where P03

Manlangit, the CI and the rest of the team were
waiting. "Jun" took out from his bag an object
wrapped in plastic and gave it to P03 Manlangit.
P03 Manlangit forthwith arrested "Jun" as
SPO1 Badua rushed to help in the arrest. They
frisked "Jun" but did not find the marked bills on
him. Upon inquiry, "Jun" revealed that he left
the money at the house of his associate named
"Neneth.  "Jun" led the police team to
6

"Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house
open and a woman inside. "Jun" identified the
woman as his associate.  SPO1 Badua asked
7

"Neneth" about the P1,600.00 as PO3

Manlangit looked over "Neneth's" house.
Standing by the door, PO3 Manlangit noticed a
carton box under the dining table. He saw that
one of the box's flaps was open and inside the
box was something wrapped in plastic. The
plastic wrapper and its contents appeared
similar to the marijuana earlier "sold" to him by
"Jun." His suspicion aroused, PO3 Manlangit
entered "Neneth's" house and took hold of the
box. He peeked inside the box and found that it
contained ten (10) bricks of what appeared to
be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1
Badua recovered the marked bills from
"Neneth."  The policemen arrested "Neneth."
8

They took "Neneth" and "Jun," together with the

box, its contents and the marked bills and
turned them over to the investigator at
headquarters. It was only then that the police
learned that "Jun" is Florencio Doria y Bolado
while "Neneth" is Violeta Gaddao y Catama.
The one (1) brick of dried marijuana leaves
recovered from "Jun" plus the ten (10) bricks
recovered from "Neneth's" house were
examined at the PNP Crime Laboratory.  The9

bricks, eleven (11) in all, were found to be dried

marijuana fruiting tops of various weights
totalling 7,641.08 grams. 10

The prosecution story was denied by accused-

appellants Florencio Doria and Violeta Gaddao.
Florencio Doria, a 33-year old carpenter,
testified that on December 5, 1995, at 7:00 in
the morning, he was at the gate of his house
reading a tabloid newspaper. Two men
appeared and asked him if he knew a certain
"Totoy." There were many "Totoys" in their area
and as the men questioning him were
strangers, accused-appellant denied knowing
any "Totoy." The men took accused-appellant
inside his house and accused him of being a
pusher in their community. When accused-
appellant denied the charge, the men led him to
their car outside and ordered him to point out
the house of "Totoy." For five (5) minutes,
accused-appellant stayed in the car. Thereafter,
he gave in and took them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house
but no one answered. One of the men, later
identified as P03 Manlangit, pushed open the
door and he and his companions entered and
looked around the house for about three
minutes. Accused-appellant Doria was left
standing at the door. The policemen came out
of the house and they saw Violeta Gaddao
carrying water from the well. He asked Violeta
where "Totoy" was but she replied he was not
there. Curious onlookers and kibitzers were, by
that time, surrounding them. When Violeta
entered her house, three men were already
inside. Accused-appellant Doria, then still at the
door, overheard one of the men say that they
found a carton box. Turning towards them,
Doria saw box on top of the table. The box was
open and had something inside. P03 Manlangit
ordered him and Violeta to go outside the
house and board the car. They were brought to
police headquarters where they were
investigated.
Accused-appellant Doria further declared that
his co-accused, Violeta Gaddao, is the wife of
his acquaintance, Totoy Gaddao. He said that
he and Totoy Gaddao sometimes drank
together at the neighborhood store. This
closeness, however, did not extend to Violeta,
Totoy's wife.11

Accused-appellant Violeta Gaddao, a 35-year

old rice vendor, claimed that on December 5,
1995, she was at her house at Daang Bakal,
Mandaluyong City where she lived with her
husband and five (5) children, namely, Arvy,
aged 10, Arjay, aged 8, the twins Raymond and
Raynan, aged 5, and Jason, aged 3. That day,
accused-appellant woke up at 5:30 in the
morning and bought pan de sal for her
children's breakfast. Her husband, Totoy, a
housepainter, had left for Pangasinan five days
earlier. She woke her children and bathed
them. Her eldest son, Arvy, left for school at
6:45 A.M. Ten minutes later, she carried her
youngest son, Jayson, and accompanied Arjay
to school. She left the twins at home leaving the
door open. After seeing Arjay off, she and
Jayson remained standing in front of the school
soaking in the sun for about thirty minutes.
Then they headed for home. Along the way,
they passed the artesian well to fetch water.
She was pumping water when a man clad in
short pants and denim jacket suddenly
appeared and grabbed her left wrist. The man
pulled her and took her to her house. She found
out later that the man was P03 Manlangit.
Inside her house were her co-accused Doria
and three (3) other persons. They asked her
about a box on top of the table. This was the
first time she saw the box. The box was closed
and tied with a piece of green straw. The men
opened the box and showed her its contents.
She said she did not know anything about the
box and its contents.
Accused-appellant Violeta Gaddao confirmed
that her co-accused Florencio Doria was a
friend of her husband, and that her husband
never returned to their house after he left for
Pangasinan. She denied the charge against her
and Doria and the allegation that marked bills
were found in her person. 12

After trial, the Regional Trial Court, Branch 156,

Pasig City convicted the accused-appellants.
The trial court found the existence of an
"organized/syndicated crime group" and
sentenced both accused-appellants to death
and pay a fine of P500,000.00 each. The
dispositive portion of the decision reads as
follows:
WHEREFORE, the guilt of accused,
FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" having been
established beyond reasonable doubt,
they are both 
CONVICTED of the present charge
against them.
According to the amendatory provisions
of Sec. 13 of Republic Act No. 7659
which cover violations of Sec. 4 of
Republic Act No. 6425 and which was
exhaustively discussed in People v.
Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion
perpetua to death and a fine ranging
from five hundred thousand pesos to ten
million pesos. Taking into consideration,
however, the provisions of Sec. 23, also
of Republic Act No. 7659 which explicitly
state that:
The maximum penalty shall be
imposed if the offense was
committed by any person who
belongs to an
organized/syndicated crime
group.
 An organized/syndicated crime
group means a group of two or
more persons collaborating,
confederating or mutually
helping one another for purposes
of gain in the commission of any
crime.
the Court is hereby constrained to
sentence (hereby sentences) said
FLORENCIO DORIA y BOLADO @
"Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" to DEATH and to
pay a fine of Five Hundred Thousand
Pesos (P500,000.00) each without
subsidiary imprisonment in case of
insolvency and to pay the costs.
The confiscated marijuana bricks
(7,641.08 grams) shall be turned over to
the Dangerous Drugs Board, NBI for
destruction in accordance with law.
Let a Commitment Order be issued for
the transfer of accused DORIA from the
Mandaluyong City Jail to the New Bilibid
 Prisons, Muntinlupa City and also for
accused GADDAO for her transfer to the
Correctional Institute for Women,
Mandaluyong City.
Let the entire records of this case be
forwarded immediately to the Supreme
Court for mandatory review.
SO ORDERED.  13

Before this Court, accused-appellant Doria

assigns two errors, thus:
I
THE COURT A QUO GRAVELY
ERRED IN GIVING WEIGHT TO THE
TESTIMONY OF THE WITNESSES
FOR THE PROSECUTION WHEN
THEIR TESTIMONIES WERE SHOT
WITH DISCREPANCIES,
INCONSISTENCIES AND THAT
THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN
FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE
POSEUR-BUYER.
II
THE COURT A QUO GRAVELY
ERRED IN ADMITTING AS EVIDENCE
THE MARIJUANA FRUITINGS FOUND
INSIDE THE CARTON BOX AS THESE
WERE OBTAINED THROUGH A
WARRANTLESS SEARCH AND DOES
NOT COME WITHIN THE PLAIN VIEW
DOCTRINE.  14

Accused-appellant Violeta Gaddao

contends:
I
THE LOWER COURT ERRED IN
FINDING APPELLANT GUILTY
DESPITE THE INCREDIBILITY OF THE
POLICE VERSION OF THE MANNER
THE ALLEGED BUY-BUST WAS
CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS
TO WHERE THE BUY-BUST MONEY
CAME FROM ARE INCONSISTENT
WITH ONE ANOTHER AND ALSO
REEKS WITH INCREDIBILITY.
III
THE LOWER COURT ERRED IN
FINDING APPELLANT GUILTY AND
SENTENCING HER TO DEATH
DESPITE THE MANIFESTLY
IRRECONCILABLE
INCONSISTENCIES IN THE
VERSIONS OF THE POLICE AS TO
HOW AND BY WHOM THE ALLEGED
BUY-BUST MONEY WAS
RECOVERED FROM HER, WHICH IN
CONSEQUENCE RESULTS IN THE
EVIDENCE, OF RETRIEVAL FROM
HER OF THE SAME, NEBULOUS, AT
BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN
UPHOLDING THE VALIDITY OF THE
 WARRANTLESS SEARCH LEADING
TO THE SEIZURE OF THE
MARIJUANA ALLEGEDLY FOUND
INSIDE THE HOUSE OF ACCUSED-
APPELLANT.  15

The assigned errors involve two principal

issues: (1) the validity of the buy-bust operation
in the apprehension of accused-appellant Doria;
and (2) the validity of the warrantless arrest of
accused-appellant Gaddao, the search of her
person and house, and the admissibility of the
pieces of evidence obtained therefrom.
Accused-appellants were caught by the police
in a buy-bust operation. A buy-bust operation is
a form of entrapment employed by peace
officers as an effective way of apprehending a
criminal in the act of the commission of an
offense.  Entrapment has received judicial
16

sanction when undertaken with due regard to

constitutional and legal safeguards.17

Entrapment was unknown in common law. It is

a judicially created twentieth-century American
doctrine that evolved from the increasing use of
informers and undercover agents in the
detection of crimes, particularly liquor and
narcotics offenses.  Entrapment sprouted from
18

the doctrine of estoppel and the public interest

in the formulation and application of decent
standards in the enforcement of criminal law.  It
19

also took off from a spontaneous moral

revulsion against using the powers of
government to beguile innocent but ductile
persons into lapses that they might otherwise
resist.
20

In the American jurisdiction, the term

"entrapment" has a generally negative meaning
because it is understood as the inducement of
one to commit a crime not contemplated by
him, for the mere purpose of instituting a
criminal prosecution against him.  The classic
21

definition of entrapment is that articulated by

Justice Roberts in Sorrells v. United
States,  the first Supreme Court decision to
22

acknowledge the concept: "Entrapment is the

conception and planning of an offense by an
officer, and his procurement of its commission
by one who would not have perpetrated it
except for the trickery, percuasion or fraud of
the officers."  It consists of two (2) elements: (a)
23

acts of percuasion, trickery, or fraud carried out

by law enforcement officers or the agents to
induce a defendant to commit a crime; and (b)
the origin of the criminal design in the minds of
the government officials rather than that of the
innocent defendant, such that the crime is the
product of the creative activity of the law
enforcement officer. 24

It is recognized that in every arrest, there is a

certain amount of entrapment used to outwit the
persons violating or about to violate the law.
Not every deception is forbidden. The type of
entrapment the law forbids is the inducing of
another to violate the law, the "seduction" of an
otherwise innocent person into a criminal
career.  Where the criminal intent originates
25

criminal in the mind of the entrapping person

and the accused is lured into the commission of
the offense charged in order to prosecute him,
there is entrapment and no conviction may be
had.  Where, however, the criminal intent
26

originates in the mind of the accused and the

criminal offense is completed, the fact that a
person acting as a decoy for the state, or public
officials furnished the accused an opportunity
for commission of the offense, or that the
accused is aided in the commission of the crime
in order to secure the evidence necessary to
prosecute him, there is no entrapment and the
accused must be convicted.  The law tolerates
27

the use of decoys and other artifices to catch a

criminal.
Entrapment is recognized as a valid
defense  that can be raised by an accused and
28

partakes of the nature of a confession and

avoidance.  It is a positive defense. Initially, an
29

accused has the burden of providing sufficient

evidence that the government induced him to
commit the offense. Once established, the
burden shifts to the governmet to show
otherwise.  When entrapment is raised as a
30

defense, American federal courts and a majority

of state courts use the "subjective" or "origin of
intent" test laid down in Sorrells v. United
States   to determine whether entrapment
31

actually occurred. The focus of the inquiry is on

the accused's predisposition to commit the
offense charged, his state of mind and
inclination before his initial exposure to
government agents.   All relevant facts such as 32

the accused's mental and character traits, his

past offenses, activities, his eagerness in
committing the crime, his reputation, etc., are
considered to assess his state of mind before
the crime.  The predisposition test emphasizes
33

the accused's propensity to commit the offense

rather than the officer's misconduct   and 34

reflects an attempt to draw a line between a

"trap for the unwary innocent and the trap for
the unwary criminal."  If the accused was found 35

to have been ready and willing to commit the

offense at any favorable opportunity, the
entrapment defense will fail even if a police
agent used an unduly persuasive
inducement.  Some states, however, have36

adopted the "objective" test.   This test was first 37

authoritatively laid down in the case

of Grossman v. State  38 rendered by the Supreme Court of Alaska. Several other states have
subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved
39
and the propriety of police conduct.  The inquiry is focused on the inducements used by government agents, on police conduct, not on the
40
accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct.  The test of entrapment
is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and
41
willing, to commit the offense;  for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to
42
commit a crime that is presented by the simple opportunity to act unlawfully.   Official conduct that merely offers such an opportunity is
43
permissible, but overbearing conduct, such as badgering, cajoling or importuning,  or appeals to sentiments such as pity, sympathy,
44
friendship or pleas of desperate illness, are not.  Proponents of this test believe that courts must refuse to convict an entrapped accused
not because his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on
behalf of the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should
45
not become tainted by condoning law enforcement improprieties.  Hence, the transactions leading up to the offense, the interaction
between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and the
difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would on a normal
46
person.

Both the "subjective" and "objective"

approaches have been criticized and objected
to. It is claimed that the "subjective" test creates
an "anything goes" rule, i.e, if the court
determines that an accused was predisposed to
commit the crime charged, no level of police
deceit, badgering or other unsavory practices
will be deemed impermissible.  Delving into the 47

accused's character and predisposition

obscures the more important task of judging
police behavior and prejudices the accused
more generally. It ignores the possibility that no
matter what his past crimes and general
disposition were, the accused might not have
committed the particular crime unless
confronted with inordinate inducements.  On 48

the other extreme, the purely "objective" test

eliminates entirely the need for considering a
particular accused's predisposition. His
predisposition, at least if known by the police,
may have an important bearing upon the
question of whether the conduct of the police
and and their agents was proper.   The 49

undisputed fact that the accused was a

dangerous and chronic offender or that he was
a shrewd and active member of a criminal
syndicate at the time of his arrest is relegated to
irrelevancy. 50

Objections to the two tests gave birth to hybrid

approaches to entrapment. Some states in the
United States now combine both the
"subjective" and "objective"  In Cruz v.
51

State,  the Florida Supreme Court declared that

52

the permissibility of police conduct must first be

determined. If this objective test is satisfied,
then the analysis turns to whether the accused
was predisposed to commit the crime.  In Baca
53

v. State,  the New Mexico Supreme Court

54

modified the state's entrapment analysis by

holding that "a criminal defendant may
successfully assert a defense of entrapment,
either by showing lack of predisposition to
commit the crime for which he is charged, or,
that the police exceeded the standards of
proper investigation.  The hybrid approaches
55

combine and apply the "objective" and

"subjective" tests alternatively or concurrently.
As early as 1910, this Court has examined the
conduct of law enforcers while apprehending
the accused caught in flagrante delicto.
In United States v. Phelps,  we acquitted the
56

accused from the offense of smoking opium

after finding that the government employee, a
BIR personnel, actually induced him to commit
the crime in order to prosecute him. Smith, the
BIR agent, testified that Phelps' apprehension
came after he overheard Phelps in a saloon say
that he liked smoking opium on some
occasions. Smith's testimony was disregarded.
We accorded significance to the fact that it was
Smith who went to the accused three times to
convince him to look for an opium den where
both of them could smoke this drug.  The
57

conduct of the BIR agent was condemned as

"most reprehensible."  In People v. Abella,  we
58 59

acquitted the accused of the crime of selling

explosives after examining the testimony of the
apprehending police officer who pretended to
be a merchant. The police officer offered "a
tempting price, . . . a very high one" causing the
accused to sell the explosives. We found that
there was inducement, "direct, persistent and
effective" by the police officer and that outside
of his testimony, there was no evidence
sufficient to convict the accused.  In People v. 60

Lua Chu and Uy Se Tieng,   we convicted the 61

accused after finding that there was no

inducement on the part of the law enforcement
officer. We stated that the Customs secret
serviceman smoothed the way for the
introduction of opium from Hongkong to Cebu
after the accused had already planned its
importation and ordered said drug. We ruled
that the apprehending officer did not induce the
accused to import opium but merely entrapped
him by pretending to have an understanding
with the Collector of Customs of Cebu to better
assure the seizure of the prohibited drug and
the arrest of the surreptitious importers. 62

It was also in the same case of People v. Lua

Chu and Uy Se Tieng  63 we first laid down the distinction between entrapment vis-a-vis instigation
64
or inducement. Quoting 16 Corpus Juris,  we held:

ENTRAPMENT AND INSTIGATION. —

While it has been said that the practice
of entrapping persons into crime for the
purpose of instituting criminal
prosecutions is to be deplored, and
while instigation, as distinguished from
mere entrapment, has often been
condemned and has sometimes been
held to prevent the act from being
criminal or punishable, the general rule
is that it is no defense to the perpetrator
of a crime that facilities for its
commission were purposely placed in
his way, or that the criminal act was
done at the 'decoy solicitation' of
persons seeking to expose the criminal,
or that detectives feigning complicity in
the act were present and apparently
assisting in its commission. Especially is
this true in that class of cases where the
offense is one of a kind habitually
committed, and the solicitation merely
furnishes evidence of a course of
conduct. Mere deception by the
detective will not shield defendant, if the
offense was committed by him, free
from the influence or instigation of the
detective. The fact that an agent of an
owner acts as a supposed confederate
 of a thief is no defense to the latter in a
prosecution for larceny, provided the
original design was formed
independently of such agent; and where
a person approached by the thief as his
confederate notifies the owner or the
public authorities, and, being authorised
by them to do so, assists the thief in
carrying out the plan, the larceny is
nevertheless committed. It is generally
held that it is no defense to a
prosecution for an illegal sale of liquor
that the purchase was made by a
"spotter," detective, or hired informer;
but there are cases holding the
contrary. 65

The distinction above-quoted was reiterated in

two (2) decisions of the Court of Appeals.
In People v. Galicia,  the appellate court
66

declared that "there is a wide difference

between entrapment and instigation." The
instigator practically induces the would-be
accused into the commission of the offense and
himself becomes a co-principal. In entrapment,
ways and means are resorted to by the peace
officer for the purpose of trapping and capturing
the lawbreaker in the execution of his criminal
plan.  In People v. Tan Tiong,  the Court of
67 68

Appeals further declared that "entrapment is no

bar to the prosecution and conviction of the
lawbreaker. 69

The pronouncement of the Court of Appeals

in People v. Galicia was affirmed by this Court
in People v. Tiu Ua. Entrapment, we further
70

held, is not contrary to public policy. It is

instigation that is deemed contrary to public
policy and illegal.
71

It can thus be seen that the concept of

entrapment in the American jurisdiction is
similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is
not a defense available to the accused. It is
instigation that is a defense and is considered
an absolutory cause.  To determine whether
72

there is a entrapment or instigation, our courts

have mainly examined the conduct of the
apprehending officers, not the predisposition of
the accused to commit the crime. The
"objective" test first applied in United States v.
Phelps has been followed in a series of similar
cases.  Nevertheless, adopting the "objective"
73

approach has not precluded us from likewise

applying the "subjective" test.  In People v. Boholst,
74
 we applied both tests by
examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious
75
and dreaded Sigue-Sigue Sputnik Gang. We also considered accused's previous his convictions of other crimes   and held that his
opprobrious past and membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the
accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc 76 thereby
sustaining his defense that led to his acquittal.

The distinction between entrapment and

instigation has proven to be very material in
anti-narcotics operations. In recent years, it has
become common practice for law enforcement
officers and agents to engage in buy-bust
operations and other entrapment procedures in
apprehending drug offenders. Anti-narcotics
laws, like anti-gambling laws are regulatory
statutes.  They are rules of convenience
77

designed to secure a more orderly regulation of

the affairs of society, and their violation gives
rise to crimes mala prohibita.  They are not the 78

traditional type of criminal law such as the law

of murder, rape, theft, arson, etc. that deal with
crimes mala in se or those inherently wrongful
and immoral.   Laws defining crimes mala
79

prohibita condemn behavior directed, not

against particular individuals, but against public
order.  Violation is deemed a wrong against
80
society as a whole and is generally unattended
with any particular harm to a definite
person.  These offenses are carried on in
81

secret and the violators resort to many devices

and subterfuges to avoid detection. It is rare for
any member of the public, no matter how
furiously he condemns acts mala prohibita, to
be willing to assist in the enforcement of the
law. It is necessary, therefore, that government
in detecting and punishing violations of these
laws, rely, not upon the voluntary action of
aggrieved individuals, but upon the diligence of
its own officials. This means that the police
must be present at the time the offenses are
committed either in an undercover capacity or
through informants, spies or stool pigeons. 82

Though considered essential by the police in

enforcing vice legislation, the confidential
informant system breeds abominable abuse.
Frequently, a person who accepts payment
from the police in the apprehension of drug
peddlers and gamblers also accept payment
from these persons who deceive the police. The
informant himself maybe a drug addict,
pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle
that government is secretly mated with the
underworld and uses underworld characters to
help maintain law and order is not an inspiring
one.  Equally odious is the bitter reality of
83

dealing with unscrupulous, corrupt and

exploitative law enforcers. Like the informant,
unscrupulous law enforcers' motivations are
legion — harassment, extortion, vengeance,
blackmail, or a desire to report an
accomplishment to their superiors. This Court
has taken judicial notice of this ugly reality in a
number of cases  where we observed that it is
84

a common modus operandi of corrupt law

enforcers to prey on weak and hapless
persons, particularly unsuspecting provincial
hicks.  The use of shady underworld characters
85

as informants, the relative ease with which

illegal drugs may be planted in the hands or
property of trusting and ignorant persons, and
the imposed secrecy that inevitably shrouds all
drug deals have compelled this Court to be
extra-vigilant in deciding drug cases.  Criminal
86

activity is such that stealth and strategy,

although necessary weapons in the arsenal of
the police officer, become as objectionable
police methods as the coerced confession and
the unlawful search. As well put by the
Supreme Court of California in People v.
Barraza,87

[E]ntrapment is a facet of a broader

problem. Along with illegal search and
seizures, wiretapping, false arrest,
illegal detention and the third degree, it
is a type of lawless enforcement. They
all spring from common motivations.
Each is a substitute for skillful and
scientific investigation. Each is
condoned by the sinister sophism that
the end, when dealing with known
criminals of the 'criminal class,' justifies
the employment of illegal means . 88

It is thus imperative that the presumption, juris

tantum, of regularity in the performance of
official duty by law enforcement agents raised
by the Solicitor General be applied with studied
restraint. This presumption should not by itself
prevail over the presumption of innocence and
the constitutionally-protected rights of the
individual.  It is the duty of courts to preserve
89

the purity of their own temple from the

prostitution of the criminal law through lawless
enforcement.  Courts should not allow
90

themselves to be used as an instrument of

abuse and injustice lest an innocent person be
made to suffer the unusually severe penalties
for drug offenses. 91

We therefore stress that the "objective" test in

buy-bust operations demands that the details of
the purported transaction must be clearly and
adequately shown. This must start from the
initial contact between the poseur-buyer and
the pusher, the offer to purchase, the promise
or payment of the consideration until the
consummation of the sale by the delivery of the
illegal drug subject of the sale.  The manner by
92

which the initial contact was made, whether or

not through an informant, the offer to purchase
the drug, the payment of the "buy-bust" money,
and the delivery of the illegal drug, whether to
the informant alone or the police officer, must
be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not
unlawfully induced to commit an offense.
Criminals must be caught but not at all cost. At
the same time, however, examining the conduct
of the police should not disable courts into
ignoring the accused's predisposition to commit
the crime. If there is overwhelming evidence of
habitual delinquency, recidivism or plain
criminal proclivity, then this must also be
considered. Courts should look at all factors to
determine the predisposition of an accused to
commit an offense in so far as they are relevant
to determine the validity of the defense of
inducement. 1âwphi1.nêt

