FIRST DIVISION

[G.R. Nos. 136066-67. February 4, 2003.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . BINAD SY CHUA ,

accused-appellant.

The Solicitor General for plaintiff-appellee.

Ola & Asso. Law Offices for accused-appellant.

SYNOPSIS

Accused was charged with Violation of the Dangerous Drugs Law and with Illegal
Possession of Ammunition. After trial, he was acquitted of Illegal Possession of Firearms
for insufficiency of evidence, but was convicted of Illegal possession of shabu.
On appeal, he questioned the validity of the warrantless arrest and consequent
search and seizure made upon him.
The Court acquitted the accused on the ground of reasonable doubt. The Court ruled
that neither the in agrante delicto nor the "stop and frisk" principles are applicable to
justify the warrantless arrest and consequent search and seizure made by the police
operatives on the accused. In acquitting the accused, the Court noted the following
circumstances: the appellant was rst arrested before the search and seizure of the
alleged illegal items found in his possession; at the time of the arrest, accused did not
exhibit manifest unusual or suspicious conduct; the arrest of the accused was not a
product of an "on the spot" tip which may excuse them from obtaining a warrant of arrest;
the prohibited substances were not in plain view of the arresting o cers, hence,
inadmissible for being the fruits of the poisonous tree; there was also no clear showing
that the items allegedly seized from accused were the same prohibited items presented in
court, since they were not marked at the place where they were seized.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; WARRANTLESS ARRESTS; IN

FLAGRANTE DELICTO ARREST; ELEMENTS THEREOF; NOT PRESENT IN CASE AT BAR. —
I n in agrante delicto arrests, the accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence of
the arresting o cer. Emphasis should be laid on the fact that the law requires that the
search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful arrest must
precede the search of a person and his belongings. Accordingly, for this exception to apply
two elements 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
o cer. We nd the two aforementioned elements lacking in the case at bar. The record
reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely
parked his car along the McArthur Highway, alighted from it and casually proceeded
towards the entrance of the Hotel clutching a sealed Zest-O juice box. Accused-appellant
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 did not act in a suspicious manner. For all intents and purposes, there was no overt
manifestation that accused-appellant has just committed, is actually committing, or is
attempting to commit a crime. However, notwithstanding the absence of any overt act
strongly manifesting a violation of the law, the group of SPO2 Nulud "hurriedly accosted"
accused-appellant and later on "introduced themselves as police o cers." Accused-
appellant was arrested before the alleged drop-off of shabu was done. Probable cause in
this case was more imagined than real. Thus, there could have been no in agrante delicto
arrest preceding the search, in light of the lack of an overt physical act on the part of
accused-appellant that he had committed a crime, was committing a crime or was going
to commit a crime. As applied to in agrante delicto arrests, it has been held that "reliable
information" alone, absent any overt act indicative of a felonious enterprise in the presence
and within the view of the arresting o cers, is not su cient to constitute probable cause
that would justify an in flagrante delicto arrest.
2. ID.; ID.; ID.; NOT JUSTIFIED WHERE POLICE OFFICERS HAD PRIOR KNOWLEDGE
OF ALLEGED ILLEGAL ACTIVITIES OF ACCUSED; CASE AT BAR. — The police operatives
cannot feign ignorance of the alleged illegal activities of accused-appellant. Considering
that the identity, address and activities of the suspected culprit was already ascertained
two years previous to the actual arrest, there was indeed no reason why the police o cers
could not have obtained a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset relayed to them hours
before accused-appellant's arrest was not a product of an "on-the-spot" tip which may
excuse them from obtaining a warrant of arrest. Accordingly, the arresting team's
contention that their arrest of accused-appellant was a product of an "on-the-spot" tip is
untenable.
3. ID.; ID.; ID.; STOP-AND-FRISK; THE SEARCH AND SEIZURE MUST PRECEDE THE
ARREST. — In the same vein, there could be no valid "stop-and-frisk in this case. A stop-
and-frisk was de ned as the act of a police o cer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. The police o cer should
properly introduce himself and make initial inquiries, approach and restrain a person who
manifests unusual and suspicious conduct, in order to check the latter's outer clothing for
possibly concealed weapons. The apprehending police officer must have a genuine reason,
in accordance with the police o cer's experience and the surrounding conditions, to
warrant the belief that the person to be held has weapons (or contraband) concealed
about him. It should therefore be emphasized that a search and seizure should precede the
arrest for this principle to apply.
4. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — The foregoing circumstances do not obtain in
the case at bar. There was no valid "stop-and-frisk" in the case of accused-appellant. To
reiterate, accused-appellant was rst arrested before the search and seizure of the alleged
illegal items found in his possession. The apprehending police operative failed to make
any initial inquiry into accused-appellant's business in the vicinity or the contents of the
Zest-O juice box he was carrying. The apprehending police o cers only introduced
themselves when they already had custody of accused-appellant. Besides, at the time of
his arrest, accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence and the law.
There was, therefore, no genuine reasonable ground for the immediacy of accused-
appellant's arrest. Obviously, the acts of the police operatives wholly depended on the
information given to them by their con dential informant. Accordingly, before and during
that time of the arrest, the arresting o cers had no personal knowledge that accused-
appellant had just committed, was committing, or was about to commit a crime. At any
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 rate, even if the fact of delivery of the illegal drugs actually occurred, accused-appellant's
warrantless arrest and consequent search would still not be deemed a valid "stop-and
frisk". For a valid "stop-and-frisk" the search and seizure must precede the arrest, which is
not so in this case. Besides, as we have earlier emphasized, the information about the
illegal activities of accused-appellant was not unknown to the apprehending o cers.
Hence, the search and seizure of the prohibited drugs cannot be deemed as a valid "stop-
and-frisk."
5. ID.; ID.; WARRANTLESS ARREST AND SEARCH AND SEIZURE; SEIZURE IN PLAIN
VIEW; REQUISITES FOR ADMISSIBILITY; PROHIBITED SUBSTANCES NOT IN PLAIN VIEW
OF ARRESTING OFFICERS IN CASE AT BAR. — Neither can there be valid seizure in plain
view on the basis of the seized items found in accused-appellant's possession. First, there
was no valid intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O juice
box which contained crystalline substances later on identi ed as methamphetamine
hydrochloride (shabu) and the 20 rounds of .22 caliber ammunition, were not inadvertently
discovered. The police o cers rst arrested accused-appellant and intentionally searched
his person and peeked into the sealed Zest-O juice box before they were able to see and
later on ascertain that the crystalline substance was shabu. There was no clear showing
that the sealed Zest-O juice box accused-appellant carried contained prohibited drugs.
Neither were the small plastic bags which allegedly contained crystalline substance and
the 20 rounds of .22 caliber ammunition visible. These prohibited substances were not in
plain view of the arresting o cers; hence, inadmissible for being the fruits of the
poisonous tree. IAETDc