In the case at bar, the evidence shows that it

was the confidential informant who initially
contacted accused-appellant Doria. At the pre-
arranged meeting, the informant was
accompanied by PO3 Manlangit who posed as
the buyer of marijuana. P03 Manlangit handed
the marked money to accused-appellant Doria
as advance payment for one (1) kilo of
marijuana. Accused-appellant Doria was
apprehended when he later returned and
handed the brick of marijuana to P03 Manlangit.
PO3 Manlangit testified in a frank,
spontaneous, straightforward and categorical
manner and his credibility was not crumpled on
cross-examination by defense counsel.
Moreover, P03 Manlangit's testimony was
corroborated on its material points by SPO1
Badua, his back-up security. The non-
presentation of the confidential informant is not
fatal to the prosecution. Informants are usually
not presented in court because of the need to
hide their identity and preserve their invaluable
service to the police.  It is well-settled that
93

except when the appellant vehemently denies

selling prohibited drugs and there are material
inconsistencies in the testimonies of the
arresting officers,  or there are reasons to
94

believe that the arresting officers had motives to

testify falsely against the appellant,  or that only
95

the informant was the poseur-buyer who

actually witnessed the entire transaction,  the
96

testimony of the informant may be dispensed

with as it will merely be corroborative of the
apprehending officers' eyewitness
testimonies.  There is no need to present the
97

informant in court where the sale was actually

witnessed and adequately proved by
prosecution witnesses. 98

The inconsistencies in P03 Manlangit's and

SPO1 Badua's testimonies and the other police
officers' testimonies are minor and do not
detract from the veracity and weight of the
prosecution evidence. The source of the money
for the buy-bust operation is not a critical fact in
the case at bar. It is enough that the
prosecution proved that money was paid to
accused-appellant Doria in consideration of
which he sold and delivered the marijuana.
Contrary to accused-appellant Doria's claim, the
one kilo of marijuana "sold" by him to PO3
Manlangit was actually identified by PO3
Manlangit himself before the trial court. After
appellants' apprehension, the Narcom agents
placed this one (1) brick of marijuana recovered
from appellant Doria inside the carton box
lumping it together with the ten (10) bricks
inside. This is why the carton box contained
eleven (11) bricks of marijuana when brought
before the trial court. The one (1) brick
recovered from appellant Doria and each of the
ten (10) bricks, however, were identified and
marked in court. Thus:
ATTY. ARIAS, Counsel for
Florencio Doria:
Mr. Police Officer, when you
identified that box,. Tell the
court, how were you able to
identify that box?
A This is the box that I brought to
the crime laboratory which
contained the eleven pieces of
marijuana brick we confiscated
from the suspect, sir.
Q Please open it and show those
eleven bricks.
PROSECUTOR Witness bringing
out from the said box. . .
ATTY. VALDEZ, Counsel for
Violeta Gaddao:
Your Honor, I must protest the
line of questioning considering
the fact that we are now dealing
with eleven items when the
question posed to the witness
was what was handed to him by
Jun?
COURT So be it.
ATTY. ARIAS May we make it of
record that the witness is pulling
out them after item from the box
showed to him and brought in
front of him.
COURT Noted.
Q Now tell the court, how did you
know that those are the eleven
bricks?
x x x           x x x          x x x
A I have markings on these
eleven bricks, sir.
Q Point to the court, where are
those markings?
A Here, sir, my signature, my
initials with the date, sir.
PROSECUTOR Witness showed
a white wrapper and pointing to
CLM and the signature.
Q Whose signature is that?
ATTY. VALDEZ Your Honor,
may we just limit the inquiry to
the basic question of the fiscal
as to what was handed to him by
the accused Jun, your Honor?
PROSECUTOR Your Honor,
there is already a ruling by this
Honorable Court, your Honor,
despite reconsideration.
COURT Let the prosecution do
its own thing and leave the
appreciation of what it has done
to the court.
ATTY. VALDEZ We submit, your
Honor.
A This brick is the one that was
handed to me by the suspect
Jun, sir.
COURT Why do you know that
that is the thing? Are you sure
that is not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one,
your Honor. This is the Exhibit
"A" which I marked before I
brought it to the PCCL, your
Honor.
Q What are you sure of?
A I am sure that this is the brick
that was given to me by one
alias Jun, sir.
Q What makes you so sure?
A Because I marked it with my
own initials before giving it to the
investigator and before we
brought it to the PCCL, your
Honor.
x x x           x x x          x x x
PROSECUTOR May we request
that a tag be placed on this white
plastic bag and this be marked
as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the
entries of this date, Exhibit "A"
then the other letters and figures
on this plastic?
A This one, the signature, I
made the signature, the date and
the time and this Exhibit "A."
Q How about this one?
A I don't know who made this
marking, sir.
PROSECUTOR May it be of
record that this was just entered
this morning.
Q I am asking you about this
"itim" and not the "asul."
A This CLM, the date and the
time and the Exhibit "A," I was
the one who made these
markings, sir.
PROSECUTOR May we place
on record that the one that was
enclosed. . .
ATTY. ARIAS Your Honor, there
are also entries included in that
enclosure where it appears D-
394-95 also Exhibit "A," etc. etc.,
that was not pointed to by the
witness. I want to make it of
record that there are other
entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of
marijuana with a piece of paper,
with a newspaper wrapping with
a piece of paper inside which
reads: "D-394-95, Exhibit A, 970
grams SSL" be marked as our
Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you
identified, the wrapper and the
contents was given to you by
whom?
A It was given to me by suspect
Jun, sir.
Q Whereat?
A At the corner of Boulevard and
Jacinto St., sir.
Q How about the other items that
you were able to recover?
x x x           x x x          x x x
A These other marijuana bricks,
because during our follow-up,
because according to Jun the
money which I gave him was in
the hands of Neneth and so we
 proceeded to the house of
Neneth, sir.
xxx xxx xxx 99
The first brick identified by P03 Manlangit was
the brick of marijuana "given to [him] by suspect
Jun" at the corner of Boulevard and Jacinto
Streets. This brick, including the newspaper
and white plastic wrapping were marked as
Exhibits "D," "D-l," and "D-2" and described as
weighing nine hundred seventy (970) grams.  100

We also reject appellant's submission that the

fact that P03 Manlangit and his team waited for
almost one hour for appellant Doria to give
them the one kilo of marijuana after he "paid"
P1,600.00 strains credulity. Appellant cannot
capitalize on the circumstance that the money
and the marijuana in the case at bar did not
change hands under the usual "kaliwaan"
system. There is no rule of law which requires
that in "buy-bust" operations there must be a
simultaneous exchange of the marked money
and the prohibited drug between the poseur-
buyer and the pusher.  Again, the decisive fact
101
is that the poseur-buyer received the marijuana
from the accused-appellant. 102

We also hold that the warrantless arrest of

accused-appellant Doria is not unlawful.
Warrantless arrests are allowed in three
instances as provided by Section 5 of Rule 113
of the 1985 Rules on Criminal Procedure, to wit:
Sec. 5. Arrest without warrant; when
lawful. — A peace officer or a private
person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to
be arrested has committed, is actually
committing, or is attempting to commit
an offense;
(b) When an offense has 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 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.
xxx xxx xxx 103
Under Section 5 (a), as above-quoted, a
person may be arrested without a warrant if
he "has committed, is actually committing,
or is attempting to commit an offense."
Appellant Doria was caught in the act of
committing an offense. When an accused is
apprehended in flagrante delicto as a result
of a buy-bust operation, the police are not
only authorized but duty-bound to arrest him
even without a warrant. 104

The warrantless arrest of appellant Gaddao, the

search of her person and residence, and the
seizure of the box of marijuana and marked bills
are different matters.
Our Constitution proscribes search and seizure
without a judicial warrant and any evidence
obtained without such warrant is inadmissible
for any purpose in any proceeding.   The rule
105

is, however, not absolute. Search and seizure

may be made without a warrant and the
evidence obtained therefrom may be admissible
in the following instances:   (1) search incident
106

to a lawful arrest;107 (2) search of a moving

motor vehicle;   (3) search in violation of
108

customs laws;   (4) seizure of evidence in plain

109

view;   (5) when the accused himself waives

110

his right against unreasonable searches and

seizures.  111

The prosecution admits that appellant Gaddao

was arrested without a warrant of arrest and the
search and seizure of the box of marijuana and
the marked bills were likewise made without a
search warrant. It is claimed, however, that the
warrants were not necessary because the
arrest was made in "hot pursuit" and the search
was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant
Gaddao must fall under any of the three (3)
instances enumerated in Section 5 of Rule 113
of the 1985 Rules on Criminal Procedure as
aforequoted. The direct testimony of PO3
Manlangit, the arresting officer, however shows
otherwise:
ATTY. VALDEZ, Counsel for
appellant Gaddao:
We submit at this juncture, your
Honor, that there will be no basis
for that question.
Q This particular exhibit that you
identified, the wrapper and the
contents was given to you by
whom?
A It was given to me by suspect
Jun, sir.
Q Whereat?
A At the corner of Boulevard and
Jacinto Street, sir.
Q How about, the other items
that you were able to recover?
ATTY. VALDEZ: We submit at
this juncture, your Honor, that
there will be no basis for that
question.
COURT There is. Answer.
A These other marijuana bricks,
because during our follow-up,
because according to Jun the
money which I gave him was in
the hands of Neneth and so we
proceeded to the house of
Neneth, sir.
Q Whereat?
A At Daang Bakal near the crime
scene at Shaw Boulevard, sir.
Q And what happened upon
arrival thereat?
A We saw alias Neneth inside
the house and we asked him to
give us the buy-bust money, sir.
Q You mentioned "him?"
A Her, sir. We asked her to give
us the money, the marked
money which Jun gave her, sir.
Q And what happened?
A At this instance, it was SPO1
Badua who can testify regarding
this buy-bust money, sir.
xxx xxx xxx 112
SPO1 Badua testified on cross-
examination that:
Q What was your intention in
going to the house of Aling
Neneth?
A To arrest her, sir.
Q But the fact is, Mr. Witness,
when you reached the house of
Aling Neneth, Aling Neneth was
there?
A Yes, sir.
Q As far as you can see, she
was just inside her house?
A I saw her outside, sir.
Q She was fetching water as a
matter of fact?
A She was 'sa bandang poso.'
Q Carrying a baby?
A No, sir.
Q At that particular time when
you reached the house of Aling
Neneth and saw her outside the
house, she was not committing
any crime, she was just outside
the house?
A No, sir.
Q She was not about to commit
any crime because she was just
outside the house doing her daily
chores. Am I correct?
A I just saw her outside, sir.
Q And at that point in time you
already wanted to arrest her.
That is correct, is it not?
A Yes, sir.
Q Now, if any memory of your
testimony is correct, according to
you SPO1 Manlangit
approached her?
A PO3 Manlangit, sir.
Q You did not approach her
because P03 Manlangit
approached her?
A Yes, sir.
Q During all the time that this
confrontation, arrest or whatever
by SPO3 Manlangit was taking
place, you were just in the side
lines?
A I was just watching, sir.
Q So you were just an on-looker
to what Manlangit was doing,
because precisely according to
you your role in this buy-bust
operation was as a back-up?
A Yes, sir.
Q Who got the alleged marijuana
from inside the house of Mrs.
Neneth?
A P03 Manlangit, sir.
Q Manlangit got the marijuana?
A Yes, sir.
Q And the money from Aling
Neneth?
A I don't know, sir.
Q You did not even know who
got the money from Aling
Neneth?
PROSECUTOR:
There is no basis for this
question, your Honor. Money,
there 's no testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q Alright. I will ask you a
question and I expect an honest
answer. According to the
records, the amount of
P1,600.00 was recovered from
the person of Aling Neneth.
That's right?
A Yes, sir, the buy-bust money.
Q What you are now saying for
certain and for the record is the
fact that you were not the one
who retrieved the money from
Aling Neneth, it was Manlangit
maybe?
 A I saw it, sir.
Q It was Manlangit who got the
money from Aling Neneth?
A The buy-bust money was
recovered from the house of
Aling Neneth, sir.
Q It was taken from the house of
Aling Neneth, not from the
person of Aling Neneth. Is that
what you are trying to tell the
Court?
A No, sir.
ATTY. VALDEZ:
I am through with this witness,
your Honor.  113

Accused-appellant Gaddao was not caught red-

handed during the buy-bust operation to give
ground for her arrest under Section 5 (a) of
Rule 113. She was not committing any crime.
Contrary to the finding of the trial court, there
was no occasion at all for appellant Gaddao to
flee from the policemen to justify her arrest in
"hot pursuit."  In fact, she was going about her
114

daily chores when the policemen pounced on

her.
Neither could the arrest of appellant Gaddao be
justified under the second instance of Rule 113.
"Personal knowledge" of facts in arrests without
warrant under Section 5 (b) of Rule 113 must
be based upon "probable cause" which means
an "actual belief or reasonable grounds of
suspicion."  The grounds of suspicion are
115

reasonable when, in the absence of actual

belief of the arresting officers, the suspicion that
the person to be arrested is probably guilty of
committing the offense, is based an actual
facts, i.e., supported by circumstances
sufficiently strong in themselves to create the
probable cause of guilt of the person to be
arrested.  A reasonable suspicion therefore
116

must be founded on probable cause, coupled

with good faith on the part of the peace officers
making the arrest. 117

Accused-appellant Gaddao was arrested solely

on the basis of the alleged identification made
by her co-accused. PO3 Manlangit, however,
declared in his direct examination that appellant
Doria named his co-accused in response to his
(PO3 Manlangit's) query as to where the
marked money was.  Appellant Doria did not
118

point to appellant Gaddao as his associate in

the drug business, but as the person with whom
he left the marked bills. This identification does
not necessarily lead to the conclusion that
appellant Gaddao conspired with her co-
accused in pushing drugs. Appellant Doria may
have left the money in her house,  with or
119

without her knowledge, with or without any

conspiracy. Save for accused-appellant Doria 's
word, the Narcom agents had no reasonable
grounds to believe that she was engaged in
drug pushing. If there is no showing that the
person who effected the warrantless arrest had,
in his own right, knowledge of facts implicating
the person arrested to the perpetration of a
criminal offense, the arrest is legally
objectionable.120

Since the warrantless arrest of accused-

appellant Gaddao was illegal, it follows that the
search of her person and home and the
subsequent seizure of the marked bills and
marijuana cannot be deemed legal as an
incident to her arrest. This brings us to the
question of whether the trial court correctly
found that the box of marijuana was in plain
view, making its warrantless seizure valid.
Objects falling in plain view of an officer who
has a right to be in the position to have that
view are subject to seizure even without a
search warrant and maybe introduced in
evidence.  The "plain view" doctrine applies
121

when the following requisites concur: (a) the

law enforcement officer in search of the
evidence has a prior justification for an intrusion
or is in a position from which he can view a
particular area; (b) the discovery of the
evidence in plain view is inadvertent; (c) it is
immediately apparent to the officer that the item
he observes may be evidence of a crime,
contraband or otherwise subject to
seizure.  The law enforcement officer must
122

lawfully make an initial intrusion or properly be

in a position from which he can particularly view
the area.  In the course of such lawful
123

intrusion, he came inadvertently across a piece

of evidence incriminating the accused.  The 124

object must be open to eye and 

hand  and its discovery inadvertent.
125 126

It is clear that an object is in plain view if the

object itself is plainly exposed to sight. The
difficulty arises when the object is inside a
closed container. 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
127

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
128

police that the items that they observe may be

evidence of a crime, contraband or otherwise
subject to seizure.129
PO3 Manlangit, the Narcom agent who found
the box, testified on cross-examination as
follows:
ATTY. VALDEZ:
So here we are. When you and
Badua arrived, Aling Neneth was
inside the house?
A Yes, sir.
Q Badua demanded from Aling
Neneth the buy-bust money?
A Yes, sir.
Q At that particular instance, you
saw the carton?
A Yes, sir.
Q This carton, according to you
was under a table?
A Yes, sir, dining table.
Q I noticed that this carton has a
cover?
A Yes, sir.
Q I ask you were the flaps of the
cover raised or closed?
A It was open, sir. Not like that.
COURT
Go down there. Show to the
court.
INTERPRETER
Witness went down the witness
stand and approached a carton
box.
A Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other
flap is standing and with the
contents visible.
COURT
Noted.
Q At this juncture, you went
inside the house?
A Yes, sir.
Q And got hold of this carton?
A Yes, sir.
Q Did you mention anything to
Aling Neneth?
A I asked her, what's this. . .
Q No, no. no. did you mention
anything to Aling Neneth before
getting the carton?
A I think it was Badua who
accosted Aling Neneth regarding
the buy-bust money and he
asked "Sa iyo galing ang
marijuanang ito, nasaan ang
buy-bust money namin?" sir.
Q Making reference to the
marijuana that was given by
alias Jun?
A Yes, sir.
Q When you proceeded to take
hold of this carton, Aling Neneth
was not yet frisked, is it not [sic]?
A I just don't know if she was
frisked already by Badua, sir.
Q Who got hold of this?
A I was the one, sir.
Q You were the one who got
this?
A Yes, sir.
Q At that particular point in time,
you did not know if the alleged
buy-bust money was already
retrieved by Badua?
A Yes, sir.
Q You went inside the house?
A Yes, sir.
Q You did not have any search
warrant?
A Yes, sir.
Q In fact, there was nothing yet
as far as you were concerned to
validate the fact that Mrs. Gadao
was in possession of the buy-
bust money because according
to you, you did not know whether
Badua already retrieved the buy-
bust money from her?
A Yes, sir.
Q How far was this from the
door?
A Two and a half meters from
the door, sir. It was in plain view.
Q Under the table according to
you?
A Yes, sir, dining table.
Q Somewhere here?
A It's far, sir.
PROSECUTOR
May we request the witness to
place it, where he saw it?
A Here, sir.
Q What you see is a carton?
A Yes, sir, with plastic.
Q Marked "Snow Time Ice Pop?
A Yes, sir.
Q With a piece of plastic visible
on top of the carton?
A Yes, sir.
Q That is all that you saw?
A Yes, sir.
PROSECUTOR
For the record, your Honor. . .
Q You were only able to verify
according to you . . .
PRESECUTOR
Panero, wait. Because I am
objecting to the words a piece of
plastic. By reading it . . .
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote . . .
this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say,
Fiscal? I'm asking you?
PROSECUTOR
With due respect, what I am
saying is, let's place the size of
the plastic. A piece of plastic
may be big or a small one, for
record purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q The only reason according to
you, you were able to . . . Look at
this, no even Superman . . . I
withdraw that. Not even a man
with very kin [sic] eyes can tell
the contents here. And according
to the Court, it could be "tikoy," is
it not [sic]?
A Yes, sir.
Q Siopao?
A Yes, sir.
Q Canned goods?
A Yes, sir.
Q It could be ice cream because
it says Snow Pop, Ice Pop?
A I presumed it was also
marijuana because it may . . .
Q I am not asking you what your
presumptions are. I'm asking you
what it could possibly be.
A It's the same plastic, sir.
ATTY. VALDEZ
I'm not even asking you that
question so why are you
voluntarily saying the
information. Let the prosecutor
do that for you.
COURT
Continue. Next question.
xxx xxx xxx  130
 P03 Manlangit and the police team were at
appellant Gaddao's house because they
were led there by appellant Doria. The
Narcom agents testified that they had no
information on appellant Gaddao until
appellant Doria name her and led them to
her.  Standing by the door of appellant
131

Gaddao's house, P03 Manlangit had a view

of the interior of said house. Two and a half
meters away was the dining table and
underneath it was a carton box. The box
was partially open and revealed something
wrapped in plastic.
In his direct examination, PO3 Manlangit said
that he was sure that the contents of the box
were marijuana because he himself checked
and marked the said contents.  On cross-
132

examination, however, he admitted that he

merely presumed the contents to be marijuana
because it had the same plastic wrapping as
the "buy-bust marijuana." A close scrutiny of the
records reveals that the plastic wrapper was not
colorless and transparent as to clearly manifest
its contents to a viewer. Each of the ten (10)
bricks of marijuana in the box was individually
wrapped in old newspaper and placed inside
plastic bags — white, pink or blue in
color.  PO3 Manlangit himself admitted on
133

cross-examination that the contents of the box

could be items other than marijuana. He did not
know exactly what the box contained that he
had to ask appellant Gaddao about its
contents.  It was not immediately apparent to
134

PO3 Manlangit that the content of the box was

marijuana. The marijuana was not in plain view
and its seizure without the requisite search
warrant was in violation of the law and the
Constitution.  It was fruit of the poisonous tree
135

and should have been excluded and never

considered by the trial court. 136

The fact that the box containing about six (6)

kilos of marijuana  was found in the house of
137

accused-appellant Gaddao does not justify a

finding that she herself is guilty of the crime
charged.  Apropos is our ruling in People v.
138

Aminnudin,  viz: 139

The Court strongly supports the

campaign of the government against
drug addiction and commends the
efforts of our law enforcement officers
against those who would inflict this
malediction upon our people, especially
the susceptible youth. But as
demanding as this campaign may be, it
cannot be more so than the
compulsions of the Bill of Rights for the
protection of the liberty of every
individual in the realm, including the
basest of criminals. The Constitution
covers with the mantle of its protection
the innocent and the guilty alike against
any manner of high-handedness from
the authorities, however praiseworthy
their intentions.
Those who are supposed to enforce the
law are not justified in disregarding the
right of the individual in the name of
order. Order is too high a price for the
loss of liberty. As Justice Holmes, again,
said, 'I think it a less evil that some
criminals should escape than that the
government should play an ignoble part.'
It is simply not allowed in the free
society to violate a law to enforce
 another, especially if the law violated is
the Constitution itself.  140

Section 4 of Republic Act No. 6425, the

Dangerous Drugs Act of 1972, as amended by
Section 13 of Republic Act No. 7659 punishes
the "sale, administration, delivery, distribution
and transportation of a prohibited drug" with the
penalty of reclusion perpetua to death and a
fine ranging from P500,000.00 to P10 million, to
wit:
Sec. 4. Sale, Administration, Delivery,
Distribution and Transportation of
Prohibited Drugs. — The penalty
of reclusion perpetua to death, and a
fine ranging from five hundred thousand
pesos to ten million pesos shall be
imposed upon any person who, unless
authorized by law, shall sell, administer,
deliver, give away to another, distribute,
dispatch in transit or transport any
prohibited drug, or shall act as a broker
in any of such transactions.
x x x           x x x          x x x
 In every prosecution for illegal sale of
dangerous drugs, what is material is the
submission of proof that the sale took place
between the poseur-buyer and the seller
thereof and the presentation of the
drug, i.e., the corpus delicti, as evidence in
court.  The prosecution has clearly
141

established the fact that in consideration of

P1,600.00 which he received, accused-
appellant Doria sold and delivered nine
hundred seventy (970) grams of marijuana
to PO3 Manlangit, the poseur-buyer. The
prosecution, however, has failed to prove
that accused-appellant Gaddao conspired
with accused-appellant Doria in the sale of
said drug. There being no mitigating or
aggravating circumstances, the lower
penalty of reclusion perpetua must be
imposed. 142

IN VIEW WHEREOF, the decision of the

Regional Trial Court, Branch 156, Pasig City
acting as a Special Court in Criminal Case No.
3307-D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado
is sentenced to suffer the penalty of reclusion
perpetua and to pay a fine of five hundred
thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama
is acquitted.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo,
Vitug, Kapunan, Mendoza, Martinez,
Quisumbing, Purisima, Pardo, Buena and
Gonzaga-Reyes, JJ., concur.
Panganiban, J., please see concurring opinion.

Separate Opinions

PANGANIBAN, J., concurring opinion;
I fully concur with the exhaustive and
incisive ponencia of Mr. Justice Reynato S.
Puno. This Decision rightfully brings the Court
back to well-settled doctrines on warrantless
arrests and searches, which have seemingly
been modified through an obiter in People v.
Ruben Montilla.  I just wish to outline some
1

guidelines on when an arrest or a search

without a warrant is valid. Hopefully, they would
be of help, especially to our law enforcers who
are often faced with actual situations that
promptly call for their application.
Valid Arrests
Without Warrants
Sec. 5 of Rule 113 of the Rules of Court lays
down the basic rule on when an arrest without a
warrant is lawful. It states:
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 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.
x x x           x x x          x x x
I shall focus my discussion on the first two
rules, which have been most frequently
misapplied and misinterpreted, not only by law
enforcers but some trial judges and lawyers as
well.
At the very outset, I wish to underscore that in
both cases the arresting officer must have
personal knowledge of the fact of the
commission of an offense. Under Section 5 (a),
the officer himself is a witness to the crime;
under Section 5 (b), he knows for a fact that a
crime has just been committed. Let me
elaborate.
1. In Flagrante
Delicto Arrests
Sec. 5 (a) is commonly referred to as the rule
on in flagrante delicto arrests.  The accused is
2

apprehended at the very moment he is

committing or attempting to commit or has just
committed an offense in the presence of the
arresting officer. There are two elements that
must concur: (1) the person to be arrested must
execute an overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and (2) such
overt act is done in the presence or within the
view of the arresting officer.
3

It is not sufficient that the suspect exhibits

unusual or strange acts or simply appears
suspicious. Thus, in the recent en banc case
of Malicat v. Court of Appeals,  the Court,
4

through now Chief Justice Hilario G. Davide Jr.,

held that the fact that the appellant's eyes were
"moving very fast" and looking at every
approaching person were not sufficient to
suspect him of "attempting to commit a crime,"
much less to justify his arrest and subsequent
search without a warrant. The Court said that
"there was nothing in [Malacat's] behavior or
conduct which could have reasonably elicited
even mere suspicion" that he was armed with a
deadly weapon. In other words, there was no
overt physical act on the part of the suspect,
positively indicating that he had just committed
a crime or was committing or attempting to
commit one. There was, therefore, no valid
reason for the police officers to arrest or search
him.
The same was true in People v.
Mengote,  where the arresting police tried to
5

justify the warrantless arrest of the appellant on

the ground that he appeared suspicious. The
"suspicious" acts consisted of his darting eyes
and the fact that his hand was over his
abdomen. The Court, rejecting such
justification, stated: "By no stretch of the
imagination could it have been inferred from
these acts that an offense had just been
committed, or was actually being committed, or
was at least being attempted in their presence. 6

In other words, the behavior or conduct of the

person to be arrested must be clearly indicative
of a criminal act. If there is no outward
indication at all that calls for an arrest, the
suspect cannot be validly apprehended under
this paragraph, notwithstanding a tip from an
informant that he would at the time be
undertaking a felonious enterprise.
This doctrine found strength in People v.
Aminnudin   and again in People v.
7

Encinada.  In both cases, the appellants were

8

arrested while disembarking from a ship, on

account of a tip received from an informant that
they were carrying prohibited drugs. The Court
invalidated their warrantless arrests, explaining
that at the moment of their arrests, the
appellants were simply descending the
gangplank, without manifesting any suspicious
behavior that would reasonably invite the
attention of the police. To all appearances, they
were not committing a crime; nor was it shown
that they were about to do so or had just done
so. There was, therefore, no valid reason for
their arrests.
Adhering to (and having faith in) the above
rules, I respectfully disagreed with the
distinguished Mr. Justice Florenz D. Regalado
in People v. Montilla,  when he upheld the
9

validity of the warrantless arrest of the appellant

while the latter was merely alighting from a
passenger jeepney. I opined that Montilla could
not have been perceived as committing a crime
while merely alighting from a jeepney carrying a
traveling bag and a carton. He did not exhibit
any overt act or strange conduct that would
reasonably arouse in the minds of the police
suspicion that he was embarking on a felonious
undertaking. There was no outward
manifestation that he had just committed or was
committing or attempting to commit an offense.
Mercifully, the statement of the Court that
Montilla's arrest was valid because he was
caught in flagrante delicto was only an obiter,
for what finally nailed him down was his implied
waiver of any objection to the validity of his
arrest.
 2. "Hot Pursuit"
Arrests
Sec. 5 (b) is otherwise known as the rule on
"hot pursuit" arrests.  Here, two elements must
10

also concur prior to the arrest: (1) and "offense

has in fact been committed," (2) the arresting
officer "has personal knowledge of facts
indicating that the person to be arrested . . .
committed [the offense]." In effecting this type
of arrest, "it is not enough that there is
reasonable ground to believe that the person to
be arrested has committed a crime. A crime
must in fact or actually have been committed
first. . . . The fact of the commission of the
offense must be undisputed. 11

Thus, while the law enforcers may not actually

witness the execution of acts constituting the
offense, they must have direct knowledge or
view of the crime right after its commission.
They should know for a fact that a crime was
committed. AND they must also perceive acts
exhibited by the person to be arrested,
indicating that he perpetrated the crime. Again,
mere intelligence information that the suspect
committed the crime will not suffice. The
arresting officers themselves must have
personal knowledge of facts showing that the
suspect performed the criminal act. Personal
knowledge means actual belief or reasonable
grounds of suspicion, based on actual facts,
that the person to be arrested is probably guilty
of committing the crime.12

In several cases wherein third persons gave

law enforcers information that certain
individuals or groups were engaged in some
felonious activities, such relayed information
was not deemed equivalent to personal
knowledge of the lawmen. In People v.
Burgos,  a certain Masamlok informed police
13

authorities that the appellant was involved in

subversive activities. Acting on the strength of
such information and without securing a judicial
warrant, the police proceeded to appellant's
house to arrest him. There, they also allegedly
recovered an unlicensed firearm and
subversive materials.
The Court held that there was no personal
knowledge on the part of the arresting officers,
since the information came in its entirety from
Masamlok, a civilian. We pointed out that at the
time of his arrest, appellant was not in actual
possession of any firearm or subversive
document; neither was he committing a
subversive act.  His warrantless arrest,
14

therefore, could not be allowed under any of the

instances in Rule 113, Section 6 (now 5) of the
Rules of Court.
Also in Encinada, the appellant was arrested
without a warrant, on the justification that the
arresting officer "received an intelligence report
that appellant who was carrying marijuana
would arrive the next morning aboard M/V
Sweet Pearl." The Court categorically stated
that such "[r]aw intelligence information is not a
sufficient ground for a warrantless arrest."  And
15

since, at the time of his arrest, no act or fact

demonstrating a felonious enterprise could be
ascribed to appellant, there was no valid
justification for his arrest.
To be distinguished from the above cases are
those involving continuing offenses for which
the culprit could be arrested any time in
flagrante delicto. In Umil v. Ramos,  there were
16

strong objections to the warrantless arrest of a

suspected member of the New People's Army
(NPA), while he was being treated for a gunshot
wound in a hospital. He alleged that there was
no valid justification for his arrest without a
warrant, because he was not then committing
any offense nor were there any indications that
he had just committed or was about to commit
one; he was in fact confined in a hospital.
The Court held that subversion, for which he
was arrested and subsequently charged, was a
continuing offense. For purposes of arrest, the
Court said, the NPA member "did not cease to
be, or became less of a subversive, . . . simply
because he was, at the time of his arrest,
confined in the . . . [hospital]." "Unlike other so-
called 'common' offenses, i.e., adultery, murder,
arson, etc., which generally end upon their
commission, subversion and rebellion are
anchored on an ideological base which compels
the repetition of the same acts of lawlessness
and violence until the overriding object of
overthrowing organized government is
attained.17

In the above instances where the arrests

without warrants were held unlawful, so were
the searches conducted subsequent thereto.
Thus, the items seized consequent to the
invalid search, though clearly prohibited by law
(e.g. marijuana or unlicensed firearm), were
considered inadmissable as evidence against
the person wrongfully arrested. Important to
bear in mind always is that any search
conducted without a judicial warrant must be
prcceded by a lawful arrest, whether with or
without a warrant duly issued therefor.
To underscore the rationale behind these strict
rules, I deem it quite apt to quote these
inspiring words from the precedent-setting case
of People v. Burgos: 18

The right of a person to be secure

against any unreasonable seizure of his
body and any deprivation of his liberty is
a most basic and fundamental one. The
 statute or rule which allows exceptions
to the requirement of warrants of arrest
is strictly construed. Any exception must
clearly fall within the situations when
securing a warrant would be absurd or
is manifestly unnecessary as provided
by the Rule. We cannot liberally
construe the rule on arrests without
warrant or extend its application beyond
the cases specifically provided by law.
To do so would infringe upon personal
liberty and set back a basic right so
often violated and so deserving of full
protection.
Valid Searches
Without Warrant
The general rule is that a judicial warrant must
first be duly obtained before search and seizure
may be conducted. The only allowable
instances in which a search may be conducted
without a warrant are: (1) search incident to
lawful arrest, (2) search pursuant to the "plain
view" doctrine, (3) search of moving vehicles,
(4) searches incidental to violation of customs
laws, (5) search with consent, and (6) a "stop
and frisk.
19

1. Search Incident
to Lawful Arrest
Section 12 of Rule 126 provides that a lawfully
arrested person may be searched without a
warrant for dangerous weapons or anything
else that may be used as evidence of the
offense. Such incidental search is, however,
limited to the person of the arrestee at the time
of the apprehension. The search cannot be
extended to or made in a place other than the
place of the arrest.
20

2. The "Plain View"

Doctrine
The "plain view" doctrine applies when the
following requisites concur: (1) the law
enforcement officer is in a position where he
has a clear view of a particular area or has prior
justification for an intrusion; (2) said officer
inadvertently comes across (or sees in
plainview) a piece of incriminating evidence;
and (3) it is immediately apparent to such
officer that the item he sees may be evidence of
a crime or a contraband or is otherwise subject
to seizure.
21

3. Search of
Moving Vehicles
The warrantless search of moving vehicles
(including shipping vessels and aircraft) is
justified by practicability, viz.:
22

The guaranty of freedom from

unreasonable searches and seizures
construed as recognizing a necessary
difference between a search of a
dwelling house or other structure in
respect of which a search warrant may
readily be obtained and a search of a
ship, motorboat, wagon, or automobile
for contraband goods, where it is not
practicable to secure a warrant,
because the vehicle can be quickly
moved out of the locality or jurisdiction
in which the warrant must be sought.
 x x x           x x x          x x x
The automobile is a swift and powerful
vehicle . . . Constructed as covered
vehicles to standard form in immense
quantities, and with a capacity for speed
rivaling express trains they furnish for
successful commission of crime a
distinguishing means of silent approach
and swift escape unknown in the history
of the world before their advent. The
question of their police control and
reasonable search on highways or other
public place is a serious question far
deeper and broader than their use in so-
called 'bootlegging' or 'rum running,'
which in itself is no small matter. While a
possession in the sense of private
ownership, they are but a vehicle
constructed for travel and transportation
on highways. Their active use is not in
homes or on private premises, the
privacy of which the law especially
guards from search and seizure without
process. The baffling extent to which
they are successfully utilized to facilitate
 commission of crime of all degrees, from
those against morality, chastity, and
decency to robbery, rape, burglary, and
murder, is a matter of common
knowledge. Upon that problem, a
condition, and not a theory, confronts
proper administration of our criminal
laws. Whether search of and seizure
from an automobile upon a highway or
other public place without a search
warrant is unreasonable is in its final
analysis to be determined as a judicial
question in view of all the circumstances
under which it is made.
4. Customs Searches
Under the Tariff and Customs Code, searches,
seizures and arrests may be made even without
warrants, for purposes of enforcing customs
and tariff laws. Without mention of the need to
priorly obtain a judicial warrant, the Code
specifically allows police authorities to "enter,
pass through or search any land, enclosure,
warehouse, store or building, not being a
dwelling house; and also to inspect, search and
examine any vessel or aircraft and any trunk,
package, box or envelope or any person on
board[;]or stop and search and examine any
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines contrary to law. 23

5. Search With Consent

Waiver of any objection to the unresonableness
or invalidity of a search is a recognized
exception to the rule against a warrantless
search.  The consent to the search, however,
24

must be express knowing and voluntary. A

search based merely on implied acquiescene is
not valid, because such consent is not within
the purview of the constitutional gurantee, but
only a passive conformity to the search given
under intimidating and coercive circumstances. 25

6. Stop and Frisk

The "stop and frisk" concept is of American
origin, the most notable case thereon
being Terry v. Ohio.  The idea is that a police
27

officer may after properly introducing himself

and making initial inquiries, approach and
restrain a person manifesting unusual and
suspicious conduct, in order to check, the
latter's outer clothing for possibly concealed
weapons. The strict manner in which this notion
should be applied has been laid down as
follows:
28

. . . where a police officer observes

unusual conduct which leads him
reasonably to conclude in the 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 behaviour,
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 and 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.
As in the warrantless arrest of a person
reasonably suspected of having just committed
a crime, mere suspicious behavior would not
call for a "stop and frisk." There must be a
genuine reason, in accordance with the police
officer's experience and the surrounding
conditions, to warrant the belief that the person
to be held has weapons (or contraband)
concealed about him. 29

A valid application of the doctrine was

recognized in Posadas v. Court of
Appeals   and in Manalili v. Court of
30

Appeals.  In Manalili, the law enforcers who

31

were members of the Anti-Narcotics Unit of the

Caloocan City Police, observed during their
surveillance that appellant had red eyes and
was walking in a wobby manner along the city
cemetery which, according to police
information, was a popular hangout of drug
addicts. Based on police experience, such
suspicious behaviour was characteristic of
persons who were "high" on drugs. The Court
held that past experience and the surrounding
circumstances gave the police sufficient reason
to stop the suspect and to investigate if he was
really high on drugs. The marijuana that they
found in the suspect's possession was held to
be admissible in evidence.
Before I end, I must reiterate that the above
exceptions to the general rule on the necessity
of a judicial warrant for any arrest, search and
seizure must all be strictly construed. Foremost
in our minds must still be every person's prized
and fundamental right to liberty and security, a
right protected and guaranteed by our
Constitution.
WHEREFORE, I vote to ACQUIT Appellant
Violeta Gaddao y Catama, as well as to
REDUCE the penalty of Appellant Florencio
Doria y Bolado to reclusion perpetua and a fine
of P500,000.
Separate Opinions

PANGANIBAN, J., concurring opinion;
I fully concur with the exhaustive and
incisive ponencia of Mr. Justice Reynato S.
Puno. This Decision rightfully brings the Court
back to well-settled doctrines on warrantless
arrests and searches, which have seemingly
been modified through an obiter in People v.
Ruben Montilla.  I just wish to outline some
1

guidelines on when an arrest or a search

without a warrant is valid. Hopefully, they would
be of help, especially to our law enforcers who
are often faced with actual situations that
promptly call for their application.
Valid Arrests
Without Warrants
Sec. 5 of Rule 113 of the Rules of Court lays
down the basic rule on when an arrest without a
warrant is lawful. It states:
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 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.
x x x           x x x          x x x
I shall focus my discussion on the first two
rules, which have been most frequently
misapplied and misinterpreted, not only by law
enforcers but some trial judges and lawyers as
well.
At the very outset, I wish to underscore that in
both cases the arresting officer must have
personal knowledge of the fact of the
commission of an offense. Under Section 5 (a),
the officer himself is a witness to the crime;
under Section 5 (b), he knows for a fact that a
crime has just been committed. Let me
elaborate.
1. In Flagrante
Delicto Arrests
Sec. 5 (a) is commonly referred to as the rule
on in flagrante delicto arrests.  The accused is
2

apprehended at the very moment he is

committing or attempting to commit or has just
committed an offense in the presence of the
arresting officer. There are two elements that
must concur: (1) the person to be arrested must
execute an overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and (2) such
overt act is done in the presence or within the
view of the arresting officer.
3

It is not sufficient that the suspect exhibits

unusual or strange acts or simply appears
suspicious. Thus, in the recent en banc case
of Malicat v. Court of Appeals,  the Court,
4

through now Chief Justice Hilario G. Davide Jr.,

held that the fact that the appellant's eyes were
"moving very fast" and looking at every
approaching person were not sufficient to
suspect him of "attempting to commit a crime,"
much less to justify his arrest and subsequent
search without a warrant. The Court said that
"there was nothing in [Malacat's] behavior or
conduct which could have reasonably elicited
even mere suspicion" that he was armed with a
deadly weapon. In other words, there was no
overt physical act on the part of the suspect,
positively indicating that he had just committed
a crime or was committing or attempting to
commit one. There was, therefore, no valid
reason for the police officers to arrest or search
him.
The same was true in People v.
Mengote,  where the arresting police tried to
5

justify the warrantless arrest of the appellant on

the ground that he appeared suspicious. The
"suspicious" acts consisted of his darting eyes
and the fact that his hand was over his
abdomen. The Court, rejecting such
justification, stated: "By no stretch of the
imagination could it have been inferred from
these acts that an offense had just been
committed, or was actually being committed, or
was at least being attempted in their presence. 6

In other words, the behavior or conduct of the

person to be arrested must be clearly indicative
of a criminal act. If there is no outward
indication at all that calls for an arrest, the
suspect cannot be validly apprehended under
this paragraph, notwithstanding a tip from an
informant that he would at the time be
undertaking a felonious enterprise.
This doctrine found strength in People v.
Aminnudin   and again in People v.
7

Encinada.  In both cases, the appellants were

8

arrested while disembarking from a ship, on

account of a tip received from an informant that
they were carrying prohibited drugs. The Court
invalidated their warrantless arrests, explaining
that at the moment of their arrests, the
appellants were simply descending the
gangplank, without manifesting any suspicious
behavior that would reasonably invite the
attention of the police. To all appearances, they
were not committing a crime; nor was it shown
that they were about to do so or had just done
so. There was, therefore, no valid reason for
their arrests.
Adhering to (and having faith in) the above
rules, I respectfully disagreed with the
distinguished Mr. Justice Florenz D. Regalado
in People v. Montilla,  when he upheld the
9

validity of the warrantless arrest of the appellant

while the latter was merely alighting from a
passenger jeepney. I opined that Montilla could
not have been perceived as committing a crime
while merely alighting from a jeepney carrying a
traveling bag and a carton. He did not exhibit
any overt act or strange conduct that would
reasonably arouse in the minds of the police
suspicion that he was embarking on a felonious
undertaking. There was no outward
manifestation that he had just committed or was
committing or attempting to commit an offense.
Mercifully, the statement of the Court that
Montilla's arrest was valid because he was
caught in flagrante delicto was only an obiter,
for what finally nailed him down was his implied
waiver of any objection to the validity of his
arrest.
 2. "Hot Pursuit"
Arrests
Sec. 5 (b) is otherwise known as the rule on
"hot pursuit" arrests.  Here, two elements must
10

also concur prior to the arrest: (1) and "offense

has in fact been committed," (2) the arresting
officer "has personal knowledge of facts
indicating that the person to be arrested . . .
committed [the offense]." In effecting this type
of arrest, "it is not enough that there is
reasonable ground to believe that the person to
be arrested has committed a crime. A crime
must in fact or actually have been committed
first. . . . The fact of the commission of the
offense must be undisputed. 11

Thus, while the law enforcers may not actually

witness the execution of acts constituting the
offense, they must have direct knowledge or
view of the crime right after its commission.
They should know for a fact that a crime was
committed. AND they must also perceive acts
exhibited by the person to be arrested,
indicating that he perpetrated the crime. Again,
mere intelligence information that the suspect
committed the crime will not suffice. The
arresting officers themselves must have
personal knowledge of facts showing that the
suspect performed the criminal act. Personal
knowledge means actual belief or reasonable
grounds of suspicion, based on actual facts,
that the person to be arrested is probably guilty
of committing the crime.12

In several cases wherein third persons gave

law enforcers information that certain
individuals or groups were engaged in some
felonious activities, such relayed information
was not deemed equivalent to personal
knowledge of the lawmen. In People v.
Burgos,  a certain Masamlok informed police
13

authorities that the appellant was involved in

subversive activities. Acting on the strength of
such information and without securing a judicial
warrant, the police proceeded to appellant's
house to arrest him. There, they also allegedly
recovered an unlicensed firearm and
subversive materials.
The Court held that there was no personal
knowledge on the part of the arresting officers,
since the information came in its entirety from
Masamlok, a civilian. We pointed out that at the
time of his arrest, appellant was not in actual
possession of any firearm or subversive
document; neither was he committing a
subversive act.  His warrantless arrest,
14

therefore, could not be allowed under any of the

instances in Rule 113, Section 6 (now 5) of the
Rules of Court.
Also in Encinada, the appellant was arrested
without a warrant, on the justification that the
arresting officer "received an intelligence report
that appellant who was carrying marijuana
would arrive the next morning aboard M/V
Sweet Pearl." The Court categorically stated
that such "[r]aw intelligence information is not a
sufficient ground for a warrantless arrest."  And
15

since, at the time of his arrest, no act or fact

demonstrating a felonious enterprise could be
ascribed to appellant, there was no valid
justification for his arrest.
To be distinguished from the above cases are
those involving continuing offenses for which
the culprit could be arrested any time in
flagrante delicto. In Umil v. Ramos,  there were
16

strong objections to the warrantless arrest of a

suspected member of the New People's Army
(NPA), while he was being treated for a gunshot
wound in a hospital. He alleged that there was
no valid justification for his arrest without a
warrant, because he was not then committing
any offense nor were there any indications that
he had just committed or was about to commit
one; he was in fact confined in a hospital.
The Court held that subversion, for which he
was arrested and subsequently charged, was a
continuing offense. For purposes of arrest, the
Court said, the NPA member "did not cease to
be, or became less of a subversive, . . . simply
because he was, at the time of his arrest,
confined in the . . . [hospital]." "Unlike other so-
called 'common' offenses, i.e., adultery, murder,
arson, etc., which generally end upon their
commission, subversion and rebellion are
anchored on an ideological base which compels
the repetition of the same acts of lawlessness
and violence until the overriding object of
overthrowing organized government is
attained.17

In the above instances where the arrests

without warrants were held unlawful, so were
the searches conducted subsequent thereto.
Thus, the items seized consequent to the
invalid search, though clearly prohibited by law
(e.g. marijuana or unlicensed firearm), were
considered inadmissable as evidence against
the person wrongfully arrested. Important to
bear in mind always is that any search
conducted without a judicial warrant must be
prcceded by a lawful arrest, whether with or
without a warrant duly issued therefor.
To underscore the rationale behind these strict
rules, I deem it quite apt to quote these
inspiring words from the precedent-setting case
of People v. Burgos: 18

The right of a person to be secure

against any unreasonable seizure of his
body and any deprivation of his liberty is
a most basic and fundamental one. The
 statute or rule which allows exceptions
to the requirement of warrants of arrest
is strictly construed. Any exception must
clearly fall within the situations when
securing a warrant would be absurd or
is manifestly unnecessary as provided
by the Rule. We cannot liberally
construe the rule on arrests without
warrant or extend its application beyond
the cases specifically provided by law.
To do so would infringe upon personal
liberty and set back a basic right so
often violated and so deserving of full
protection.
Valid Searches
Without Warrant
The general rule is that a judicial warrant must
first be duly obtained before search and seizure
may be conducted. The only allowable
instances in which a search may be conducted
without a warrant are: (1) search incident to
lawful arrest, (2) search pursuant to the "plain
view" doctrine, (3) search of moving vehicles,
(4) searches incidental to violation of customs
laws, (5) search with consent, and (6) a "stop
and frisk.
19

1. Search Incident
to Lawful Arrest
Section 12 of Rule 126 provides that a lawfully
arrested person may be searched without a
warrant for dangerous weapons or anything
else that may be used as evidence of the
offense. Such incidental search is, however,
limited to the person of the arrestee at the time
of the apprehension. The search cannot be
extended to or made in a place other than the
place of the arrest.
20

2. The "Plain View"

Doctrine
The "plain view" doctrine applies when the
following requisites concur: (1) the law
enforcement officer is in a position where he
has a clear view of a particular area or has prior
justification for an intrusion; (2) said officer
inadvertently comes across (or sees in
plainview) a piece of incriminating evidence;
and (3) it is immediately apparent to such
officer that the item he sees may be evidence of
a crime or a contraband or is otherwise subject
to seizure.
21

3. Search of
Moving Vehicles
The warrantless search of moving vehicles
(including shipping vessels and aircraft) is
justified by practicability, viz.:
22

The guaranty of freedom from

unreasonable searches and seizures
construed as recognizing a necessary
difference between a search of a
dwelling house or other structure in
respect of which a search warrant may
readily be obtained and a search of a
ship, motorboat, wagon, or automobile
for contraband goods, where it is not
practicable to secure a warrant,
because the vehicle can be quickly
moved out of the locality or jurisdiction
in which the warrant must be sought.
 x x x           x x x          x x x
The automobile is a swift and powerful
vehicle . . . Constructed as covered
vehicles to standard form in immense
quantities, and with a capacity for speed
rivaling express trains they furnish for
successful commission of crime a
distinguishing means of silent approach
and swift escape unknown in the history
of the world before their advent. The
question of their police control and
reasonable search on highways or other
public place is a serious question far
deeper and broader than their use in so-
called 'bootlegging' or 'rum running,'
which in itself is no small matter. While a
possession in the sense of private
ownership, they are but a vehicle
constructed for travel and transportation
on highways. Their active use is not in
homes or on private premises, the
privacy of which the law especially
guards from search and seizure without
process. The baffling extent to which
they are successfully utilized to facilitate
 commission of crime of all degrees, from
those against morality, chastity, and
decency to robbery, rape, burglary, and
murder, is a matter of common
knowledge. Upon that problem, a
condition, and not a theory, confronts
proper administration of our criminal
laws. Whether search of and seizure
from an automobile upon a highway or
other public place without a search
warrant is unreasonable is in its final
analysis to be determined as a judicial
question in view of all the circumstances
under which it is made.
4. Customs Searches
Under the Tariff and Customs Code, searches,
seizures and arrests may be made even without
warrants, for purposes of enforcing customs
and tariff laws. Without mention of the need to
priorly obtain a judicial warrant, the Code
specifically allows police authorities to "enter,
pass through or search any land, enclosure,
warehouse, store or building, not being a
dwelling house; and also to inspect, search and
examine any vessel or aircraft and any trunk,
package, box or envelope or any person on
board[;]or stop and search and examine any
vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article
introduced into the Philippines contrary to law. 23

5. Search With Consent

Waiver of any objection to the unresonableness
or invalidity of a search is a recognized
exception to the rule against a warrantless
search.  The consent to the search, however,
24

must be express knowing and voluntary. A

search based merely on implied acquiescene is
not valid, because such consent is not within
the purview of the constitutional gurantee, but
only a passive conformity to the search given
under intimidating and coercive circumstances. 25

6. Stop and Frisk

The "stop and frisk" concept is of American
origin, the most notable case thereon
being Terry v. Ohio.  The idea is that a police
27

officer may after properly introducing himself

and making initial inquiries, approach and
restrain a person manifesting unusual and
suspicious conduct, in order to check, the
latter's outer clothing for possibly concealed
weapons. The strict manner in which this notion
should be applied has been laid down as
follows:
28

. . . where a police officer observes

unusual conduct which leads him
reasonably to conclude in the 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 behaviour,
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 and 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.
As in the warrantless arrest of a person
reasonably suspected of having just committed
a crime, mere suspicious behavior would not
call for a "stop and frisk." There must be a
genuine reason, in accordance with the police
officer's experience and the surrounding
conditions, to warrant the belief that the person
to be held has weapons (or contraband)
concealed about him. 29

A valid application of the doctrine was

recognized in Posadas v. Court of
Appeals   and in Manalili v. Court of
30

Appeals.  In Manalili, the law enforcers who

31

were members of the Anti-Narcotics Unit of the

Caloocan City Police, observed during their
surveillance that appellant had red eyes and
was walking in a wobby manner along the city
cemetery which, according to police
information, was a popular hangout of drug
addicts. Based on police experience, such
suspicious behaviour was characteristic of
persons who were "high" on drugs. The Court
held that past experience and the surrounding
circumstances gave the police sufficient reason
to stop the suspect and to investigate if he was
really high on drugs. The marijuana that they
found in the suspect's possession was held to
be admissible in evidence.
Before I end, I must reiterate that the above
exceptions to the general rule on the necessity
of a judicial warrant for any arrest, search and
seizure must all be strictly construed. Foremost
in our minds must still be every person's prized
and fundamental right to liberty and security, a
right protected and guaranteed by our
Constitution.
1âwphi1.nêt

WHEREFORE, I vote to ACQUIT Appellant

Violeta Gaddao y Catama, as well as to
REDUCE the penalty of Appellant Florencio
Doria y Bolado to reclusion perpetua and a fine
of P500,000.

G.R. No. 182601               November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS,
MIGUEL GACES, JERRY FERNANDEZ and
RONALD MUNOZ,Petitioners, 
vs.
MORENO GENEROSO and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari
under Rule 45 of the Rules of Court challenging
the decision  dated January 21, 2008 and the
1

resolution  dated April 17, 2008 of the Court of

2

Appeals (CA) in CAG.R. SP No. 91541.

The appealed decision affirmed the Order dated
March 16, 2005 of the Regional Trial Court
(RTC), Branch 96, Quezon City, denying Joey
M. Pestilos, Dwight Macapanas, Miguel Gaces,
Jerry Fernandez, and Ronald Munoz's
(petitioners) Urgent Motion for Regular
Preliminary Investigation, as well as their
subsequent motion for reconsideration.
The Antecedent Facts
The records of the case reveal that on February
20, 2005, at around 3: 15 in the morning, an
altercation ensued between the petitioners and
Atty. Moreno Generoso (Atty. Generoso) at
Kasiyahan Street, Barangay Holy Spirit,
Quezon City where the petitioners and Atty.
Generoso reside. 3

Atty. Generoso called the Central Police

District, Station 6 (Batas an Hills Police Station)
to report the incident. Acting on this report,
4

Desk Officer SPOl Primitivo Monsalve (SPOJ

Monsalve) dispatched SP02 Dominador Javier
(SP02 Javier) to go to the scene of the crime
and to render assistance.  SP02 Javier,
5

together with augmentation personnel from the

Airforce, A2C Alano Sayson and Airman Ruel
Galvez, arrived at the scene of the crime less
than one hour after the alleged altercation  and
6

they saw Atty. Generoso badly beaten. 7

Atty. Generoso then pointed to the petitioners

as those who mauled him. This prompted the
police officers to "invite" the petitioners to go to
Batasan Hills Police Station for
investigation.  The petitioners went with the
8

police officers to Batasan Hills Police

Station.  At the inquest proceeding, the City
9

Prosecutor of Quezon City found that the

petitioners stabbed Atty. Generoso with a
bladed weapon. Atty. Generoso fortunately
survived the attack. 10

In an Information dated February 22, 2005, the

petitioners were indicted for attempted murder
allegedly committed as follows:
That on or about the 20th h day of February,
2005, in Quezon City, Philippines, the said
accused, conspiring together, confederating
with and mutually helping one another, with
intent to kill, qualified with evident
premeditation, treachery and taking advantage
of superior strength, did then and there, willfully,
unlawfully and feloniously commence the
commission of the crime of Murder directly by
overt acts, by then and there stabbing one Atty.
MORENO GENEROSO y FRANCO, with a
bladed weapon, but said accused were not able
to perform all the acts of execution which would
produce the crime of Murder by reason of some
cause/s or accident other than their own
spontaneous desistance, that is, said
complainant was able to parry the attack, to his
damage and prejudice.
CONTRARY TO LAW. 11

On March 7, 2005, the petitioners filed an

Urgent Motion for Regular Preliminary
Investigation  on the ground that they had not
12

been lawfully arrested. They alleged that no

valid warrantless arrest took place since the
police officers had no personal knowledge that
they were the perpetrators of the crime. They
also claimed that they were just "invited" to the
police station. Thus, the inquest proceeding
was improper, and a regular procedure for
preliminary investigation should have been
performed pursuant to Rule 112 of the Rules of
Court.13

On March 16, 2005, the RTC issued its order

denying the petitioners' Urgent Motion for
Regular Preliminary Investigation.  The court
14

likewise denied the petitioners' motion for

reconsideration. 15

The petitioners challenged the lower court's

ruling before the CA on a Rule 65 petition for
certiorari. They attributed grave abuse of
discretion, amounting to lack or excess of
jurisdiction, on the R TC for the denial of their
motion for preliminary investigation. 16

The Assailed CA Decision

On January 21, 2008, the CA issued its
decision dismissing the petition for lack of
merit.  The CA ruled that the word "invited" in
17

the Affidavit of Arrest executed by SP02 Javier

carried the meaning of a command. The
arresting officer clearly meant to arrest the
petitioners to answer for the mauling of Atty.
Generoso. The CA also recognized that the
arrest was pursuant to a valid warrantless
arrest so that an inquest proceeding was called
for as a consequence. Thus, the R TC did not
commit any grave abuse of discretion in
denying the Urgent Motion for Regular
Preliminary Investigation.
The CA saw no merit in the petitioners'
argument that the order denying the Urgent
Motion for Regular Preliminary Investigation is
void for failure to clearly state the facts and the
law upon which it was based, pursuant to Rule
16, Section 3 of the Revised Rules of Court.
The CA found that the RTC had sufficiently
explained the grounds for the denial of the
motion.
The petitioners moved for reconsideration, but
the CA denied the motion in its Resolution of
April 17, 2008;  hence, the present petition.
18

The Issues
The petitioners cited the following assignment
of errors:
I.
WHETHER OR NOT THE PETITIONERS
WERE VALIDLY ARRESTED WITHOUT A
WARRANT.
II.
WHETHER OR NOT THE PETITIONERS
WERE LAWFULLY ARRESTED WHEN
THEY WERE MERELY INVITED TO THE
POLICE PRECINCT.
III.
 WHETHER OR NOT THE ORDER
DENYING THE MOTION FOR
PRELIMINARY INVESTIGATION IS VOID
FOR FAILURE TO STATE THE FACTS
AND THE LAW UPON WHICH IT WAS
BASED.
The petitioners primarily argue that they were
not lawfully arrested. No arrest warrant was
ever issued; they went to the police station only
as a response to the arresting officers'
invitation. They even cited the Affidavit of
Arrest, which actually used the word "invited. "
The petitioners also claim that no valid
warrantless arrest took place under the terms of
Rule 112, Section 7 of the Revised Rules of
Court. The incident happened two (2) hours
before the police officers actually arrived at the
crime scene. The police officers could not have
undertaken a valid warrantless arrest as they
had no personal knowledge that the petitioners
were the authors of the crime.
The petitioners additionally argue that the R TC'
s Order denying the Urgent Motion for Regular
Preliminary Investigation is void because it was
not properly issued.
The Court's Ruling
We find the petition unmeritorious and thus
uphold the RTC Order. The criminal
proceedings against the petitioners should now
proceed.
It is unfortunate that the kind of motion that the
petitioners filed has to reach this Court for its
resolution. The thought is very tempting that the
motion was employed simply to delay the
proceedings and that the use of Rule 65 petition
has been abused.
But accepting things as they are, this delay can
be more than compensated by fully examining
in this case the legalities surrounding
warrantless warrants and establishing the
proper interpretation of the Rules for the
guidance of the bench and the bar. These
Rules have evolved over time, and the present
case presents to us the opportunity to re-trace
their origins, development and the current
applicable interpretation.
I. Brief history on warrantless arrests
The organic laws of the Philippines, specifically,
the Philippine Bill of 1902,  and the
19

1935,  1973  and 1987 Constitutions all protect

20 21 22

the right of the people to be secure in their

persons against unreasonable searches and
seizures. Arrest falls under the term "seizure. "
23

This constitutional mandate is identical with the

Fourth Amendment of the Constitution of the
United States. The Fourth Amendment traces
its origins to the writings of Sir Edward
Coke  and The Great Charter of the Liberties of
24

England (Magna Carta Libertatum), sealed

under oath by King John on the bank of the
River Thames near Windsor, England on June
15, 1215.  The Magna Carta Libertatum limited
25

the King of England's powers and required the

Crown to proclaim certain liberties  under the
26

feudal vassals' threat of civil war.  The

27

declarations in Chapter 29 of the Magna Carta

Libertatum later became the foundational
component of the Fourth Amendment of the
United States Constitution.  It provides:
28
No freeman shall be taken, or imprisoned, or be
disseised  of his Freehold, or Liberties, or free
29

Customs, or be outlawed, or exiled, or any

otherwise destroyed; nor will we not pass upon
him, nor condemn him, but by lawful Judgment
of his Peers, or by the Law of the Land, We will
sell to no man, we will not deny or defer to any
man either Justice or Right.  [Emphasis
30

supplied]
In United States v. Snyder,  the United States
31

Supreme Court held that this constitutional

provision does not prohibit arrests, searches
and seizures without judicial warrant, but only
those that are unreasonable.  With regard to an
32

arrest, it is considered a seizure, which must

also satisfy the test of reasonableness.
33

In our jurisdiction, early rulings of the Court

have acknowledged the validity of warrantless
arrests. The Court based these rulings on the
common law of America and England that,
according to the Court, were not different from
the Spanish laws.  These court rulings likewise
34

justified warrantless arrests based on the

provisions of separate laws then existing in the
Philippines. 35

In 1905, the Court held in The United States v.

Wilson  that Section 37  of Act No. 183, or the
36 37

Charter of Manila, defined the arresting officer's

power to arrest without a warrant, at least
insofar as the City of Manila was concerned.
In The United States v. Vallejo, et al.,  the Court
38

held that in the absence of any provisions under

statutes or local ordinances, a police officer
who held similar functions as those of the
officers established under the common law of
England and America, also had the power to
arrest without a warrant in the Philippines.
The Court also ruled in The United States v.
Santos  that the rules on warrantless arrest
39

were based on common sense and reason.  It 40

further held that warrantless arrest found

support under the then Administrative
Code  which directed municipal policemen to
41

exercise vigilance in the prevention of public

offenses.
In The United States v. Fortaleza,  the Court
42

applied Rules 27, 28, 29 and 30  of the

43

Provisional Law for the Application of the Penal

Code which were provisions taken from the
Spanish Law.
These rules were subsequently established and
incorporated in our Rules of Court and
jurisprudence. Presently, the requirements of a
warrantless arrest are now summarized in Rule
113, Section 5 which states that: Section 5.
Arrest without warrant; when lawful. - A peace
officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it; and
 (c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving
final judgment or is temporarily confined
while his case is pending, or has escaped
while being transferred from one
confinement to another.
In cases falling under paragraph (a) and (b)
above, the person arrested without a warrant
shall be forth with delivered to the nearest
police station or jail and shall be proceeded
against in accordance with section 7 of Rule
112.
A warrantless arrest under the circumstances
contemplated under Section 5(a) above has
been denominated as one "in flagrante delicto,"
while that under Section 5(b) has been
described as a "hot pursuit" arrest.
44

For purposes of this case, we shall focus on

Section 5(b) – the provision applicable in the
present case. This provision has undergone
changes through the years not just in its
phraseology but also in its interpretation in our
jurisprudence.
We shall first trace the evolution of Section 5(b)
and examine the applicable American and
Philippine jurisprudence to fully understand its
roots and its appropriate present application.
II. Evolution of Section 5(b), Rule 113
A. Prior to the 1940 Rules of Court
Prior to 1940, the Court based its rulings not
just on American and English common law
principle on warrantless arrests but also on
laws then existing in the Philippines. In
Fortaleza,  the Court cited Rule 28 of the
45

Provisional Law for the Application of the Penal

Code which provided that:
Judicial and administrative authorities have
power to detain, or to cause to be detained,
persons whom there is reasonable ground to
believe guilty of some offense. It will be the duty
of the authorities, as well as of their agents, to
arrest:
First. Such persons as may be arrested under
the provisions of rule 27.
Second. A person charged with a crime for
which the code provides a penalty greater than
that of confinamiento.
Third. A person charged with a crime for which
the code provides a penalty less than that of
confinamiento, if his antecedents or the
circumstances of the case would warrant the
presumption that he would fail to appear when
summoned by the judicial authorities.
The provisions of the preceding paragraph shall
not apply, however, to a defendant who gives
sufficient bond, to the satisfaction of the
authority or agent who may arrest him, and who
it may reasonably be presumed will appear
whenever summoned by the judge or court
competent to try him.
Fourth. A person coining under the provisions
of the preceding paragraph may be arrested,
although no formal complaint has been filed
against him, provided the following
circumstances are present:
First. That the authority or agent had
reasonable cause to believe that an unlawful
act, amounting to a crime had been committed.
Second. That the authority or agent had
sufficient reason to believe that the person
arrested participated in the commission of such
unlawful act or crime." [Emphasis and
underscoring supplied]
In the same decision, the Court likewise cited
Section 3 7 of the Charter of Manila, which
provided that certain officials, including police
officers may, within the territory defined in the
law, pursue and arrest without warrant, any
person found in suspicious places or under
suspicious circumstances, reasonably tending
to show that such person has committed, or is
about to commit any crime or breach of the
peace.
In Santos,  the Court cited Miles v.
46

Weston,  which ruled that a peace officer may

47

arrest persons walking in the street at night

when there is reasonable ground to suspect the
commission of a crime, although there is no
proof of a felony having been committed.
The Court ruled in Santos that the arresting
officer must justify that there was a probable
cause for an arrest without a warrant. The Court
defined probable cause as a reasonable ground
of suspicion, supported by circumstances
sufficiently strong in themselves as to warrant a
reasonable man in believing that the accused is
guilty. Besides reasonable ground of suspicion,
action in good faith is another requirement.
Once these conditions are complied with, the
peace officer is not liable even if the arrested
person turned out to be innocent.
Based on these discussions, it appears clear
that prior to the 1940 Rules of Court, it was not
necessary for the arresting officer to first have
knowledge that a crime was actually committed.
What was necessary was the presence of
reasonably sufficient grounds to believe the
existence of an act having the characteristics of
a crime; and that the same grounds exist to
believe that the person sought to be detained
participated in it. In addition, it was also
established under the old court rulings that the
phrase "reasonable suspicion" was tantamount
to probable cause without which, the
warrantless arrest would be invalid and the
arresting officer may be held liable for its
breach.48

In The US. v. Hachaw,  the Court invalidated

49

the warrantless arrest of a Chinaman because

the arresting person did not state in what way
the Chinaman was acting suspiciously or the
particular act or circumstance which aroused
the arresting person's curiosity.
It appears, therefore, that prior to the
establishment in our Rules of Court of the rules
on warrantless arrests, the gauge for a valid
warrantless arrest was the arresting officer's
reasonable suspicion (probable cause) that a
crime was committed and the person sought to
be arrested has participated in its commission.
This principle left so much discretion and
leeway on the part of the arresting officer.
However, the 1940 Rules of Court has limited
this discretion.
B. The 1940 Rules of Court
(Restricting the arresting
officer's determination of
probable cause)
Rules 27 and 28 of the Provisional Law for the
Application of the Penal Code were
substantially incorporated in Section 6, Rule
109 of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. -

A peace officer or a private person may, without
a warrant, arrest a person:
(a) When the person to be arrested has
committed, is actually committing, or is
about to commit an offense in his presence;
(b) When an offense has in fact been
committed, and he has reasonable ground
to believe 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. [Emphasis and underscoring
supplied]
These provisions were adopted in toto in
Section 6, Rule 113 of the 1964 Rules of Court.
Notably, the 1940 and 1964 Rules have
deviated from the old rulings of the Court. Prior
to the 1940 Rules, the actual commission of the
offense was not necessary in determining the
validity of the warrantless arrest. Too, the
arresting officer's determination of probable
cause (or reasonable suspicion) applied both as
to whether a crime has been committed and
whether the person to be arrested has
committed it.
However, under the 1940 and the 1964 Rules
of Court, the Rules required that there should
be actual commission of an offense, thus,
removing the element of the arresting officer's
"reasonable suspicion of the commission of an
offense." Additionally, the determination of
probable cause, or reasonable suspicion, was
limited only to the determination of whether the
person to be arrested has committed the
offense. In other words, the 1940 and 1964
Rules of Court restricted the arresting officer's
discretion in warrantless arrests under Section
6(b), Rule 113 of the 1964 Rules of Court.
C. The more restrictive 1985 Rules of Criminal
Procedure
Section 6, Rule 113 of the 1964 Rules of Court
again underwent substantial changes and was
re-worded and re-numbered when it became
Section 5, Rule 113 of the 1985 Rules of
Criminal Procedure, to wit:
Sec. 5. Arrest without warrant; when. lawful. - A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has 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.
[Emphasis and underscoring supplied]
As amended, Section 5(b ), Rule 113 of the
1985 Rules of Court retained the restrictions
introduced under the 1964 Rules of Court. More
importantly, however, it added a qualification
that the commission of the offense should not
only have been "committed" but should have
been "just committed." This limited the arresting
officer's time frame for conducting an
investigation for purposes of gathering
information indicating that the person sought to
be arrested has committed the crime.
D. The Present Revised Rules of Criminal
Procedure
Section 5(b ), Rule 113 of the 1985 Rules of
Criminal Procedure was further amended with
the incorporation of the word "probable cause"
as the basis of the arresting officer's
determination on whether the person to be
arrested has committed the crime.
Hence, as presently worded, Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure
provides that:
When an offense has just been committed, and
he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it.
From the current phraseology of the rules on
warrantless arrest, it appears that for purposes
of Section S(b ), the following are the notable
changes: first, the contemplated offense was
qualified by the word "just," connoting
immediacy; and second, the warrantless arrest
of a person sought to be arrested should be
based on probable cause to be determined by
the arresting officer based on his personal
knowledge of facts and circumstances that the
person to be arrested has committed it.
It is clear that the present rules have
"objectified" the previously subjective
determination of the arresting officer as to the
(1) commission of the crime; and (2) whether
the person sought to be arrested committed the
crime. According to Feria, these changes were
adopted to minimize arrests based on mere
suspicion or hearsay.51

As presently worded, the elements under

Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure are: first, an offense has
just been committed; and second, the arresting
officer has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed it.
For purposes of this case, we shall discuss
these elements separately below, starting with
the element of probable cause, followed by the
elements that the offense has just been
committed, and the arresting officer's personal
knowledge of facts or circumstances that the
person to be arrested has committed the crime.
i) First Element of Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure: Probable
cause
The existence of "probable cause" is now the
"objectifier" or the determinant on how the
arresting officer shall proceed on the facts and
circumstances, within his personal knowledge,
for purposes of determining whether the person
to be arrested has committed the crime.
i.a) U.S. jurisprudence on probable cause in
warrantless arrests
In Payton v. New York,  the U.S. Supreme
52

Court held that the Fourth Amendment of the

Federal Constitution does not prohibit arrests
without a warrant although such arrests must
be reasonable. According to State v.
Quinn,  the warrantless arrest of a person who
53
was discovered in the act of violating the law is
not a violation of due process.
The U.S. Supreme Court, however indicated in
Henry v. United States  that the Fourth
54

Amendment limited the circumstances under

which warrantless arrests may be made. The
necessary inquiry is not whether there was a
warrant or whether there was time to get one,
but whether at the time of the arrest probable
cause existed. The term probable cause is
synonymous to "reasonable cause" and
"reasonable grounds." 55

In determining the existence of probable cause,

the arresting officer should make a thorough
investigation and exercise reasonable
judgment. The standards for evaluating the
factual basis supporting a probable cause
assessment are not less stringent in
warrantless arrest situation than in a case
where a warrant is sought from a judicial officer.
The probable cause determination of a
warrantless arrest is based on information that
the arresting officer possesses at the time of
the arrest and not on the information acquired
later.
56

In evaluating probable cause, probability and

not certainty is the determinant of
reasonableness under the Fourth Amendment.
Probable cause involves probabilities similar to
the factual and practical questions of everyday
life upon which reasonable and prudent
persons act. It is a pragmatic question to be
determined in each case in light of the particular
circumstances and the particular offense
involved. 57

In determining probable cause, the arresting

officer may rely on all the information in his
possession, his fair inferences therefrom,
including his observations. Mere suspicion does
not meet the requirements of showing probable
cause to arrest without warrant especially if it is
a mere general suspicion. Probable cause may
rest on reasonably trustworthy information as
well as personal knowledge. Thus, the arresting
officer may rely on information supplied by a
witness or a victim of a crime; and under the
circumstances, the arresting officer need not
verify such information. 58

In our jurisdiction, the Court has likewise

defined probable cause in the context of
Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.
In Abelita Ill v. Doria et al.,  the Court held that
59

personal knowledge of facts must be based on

probable cause, which means an actual belief
or reasonable grounds of suspicion. The
grounds of suspicion are reasonable when, in
the absence of actual belief of the arresting
officers, the suspicion that the person to be
arrested is probably guilty of committing the
offense is based on actual facts, i.e., supported
by circumstances sufficiently strong in
themselves to create the probable cause of guilt
of the person to be arrested. A reasonable
suspicion, therefore, must be founded on
probable cause, coupled with good faith on the
part of the peace officers making the arrest.
i.b) Probable cause under Section 5(b), Rule
113 of the Revised Rules of Criminal
Procedure, distinguished from probable cause
in preliminary investigations and the judicial
proceeding for the issuance of a warrant of
arrest
The purpose of a preliminary investigation is to
determine whether a crime has been committed
and whether there is probable cause to believe
that the accused is guilty of the crime and
should be held for triat.  In Buchanan v. Viuda
60

de Esteban,  we defined probable cause as the

61

existence of facts and circumstances as would

excite the belief in a reasonable mind, acting on
the facts within the knowledge of the
prosecutor, that the person charged was guilty
of the crime for which he was prosecuted.
In this particular proceeding, the finding of the
existence of probable cause as to the guilt of
the respondent was based on the submitted
documents of the complainant, the respondent
and his witnesses. 62

On the other hand, probable cause in judicial

proceedings for the issuance of a warrant of
arrest is defined as the existence of such facts
and circumstances that would lead a
reasonably discreet and prudent person to
believe that an offense has been committed by
the person sought to be arrested.
Hence, before issuing a warrant of arrest, the
judge must be satisfied that based on the
evidence submitted, there is sufficient proof that
a crime has been committed and that the
person to be arrested is probably guilty thereof.
At this stage of the criminal proceeding, the
judge is not yet tasked to review in detail the
evidence submitted during the preliminary
investigation. It is sufficient that he personally
evaluates the evidence in determining probable
cause  to issue a warrant of arrest.
63

In contrast, the arresting officer's determination

of probable cause under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure is
based on his personal knowledge of facts or
circumstances that the person sought to be
arrested has committed the crime. These facts
or circumstances pertain to actual facts or raw
evidence, i.e., supported by circumstances
sufficiently strong in themselves to create the
probable cause of guilt of the person to be
arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled
with good faith on the part of the peace officers
making.the arrest.
The probable cause to justify warrantless arrest
ordinarily signifies a reasonable ground of
suspicion supported by circumstances
sufficiently strong in themselves to warrant a
cautious man to believe that the person
accused is guilty of the offense with which he is
charged,  or an actual belief or reasonable
64

ground of suspicion, based on actual facts. 65

It is clear therefore that the standard for

determining "probable cause" is invariable for
the officer arresting without a warrant, the
public prosecutor, and the judge issuing a
warrant of arrest. It is the existence of such
facts and circumstances that would lead a
reasonably discreet and prudent person to
believe that an offense has been committed by
the person sought to be arrested or held for
trial, as the case may be.
However, while the arresting officer, the public
prosecutor and the judge all determine
"probable cause," within the spheres of their
respective functions, its existence is influenced
heavily by the available facts and circumstance
within their possession. In short, although these
officers use the same standard of a reasonable
man, they possess dissimilar quantity of facts or
circumstances, as set by the rules, upon which
they must determine probable cause.
Thus, under the present rules and
jurisprudence, the arresting officer should base
his determination of probable cause on his
personal knowledge of facts and circumstances
that the person sought to be arrested has
committed the crime; the public prosecutor and
the judge must base their determination on the
evidence submitted by the parties.
In other words, the arresting officer operates on
the basis of more limited facts, evidence or
available information that he must personally
gather within a limited time frame.
Hence, in Santos,  the Court acknowledged the
66

inherent limitations of determining probable

cause in warrantless arrests due to the urgency
of its determination in these instances. The
Court held that one should not expect too much
of an ordinary policeman. He is not presumed
to exercise the subtle reasoning of a judicial
officer. Oftentimes, he has no opportunity to
make proper investigation but must act in haste
on his own belief to prevent the escape of the
criminal.
67

ii) Second and Third Elements of Section 5(b),

Rule 113:
The crime has just been committed/personal
knowledge of facts or circumstances that the
person
to be arrested has committed it
We deem it necessary to combine the
discussions of these two elements as our
jurisprudence shows that these were usually
taken together in the Court's determination of
the validity of the warrantless arrests that were
made pursuant to Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure.
In Posadas v. Ombudsman,  the killing of
68

Dennis Venturina happened on December 8,

1994. It was only on December 11, 1994 that
Chancellor Posadas requested the NBI's
assistance. On the basis of the supposed
identification of two (2) witnesses, the NBI
attempted to arrest Francis Carlo Taparan and
Raymundo Narag three (3) days after the
commission of the crime. With this set of facts,
it cannot be said that the officers have personal
knowledge of facts or circumstances that the
persons sought to be arrested committed the
crime. Hence, the Court invalidated the
warrantless arrest.
Similarly, in People v. Burgos,  one Cesar
69

Masamlok personally and voluntarily

surrendered to the authorities, stating that
Ruben Burgos forcibly recruited him to become
a member of the NPA, with a threat of physical
harm. Upon receipt of this information, a joint
team of PC-INP units was dispatched to arrest
Burgos who was then plowing the field. Indeed,
the arrest was invalid considering that the only
information that the police officers had in
effecting the arrest was the information from a
third person. It cannot be also said in this case
that there was certainty as regards the
commission of a crime.
In People v. del Rosario,  the Court held that
70

the requirement that an offense has just been

committed means that there must be a large
measure of immediacy between the time the
offense was committed and the time of the
arrest. If there was an appreciable lapse of time
between the arrest and the commission of the
crime, a warrant of arrest must be secured.
The Court held that the arrest of del Rosario did
not comply with these requirements because he
was arrested only a day after the commission of
the crime and not immediately thereafter.
Additionally, the arresting officers were not
present and were not actual eyewitnesses to
the crime. Hence, they had no personal
knowledge of facts indicating that the person to
be arrested had committed the offense. They
became aware of del Rosario's identity as the
driver of the getaway tricycle only during the
custodial investigation.
In People v. Cendana,  the accused was
71

arrested one (1) day after the killing of the

victim and only on the basis of information
obtained from unnamed sources. The unlawful
arrest was held invalid.
In Rolito Go v. CA,  the arrest of the accused
72

six ( 6) days after the commission of the crime

was held invalid because the crime had not just
been committed. Moreover, the "arresting"
officers had no "personal knowledge" of facts
indicating that the accused was the gunman
who had shot the victim. The information upon
which the police acted came from statements
made by alleged eyewitnesses to the shooting;
one stated that the accused was the gunman;
another was able to take down the alleged
gunman's car's plate number which turned out
to be registered in the name of the accused's
wife. That information did not constitute
"personal knowledge."
In People v. Tonog, Jr.,  the warrantless arrest
73

which was done on the same day was held

valid. In this case, the arresting officer had
knowledge of facts which he personally
gathered in the course of his investigation,
indicating that the accused was one of the
perpetrators.
In People v. Gerente,  the policemen arrested
74

Gerente only about three (3) hours after

Gerente and his companions had killed the
victim. The Court held that the policemen had
personal knowledge of the violent death of the
victim and of facts indicating that Gerente and
two others had killed him. The warrantless
arrest was held valid.
In People v. Alvario,  the warrantless arrest
75

came immediately after the arresting officers

received information from the victim of the
crime. The Court held that the personal
knowledge of the arresting officers was derived
from the information supplied by the victim
herself who pointed to Alvario as the man who
raped her at the time of his arrest. The Court
upheld the warrantless arrest. In People v.
Jayson,  there was a shooting incident. The
76

policemen who were summoned to the scene of

the crime found the victim. The informants
pointed to the accused as the assailant only
moments after the shooting. The Court held that
the arresting officers acted on the basis of
personal knowledge of the death of the victim
and of facts indicating that the accused was the
assailant. Thus, the warrantless arrest was held
valid.
In People v. Acol,  a group held up the
77

passengers in a jeepney and the policemen

immediately responded to the report of the
crime. One of the victims saw four persons
walking towards Fort Bonifacio, one of whom
was wearing his jacket. The victim pointed them
to the policemen. When the group saw the
policemen coming, they ran in different
directions. The Court held that the arrest was
valid.
In Cadua v. CA,  there was an initial report to
78

the police concerning a robbery. A radio

dispatch was then given to the arresting
officers, who proceeded to Alden Street to
verify the authenticity of the radio message.
When they reached the place, they met with the
complainants who initiated the report about the
robbery. Upon the officers' invitation, the victims
joined them in conducting a search of the
nearby area where the accused was spotted in
the vicinity. Based on the reported statements
of the complainants, he was identified as a
logical suspect in the offense just committed.
Hence, the arrest was held valid.
In Doria,  the Court held that Section S(b ),
79

Rule 113 of the 1985 Rules of Criminal

Procedure does not require the arresting
officers to personally witness the commission of
the offense.
In this case, P/Supt. Doria alleged that his office
received a telephone call from a relative of
Rosa Sia about a shooting incident. He
dispatched a team headed by SP03 Ramirez to
investigate the incident. SP03 Ramirez later
reported that a certain William Sia was
wounded while Judge Abelita III, who was
implicated in the incident, and his wife just left
the place of the incident. P/Supt. Doria looked
for Abelita III and when he found him, he
informed him of the incident report. P/Supt.
Doria requested Abelita III to go with him to the
police headquarters as he had been reported to
be involved in the incident. Abelita III agreed
but suddenly sped up his vehicle and
proceeded to his residence where P/Supt. Doria
caught him up as he was about to run towards
his house.
The police officers saw a gun in the front seat of
the vehicle beside the driver's seat as Abelita III
opened the door. They also saw a shotgun at
the back of the driver's seat. The police officers
confiscated the firearms and arrested Abelita III.
The Court held that the petitioner's act of trying
to get away, coupled with the incident report
which they investigated, were enough to raise a
reasonable suspicion on the part of the police
authorities as to the existence of probable
cause. Based on these discussions, it appears
that the Court's appreciation of the elements
that "the offense has just been committed" and
''personal knowledge of facts and
circumstances that the person to be arrested
committed it" depended on the particular
circumstances of the case. However, we note
that the element of ''personal knowledge of
facts or circumstances" under Section S(b ),
Rule 113 of the Revised Rules of Criminal
Procedure requires clarification.
The phrase covers facts or, in the alternative,
circumstances. According to the Black's Law
Dictionary, "circumstances are attendant or
80

accompanying facts, events or conditions. "

Circumstances may pertain to events or actions
within the actual perception, personal
evaluation or observation of the police officer at
the scene of the crime. Thus, even though the
police officer has not seen someone actually
fleeing, he could still make a warrantless arrest
if, based on his personal evaluation of the
circumstances at the scene of the crime, he
could determine the existence of probable
cause that the person sought to be arrested has
committed the crime. However, the
determination of probable cause and the
gathering of facts or circumstances should be
made immediately after the commission of the
crime in order to comply with the element of
immediacy.
In other words, the clincher in the element of
''personal knowledge of facts or circumstances"
is the required element of immediacy within
which these facts or circumstances should be
gathered. This required time element acts as a
safeguard to ensure that the police officers
have gathered the facts or perceived the
circumstances within a very limited time frame.
This guarantees that the police officers would
have no time to base their probable cause
finding on facts or circumstances obtained after
an exhaustive investigation.
The reason for the element of the immediacy is
this - as the time gap from the commission of
the crime to the arrest widens, the pieces of
information gathered are prone to become
contaminated and subjected to external factors,
interpretations and hearsay. On the other hand,
with the element of immediacy imposed under
Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, the police officer's
determination of probable cause would
necessarily be limited to raw or uncontaminated
facts or circumstances, gathered as they were
within a very limited period of time. The same
provision adds another safeguard with the
requirement of probable cause as the standard
for evaluating these facts of circumstances
before the police officer could effect a valid
warrantless arrest.
In light of the discussion above on the
developments of Section 5(b), Rule 113 of the
Revised Rules of Criminal Procedure and our
jurisprudence on the matter, we hold that the
following must be present for a valid
warrantless arrest: 1) the crime should have
been just committed; and 2) the arresting
officer's exercise of discretion is limited by the
standard of probable cause to be determined
from the facts and circumstances within his
personal knowledge. The requirement of the
existence of probable cause objectifies the
reasonableness of the warrantless arrest for
purposes of compliance with the Constitutional
mandate against unreasonable arrests.
Hence, for purposes of resolving the issue on
the validity of the warrantless arrest of the
present petitioners, the question to be resolved
is whether the requirements for a valid
warrantless arrest under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure
were complied with, namely: 1) has the crime
just been committed when they were arrested?
2) did the arresting officer have personal
knowledge of facts and circumstances that the
petitioners committed the crime? and 3) based
on these facts and circumstances that the
arresting officer possessed at the time of the
petitioners' arrest, would a reasonably discreet
and prudent person believe that the attempted
murder of Atty. Generoso was committed by the
petitioners? We rule in the affirmative.
III. Application of Section S(b), Rule 113 of the
Revised Rules
of Criminal Procedure in the present case: there
was a
valid warrantless arrest
We deem it necessary to review the records of
the CA because it has misapprehended the
facts in its decision. From a review of the
81

records, we conclude that the police officers

had personal knowledge of facts or
circumstances upon which they had properly
determined probable cause in effecting a
warrantless arrest against the petitioners. We
note, however, that the determination of the
facts in the present case is purely limited to the
resolution of the issue on the validity of the
warrantless arrests of the petitioners.
Based on the police blotter  entry taken at 4:15
82

a.m. on February 20, 2005, the date that the

alleged crime was committed, the petitioners
were brought in for investigation at the Batasan
Hills Police Station. The police blotter stated
that the alleged crime was committed at 3:15
a.m. on February 20, 2005, along Kasiyahan
St., Brgy. Holy Spirit, Quezon City.
The time of the entry of the complaint in the
police blotter at 4:15 a.m., with Atty. Generoso
and the petitioners already inside the police
station, would connote that the arrest took place
less than one hour from the time of the
occurrence of the crime. Hence, the CA finding
that the arrest took place two (2) hours after the
commission of the crime is unfounded.
The arresting officers' personal observation of
Atty. Generoso's bruises when they arrived at
the scene of the crime is corroborated by the
petitioners' admissions that Atty: Generoso
indeed suffered blows from petitioner
Macapanas and his brother Joseph
Macapanas,  although they asserted that they
83

did it in self-defense against Atty. Generoso.

Atty. Generoso's bruises were also
corroborated by the Medico-Legal
Certificate  that was issued by East Avenue
84

Medical Center on the same date of the alleged

mauling. The medical check-up of Atty.
Generoso that was made about 8:10 a.m. on
the date of the incident, showed the following
findings: "Contusion Hematoma, Left Frontal
Area; Abrasion, T6 area, right midclavicular line
periorbital hematoma, left eye; Abrasion, distal
3rd posterolateral aspect of right forearm;
Abrasion, 4th and fifth digit, right hand;
Abrasion on area of ih rib (L ant. Chest wall),
tenderness on L peripheral area, no visible
abrasion. In addition, the attending physician,
Dr. Eva P. Javier, diagnosed Atty. Generoso of
contusion hematoma, periorbital L., and
traumatic conjunctivitis, o.s.
To summarize, the arresting officers went to the
scene of the crime upon the complaint of Atty.
Generoso of his alleged mauling; the police
officers responded to the scene of the crime
less than one (1) hour after the alleged mauling;
the alleged crime transpired in a community
where Atty. Generoso and the petitioners
reside; Atty. Generoso positively identified the
petitioners as those responsible for his mauling
and, notably, the petitioners  and Atty.
85

Generoso  lived almost in the same

86

neighborhood; more importantly, when the

petitioners were confronted by the arresting
officers, they did not deny their participation in
the incident with Atty. Generoso, although they
narrated a different version of what transpired.87

With these facts and circumstances that the

police officers gathered and which they have
personally observed less than one hour from
the time that they have arrived at the scene of
the crime until the time of the arrest of the
petitioners, we deem it reasonable to conclude
that the police officers had personal knowledge
of facts or circumstances justifying the
petitioners' warrantless arrests. These
circumstances were well within the police
officers' observation, perception and evaluation
at the time of the arrest. These circumstances
qualify as the police officers' personal
observation, which are within their personal
knowledge, prompting them to make the
warrantless arrests.
Similar to the factual antecedents in
Jayson,  the police officers in the present case
88

saw Atty. Generoso in his sorry bloodied state.

As the victim, he positively identified the
petitioners as the persons who mauled him;
however, instead of fleeing like what happened
in Jayson, the petitioners agreed to go with the
police officers.
This is also similar to what happened in People
v. Tonog, Jr.  where Tonog did not flee but
89

voluntarily went with the police officers. More

than this, the petitioners in the present case
even admitted to have been involved in the
incident with Atty. Generoso, although they had
another version of what transpired.
In determining the reasonableness of the
warrantless arrests, it is incumbent upon the
courts to consider if the police officers have
complied with the requirements set under
Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure, specifically, the
requirement of immediacy; the police officer's
personal knowledge of facts or circumstances;
and lastly, the propriety of the determination of
probable cause that the person sought to be
arrested committed the crime.
The records show that soon after the report of
the incident occurred, SPOl Monsalve
immediately dispatched the arresting officer,
SP02 Javier, to render personal assistance to
the victim.  This fact alone negates the
90

petitioners' argument that the police officers did

not have personal knowledge that a crime had
been committed - the police immediately
responded and had personal knowledge that a
crime had been committed. 1âwphi1

To reiterate, personal knowledge of a crime just

committed under the terms of the above-cited
provision, does not require actual presence at
the scene while a crime was being committed; it
is enough that evidence of the recent
commission of the crime is patent (as in this
case) and the police officer has probable cause
to believe based on personal knowledge of
facts or circumstances, that the person to be
arrested has recently committed the crime.
Considering the circumstances of the stabbing,
particularly the locality where it took place, its
occasion, the personal circumstances of the
parties, and the immediate on-the-spot
investigation that took place, the immediate and
warrantless arrests of the perpetrators were
proper. Consequently, the inquest proceeding
that the City Prosecutor conducted was
appropriate under the circumstances.
IV. The term "invited" in the Affidavit of Arrest is
construed to
mean as an authoritative command
After the resolution of the validity of the
warrantless arrest, the discussion of the
petitioners' second issue is largely academic.
Arrest is defined as the taking of a person into
custody in order that he may be bound to
answer for the commission of an offense. An
arrest is made by an actual restraint of the
person to be arrested, or by his submission to
the custody of the person making the
arrest.  Thus, application of actual force,
91

manual touching of the body, physical restraint

or a formal declaration of arrest is not required.
It is enough that there be an intention on the
part of one of the parties to arrest the other and
the intent of the other to submit, under the belief
and impression that submission is necessary. 92

Notwithstanding the term "invited" in the

Affidavit of Arrest,  SP02 Javier could not but
93

have the intention of arresting the petitioners

following Atty. Generoso' s account. SP02
Javier did not need to apply violent physical
restraint when a simple directive to the
petitioners to follow him to the police station
would produce a similar effect. In other words,
the application of actual force would only be an
alternative if the petitioners had exhibited
resistance.
To be sure, after a crime had just been
committed and the attending policemen have
acquired personal knowledge of the incidents of
the crime, including the alleged perpetrators,
the arrest of the petitioners as the perpetrators
pointed to by the victim, was not a mere
random act but was in connection with a
particular offense. Furthermore, SP02 Javier
had informed the petitioners, at the time of their
arrest, of the charges against them before
taking them to Batasan Hills Police Station for
investigation. 94

V. The Order denying the motion for preliminary

investigation is valid
In their last ditch attempt at avoidance, the
petitioners attack the R TC Order denying the
petitioners' urgent motion for regular preliminary
investigation for allegedly having been issued in
violation of Article VIII, Section 14 of the 1987
Constitution  and Rule 16, Section 3 of the
95

Revised Rules of Court. 96

The RTC, in its Order dismissing the motion,

clearly states that the Court is not persuaded by
the evidentiary nature of the allegations in the
said motion of the accused. Aside from lack of
clear and convincing proof, the Court, in the
exercise of its sound discretion on the matter, is
legally bound to pursue and hereby gives
preference to the speedy disposition of the
case."
We do not see any taint of impropriety or grave
abuse of discretion in this Order. The RTC, in
resolving the motion, is not required to state all
the facts found in the record of the case.
Detailed evidentiary matters, as the RTC
decreed, is best reserved for the full-blown trial
of the case, not in the preliminary incidents
leading up to the trial.
Additionally, no less than the Constitution itself
provides that it is the decision that should state
clearly and distinctly the facts and the law on
which it is based. In resolving a motion, the
court is only required to state clearly and
distinctly the reasons therefor. A contrary
system would only prolong the proceedings,
which was precisely what happened to this
case. Hence, we uphold the validity of the
RTC's order as it correctly stated the reason for
its denial of the petitioners' Urgent Motion for
Regular Preliminary Investigation.
WHEREFORE, premises considered, we
hereby DENY the petition, and hereby AFFIRM
the decision dated January 21, 2008 and the
resolution dated April 17, 2008 of the Court of
Appeals in CA-G.R. SP No. 91541. The City
Prosecutor of Quezon City is hereby
ORDERED to proceed with the criminal
proceedings against the petitioners.
SO ORDERED.

G.R. No. 204444, January 14, 2015

VIRGILIO C. BRIONES, Petitioner, v. COURT OF
APPEALS AND CASH ASIA CREDIT
CORPORATION, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari1 are the

Decision2 dated March 5, 2012 and the
Resolution3 dated October 4, 2012 of the Court of
Appeals(CA) in CA-G.R. SP No. 117474, which
annulled the Orders dated September 20, 20104 and
October 22, 20105 of the Regional Trial Court of
Manila, Branch 173 (RTC) in Civil Case No. 10-
124040, denying private respondent Cash Asia Credit
Corporation’s (Cash Asia) motion to dismiss on the
ground of improper venue. cralawred

The Facts

The instant case arose from a Complaint6 dated

August 2, 2010 filed by Virgilio C. Briones (Briones)
for Nullity of Mortgage Contract, Promissory Note,
Loan Agreement, Foreclosure of Mortgage,
Cancellation of Transfer Certificate of Title (TCT)
No.290846, and Damages against Cash Asia before
the RTC.7 In his complaint, Briones alleged that he is
the owner of a property covered by TCT No. 160689
(subject property),and that, on July 15, 2010, his
sister informed him that his property had been
foreclosed and a writ of possession had already been
issued in favor of Cash Asia.8 Upon investigation,
Briones discovered that: (a) on December 6, 2007, he
purportedly executed a promissory note,9 loan
agreement,10 and deed of real estate
mortgage11covering the subject property (subject
contracts) in favor of Cash Asia in order to obtain a
loan in the amount of P3,500,000.00 from the
latter;12 and (b) since the said loan was left unpaid,
Cash Asia proceeded to foreclose his property.13 In
this relation, Briones claimed that he never contracted
any loans from Cash Asia as he has been living and
working in Vietnam since October 31, 2007. He
further claimed that he only went back to the
Philippines on December 28, 2007 until January 3,
2008 to spend the holidays with his family, and that
during his brief stay in the Philippines, nobody
informed him of any loan agreement entered into with
Cash Asia. Essentially, Briones assailed the validity of
the foregoing contracts claiming his signature to be
forged.14chanRoblesvirtualLawlibrary

For its part, Cash Asia filed a Motion to

Dismiss15 dated August 25, 2010, praying for the
outright dismissal of Briones’s complaint on the
ground of improper venue.16 In this regard, Cash Asia
pointed out the venue stipulation in the subject
contracts stating that “all legal actions arising out of
this notice in connection with the Real Estate
Mortgage subject hereof shall only be brought in or
submitted to the jurisdiction of the proper court of
Makati City.”17 In view thereof, it contended that all
actions arising out of the subject contracts may only
be exclusively brought in the courts of Makati City,
and as such, Briones’s complaint should be dismissed
for having been filed in the City of Manila.18 chanRoblesvirtualLawlibrary

In response, Briones filed an

opposition,19 asserting, inter alia, that he should not
be covered by the venue stipulation in the subject
contracts as he was never a party therein. He also
reiterated that his signatures on the said contracts
were forgeries.20 chanRoblesvirtualLawlibrary
 The RTC Ruling

In an Order21 dated September 20, 2010, the RTC

denied Cash Asia’s motion to dismiss for lack of merit.
In denying the motion, the RTC opined that the
parties must be afforded the right to be heard in view
of the substance of Briones’s cause of action against
Cash Asia as stated in the complaint.22 chanRoblesvirtualLawlibrary

Cash Asia moved for reconsideration23 which was,

however, denied in an Order24 dated October 22,
2010. Aggrieved, it filed a petition
for  certiorari25 before the CA.
cralawred

The CA Ruling

In a Decision26 dated March 5, 2012, the CA annulled

the RTC Orders, and accordingly, dismissed Briones’s
complaint without prejudice to the filing of the same
before the proper court in Makati City.27 It held that
the RTC gravely abused its discretion in denying Cash
Asia’s motion to dismiss, considering that the subject
contracts clearly provide that actions arising
therefrom should be exclusively filed before the courts
of Makati City only.28 As such, the CA concluded that
Briones’s complaint should have been dismissed
outright on the ground of improper venue,29 this,
notwithstanding Briones’s claim of forgery.

Dissatisfied, Briones moved for

reconsideration,30 which was, however, denied in a
Resolution31 dated October 4, 2012, hence, this
petition.

The Issue Before the Court

The primordial issue for the Court’s resolution is

whether or not the CA gravely abused its discretion in
ordering the outright dismissal of Briones’s complaint
on the ground of improper venue.

The Court’s Ruling

The petition is meritorious.

At the outset, the Court stresses that “[t]o justify the

grant of the extraordinary remedy of certiorari, [the
petitioner] must satisfactorily show that the court or
quasi-judicial authority gravely abused the discretion
conferred upon it. Grave abuse of discretion connotes
judgment exercised in a capricious and whimsical
manner that is tantamount to lack of jurisdiction. To
be considered ‘grave,’ discretion must be exercised in
a despotic manner by reason of passion or personal
hostility, and must be so patent and gross as to
amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined by or to act at all
in contemplation of law.”32chanRoblesvirtualLawlibrary

Guided by the foregoing considerations, the Court

finds that the CA gravely abused its discretion in
ordering the outright dismissal of Briones’s complaint
against Cash Asia, without prejudice to its re-filing
before the proper court in Makati City.

Rule 4 of the Rules of Court governs the rules on

venue of civil actions, to wit:
chanroblesvirtuallawlibrary

Rule 4
VENUE OF ACTIONS

SECTION 1. Venue of real actions. — Actions affecting

title to or possession of real property, or interest
therein, shall be commenced and tried in the proper
court which has jurisdiction over the area wherein the
real property involved, or a portion thereof, is
situated.

Forcible entry and detainer actions shall be

commenced and tried in the municipal trial court of
the municipality or city wherein the real property
involved, or a portion thereof, is situated.

SEC. 2. Venue of personal actions. — All other actions

may be commenced and tried where the plaintiff or
any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides,
or in the case of a non-resident defendant where he
may be found, at the election of the plaintiff.

SEC. 3. Venue of actions against nonresidents.  — If

any of the defendants does not reside and is not
found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of said
defendant located in the Philippines, the action may
be commenced and tried in the court of the place
where the plaintiff resides, or where the property or
any portion thereof is situated or found.

SEC. 4. When Rule not applicable. — This Rule shall

not apply –

(a) In those cases where a specific rule or law

provides otherwise; or

(b) Where the parties have validly agreed in writing

before the filing of the action on the exclusive venue
thereof.

Based therefrom, the general rule is that the venue of

real actions is the court which has jurisdiction over
the area wherein the real property involved, or a
portion thereof, is situated; while the venue of
personal actions is the court which has jurisdiction
where the plaintiff or the defendant resides, at the
election of the plaintiff. As an exception,
jurisprudence in Legaspi v. Rep. of the
Phils.33 instructs that the parties, thru a written
instrument, may either introduce another venue
where actions arising from such instrument may be
filed, or restrict the filing of said actions in a certain
exclusive venue, viz.: chanroblesvirtuallawlibrary
The parties, however, are not precluded from
agreeing in writing on an exclusive venue, as qualified
by Section 4 of the same rule. Written stipulations
as to venue may be restrictive in the sense that
the suit may be filed only in the place agreed
upon, or merely permissive in that  the parties
may file their suit not only in the place agreed
upon but also in the places fixed by law. As in
any other agreement, what is essential is the
ascertainment of the intention of the parties
respecting the matter.

As regards restrictive stipulations on venue,

jurisprudence instructs that it must be shown
that such stipulation is exclusive. In the absence
of qualifying or restrictive words, such as
“exclusively,” “waiving for this purpose any other
venue,” “shall only” preceding the designation of
venue, “to the exclusion of the other courts,” or words
of similar import, the stipulation should be
deemed as merely an agreement on an
additional forum, not as limiting venue to the
specified place.34 (Emphases and underscoring
supplied)

In this relation, case law likewise provides that in

cases where the complaint assails only the terms,
conditions, and/or coverage of a written instrument
and not its validity, the exclusive venue stipulation
contained therein shall still be binding on the parties,
and thus, the complaint may be properly dismissed on
the ground of improper venue.35 Conversely,
therefore, a complaint directly assailing the validity of
the written instrument itself should not be bound by
the exclusive venue stipulation contained therein and
should be filed in accordance with the general rules
on venue.To be sure, it would be inherently consistent
for a complaint of this nature to recognize the
exclusive venue stipulation when it, in fact, precisely
assails the validity of the instrument in which such
stipulation is contained.

In this case, the venue stipulation found in the

subject contracts is indeed restrictive in nature,
considering that it effectively limits the venue of the
actions arising therefrom to the courts of Makati City.
However, it must be emphasized that Briones’s
complaint directly assails the validity of the subject
contracts, claiming forgery in their execution. Given
this circumstance, Briones cannot be expected to
comply with the aforesaid venue stipulation, as his
compliance therewith would mean an implicit
recognition of their validity. Hence, pursuant to the
general rules on venue, Briones properly filed his
complaint before a court in the City of Manila where
the subject property is located.

In conclusion, the CA patently erred and hence

committed grave abuse of discretion in dismissing
Briones’s complaint on the ground of improper
venue. chanrobleslaw
WHEREFORE, the petition is GRANTED. Accordingly,
the Decision dated March 5, 2012 and the Resolution
dated October 4, 2012 of the Court of Appeals in CA-
G.R. SP No. 117474 are hereby ANNULLED and SET
ASIDE. The Orders dated September 20, 2010 and
October 22, 2010 of the Regional Trial Court of
Manila, Branch 173 in Civil Case No. 10-124040
are REINSTATED.

SO ORDERED. cralawlawlibrary

G.R. No. 82293 July 23, 1992

PEOPLE OF THE PHILIPPINES, plaintiff, 
vs.
ROLANDO MADRIAGA y BAUTISTA @
OLAN and ROLANDO PANGILINAN y CRUZ
@ OLAN, respondents.
 
DAVIDE, JR., J.:
In an information filed with the Regional Trial
Court of Caloocan City, Branch 124, and
docketed therein as Criminal Case No. C-
28540, appellants Rolando Madriaga y Bautista
@ Olan and Rolando Pangilinan y Cruz @
Olan, were charged with the violation of Section
4, Article II of the Dangerous Drugs Act,
Republic Act No. 6425, as amended by
Presidential Decree No. 1675, committed as
follows: 
1

That on or about the 27th day of March

1987 in Caloocan City, Metro Manila
and within the jurisdiction of this
Honorable Court, the above-named
accused, conspiring together and
mutually helping with (sic) one another,
without authority of law, did then and
there willfully, unlawfully and feloniously
sell and deliver to Pat. Reynaldo
Lechido, who acted as poseur-buyer
dried marijuana flowering tops wrapped
in a newspaper, a prohibited drug,
knowing the same to be such.
After each of them entered a plea of not guilty
during arraignment,   trial on the merits ensued.
2

After hearing the testimonies of the prosecution

witnesses, namely: Patrolman Reynaldo
Lechido, Corporal Alfredo Rodillas, Corporal
Wilfredo Tamondong and Neva G. Gamosa,
and the appellants, who took the witness stand
in their defense, the trial court promulgated on
17 September 1987 a judgment of
conviction,   the dispositive portion of which
3

reads:
WHEREFORE, this Court finds the
herein accused ROLANDO MADRIAGA
Y BAUTISTA @ OLAN, and ROLANDO
PANGILINAN Y CRUZ @ OLAN,
GUILTY, beyond reasonable doubt, of
the offense charged against them in the
manner alleged in the information, and
are each sentenced by this Court to
THIRTY (30) YEARS OF life
imprisonment and to pay a fine of
P20,000.00 with subsidiary
imprisonment in case of insolvency. . . .
On 30 September 1987, appellants filed a
Notice of Appeal. 4

The facts of the case which the conviction is

based are summarized by the trial court as
follows:
In the morning of March 27, 1987, a
civilian informant appeared at the Office
of the Anti-Narcotics Unit, Caloocan City
Police Station, and informed Cpl.
Wilfredo Tamondong and his men that a
certain "Olan" whose description was
given by the informant, is engaged in
the illegal traffice (sic) of marijuana
somewhere at Elisa Street, Marcela,
Maypajo, Caloocan City. Forthwith, Cpl.
Tamondong, as Assistant Chief and
investigator of the same unit, formed
and dispatched a surveillance team of
narcotics operatives to the place
mentioned by the informant. The team
returned with positive result (sic). After
clearing the matter with the chief of the
Anti-Narcotics Unit who arrived in the
office in the afternoon of the same date,
Cpl. Tamondong gathered his men for a
buy-bust operation. At the briefing, it
was agreed that Pat. Reynaldo Lechido
will act as the poseur-buyer while the
rest of the team are to give Lechido a
(sic) back-up support. Lechido was
furnished by Cpl. Tamondong with a
P10-bill with Serial No. BG4-32975
which he instructed his men to
familiarize with (sic) (Exh. "A"). Cpl.
Tamondong also marked the P10-bill in
the presence of his men with a slant in
ball pen (sic) across the figure "10" at its
lower left portion (Exh. "A-1"). Soon after
the briefing, the team on board two (2)
motor vehicles, proceeded to the area
mentioned by the informant. They
parked their vehicles somewhere at
Marcela Street and from there they went
on foot to Elisa Street, taking caution not
to be detected or suspected. At Elisa
Street, Lechido positioned himself near
the opening of an alley which leads to
the interior of a cluster of squatter
houses, while the other members of the
team scattered and strategically posted
themselves within the vicinity. Not long
thereafter, a man which fitted (sic) the
description earlier given by the civilian
informant appeared. Lechido
approached the man and told the latter
that he would want to buy a (sic) P10-
worth of marijuana. Lechido handed the
P10-marked money (sic) (Exh. "A"), to
the man who told Lechido to wait.
Thereafter, the man left and some (sic)
few minutes later, he returned, at which
point Lechido gave the pre-arranged
signal to his companions. The man
handed to Lechido something wrapped
in a newspaper, whereupon the other
members of the team swooped in.
Lechido identified himself to the man as
a police officer while the rest of the team
placed the man under arrest. Asked by
Lechido as to what his name is, the man
identified himself as the herein accused,
Rolando Madriaga. Lechido asked the
man where he got the stuff, to which the
man answered he got it from a certain
man also nicknamed "Olan", whose
place is at the interior of the alley.
Together with Rolando Madriaga,
Lechido and two of his companions
entered the alley and as they were
walking, Madriaga, pointed to a man
standing some 7 to 10 meters away
from where he was apprehended, as the
source of the stuff. Lechido and his two
companions approached the man,
identified themselves to him as police
officers, and thereafter frisked the man.
Found by Lechido inside the right pocket
of the man's pants was the marked P10-
bill. When queried, the man answered
that the money came from the other
accused, Rolando Madriaga. Lechido
got the marked money from the man
who gave his name as Rolando
Pangilinan. The team brought both
accused to the office of the Anti-
Narcotics Unit whereat they turned over
the persons of both accused as well as
the suspected marijuana stuff and the
P10-marked money (sic) to Cpl.
Wilfredo Tamondong. In the ensuing
investigation, both accused refused to
give any written statement upon being
apprised of their constitutional rights.
For their part, Pat. Lechido and three of
the members of the team executed a
 joint statement relating therein the
circumstances that transpired during the
buy bust operation (Exh. "B"). That
same afternoon of March 27, 1987, the
suspected marijuana flowering tops as
wrapped in a piece of newspaper which
Lechido received from accused Rolando
Madriaga (Exh. "F-2"), was (sic)
forwarded to the NBI chemist for
examination after Cpl. Tamondong had
placed his initials reading "WLT" (Exh.
"F-2-B-2"), on the newspaper wrapper.
The item was received by NBI chemist
Neva Gamosa who, for purposes of
identification, placed her own identifying
marked (sic) on the newspaper wrapper
(Exh. "F-2-A"). After subjecting a
representative sample of the suspected
marijuana flowering tops to microscopic,
chemical and chormotographic tests,
chemist Neva Gamosa found that the
specimen submitted "gave positive
results for marijuana" (Exh. "G"). 
5

On the other hand, the appellants denied the

accusations against them and claimed that they
were the victims of a frame-up. This defense
was summarized by the trial court, to wit:
Thus, accused Rolando Pangilinan who
admitted being jobless on March 27,
1987, testified that while he was on his
way to buy cigarettes from a corner
store at Elisa Street in the afternoon of
March 27, 1987, men in civilian clothes
suddenly grabbed him and boarded (sic)
him in a jeep together with his co-
accused Rolando Madriaga, a close
friend and neighbor of him (sic) at Elisa
Street. After boarding (sic) them in the
jeep, the men brought them to the
Caloocan City Police Station. He denied
being the source of the marijuana
allegedly sold by Madriaga to Pat.
Lechido in the afternoon of March 27,
1987. He also denied that there was
found from (sic) his pocket the marked
money involved in this case (Exh. "A").
For his part, the other accused Rolando
Madriaga, who gave his occupation as a
carpenter in the furniture shop of one
Senying de Leon at Elisa Street,
declared that in the afternoon of March
27, 1987, while he was doing carpentry
work at the shop of his employer, men in
civilian clothes picked him up and
boarded (sic) him, together with his
friend Rolando Pangilinan, into an
owner-type jeep. The men brought him
and Pangilinan to the police
headquarters whereat they were
immediately locked inside a cell. From
there, they were subsequently
transferred to the Caloocan City Jail,
where they (sic) now detained. He
denied having allegedly sold marijuana
to Pat. Lechido, much less having
received a P10-bill from the latter. He
added that when the men picked him up
and placed him under arrest, he and his
employer Senying de Leon, complained
(sic) why he was being arrested but the
men merely told him to go with them. On
cross-examination, he testified that the
men first arrested him, after which the
same men also arrested his friend
 Rolando Pangilinan, as the latter was
coming out from his house at the interior
of the alley along Elisa Street. 6

In this appeal, appellants, assisted by their

counsel de oficio, Atty. Ramon C. Fernandez,
interpose the following assignment of errors: 7

I THE TRIAL COURT ERRED IN

GIVING CREDENCE TO THE
VERSION OF THE PROSECUTION.
II THE TRIAL COURT ERRED IN NOT
DECLARING THE BUY-BUST
OPERATION ILLEGAL.
III THE TRIAL COURT ERRED IN NOT
ACQUITTING THE TWO ACCUSED OF
THE CRIME CHARGED IN THE
INFORMATION.
In support of the first assigned error, appellants
contend that the testimonies of Pat. Lechido
and Pat. Rodillas on the circumstances
surrounding the apprehension of the appellants
and the buy-bust operation are biased, erratic
and contradictory. The inconsistencies pointed
out involve the different versions showing how
the buy-bust money was marked and what the
pre-arranged signal for the appellants'
apprehension was. They point out that Pat.
Lechido contradicted himself when he initially
said that the mark used was the serial number,
while in his later testimony, he said that it was a
slant placed on the buy-bust money.
As to the pre-arranged signal, they claim that
while Lechido testified that it was to be the
pulling out of his handkerchief, Cpl. Tamondong
declared that it was to be Lechido's scratching
of his head. They furthermore present the
theory that since Lechido is a stranger to
appellant Madriaga, it would have been stupid
and naive for the latter to immediately deal with
the former; they assert that no person with
ordinary common sense would deliver
marijuana in a crowded place within the view of
many people.
They further contend that the search conducted
on appellant Pangilinan's person was illegal as
it was done without a search warrant; hence,
the marked P10.00 bill obtained from him is
inadmissable in evidence.
As to the second assigned error, appellants
disagree with the trial court's characterization of
the apprehensions as entrapment and
vigorously maintain that it was Lechido who
offered to buy marijuana from appellant
Madriaga; the former therefore, induced the
latter to commit the crime of drug pushing.
The third assigned error is anchored on the
conclusion that the prosecution failed to
discharge its duty to establish the guilt of the
appellants beyond reasonable doubt.
After a judicious review of the facts and the law,
We conclude that there is no merit in this
appeal. The challenged decision has to be
affirmed in all respects, save for the penalty of
thirty (30) years of life imprisonment, which
should be modified to life imprisonment.
We shall take up the assigned errors in
seriatim.
1. The allegations of inconsistencies in the
testimony of Lechido as to the marking of the
buy-bust money for the purpose of casting
doubt on the identity of the P10.00 bill is more
apparent than real. It is clear from his testimony
that he was positive that the serial number of
the ten-peso bill was recorded although he was
not sure whether any other marking existed.
Thus:
Q And how could you determine
that it is the same money which
will be used or utilized for the
purchase of marijuana?
A From our office I already
segregated the money from my
own money. I placed it in my
pocket wherein there is no other
money except that money.
COURT:
After segregating that money
with (sic) your other money, what
did you do first with that money?
Did you mark that money?
WITNESS (A):
No, sir. The one who marked it is
our investigator.8

COURT:
While ago (sic) you testified that
it was not you who put the
marking in (sic) that money?
A Yes, Your Honor.
COURT:
According to you it was the
investigator?
A Yes, sir.
COURT:
What was the marking he made
in (sic) that money? Were you
not told by the investigator what
was the identifying mark he
made in (sic) that money so that
you would detect that is (sic) the
 same marked money you used in
the buy-bust operation?
A The serial number.
COURT
You said it was your investigator
who marked that money, what
was the marking he made in (sic)
that money or were you told it
was marked by him?
A That is clarification (sic) our
investigator must also testify in
this Court.9

Pat. Lechido's failure to recall the marking on

the bill can be attributed to the fact that when
he first testified on 1 September 1987, the ten-
peso bill was not yet available and thus was not
presented in court. In fact, the non-availability of
the ten-peso bill was the reason for this being
recalled to the witness stand. It was upon being
recalled to the witness stand on 2 September
1987 that he remembered that in addition to
recording the serial number, a slant was placed
on the bill. Lechido cannot be blamed for not
remembering all the details involved because
human memory is frail. Thus, We find no
reason to doubt him when he said:
FISCAL SILVERIO:
Q You earlier, in your previous
testimony, stated that your police
investigator marked the P10-bill.
Where is that Mr. Witness?
A This one, sir (witness pointing
to a slant imposed across the
figure 10 on the lower left hand
corner of the P10-bill which slant
appears to be written in ink). 10

x x x           x x x          x x x
ATTY. YAP: (Q — ADDITIONAL
CROSS-EXAMINATION)
Q Aside from the marking (sic)
slant on the face of this P10-bill,
was the serial number of this
alleged marked money jot (sic)
down by your investigator?
A Yes, sir.
Q Where did he jot down the
serial number?
A It was listed in our dispatch
book or the blotter.
Q When was that made?
A It was made before the actual
operation, sir, but the same date
(sic) March 27. 11

x x x           x x x          x x x
COURT TO WITNESS:
Q What I an telling you is, you
identified a slant across the
lower corner of the P10-bill. Is
this the usual procedure you
used (sic) in indicating or
marking the buy-bust money for
purposes of identification?
A Yes, sir.
Q You always put a slant?
 A No, sir. It is not variable (sic).
Q What markings are usually
placed on the face of the
money?
A Sometimes we placed (sic) a
letter X, sometimes a circle and
sometimes we wrote (sic) an
initial of a name and sometimes
we placed (sic) the figure O.  12

There is no inconsistency in the testimony of

Pat. Lechido because the police investigator
recorded the serial number of the ten-peso bill
and at the same time placed a slant on the bill
itself. As testified to by Cpl. Tamondong on
direct examination:
Q How did you know that this is
the same P10.00-bill you gave to
Pat. Lechido during the
conference.
A I put a slant to (sic) this P10.00
bill.
FISCAL SILVERIO:
Q Will you please point (sic) the
slant?
WITNESS:
A (Witness pointing to the right
side of the P10.00 bill wherein
there appears a slant on the
P10.00 to the left.)
FISCAL SILVERIO:
Which slant was already marked
Exhibit "A-1".
Q What was Pat. Lechido
supposed to do with this P10.00-
bill?
A I gave him the piece of paper
to write the serial number to
identify the marked bill.
Q What did Pat. Lechido do with
this serial number written in (sic)
a piece of paper?
A And to pass it to other
members so that they will
 familiarize (sic) the said P10.00-
bill.
Q You mean the same serial
number written in (sic) the piece
of paper were (sic) passed
around the members of the
raiding team?
A Yes, sir.  13

On cross-examination, Cpl. Tamondong further

explained the marking placed on the ten-peso
bill, thus:
Q Before you took this money
from your pocket, was this
money already marked?
A I marked it, sir, before I gave
(sic) to Pat. Lechido.
COURT:
Where did you mark it?
A In our office, sir.
COURT:
In whose presence?
A The members of the Unit, sir.
COURT:
You mean during the briefing?
A Yes, sir.
COURT:
All of them knew that you made
your marking in (sic) the money?
A Yes, sir.
COURT:
Alright.
ATTY. YAP (Q):
Was this the usual way of
marking when you conduct buy-
bust operation, slanting?
A Except that, it was put in our
dispatch book, the serial
number.
 Q My question is: Is this the
usual way of marking money
(sic) to conduct buy-bust
operation (sic)?
A Yes, sir.  14

The other inconsistency as to the pre-arranged

signal is inconsequential. According to Pat.
Lechido, the pre-arranged signal was his act of
pulling out his handkerchief.   He, however,
15

explained that this was the signal to show that

the accused had answered him "in a positive
way that there is stuff."
Thus:
COURT:
What was your understanding
with respect to your handkerchief
before you proceeded to the
place?
WITNESS (A):
That is (sic) one of our plans.
COURT:
 What is that plan.
A I said to my companions that
when I approach that person and
when he answered (sic) me in a
positive way that there is a (sic)
stuff so I will draw my
handkerchief and that once I
drew (sic) my handkerchief that
must alert all deployed
personnel.  16

On the other hand, Cpl. Tamondong testified

that the signal he told Pat. Lechido to use was
the scratching by the latter of his head. Thus,
he said:
COURT:
Now, in the role which Lechido
was supposed to play in that
buy-bust operation, did you give
him specific instructions on what
he is supposed to do?
A Yes, sir.
COURT:
What was this instruction?
A When he handed (sic) the
marked P10.00-bill to the
suspect and the suspected
marijuana is handed to Lechido,
he will scratch his head.
COURT:
In other words, during the
briefing the agreed pre-arranged
signal was Lechido's scratching
his head and this is supposed to
be this (sic) pre-arranged signal
when the marijuana is already in
the possession of Lechido, is
that what we understand from
you?
A Yes, sir.
COURT:
And this is (sic) also made
known to the rest of the
members of the team during the
briefing?
 WITNESS (A):
Yes, sir.  17

From the foregoing, no serious inconsistency

even appears. The pulling out of the
handkerchief was a signal to inform Lechido's
group that appellant Madriaga has the
marijuana, while the scratching of the head was
supposed to signal that Lechido already had the
marijuana in his possession. In any event, the
inconsistency, if any, was sufficiently explained
by Cpl. Tamondong when he testified that:
FISCAL SILVERIO:
Just one question, your Honor.
FISCAL SILVERIO (Q —
Cont'n):
You said, Mr. Witness, that the
pre-arranged signal was for Pat.
Reynaldo Lechido to scratch his
head in order (sic) that he pay
(sic) the P10.00 bill and receive
(sic) the marijuana stuff, is that
correct?
WITNESS: (A)
Yes, sir.
FISCAL SILVERIO (Q):
But did you allow him to devise
his own way of pre-arranged
signal in the buy-bust operation?
A Yes, sir.
COURT:
And this permission was also
that (sic) they will devise their
pre-arranged signal?
A Yes, sir.
COURT:
Why do you have to discuss a
definite pre-arranged signal if
after all they can invent their own
signal?
A Sometimes, your Honor, when
somebody was (sic) holding a
cigarette and the suspect
handed to him a suspected
marijuana, the poseur-buyer
throws the cigarette stick.
COURT:
In this case?
A I instructed Pat. Lechido to
scratch his head.
COURT:
In this particular case, did you
know if Pat. Lechido changed
the signal and invented a signal
of his own?
A I do not know sir.
FISCAL SILVERIO (Q):
So you did not know, Mr.
Witness, whether on the way of
the team (sic) to the place of the
operation they devised another
pre-arranged signal?
A Yes, sir.
 Q Is it possible that they made
their own pre-arranged signal?
A But I gave already pre-
arranged signal to Pat. Lechido.
Q But is it possible?
A Yes, sir.  18

The only conclusion that can be reached,

therefore, is that Pat. Lechido decided to
change the pre-arranged signal for some
reason or another. The fact that the pre-
arranged signal used was the act of pulling out
the handkerchief was further confirmed by Pat.
Alfredo Rodillas, who was present during the
buy-bust operation. He testified that:
COURT TO WITNESS:
Q When you were (sic) at the
headquarters, is it not normal
that everytime you conduct a
buy-bust operation the one
designated as poseur-buyer is
usually required to give a pre-
arrange (sic) signal to signal his
 companions that the transaction
is consummated and its (sic)
time for them to apprehend or to
arrest the suspect?
A Yes, your Honor.
Q Now, when you were still
having that briefing at your unit,
was there an agreement reached
among the members of that unit
as to what was the pre-arranged
signal to be used by the poseur-
buyer?
A There was, sir.
Q What was that?
A He will put out his
handkerchief, sir.
Q Who was supposed to put out
his handkerchief?
A Pat. Lechido, sir.  19

Furthermore, even assuming arguendo that

inconsistencies exist, such are on minor details
which do not affect the case of the prosecution.
Settled is the rule that discrepancies on minor
matters do not impair the essential integrity of
the prosecution's evidence as a whole or reflect
on the witnesses' honesty.   These
20

inconsistencies, which may be caused by the

natural fickleness of memory, even tend to
strengthen rather than weaken the credibility of
the prosecution witnesses because they erase
any suspicion of rehearsed testimony.   What is
21

important is that the testimonies agree on the

essential facts and that the respective versions
corroborate and substantially coincide with
each other to make a consistent and coherent
whole. 22

Equally unmeritorous is appellants' final

argument under this assigned error. They want
this Court to believe that appellant Madriaga
would not have sold a prohibited drug to Pat.
Lechido, a stranger, since "no person engaged
in the illegal traffic of prohibited drugs will be
stupid or naive to immediately deal with a
stranger; and no person with ordinary common
sense would deliver marijuana in a crowded
place within the view of many people.
In real life, small-quantity or retail drug pushers
sell their prohibited wares to customers who
have the money to pay for the drug, be they
strangers or not.   What matters is not the
23

existing familiarity between the buyer and the

drug pusher, but rather their agreement and the
acts constituting the sale and delivery of the
prohibited drug. 24

Also, with respect to the sale of drugs on a

small scale basis, this Court, in People
vs. Paco,   held:
25

Drug pushing when done on a small

level as in this case belongs to that
class of crimes that may be committed
at anytime and at any place. After the
offer to buy is accepted and the
exchange is made, the illegal
transaction is completed in a few
minutes. The fact that the parties are in
a public place and in the presence of
other people mat not always discourage
them from pursuing their illegal trade as
these factors may even serve to
camouflage the same. Hence, the Court
 has sustained the conviction of drug
pushers caught selling illegal drugs in a
billiard hall, in front of a store, along a
street at 1:45 p.m., and in front of a
house.  26

The contention that the search conducted on

appellant Pangilinan was illegal and the
evidence obtained by reason thereof is
inadmissable in evidence pursuant to
paragraph (2), Section 3, Article III of the 1987
Constitution is likewise devoid of merit. The
arrest of both appellants was validly effected.
Paragraphs (a) and (b), Section 5, Rule 113 of
the Revised Rules of Court provide:
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; .
...
Appellant Rolando Madriaga was arrested
in Flagrante delicto; he was apprehended while
in the act of giving the marijuana to Pat.
Lechido, the poseur buyer. As such, his arrest,
effected pursuant to paragraph (a) of the
aforesaid Section 5,   was valid. Furthermore,
27

the search conducted on his person was

likewise valid because it was made as an
incident to a valid arrest. This is in accordance
with Section 12, Rule 126 of the Revised Rules
of Court which provides:
Sec. 12. Search incident to lawful arrest.
— A person lawfully arrested may be
searched for dangerous weapons or
anything which may be used as proof of
the commission of an offense, without a
search warrant.
The warrantless arrest of the other appellant
Rolando Pangilinan falls under paragraph (b),
Section 5, Rule 113 of the Revised Rules of
Court. Pat. Lechido, as the poseur buyer in the
buy bust operation, had personal knowledge
that an offense — the sale to him by Madriaga
of the marijuana — had in fact been committed.
He also had personal knowledge of facts
indicating that Pangilinan was the source of the
prohibited drug by virtue of the information
given to him by Madriaga to this effect. Thus
the arrest of appellant Pangilinan was likewise
valid. Consequently, the search of Pangilinan's
body incident to his valid arrest was also valid.
The evidence obtained from the search is,
therefore, admissable in evidence.
In People vs. Paco,   We said:
28

Having caught the appellant

in flagrante as a result of the buy-bust
operation, the policemen were not only
authorized but were also under (sic)
obligation to apprehend the drug pusher
even without a warrant of arrest. And
since the appellant's arrest was lawful, it
 follows that the search made incident to
the arrest was also valid. (Rule 126,
Sec. 12. Alvero vs. Dizon, 76 Phil. 637
(1946); People vs. Claudio, G.R. No.
72564, April 15, 1988).
2. In their second assignment of error,
appellants claim that they were instigated into
selling the marijuana; hence, their
apprehension should be declared illegal.
We are not persuaded.
What actually obtained in the case at bar was
an entrapment, not an inducement or
instigation. Appellants miserably failed to prove
that they were in fact induced into committing
the offense. Upon the other hand, the
prosecution successfully proved beyond any
shadow of a doubt that the appellants were
engaged in the illegal traffic of marijuana, and
that the surveillance team dispatched to
conduct the buy-bust operation confirmed their
illegal business. the operation then was to
expose, arrest and prosecute the traffickers.
The latter were committing a crime and needed
no one else to induce them to commit it.
In entrapment, ways and means are resorted to
for the purpose of trapping and capturing the
law breakers in the execution of their criminal
plan. In instigation, the instigator practically
induces the would-be defendant into the
commission of the offense; the inducer thus
becomes the principal. Entrapment then does
not bar the prosecution and conviction of the
person entrapped. In instigation, however, the
instigated party has to be acquitted. 
29

Entrapment has consistently proven to be an

effective method of apprehending drug
peddlers. 30

The foregoing renders unnecessary a

discussion on the third assigned error.
We thus affirm the decision of the trial court.
However, the penalty of "THIRTY (30) YEARS
OF life imprisonment" imposed by it is not
correct because the penalty for drug pushing
provided by Section 4, Article II of Republic Act
No. 6425, as amended, is life imprisonment and
a fine ranging from P20,000.00 to P30,000.00.
The penalty is not divisible into periods or into
specific durations. Also, it is not the same as
the penalty of reclusion perpetua provided
under the Revised Penal Code which carries
accessory penalties.   The proper penalty then
31

should just be life imprisonment.

WHEREFORE, IN VIEW OF ALL THE
FOREGOING, the decision appealed from is
hereby AFFIRMED in all respects, except as
above-modified.
No pronouncement as to costs.
SO ORDERED.

G.R. No. Nos. 111771-77 November 9, 1993

ANTONIO L. SANCHEZ, Petitioner, vs. The Honorable HARRIET

O. DEMETRIOU (in her capacity as Presiding Judge of
Regional Trial Court, NCR, Branch 70, Pasig), The Honorable
FRANKLIN DRILON (in his capacity as Secretary of Justice),
JOVENCITO R. ZUÑO, LEONARDO C. GUIYAB, CARLOS L. DE
LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and
RODRIGO P. LORENZO, the last six respondents in their
official capacities as members of the State Prosecutor's
Office), Respondents.

Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner. chanrobles virtual law library
The Solicitor General for respondents.

CRUZ, J.:

There is probably no more notorious person in the country today

than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands
accused of an unspeakable crime. On him, the verdict has already
been rendered by many outraged persons who would immediately
impose on him an angry sentence. Yet, for all the prejudgments
against him, he is under our Constitution presumed innocent as long
as the contrary has not been proved. Like any other person accused
of an offense, he is entitled to the full and vigilant protection of the
Bill of Rights.
chanroblesvirtualawlibrary chanrobles virtual law library

Sanchez has brought this petition to challenge the order of the

respondent judge denying his motion to quash the informations for
rape with homicide filed against him and six other persons. We shall
treat it as we would any other suit filed by any litigant hoping to
obtain a just and impartial judgment from this Court. chanroblesvirtualawlibrary chanrobles virtual law library

The pertinent facts are as follows: chanrobles virtual law library

On July 28, 1993, the Presidential Anti-Crime Commission requested

the filing of appropriate charges against several persons, including
the petitioner, in connection with the rape-slay of Mary Eileen
Sarmenta and the killing of Allan Gomez. chanroblesvirtualawlibrary chanrobles virtual law library

Acting on this request, the Panel of State Prosecutors of the

Department of Justice conducted a preliminary investigation on
August 9, 1993. Petitioner Sanchez was not present but was
represented by his counsel, Atty. Marciano Brion, Jr. chanroblesvirtualawlibrary chanrobles virtual law library

On August 12, 1993, PNP Commander Rex Piad issued an

"invitation" to the petitioner requesting him to appear for
investigation at Camp Vicente Lim in Canlubang, Laguna. It was
served on Sanchez in the morning of August 13,1993, and he was
immediately taken to the said camp. chanroblesvirtualawlibrary chanrobles virtual law library

At a confrontation that same day, Sanchez was positively identified

by Aurelio Centeno, and SPO III Vivencio Malabanan, who both
executed confessions implicating him as a principal in the rape-slay
of Sarmenta and the killing of Gomez. The petitioner was then
placed on "arrest status" and taken to the Department of Justice in
Manila.chanroblesvirtualawlibrary chanrobles virtual law library

The respondent prosecutors immediately conducted an inquest upon

his arrival, with Atty. Salvador Panelo as his counsel. chanroblesvirtualawlibrary chanrobles virtual law library

After the hearing, a warrant of arrest was served on Sanchez. This

warrant was issued on August 13, 1993, by Judge Enrico A.
Lanzanas of the Regional Trial Court of Manila, Branch 7, in
connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of Section 8, in relation to Section 1, of R.A. No. 6713.
Sanchez was forthwith taken to the CIS Detention Center, Camp
Crame, where he remains confined. chanroblesvirtualawlibrary chanrobles virtual law library

On August 16, 1993, the respondent prosecutors filed with the

Regional Trial Court of Calamba, Laguna, seven informations
charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon,
Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama
with the rape and killing of Mary Eileen Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court

issued a warrant for the arrest of all the accused, including the
petitioner, in connection with the said crime. chanroblesvirtualawlibrary chanrobles virtual law library

The respondent Secretary of Justice subsequently expressed his

apprehension that the trial of the said cases might result in a
miscarriage of justice because of the tense and partisan atmosphere
in Laguna in favor of the petitioner and the relationship of an
employee, in the trial court with one of the accused. This Court
thereupon ordered the transfer of the venue of the seven cases to
Pasig, Metro Manila, where they were raffled to respondent Judge
Harriet Demetriou. chanroblesvirtualawlibrary chanrobles virtual law library

On September 10, 1993, the seven informations were amended to

include the killing of Allan Gomez as an aggravating
circumstance. chanroblesvirtualawlibrary chanrobles virtual law library
On that same date, the petitioner filed a motion to quash the
informations substantially on the grounds now raised in this
petition. On September 13, 1993, after oral arguments, the
respondent judge denied the motion. Sanchez then filed with this
Court the instant petition for certiorari and prohibition with prayer
for a temporary restraining order/writ of injunction. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner argues that the seven informations filed against him
should be quashed because: 1) he was denied the right to present
evidence at the preliminary investigation; 2) only the Ombudsman
had the competence to conduct the investigation; 3) his warrantless
arrest is illegal and the court has therefore not acquired jurisdiction
over him, 4) he is being charged with seven homicides arising from
the death of only two persons; 5) the informations are
discriminatory because they do not include Teofilo Alqueza and
Edgardo Lavadia; and 6) as a public officer, he can be tried for the
offense only by the Sandiganbayan. chanroblesvirtualawlibrary chanrobles virtual law library

The respondents submitted a Comment on the petition, to which we

required a Reply from the petitioner within a non-extendible period
of five days. 1The Reply was filed five days late. 2The Court may
consider his non-compliance an implied admission of the
respondents' arguments or a loss of interest in prosecuting his
petition, which is a ground for its dismissal. Nevertheless, we shall
disregard this procedural lapse and proceed to discuss his petition
on the basis of the arguments before us.

The Preliminary Investigation.

The records of the hearings held on August 9 and 13, 1993, belie
the petitioner's contention that he was not accorded the right to
present counter-affidavits. chanroblesvirtualawlibrary chanrobles virtual law library

During the preliminary investigation on August 9, 1993, the

petitioner's counsel, Atty. Marciano Brion, manifested that his client
was waiving the presentation of a counter-affidavit, thus:

Atty. Brion, Jr.: 

chanrobles virtual law library
[W]e manifest that after reviewing them there is nothing to rebut or
countermand all these statements as far as Mayor Sanchez is
concerned, We are not going to submit any counter-affidavit. chanroblesvirtualawlibrary chanrobles virtual law library

ACSP Zuño to Atty. Brion:

xxx xxx xxx

Q. So far, there are no other statements. chanroblesvirtualawlibrary chanrobles virtual law library

A. If there is none then, we will not submit any counter-affidavit

because we believe there is nothing to rebut or countermand with
all these statements. chanroblesvirtualawlibrary chanrobles virtual law library

Q. So, you are waiving your submission of counter-affidavit? chanrobles virtual law library

A. Yes, your honor, unless there are other witnesses who will come
up soon. 3

Nonetheless, the head of the Panel of Prosecutors, respondent

Jovencito Zuño, told Atty. Brion that he could still file a counter-
affidavit up to August 27, 1993. No such counter-affidavit was
filed.
chanroblesvirtualawlibrary chanrobles virtual law library

During the hearing on August 1'3, 1993, respondent Zuño furnished

the petitioner's counsel, this time Atty. Salvador Panelo, with copies
of the sworn statements of Centeno and Malabanan, and told him
he could submit counter-affidavits on or before August 27, 1993.
The following exchange ensued:

ACSP Zuño: chanrobles virtual law library

For the record, we are furnishing to you the sworn statement of

witness Aurelio Centeno y Roxas and the sworn statement of SPO3
Vivencio Malabanan y Angeles. chanroblesvirtualawlibrary chanrobles virtual law library

Do I understand from you that you are again waiving the

submission of counter-affidavit? chanrobles virtual law library

Atty. Panelo: chanrobles virtual law library

Yes. chanroblesvirtualawlibrary chanrobles virtual law library

ACSP Zuño: chanrobles virtual law library

So, insofar as the respondent, Mayor Antonio Sanchez is concerned,

this case is submitted for resolution. 4

On the other hand, there is no support for the petitioner's

subsequent manifestation that his counsel, Atty. Brion, was not
notified of the inquest held on August 13, 1993, and that he was not
furnished with the affidavits sworn to on that date by Vivencio
Malabanan and Aurelio Centeno, or with their supplemental
affidavits dated August 15, 1993. Moreover, the above-quoted
excerpt shows that the petitioner's counsel at the hearing held on
August 13, 1993, was not Atty. Brion but Atty. Panelo. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner was present at that hearing and he never disowned

Atty. Panelo as his counsel. During the entire proceedings, he
remained quiet and let this counsel speak and argue on his behalf.
It was only in his tardy Reply that he has suddenly bestirred himself
and would now question his representation by this lawyer as
unauthorized and inofficious. chanroblesvirtualawlibrary chanrobles virtual law library

Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides

that if the respondent cannot be subpoenaed or, if subpoenaed,
does not submit counter-affidavits, the investigating officer shall
base his resolution on the evidence presented by the
complainant. chanroblesvirtualawlibrary chanrobles virtual law library

Just as the accused may renounce the right to be present at the

preliminary investigation 5, so may he waive the right to present
counter-affidavits or any other evidence in his defense.   chanroblesvirtualawlibrary chanrobles virtual law library

At any rate, it is settled that the absence of a preliminary

investigation does not impair the validity of the information or
otherwise render the same defective and neither does it affect the
jurisdiction of the court over the case or constitute a ground for
quashing the information. 6 chanrobles virtual law library
If no preliminary investigation has been held, or if it is flawed, the
trial court may, on motion of the accused, order an investigation or
reinvestigation and hold the proceedings in the criminal case in
abeyance. 7In the case at bar, however, the respondent judge saw
no reason or need for such a step. Finding no arbitrariness in her
factual conclusions, we shall defer to her judgment.

Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8the petitioner submits

that the proceedings conducted by the Department of Justice are
null and void because it had no jurisdiction over the case. His claim
is that it is the Office of the Ombudsman that is vested with the
power to conduct the investigation of all cases involving public
officers like him, as the municipal mayor of Calauan, Laguna. chanroblesvirtualawlibrary chanrobles virtual law library

The Ombudsman is indeed empowered under Section 15, paragraph

(1) of R.A. 6770 to investigate and prosecute, any illegal act or
omission of any public official. However, as we held only two years
ago in the case of Aguinaldo v. Domagas, 9this authority "is not an
exclusive authority but rather a shared or concurrent authority in.
respect of the offense charged."

Petitioners finally assert that the information and amended

information filed in this case needed the approval of the
Ombudsman. It is not disputed that the information and amended
information here did not have the approval of the Ombudsman.
However, we do not believe that such approval was necessary at all.
In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that
the Ombudsman has authority to investigate charges of illegal or
omissions on the part of any public official, i.e., any crime imputed
to a public official. It must, however, be pointed out that the
authority of the Ombudsman to investigate "any [illegal] act or
omission of any public official" (191 SCRA at 550)
is not an exclusive authority but rather a shared or concurrent
authority in respect of the offense here charged, i.e., the crime of
sedition. Thus, the non-involvement of the office of the Ombudsman
in the present case does not have any adverse legal consequence
upon the authority the panel of prosecutors to file and prosecute the
information or amended information.
In fact, other investigatory agencies, of the government such as the
Department of Justice, in connection with the charge of
sedition, 10and the Presidential Commission on Good Government, in
ill-gotten wealth cases, 11may conduct the investigation,

The Arrest

Was petitioner Sanchez arrested on August 13, 1993? chanrobles virtual law library

"Arrest" is defined under Section 1, Rule 113 of the Rules of Court

as the taking of a person into custody in order that he may be
bound to answer for the commission of an offense. Under Section 2
of the same Rule, an arrest is effected by an actual restraint of the
person to be arrested or by his voluntary submission to the custody
of the person making the arrest. chanroblesvirtualawlibrary chanrobles virtual law library

Application of actual force, manual touching of the body, physical

restraint or a formal declaration of arrest is not, required. It is
enough that there be an intent on the part of one of the parties to
arrest the other and an intent onthe part of the other to submit,
under the belief and impression that submission is necessary. 12 chanrobles virtual law library

The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna,

by virtue of a letter-invitation issued by PNP Commander Rex Piad
requesting him to appear at the said camp for investigation. chanroblesvirtualawlibrary chanrobles virtual law library

In Babst v. National Intelligence Board 13this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation

to attend a hearing and answer some questions, which the person
invited may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable. Under certain circumstances,
however, such an invitation can easily assume a different
appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officersissued at
a time when the country has just emerged from martial rule and
when the suspension of the privilege of the writ of habeas
corpus has not entirely been lifted, and the designated interrogation
site is a military camp, the same can be easily taken, not as a
strictly voluntary invitation which it purports to be, but  as an
authoritative command which one can only defy at his peril. . . .
(Emphasis supplied)

In the case at bar, the invitation came from a high-ranking military

official and the investigation of Sanchez was to be made at a
military camp. Although in the guise of a request, it was obviously a
command or an order of arrest that the petitioner could hardly he
expected to defy. In fact, apparently cowed by the "invitation," he
went without protest (and in informal clothes and slippers only) with
the officers who had come to fetch him. chanroblesvirtualawlibrary chanrobles virtual law library

It may not be amiss to observe that under R.A. No. 7438, the
requisites of a "custodial investigation" are applicable even to a
person not formally arrested but merely "invited" for questioning.
virtual law library
chanroblesvirtualawlibrary chanrobles

It should likewise be noted that at Camp Vicente Lim, the petitioner

was placed on "arrest status" after he was pointed to by Centeno
and Malabanan as the person who first raped Mary Eileen Sarmenta.
Respondent Zuño himself acknowledged during the August 13, 1993
hearing that, on the basis of the sworn statements of the two state
witnesses, petitioner had been "arrested." chanrobles virtual law library

We agree with the petitioner that his arrest did not come under
Section 5, Rule 113 of the Rules of Court, providing as follows:

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

private person may, without a warrant, arrest a person: chanrobles virtual law library

(a) When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense; chanrobles virtual law library

(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 chanrobles virtual law library

(c) When the person to be arrested is a prisoner who has escapes

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.
It is not denied that the arresting officers were not present when
the petitioner allegedly participated in the killing of Allan Gomez and
the rape-slay of Mary Eileen Sarmenta. Neither did they have any
personal knowledge that the petitioner was responsible therefor
because the basis of the arrest was the sworn statements of
Centeno and Malabanan. Moreover, as the rape and killing of
Sarmenta allegedly took place on June 28-June 29, 1993, or forty-
six days before the date of the arrest, it cannot be said that the
offense had "in fact just been committed" when the petitioner was
arrested.chanroblesvirtualawlibrary chanrobles virtual law library

The original warrantless arrest of the petitioner was doubtless

illegal. Nevertheless, the Regional Trial Court lawfully acquired
jurisdiction over the person of the petitioner by virtue of the warrant
of arrest it issued on August 26, 1993 against him and the other
accused in connection with the rape-slay cases. It was belated, to
be sure, but it was nonetheless legal. chanroblesvirtualawlibrary chanrobles virtual law library

Even on the assumption that no warrant was issued at all, we find

that the trial court still lawfully acquired jurisdiction over the person
of the petitioner. The rule is that if the accused objects to the
jurisdiction of the court over his person, he may move to quash the
information, but only on that ground. If, as in this case, the accused
raises other grounds in the motion to quash, he is deemed to have
waived that objection and to have submitted his person to the
jurisdiction of that court. 14 chanrobles virtual law library

The Court notes that on August 13, 1993, after the petitioner was
unlawfully arrested, Judge Lanzanas issued a warrant of arrest
against Antonio L. Sanchez in connection with Criminal Cases Nos.
93-124634 to 93-124637 for violation of R.A No. 6713. 15Pending
the issuance of the warrant of arrest for the rape-slay cases, this
first warrant served as the initial justification for his detention. chanroblesvirtualawlibrary chanrobles virtual law library

The Court also adverts to its uniform ruling that the filing of
charges, and the issuance of the corresponding warrant of arrest,
against a person invalidly detained will cure the defect of that
detention or at least deny him the right to be released because of
such defect. * Applicable by analogy to the case at bar is Rule 102
Section 4 of the Rules of Court that:
Sec, 4. When writ is not allowed or discharge authorized. - If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge or
by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall, anything in this rule be held to
authorize the discharge of a person charged with or convicted of an
offense in the Philippines or of a person suffering imprisonment
under lawful judgment.

In one case, 16the petitioner, sued on habeas corpus on the ground

that she had been arrested by virtue of a John Doe warrant. In their
return, the respondents declared that a new warrant specifically
naming her had been issued, thus validating her detention. While
frowning at the tactics of the respondents, the Court said:

The, case has, indeed, become moot and academic inasmuch as the
new warrant of arrest complies with the requirements of the
Constitution and the Rules of Court regarding the particular
description of the person to be arrested. While the first warrant was
unquestionably void, being a general warrant, release of the
petitioner for that reason will be a futile act as it will be followed by
her immediate re-arrest pursuant to the new and valid warrant,
returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the

Court, 17more recently in the Umil case. 18

The Informations

The petitioner submits that the seven informations charging seven

separate homicides are absurd because the two victims in these
cases could not have died seven times. chanroblesvirtualawlibrary chanrobles virtual law library

This argument was correctly refuted by the Solicitor General in this

wise:
Thus, where there are two or more offenders who commit rape, the
homicide committed on the occasion or by reason of each rape,
must be deemed as a constituent of the special complex crime of
rape with homicide. Therefore, there will be as many crimes of rape
with homicide as there are rapes committed. chanroblesvirtualawlibrary chanrobles virtual law library

In effect, the presence of homicide qualifies the crime of rape,

thereby raising its penalty to the highest degree. Thus, homicide
committed on the occasion or by reason of rape, loses its character
as an independent offense, but assumes a new character, and
functions like a qualifying circumstance. However,by fiction of law, it
merged with rape to constitute an constituent element of a special
complex crime of rape with homicide with a specific penalty which is
in the highest degree, i.e. death (reduced to reclusion perpetua with
the suspension of the application of the death penalty by the
Constitution).

It is clearly provided in Rule 110 of the Rules of Court that:

Sec. 13. Duplicity of offense. A complaint or information must

charge but one offense, except only in those cases in which existing
laws prescribe a simple punishment for various offenses.

Rape with homicide comes within the exception under R.A. 2632
and R.A. 4111, amending the Revised Penal Code. chanroblesvirtualawlibrary chanrobles virtual law library

The petitioner and his six co-accused are not charged with only one
rape committed by him in conspiracy with the other six. Each one of
the seven accused is charged with having himself raped Sarmenta
instead of simply helping Sanchez in committing only one rape. In
other words, the allegation of the prosecution is that the girl was
raped seven times, with each of the seven accused taking turns in
abusing her with the assistance of the other six. Afterwards, their
lust satisfied, all seven of them decided to kill and thus silence
Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

Every one of the seven accused is being charged separately for

actually raping Sarmenta and later killing her instead of merely
assisting the petitioner in raping and then slaying her. The separate
informations filed against each of them allege that each of the
seven successive rapes is complexed by the subsequent slaying of
Sarmenta and aggravated by the killing of Allan Gomez by her
seven attackers. The separate rapes were committed in succession
by the seven accused, culminating in the slaying of Sarmenta. chanroblesvirtualawlibrary chanrobles virtual law library

It is of course absurd to suggest that Mary Eileen Sarmenta and

Allan Gomez were killed seven times, but the informations do not
make such a suggestion. It is the petitioner who does so and is thus
hoist by his own petard.

The Alleged Discrimination

The charge of discrimination against the petitioner because of the

non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the
informations must also be dismissed.   chanroblesvirtualawlibrary chanrobles virtual law library

While the prosecuting officer is required by law to charge all those

who in his opinion, appear to be guilty, he nevertheless cannot be
compelled to include in the information a person against whom he
believes no sufficient evidence of guilt exists. 19The appreciation of
the evidence involves the use of discretion on the part of the
prosecutor, and we do not find in the case at bar a clear showing by
the petitioner of a grave abuse of such discretion. 20 chanrobles virtual law library

The decision of the prosecutor may be reversed or modified by the

Secretary of Justice or in special cases by the President of the
Philippines. 21But even this Court cannot order the prosecution of a
person against whom the prosecutor does not find sufficient
evidence to support at least a  prima facie case. The courts try and
absolve or convict the accused but as a rule have no part in the
initial decision to prosecute him.chanroblesvirtualawlibrary chanrobles virtual law library

The possible exception is where there is an unmistakable showing of

a grave abuse of discretion that will justify judicial intrusion into the
precincts of the executive. But in such a case the proper remedy to
call for such exception is a petition for mandamus,  notcertiorari or
prohibition. 22Moreover, before resorting to this relief, the party
seeking the inclusion of another person as a co-accused in the same
case must first avail itself of other adequate remedies such as the
filing of a motion for such inclusion. 23 chanrobles virtual law library
At any rate, it is a preposterous contention that because no charges
have been filed against Alqueza and Lavadia, the charges against
the petitioner and his co-accused should also be dropped.

Jurisdiction of the Sandiganbayan

The petitioner argued earlier that since most of the accused were
incumbent public officials or employees at the time of the alleged
commission of the crimes, the cases against them should come
under the jurisdiction of the Sandiganbayan and not of the regular
courts. This contention was withdrawn in his Reply but we shall
discuss it just the same for the guidance of all those concerned. chanroblesvirtualawlibrary chanrobles virtual law library

Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D.

No.1861, provides:

Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise: chanrobles virtual law library

a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise

known as the Anti-Graft and Corrupt Practices Act, Republic Act No.
1379, and Chapter II, Section 2, Title VII of the Revised Penal
Code: chanrobles virtual law library

(2) Other offenses or felonies committed by public officers and

employees in relation to their office, including those employed in
government-owned or controlled corporations, whether simple or
complexed with other crimes, where the penalty prescribed by law
is higher than  prision correccional or imprisonment for six (6) years,
or a fine of P6,000.00. . . . (Emphasis supplied)

The crime of rape with homicide with which the petitioner stands
charged obviously does not fall under paragraph (1), which deals
with graft and corruption cases. Neither is it covered by paragraph
(2) because it is not an offense committed in relation to the office of
the petitioner. chanroblesvirtualawlibrary chanrobles virtual law library

In Montilla v, Hilario, 24 this Court described the "offense committed

in relation to the office" as follows:
[T]he relation between the crime and the office contemplated by the
Constitution is, in our opinion, direct and not accidental. To fall into
the intent of the Constitution, the relation has to be such that, in
the legal sense, the offense cannot exist without the office. In other
words, the office must be a constituent element of the crime as
defined in the statute, such as, for instance, the crimes defined and
punished in Chapter Two to Six, Title Seven, of the Revised Penal
Code. chanroblesvirtualawlibrary chanrobles virtual law library

Public office is not of the essence of murder. The taking of human

life is either murder or homicide whether done by a private citizen
or public servant, and the penalty is the same except when the
perpetrator. being a public functionary took advantage of his office,
as alleged in this case, in which event the penalty is increased. chanroblesvirtualawlibrary chanrobles virtual law library

But the use or abuse of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its materiality
arises not from the allegations but on the proof, not from the fact
that the criminals are public officials but from the manner of the
commission of the crime

There is no direct relation between the commission of the crime of

rape with homicide and the petitioner's office as municipal mayor
because public office is not an essential element of the crime
charged. The offense can stand independently of the office.
Moreover, it is not even alleged in the information that the
commission of the crime charged was intimately connected with the
performance of the petitioner's official functions to make it fall
under the exception laid down in People v. Montejo. 25 chanrobles virtual law library

In that case, a city mayor and several detectives were charged with
murder for the death of a suspect as a result of a "third degree"
investigation held at a police substation. The appearance of a
senator as their counsel was questioned by the prosecution on the
ground that he was inhibited by the Constitution from representing
them because they were accused of an offense committed in
relation to their office. The Court agreed. It held that even if their
position was not an essential ingredient of the offense, there was
nevertheless an intimate connection between the office and the
offense, as alleged in the information, that brought it within the
definition of an offense "committed in relation to the public office."
library
chanrobles virtual law

As Chief Justice Concepcion said:

It is apparent from these allegations that, although public office is

not an element of the crime of murder in abstract, as committed by
the main respondents herein, according to the amended
information, the offense therein charged is intimately
connected with their respective offices and was perpetrated while
they were in the performance, though improper or irregular, of their
official functions. Indeed they had no personal motive to commit the
crime and they would not have committed it had they not held their
aforesaid offices. The co-defendants of respondent Leroy S. Brown,
obeyed his instructions because he was their superior officer, as
Mayor of Basilan City. (Emphasis supplied).

We have read the informations in the case at bar and find no

allegation therein that the crime of rape with homicide imputed to
the petitioner was connected with the discharge of his functions as
municipal mayor or that there is an "intimate connection" between
the offense and his office. It follows that the said crime, being an
ordinary offense, is triable by the regular courts and not the
Sandiganbayan.

Conclusion

As above demonstrated, all of the grounds invoked by the petitioner

are not supported by the facts and the applicable law and
jurisprudence. They must, therefore, all be rejected. In
consequence, the respondent judge, who has started the trial of the
criminal cases against the petitioner and his co-accused, may
proceed therewith without further hindrance. chanroblesvirtualawlibrary chanrobles virtual law library

It remains to stress that the decision we make today is not a

decision on the merits of the criminal cases being tried below. These
will have to be decided by the respondent judge in accordance with
the evidence that is still being received. At this time, there is yet no
basis for judgment, only uninformed conjecture. The Court will
caution against such irrelevant public speculations as they can be
based only on imperfect knowledge if not officious ignorance. chanroblesvirtualawlibrary chanrobles virtual law library
WHEREFORE, the petition is DISMISSED. The respondent judge is
DIRECTED to continue with the trial of Criminal Cases Nos. 101141,
101142, 101143, 101144, 101145, 101146 and 101147 and to
decide them with deliberate dispatch. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Home > ChanRobles Virtual Law Library >Philippine Supreme Court Jurisprudence >

EN BANC

[G.R. No. 122485. February 1, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LARRY

MAHINAY Y AMPARADO, Accused-Appellant.

DECISION

PER CURIAM:

A violation of the dignity, purity and privacy of a child who is still

innocent and unexposed to the ways of worldly pleasures is a
harrowing experience that destroys not only her future but of the
youth population as well, who in the teachings of our national hero,
are considered the hope of the fatherland. Once again, the Court is
confronted by another tragic desecration of human dignity,
committed no less upon a child, who at the salad age of a few days
past 12 years, has yet to knock on the portals of womanhood, and
met her untimely death as a result of the "intrinsically evil act" of
non-consensual sex called rape. Burdened with the supreme penalty
of death, rape is an ignominious crime for which necessity is neither
an excuse nor does there exist any other rational justification other
than lust. But those who lust ought not to lust.
The Court quotes with approval from the People's Brief, the facts
narrating the horrible experience and the tragic demise of a young
and innocent child in the bloody hands of appellant, as such facts
are ably supported by evidence on record:1 *

"Appellant Larry Mahinay started working as houseboy with Maria

Isip on November 20, 1993. His task was to take care of Isip's
house which was under construction adjacent to her old residence
situated inside a compound at No. 4165 Dian Street, Gen. T. de
Leon, Valenzuela , Metro Manila. But he stayed and slept in an
apartment also owned by Isip, located 10 meters away from the
unfinished house (TSN, September 6, 1995, pp. 5-10).

"The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in
Dian Street. She used to pass by Isip's house on her way to school
and play inside the compound yard, catching maya birds together
with other children. While they were playing, appellant was always
around washing his clothes. Inside the compound yard was a septic
tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.
17; 20-22).

"On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio

Rivera in a drinking spree. Around 10 o'clock in the morning,
appellant, who was already drunk, left Gregorio Rivera and asked
permission from Isip to go out with his friends (TSN, September 6,
1995, pp. 9-11).

"Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a

store fronting the compound, saw Ma. Victoria on that same day
three to four times catching birds inside Isip's unfinished house
around 4 o'clock in the afternoon. The unfinished house was about 8
meters away from Rivera's store (TSN, September 18, 1995, pp.9-
11).

"On the other hand, Sgt. Roberto Suni, also a resident of Dian
Street, went to his in-law's house between 6 to 7 o'clock p.m. to call
his office regarding changes on the trip of President Fidel V. Ramos.
The house of his in-laws was near the house of Isip. On his way to
his in-law's house, Sgt. Suni met appellant along Dian Street. That
same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria
standing in front of the gate of the unfinished house (TSN,
September 27, 1995, pp. 3-7; 14-17).

"Later, at 9 o'clock in the evening, appellant showed up at Norgina

Rivera's store to buy lugaw. Norgina Rivera informed appellant that
there was none left of it. She notice that appellant appeared to be
uneasy and in deep thought. His hair was disarrayed; he was drunk
and was walking in a dazed manner. She asked why he looked so
worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).

"Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria,

was missing. She last saw her daughter wearing a pair of white
shorts, brown belt, a yellow hair ribbon, printed blue blouse, dirty
white panty, white lady sando and blue rubber slippers (TSN,
August 23, 1995, pp. 22, 33).

"Isip testified that appellant failed to show up for supper that night.
On the following day, June 26, 1995, at 2 o'clock in the morning,
appellant boarded a passenger jeepney driven by Fernando Trinidad
at the talipapa. Appellant alighted at the top of the bridge of the
North Expressway and had thereafter disappeared (TSN, September
20, 1995, pp. 4-9; September 27, 1995; pp. 14-17).

"That same morning, around 7:30, a certain Boy found the dead
body of Ma. Victoria inside the septic tank. Boy immediately
reported what he saw to the victim's parents, Eduardo and Elvira
Chan (TSN, September 6, 1995, p. 13).

"With the help of the Valenzuela Police, the lifeless body of Ma.
Victoria was retrieved from the septic tank. She was wearing a
printed blouse without underwear. Her face bore bruises. Results of
the autopsy revealed the following findings:

Cyanosis, lips and nailbeds,

Contusions, supra pubic area, 6.0 x 3.0 cm., thigh right,

Anterior aspect, middle third, 4.5 x 3.0 cm.

Contused-abrasions on the forehead, 5.0 x 5.0 cm, angle of the left
eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck,
antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm.,
left iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior
aspect, 4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular
area, left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left,
posterior aspect, middle third, 11.00 x 4.0 cm. elbows, right, 4.0 x
3.0 cm. and left 6.0 x 5.0 cm. forearms, left, posterior aspect, lower
rd, 5.2 x 4.0 cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs;
right antero-lateral aspect, upper 33rd, 12.0 x 10.0 cm. right
anterior aspect, lower 3rd 5.0 x 2.0 cm. and left antero-lower 3rd ,
5.5 x 2.5 cm. knee, right, lateral aspect, 1.5 x 1.0 cm. lateral
mallcolum, left, 3.0 x 3.5 cm. foot, left, dorsal aspect 2.2 x 1.0 cm.

Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.

Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,

subpleural petechial hemorrhages.

Hemorrhage, subdural, left fronto-parietal area.

Tracheo-bronchial tree, congested.

Other visceral organs, congested.

Stomach, contain 1/4 rice and other food particles.

CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic

Head Injury, Contributory.

REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and

8:00 o'clock position corresponding to the face of a watch edges
congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p.
126)

"Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold

Alabastro were informed by Isip that her houseboy, appellant Larry
Mahinay, was missing. According to her, it was unlikely for appellant
to just disappear from the apartment since whenever he would go
out, he would normally return on the same day or early morning of
the following day (TSN, September 6, 1995, pp. 6-11-27).

"SPO1 Nacis and SPO1 Alabastro were also informed that a

townmate of appellant was working in a pancit  factory at Barangay
Reparo, Caloocan City. They proceeded to said place. The owner of
the factory confirmed to them that appellant used to work at the
factory but she did not know his present whereabouts. Appellant's
townmate, on the other hand, informed them that appellant could
possibly be found on 8  Street, Grace Park, Caloocan City (TSN,
th

August 14, 1995, pp. 8-9).

"The policemen returned to the scene of the crime. At the second

floor of the house under construction, they retrieved from one of the
rooms a pair of dirty white short pants, a brown belt and a yellow
hair ribbon which was identified by Elvira Chan to belong to her
daughter, Ma. Victoria. They also found inside another room a pair
of blue slippers which Isip identified as that of Appellant. Also found
in the yard, three armslength away from the septic tank were an
underwear, a leather wallet, a pair of dirty long pants and a pliers
positively identified by Isip as appellant's belongings. These items
were brought to the police station (TSN, August 14, 1995, pp. 10-
13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).

"A police report was subsequently prepared including a referral slip

addressed to the office of the Valenzuela Prosecutor. The next day,
SPO1 Virgilio Villano retrieved the victim's underwear from the
septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).

"After a series of follow-up operations, appellant was finally arrested

in Barangay Obario Matala, Ibaan, Batangas. He was brought to
Valenzuela Police Station. On July 7, 1995, with the assistance of
Atty. Restituto Viernes, appellant executed an extra-judicial
confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's
mother and aunt, he confided to them that he was not alone in
raping and killing the victim. He pointed to Zaldy and Boyet as his
co-conspirators (TSN, August 14, 1995, pp. 13-21)."
Thus, on July 10, 1995, appellant was charged with rape with
homicide in an Information which reads:2 cräläwvirtualibräry

"That on or about the 26  day of June 1995 in Valenzuela, Metro

th

Manila and within the jurisdiction of this Honorable Court the above-
named accused, by means of force and intimidation employed upon
the person of MARIA VICTORIA CHAN y CABALLERO, age 12 years
old, did then and there wilfully, unlawfully and feloniously lie with
and have sexual intercourse with said MARIA VICTORIA CHAN y
CABALLERO against her will and without her consent; that on the
occasion of said sexual assault, the above-named accused, choke
and strangle said MARIA VICTORIA CHAN y CABALLERO as a result
of which, said victim died.

"Contrary to law."3

to which he pleaded not guilty. After trial, the lower court rendered
a decision convicting appellant of the crime charged, sentenced him
to suffer the penalty of death and to pay a total of P73,000.00 to
the victim's heirs. The dispositive portion of the trial court's decision
states:

"WHEREFORE, finding accused Larry Mahinay y Amparado guilty

beyond reasonable doubt of the crime charged, he is hereby
sentenced to death by electricution (sic). He is likewise condemned
to indemnify the heirs of the victim, Ma. Victoria Chan the amount
of P50,000.00 and to pay the further sum of P23,000.00 for the
funeral, burial and wake of the victim.

"Let the complete records of the case be immediately forwarded to

the Honorable Supreme Court for the automatic review in
accordance to Article 47 of the Revised Penal Code as amended by
Section 22 of Republic Act No. 7659.

"SO ORDERED."4

Upon automatic review by the court en banc pursuant to Article 47

of the Revised Penal Code (RPC), as amended,5appellant insists that
the circumstantial evidence presented by the prosecution against
him is insufficient to prove his guilt beyond reasonable doubt. In his
testimony summarized by the trial court, appellant offered his
version of what transpired as follows:

(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T.
de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and a
certain Totoy in a drinking spree. Gregorio Rivera is the brother of
Maria Isip, appellants employer. After consuming three cases of red
horse beer, he was summoned by Isip to clean the jeepney. He
finished cleaning the jeepney at 12 oclock noon. Then he had lunch
and took a bath. Later, he asked permission from Isip to go out with
his friends to see a movie. He also asked for a cash advance of
P300.00 (TSN, October 16, 1995, pp. 4-5).

At 2 oclock in the afternoon, appellant, instead of going out with his

friend, opted to rejoin Gregorio Rivera and Totoy for another
drinking session. They consumed one case of red horse beer.
Around 6 oclock p.m., Zaldy, a co-worker, fetched him at Gregorio
Riveras house. They went to Zaldys house and bought a bottle of
gin. They finished drinking gin around 8 oclock p.m. After
consuming the bottle of gin, they went out and bought another
bottle of gin from a nearby store. It was already 9 oclock in the
evening. While they were at the store, appellant and Zaldy met
Boyet. After giving the bottle of gin to Zaldy and Boyet, appellant
left (TSN, October 16, 1995, pp. 6-7).

On his way home, appellant passed by Norgina Riveras store to

buy lugaw.  Norgina Rivera informed him that there was none left of
it. He left the store and proceeded to Isips apartment. But because
it was already closed, he decided to sleep at the second floor of
Isips unfinished house. Around 10 oclock p.m., Zaldy and Boyet
arrived carrying a cadaver. The two placed the body inside the room
where appellant was sleeping. As appellant stood up, Zaldy pointed
to him a knife. Zaldy and Boyet directed him to rape the dead body
of the child or they would kill him. He, However, refused to follow.
Then, he was asked by Zaldy and Boyet to assist them in bringing
the dead body downstairs. He obliged and helped dump the body
into the septic tank. Thereupon, Zaldy and Boyet warned him that
should they ever see him again, they would kill him. At 4 oclock the
following morning, he left the compound and proceeded first to
Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).

Subsequently, appellant was apprehended by the police officers in

Ibaan, Batangas. The police officers allegedly brought him to a big
house somewhere in Manila. There, appellant heard the police
officers plan to salvage him if he would not admit that he was the
one who raped and killed the victim. Scared, he executed an extra-
judicial confession. He claimed that he was assisted by Atty.
Restituto Viernes only when he was forced to sign the extra-judicial
confession (TSN, October 16, 1995, pp. 9-11).6

This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since there can be no stake
higher and no penalty more severe x x x than the termination of a
human life.7For life, once taken is like virginity, which once defiled
can never be restored. In order therefore, that appellants guilty
mind be satisfied, the Court states the reasons why, as the records
are not shy, for him to verify.

The proven circumstances of this case when juxtaposed with

appellants proffered excuse are sufficient to sustain his conviction
beyond reasonable doubt, notwithstanding the absence of any direct
evidence relative to the commission of the crime for which he was
prosecuted. Absence of direct proof does not necessarily absolve
him from any liability because under the Rules on evidence8 and
pursuant to settled jurisprudence,9conviction may be had on
circumstantial evidence provided that the following requisites
concur:

1. there is more than one circumstance;

2. the facts from which the inferences are derived are proven; and

3. the combination of all the circumstances is such as to produce a

conviction beyond reasonable doubt.

Simply put, for circumstantial evidence to be sufficient to support a

conviction, all circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent and
with every other rational hypothesis except that of guilt.10 Facts and
circumstances consistent with guilt and inconsistent with innocence,
constitute evidence which, in weight and probative force, may
surpass even direct evidence in its effect upon the court.11
cräläwvirtualibräry

In the case at bench, the trial court gave credence to several

circumstantial evidence, which upon thorough review of the Court is
more than enough to prove appellants guilt beyond the shadow of
reasonable doubt. These circumstantial evidence are as follows:

FIRST Prosecution witness Norgina Rivera, sister-in-law of Maria

Isip, owner of the unfinished big house where the crime happened
and the septic tank where the body of Maria Victoria Chan was
found in the morning of June 26, 1995 is located, categorically
testified that at about 9:00 in the evening on June 25, 1995,
accused Larry Mahinay was in her store located in front portion of
the compound of her sister-in-law Maria Isip where the unfinished
big house is situated buying rice noodle (lugaw). That she noticed
the accuseds hair was disarranged, drunk and walking in sigsaging
manner. That the accused appeared uneasy and seems to be
thinking deeply. That the accused did not reply to her queries why
he looked worried but went inside the compound.

SECOND Prosecution witness Sgt. Roberto G. Suni, categorically,

testified that on June 25, 1995 between 6:00 and 7:00 in the
evening, on his way to his in-laws house, he met accused Larry
Mahinay walking on the road leading to his in-laws residence which
is about 50 to 75 meters away to the unfinished big house of Maria
Isip. That he also saw victim Maria Victoria Chan standing at the
gate of the unfinished big house of Maria Isip between 8:00 and
9:00 in the same evening.

THIRD Prosecution witness Maria Isip, owner of the unfinished big

house where victims body was found inside the septic tank, testified
that accused Larry Mahinay is her houseboy since November 20,
1993. That in the morning of June 25, 1995, a Sunday, Larry
Mahinay asked permission from her to leave. That after finishing
some work she asked him to do accused Larry Mahinay left. That it
is customary on the part of Larry Mahinay to return in the afternoon
of the same day or sometimes in the next morning. That accused
Larry Mahinay did not return until he was arrested in Batangas on
July 7, 1995.

FOURTH Prosecution witness Fernando Trinidad, a passenger

jeepney driver plying the route Karuhatan-Ugong and vice versa
which include Diam St., Gen. T. de Leon, Valenzuela, Metro Manila,
pinpointed the accused Larry Mahinay as one of the passengers who
boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North
Expressway.

FIFTH Personal belongings of the victim was found in the unfinished

big house of Maria Isip where accused Larry Mahinay slept on the
night of the incident. This is a clear indication that the victim was
raped and killed in the said premises.

There is no showing that the testimonies of the prosecution

witnesses (sic) fabricated or there was any reason for them to
testify falsely against the accused. The absence of any evidence as
to the existence of improper motive sustain the conclusion that no
such improper motive exists and that the testimonies of the
witnesses, therefore, should be given full faith and credit. (People
vs. Retubado, 58585 January 20, 1988 162 SCRA 276, 284; People
vs. Ali L-18512 October 30, 1969, 29 SCRA 756).

SIXTH Accused Larry Mahinay during the custodial investigation and

after having been informed of his constitutional rights with the
assistance of Atty. Restituto Viernes of the Public Attorneys Office
voluntarily gave his statement admitting the commission of the
crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely
and voluntarily given. That accused did not complain to the proper
authorities of any maltreatment on his person (People vs. delos
Santos L-3398 May 29, 1984; 150 SCRA 311). He did not even
informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was
promised of reward or leniency. That his confession abound with
details know only to him. The Court noted that a lawyer from the
Public Attorneys Office Atty. Restituto Viernes and as testified by
said Atty. Viernes he informed and explained to the accused his
constitutional rights and was present all throughout the giving of
the testimony. That he signed the statement given by the accused.
Lawyer from the Public Attorneys Office is expected to be watchful
and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post
mortem findings shows that the cause of death Asphyxia by manual
strangulation; Traumatic Head injury Contributory substantiate.
Consistent with the testimony of the accused that he pushed the
victim and the latters head hit the table and the victim lost
consciousness.

Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos

tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na,
nakatulog na siya tapos ni-rape ko na siya.

There is no clear proof of maltreatment and/or tortured in giving the

statement. There were no medical certificate submitted by the
accused to sustain his claim that he was mauled by the police
officers.

There being no evidence presented to show that said confession

were obtained as a result of violence, torture, maltreatment,
intimidation, threat or promise of reward or leniency nor that the
investigating officer could have been motivated to concoct the facts
narrated in said affidavit; the confession of the accused is held to be
true, correct and freely or voluntarily given. (People v. Tuazon 6
SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52
SCRA 71, People v. Pingol 35 SCRA 73.)

SEVENTH Accused Larry Mahinay testified in open Court that he was

not able to enter the apartment where he is sleeping because it was
already closed and he proceeded to the second floor of the
unfinished house and slept. He said while sleeping Zaldy and Boyet
arrived carrying the cadaver of the victim and dumped it inside his
room. That at the point of a knife, the two ordered him to have sex
with the dead body but he refused. That the two asked him to assist
them in dumping the dead body of the victim in the septic tank
downstairs. (Tsn pp8-9 October 16, 1995). This is unbelievable and
unnatural. Accused Larry Mahinay is staying in the apartment and
not in the unfinished house. That he slept in the said unfinished
house only that night of June 25, 1995 because the apartment
where he was staying was already closed. The Court is at a loss how
would Zaldy and Boyet knew he (Larry Mahinay) was in the second
floor of the unfinished house.

Furthermore, if the child is already dead when brought by Zaldy and

Boyet in the room at the second floor of the unfinished house where
accused Larry Mahinay was sleeping, why will Boyet and Zaldy still
brought the cadaver upstairs only to be disposed/dumped later in
the septic tank located in the ground floor. Boyet and Zaldy can
easily disposed and dumped the body in the septic tank by
themselves.

It is likewise strange that the dead body of the child was taken to
the room where accused Larry Mahinay was sleeping only to force
the latter to have sex with the dead body of the child.

We have no test to the truth of human testimony except its

conformity to aver knowledge observation and experience.
Whatever is repugnant to these belongs to the miraculous. (People
vs. Santos L-385 Nov. 16, 1979)

EIGHT If the accused did not commit the crime and was only forced
to disposed/dumpted the body of the victim in the septic tank, he
could have apprise Col. Maganto, a high ranking police officer or the
lady reporter who interviewed him. His failure and omission to
reveal the same is unnatural. An innocent person will at once
naturally and emphatically repel an accusation of crime as a matter
of preservation and self-defense and as a precaution against
prejudicing himself. A persons silence therefore, particularly when it
is persistent will justify an inference that he is not innocent. (People
vs. Pilones, L-32754-5 July 21, 1978).

NINTH The circumstance of flight of the accused strongly indicate

his consciousness of guilt. He left the crime scene on the early
morning after the incident and did not return until he was arrested
in Batangas on July 7, 1995.12

Guided by the three principles in the review of rape cases, to wit:13 cräläwvirtualibräry
1). An accusation for rape can be made with facility; it is difficult to
prove but more difficult for the person accused, though innocent, to
disprove;

2). In view of the intrinsic nature of the crime of rape, where only
two persons are usually involved, the testimony of the complainant
is scrutinized with extreme caution; and

3). The evidence of the prosecution stands or falls on its own merits
and cannot be allowed to draw strength from the weakness of the
defense.

the foregoing circumstantial evidence clearly establishes the felony

of rape with homicide defined and penalized under Section 335 of
the Revised Penal Code, as amended by Section 11, R.A. 7659,
which provides:

When and how rape is committed Rape is committed by having

carnal knowledge of a woman under any of the following
circumstances.

1.) By using force or intimidation;

2.) When the woman is deprived of reason or otherwise

unconscious; and

3.) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly

weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.

When by reason or on the occasion of the rape, the victim has

become insane, the penalty shall be death.

When the rape is attempted or frustrated and a homicide is

committed by reason or on the occasion thereof, the penalty shall
be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.

The death penalty shall also be imposed if the crime of rape is

committed with any of the following attendant circumstances:

1.) When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.

2.) When the victim is under the custody of the police or military
authorities.

3.) When the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree of
consanguinity.

4.) When the victim is a religious or a child below seven (7) years
old.

5.) When the offender knows that he is afflicted with Acquired

Immune Deficiency Syndrome (AIDS) disease.

6.) When committed by any member of the Armed Forces of the

Philippines or Philippine National Police or any law enforcement
agency.

7.) When by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation.14

At the time of the commission of this heinous act, rape was still
considered a crime against chastity,15 although under the Anti-Rape
Law of 1997 (R.A. No. 8353), rape has since been re-classified as a
crime against persons under Articles 266-A and 266-B, and thus,
may be prosecuted even without a complaint filed by the offended
party.

The gravamen of the offense of rape, prior to R.A. 8353, is sexual

congress with a woman by force and without consent.16(Under the
new law, rape may be committed even by a woman and the victim
may even be a man.)17 If the woman is under12 years of age, proof
of force and consent becomes immaterial18 not only because force is
not an element of statutory rape,19 but the absence of a free
consent is presumed when the woman is below such age. Conviction
will therefore lie, provided sexual intercourse is be proven. But if
the woman is 12 years of age or over at the time she was violated,
as in this case, not only the first element of sexual intercourse must
be proven but also the other element that the perpetrators evil acts
with the offended party was done through force, violence,
intimidation or threat needs to be established. Both elements are
present in this case.

Based on the evidence on record, sexual intercourse with the victim

was adequately proven. This is shown from the testimony of the
medical doctor who conducted post mortem examination on the
childs body:

Q: And after that what other parts of the victim did you examine?

A: Then I examined the genitalia of the victim.

Q: And what did you find out after you examined the genitalia of the
victim?

A: The hymen was tall-thick with complete laceration at 4:00 oclock

and 8:00 oclock position and that the edges were congested.

Q: Now, what might have caused the laceration?

A: Under normal circumstances this might have (sic) caused by a

penetration of an organ.

Q: So, the laceration was caused by the penetration of a male

organ?

A: Adult male organ, sir.

Q: You are very sure of that, Mr. Witness?

A: I am very sure of that.20

Besides, as may be gleaned from his extrajudicial confession,
appellant himself admitted that he had sexual congress with the
unconscious child.

15. T: Ano ang nangyari ng mga sandali o oras na iyon?

S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung

malaking bahay na ginagawa, tapos dumating yung batang
babae. Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay
tapos tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon
na, nakakatulog na siya tapos ni rape ko na siya.

16. T: Ano ang suot nung batang babae na sinasabi mo?

S: Itong short na ito, (pointing to a dirty white short placed atop

this investigators table. Subject evidence were part of evidences
recovered at the crime scene).

17. T: Bakit mo naman ni rape yung batang babae?

S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang ginagawa ko.

18. T: Ano ba ang inyong ininom bakit ka nasobrahan ng lasing?

S: Red Horse po at saka GIN.

19. T: Saan lugar ng malaking bahay ni ATE MARIA mo ni rape yung

batang babae?

S: Sa kuwarto ko po sa itaas.

20. T: Kailan ito at anong oras nangyari?

S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko na

matandaan kung anong petsa, basta araw ng Linggo.

21. T: Saan lugar ito nangyari?

S: Sa Diam, Gen. T. de Leon, Valenzuela, M.M.

22. T: Alam mo na ba ang pangalan ng batang babae na ni rape
mo?

S: Hindi ko po alam.

23. T: Ngayon, nais kong ipaalam sa iyo na ang pangalan ng batang

babae na iyong ni rape at pinatay ay si MA. VICTORIA CHAN?
Matatandaan mo ba ito?

S: Oho.

24. T: Nung ma-rape mo, nakaraos ka ba?

S: Naka-isa po.

25. T: Nais kong liwanagin sa iyo kung ano ang ibig sabihin ng
NAKARAOS, maaari bang ipaliwanag mo ito?

S: Nilabasan po ako ng tamod.

26. T: Nung nakaraos ka, nasaan parte ng katawan ng batang

babae yung iyong ari?

S: Nakapasok po doon sa ari nung babae.

27. T: Natapos mong ma-rape si MA. VICTORIA CHAN, ano pa ang

sumunod mong ginawa?

S: Natulak ko siya sa terrace.

28. T: Ano ang nangyari kay MA. VICTORIA matapos mong itulak sa
terrace?

S: Inilagay ko po sa poso-negra.

29. T: Saan makikita yung poso-negra na sinasabi mo?

S: Doon din sa malaking bahay ni ATE MARIA.

30. T: Bakit mo namang naisipang ilagay si MA. VICTORIA sa poso-

negra?
S: Doon ko lang po inilagay.

31. T: Bakit nga doon mo inilagay siya?

S: Natatakot po ako.

32. T: Kanino ka natatakot?

S: Natatakot po ako sa ginawa kong masama, natatakot ako sa mga

pulis.

33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo siya sa poso-

negra?

S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko na siya

sa poso-negra.

34. T: Nung gawin mo ba itong krimen na ito, mayroon ka kasama?

S: Nag-iisa lang po ako.

35. T: Noong mga oras o sandaling gahasain mo si MA. VICTORIA

CHAN, buhay pa ba siya o patay na?

S: Buhay pa po.

36. T: Papaano mo siya pinatay?

S: Tinulak ko nga po siya sa terrace.21

In proving sexual intercourse, it is not full or deep penetration of

the victims vagina; rather the slightest penetration of the male
organ into the female sex organ is enough to consummate the
sexual intercourse.22 The mere touching by the males organ or
instrument of sex of the labia of the pudendum of the womans
private parts is sufficient to consummate rape.

From the wounds, contusions and abrasions suffered by the victim,

force was indeed employed upon her to satisfy carnal lust.
Moreover, from appellants own account, he pushed the victim
causing the latter to hit her head on the table and fell unconscious.
It was at that instance that he ravished her and satisfied his
salacious and prurient desires. Considering that the victim, at the
time of her penile invasion, was unconscious, it could safely be
concluded that she had not given free and voluntary consent to her
defilement, whether before or during the sexual act.

Another thing that militates against appellant is his extrajudicial

confession, which he, however, claims was executed in violation of
his constitutional right to counsel. But his contention is belied by the
records as well as the testimony of the lawyer who assisted, warned
and explained to him his constitutionally guaranteed pre-
interrogatory and custodial rights. As testified to by the assisting
lawyer:

Q Will you please inform the Court what was that call about?

A We went to the station, police investigation together with Atty.

Froilan Zapanta and we were told by Police Officer Alabastro that
one Larry Mahinay would like to confess of the crime of, I think,
rape with homicide.

Q And upon reaching the investigation room of Valenzuela PNP who

were the other person present?

A Police Officer Alabastro, sir, Police Officer Nacis and other

investigator inside the investigation room and the parents of the
child who was allegedly raped.

Q- And when you reached the investigation room do you notice

whether the accused already there?

A The accused was already there.

Q Was he alone?

A he was alone, sir.

Q So, when you were already infront of SPO1 Arnold Alabastro and
the other PNP Officers, what did they tell you, if any?
A They told us together with Atty. Zapanta that this Larry Mahinay
would like to confess of the crime charged, sir.

Q By the way, who was that Atty. Zapanta?

A Our immediate Superior of the Public Attorneys Office.

Q Was he also present at the start of the question and answer

period to the accused?

A No more, sir, he already went to our office. I was left alone.

Q But he saw the accused, Larry Mahinay?

A Yes, sir.

Q Now, when Atty. Zapanta left at what time did the question and
answer period start?

A If I am not mistaken at around 4:05 of July 7, 1995 in the

afternoon, sir.

Q And when this question and answer period started, what was the
first thing that you did as assisting lawyer to the accused?

A First, I tried to explain to him his right, sir, under the constitution.

Q What are those right?

A That he has the right to remain silent. That he has the right of a
counsel of his own choice and that if he has no counsel a lawyer will
be appointed to him and that he has the right to refuse to answer
any question that would incriminate him.

Q Now, after enumerating these constitutional rights of accused

Larry Mahinay, do you recall whether this constitutional right
enumerated by you were reduced in writing?

A Yes, sir, and it was also explained to him one by one by Police
Officer Alabastro.
Q I show to you this constitutional right which you said were
reduced into writing, will you be able to recognize the same?

A Yes, sir.

Q Will you please go over this and tell the Court whether that is the
same document you mentioned?

A Yes, sir, these were the said rights reduced into writing.

ATTY. PRINCIPE:

May we request, Your Honor, that this document be marked as our

Exhibit A proper.

Q Do you recall after reducing into writing this constitutional right of

the accused whether you asked him to sign to acknowledge or to
conform?

A I was the one who asked him, sir. It was Police Officer Alabastro.

Q But you were present?

A I was then present when he signed.

Q There is a signature in this constitutional right after the

enumeration, before and after there are two (2) signatures, will you
please recognize the two (2) signatures?

A These were the same signatures signed in my presence, sir.

Q The signature of whom?

A The signature of Larry Mahinay, sir.

ATTY. PRINCIPE:

May we request, Your Honor, that the two (2) signatures identified
by my compaero be encircled and marked as Exhibit A-1 and A-2.
Q After you said that you apprised the accused of his constitutional
right explaining to him in Filipino, in local dialect, what was the
respond of the accused?

A- Larry Mahinay said that we will proceed with his statement.

Q What was the reply?

A He said Opo.

Q Did you ask him of his educational attainment?

A It was the Police Officer who asked him.

Q In your presence?

A In my presence, sir.

Q And when he said or when he replied Opo so the question

started?

A Yes, sir.

Q I noticed in this Exhibit A that there is also a waiver of rights,

were you present also when he signed this waiver?

A Yes, sir, I was also present.

Q Did you explain to him the meaning of this waiver?

A I had also explained to him, sir.

Q In Filipino?

A In Tagalog, sir.

Q And there is also a signature after the waiver in Filipino over the
typewritten name Larry Mahinay, Nagsasalaysay, whose signature is
that?

A This is also signed in my presence.

Q Why are you sure that this is his signature?

A He signed in my presence, sir.

Q And below immediately are the two (2) signatures. The first one
is when Larry Mahinay subscribed and sworn to, there is a signature
here, do you recognize this signature?

A This is my signature, sir.

Q And immediately after your first signature is a Certification that

you have personally examined the accused Larry Mahinay and
testified that he voluntary executed the Extra Judicial Confession,
do you recognize the signature?

A This is also my signature, sir.23 (emphasis supplied).

Appellants defense that two other persons brought to him the dead
body of the victim and forced him to rape the cadaver is too
unbelievable. In the words of Vice-Chancellor Van Fleet of New
Jersey,24cräläwvirtualibräry

Evidence to be believed must not only proceed from the mouth of a

credible witness, but must be credible in itself- such as the common
experience and observation of mankind can approve as probable
under the circumstances. We have no test of the truth of human
testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the
miraculous, and is outside of judicial cognizance.

Ultimately, all the foregoing boils down to the issue of credibility of

witnesses. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the
trial court because of its unique position of having observed that
elusive and incommunicable evidence of the witnesses department
on the stand while testifying, which opportunity is denied to the
appellate courts.25 In this case, the trial courts findings, conclusions
and evaluation of the testimony of witnesses is received on appeal
with the highest respect,26 the same being supported by substantial
evidence on record. There was no showing that the court a quo had
overlooked or disregarded relevant facts and circumstances which
when considered would have affected the outcome of this case27 or
justify a departure from the assessments and findings of the court
below. The absence of any improper or ill-motive on the part of the
principal witnesses for the prosecution all the more strengthens the
conclusion that no such motive exists.28Neither was any wrong
motive attributed to the police officers who testified against
appellant.

Coming now to the penalty, the sentence imposed by the trial court
is correct. Under Article 335 of the Revised Penal Code (RPC), as
amended by R.A. 7659 when by reason or on occasion of the rape,
a homicide is committed, the penalty shall be death. This special
complex crime is treated by law in the same degree as qualified
rape -- that is, when any of the 7 (now 10) attendant circumstances
enumerated in the law is alleged and proven, in which instances,
the penalty is death. In cases where any of those circumstances
is proven though not alleged, the penalty cannot be death except if
the circumstance proven can be properly appreciated as an
aggravating circumstance under Articles 14 and 15 of the RPC which
will affect the imposition of the proper penalty in accordance with
Article 63 of the RPC. However, if any of those circumstances
proven but not alleged cannot be considered as an aggravating
circumstance under Articles 14 and 15, the same cannot affect the
imposition of the penalty because Articles 63 of the RPC in
mentioning aggravating circumstances refers to those defined in
Articles 14 and 15. Under R.A. No. 8353, if any of the 10
circumstances is alleged in the information/complaint, it may be
treated as a qualifying circumstance. But if it is not so alleged, it
may be considered as an aggravating circumstance, in which case
the only penalty is death subject to the usual proof of such
circumstance in either case.

Death being a single indivisible penalty and the only penalty

prescribed by law for the crime of rape with homicide, the court has
no option but to apply the same regardless of any mitigating or
aggravating circumstance that may have attended the commission
of the crime29 in accordance with Article 63 of the RPC, as
amended.30 This case of rape with homicide carries with it penalty of
death which is mandatorily imposed by law within the import of
Article 47 of the RPC, as amended, which provides:

The death penalty shall be imposed in all cases in which it must be

imposed under existing laws, except when the guilty person is
below eighteen (18) years of age at the time of the commission of
the crime or is more than seventy years of age or when upon appeal
or automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death
penalty, in which cases the penalty shall be reclusion perpetua.
(emphasis supplied).

In an apparent but futile attempt to escape the imposition of the

death penalty, appellant tried to alter his date of birth to show that
he was only 17 years and a few months old at the time he
committed the rape and thus, covered by the proscription on the
imposition of death if the guilty person is below eighteen (18) years
at the time of the commission of the crime.31Again, the record
rebuffs appellant on this point considering that he was proven to be
already more than 20 years of age when he did the heinous act.

Pursuant to current case law, a victim of simple rape is entitled to a

civil indemnity of fifty thousand pesos (P50,000.00) but if the crime
of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by
present amended law, the civil indemnity for the victim shall be not
less than seventy-five thousand pesos (P75,000.00).32In addition to
such indemnity, she can also recover moral damages pursuant to
Article 2219 of the Civil Code33 in such amount as the court deems
just, without the necessity for pleading or proof of the basis
thereof.34 Civil Indemnity is different from the award of moral and
exemplary damages.35 The requirement of proof of mental and
physical suffering provided in Article 2217 of the Civil Code is
dispensed with because it is recognized that the victims injury is
inherently concomitant with and necessarily resulting from the
odious crime of rape to warrant per se the award of moral
damages.36 Thus, it was held that a conviction for rape carries with
it the award of moral damages to the victim without need for
pleading or proof of the basis thereof.37
cräläwvirtualibräry
Exemplary damages can also be awarded if the commission of the
crime was attended by one or more aggravating circumstances
pursuant to Article 2230 of the Civil Code38after proof that the
offended party is entitled to moral, temperate and compensatory
damages.39 Under the circumstances of this case, appellant is liable
to the victims heirs for the amount of P75,000.00 as civil indemnity
and P50,000.00 as moral damages.

Lastly, considering the heavy penalty of death and in order to

ensure that the evidence against and accused were obtained
through lawful means, the Court, as guardian of the rights of the
people lays down the procedure, guidelines and duties which the
arresting, detaining, inviting, or investigating officer or his
companions must do and observe at the time of making an arrest
and again at and during the time of the custodial interrogation40 in
accordance with the Constitution, jurisprudence and Republic Act
No. 7438:41 It is high-time to educate our law-enforcement agencies
who neglect either by ignorance or indifference the so-called
Miranda rights which had become insufficient and which the Court
must update in the light of new legal developments:

1. The person arrested, detained, invited or under custodial

investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and
understood by said person;

2. He must be warned that he has a right to remain silent and that

any statement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted at all

times and have the presence of an independent and competent
lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot afford

the services of a lawyer, one will be provided for him; and that a
lawyer may also be engaged by any person in his behalf, or may be
appointed by the court upon petition of the person arrested or one
acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must
be informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;

6. The person arrested must be informed that, at any time, he has

the right to communicate or confer by the most expedient means
telephone, radio, letter or messenger with his lawyer (either
retained or appointed), any member of his immediate family, or any
medical doctor, priest or minister chosen by him or by any one from
his immediate family or by his counsel, or be visited by/confer with
duly accredited national or international non-government
organization. It shall be the responsibility of the officer to ensure
that this is accomplished;

7. He must be informed that he has the right to waive any of said

rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;

8. In addition, if the person arrested waives his right to a lawyer, he

must be informed that it must be done in writing AND in the
presence of counsel, otherwise, he must be warned that the waiver
is void even if he insist on his waiver and chooses to speak;

9. That the person arrested must be informed that he may indicate

in any manner at any time or stage of the process that he does not
wish to be questioned with warning that once he makes such
indication, the police may not interrogate him if the same had not
yet commenced, or the interrogation must ceased if it has already
begun;

10. The person arrested must be informed that his initial waiver of
his right to remain silent, the right to counsel or any of his rights
does not bar him from invoking it at any time during the process,
regardless of whether he may have answered some questions or
volunteered some statements;

11. He must also be informed that any statement or evidence, as

the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.

Four members of the Court although maintaining their adherence to

the separate opinions expressed in People v. Echegaray42 that R.A.
No. 7659, insofar as it prescribes the death penalty, is
unconstitutional nevertheless submit to the ruling of the Court, by a
majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed.

WHEREFORE, the conviction of appellant is hereby AFFIRMED

except for the award of civil indemnity for the heinous rape which is
INCREASED to P75,000.00, PLUS P50,000.00 moral damages.

In accordance with Section 25 of Republic Act No. 7659, amending

Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

SO ORDERED.