6. ID.; ID.; ID.; ABSENCE OF ILL MOTIVE ON THE PART OF THE ARRESTING TEAM
CANNOT VALIDATE THE ILLEGALITY OF THE ARREST AND CONSEQUENT WARRANTLESS
SEARCH. — All told, the absence of ill-motive on the part of the arresting team cannot
simply validate, much more cure, the illegality of the arrest and consequent warrantless
search of accused-appellant. Neither can the presumption of regularity of performance of
function be invoked by an o cer in aid of the process when he undertakes to justify an
encroachment of rights secured by the Constitution.
7. ID.; ID.; ID.; IDENTITY OF CONFISCATED ITEMS RENDERED DOUBTFUL WHEN
NOT MARKED AT THE PLACE WHERE THEY WERE SEIZED; CASE AT BAR. — We entertain
doubts whether the items allegedly seized from accused-appellant were the very same
items presented at the trial of this case. The record shows that the initial eld test where
the items seized were identi ed as shabu, was only conducted at the PNP headquarters of
Angeles City. The items were therefore not marked at the place where they were taken. In
People v. Casimiro, we struck down with disbelief the reliability of the identity of the
confiscated items since they were not marked at the place where they were seized.

DECISION

YNARES-SANTIAGO , J : p

Accused-appellant Binad Sy Chua was charged with violation of Section 16, Article
III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession of ammunitions in
two separate Informations which read as follows:
Criminal Case No. 96-507 1
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 That on or about the 21st day of September 1996, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have in his
possession and under his control two (2) plastic bags containing
Methamphetamine Hydrochloride (SHABU) weighing more or less two (2) kilos
and one (1) small plastic bag containing Methamphetamine Hydrochloride
weighing more or less fteen (15) grams, which is a regulated drug, without any
authority whatsoever.

Criminal Case No. 96-513 2

That on or about the 21st day of September 1996, in the City of Angeles,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and feloniously have in his
possession and under his control twenty (20) pieces of live .22 cal. ammunitions,
without first having obtained a license or permit to possess or carry the same.

Accused-appellant pleaded "not guilty" on arraignment. The two cases were then
jointly tried.
The prosecution presented three (3) witnesses, all members of the police force of
Angeles City. Their testimonies can be synthesized as follows:
On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2
Emmeraldo Nunag received a report from their con dential informant that accused-
appellant was about to deliver drugs that night at the Thunder Inn Hotel in Balibago,
Angeles City. The informer further reported that accused-appellant distributes illegal drugs
in different karaoke bars in Angeles City. On the basis of this lead, the PNP Chief of
Angeles City, Col. Neopito Gutierrez, immediately formed a team of operatives composed
of Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag, PO2 Emmeraldo Nunag, SPO1
Fernando Go, and some civilian assets, with SPO2 Mario Nulud, as team investigator. The
group of SPO2 Nulud, PO2 Nunag and the civilian informer positioned themselves across
McArthur Highway near Bali Hai Restaurant, fronting Thunder Inn Hotel. The other group
acted as their back up.
At around 11:45 in the evening, their informer pointed to a car driven by accused-
appellant which just arrived and parked near the entrance of the Thunder Inn Hotel. After
accused-appellant alighted from the car carrying a sealed Zest-O juice box, SPO2 Nulud
and PO2 Nunag hurriedly accosted him and introduced themselves as police o cers. As
accused-appellant pulled out his wallet, a small transparent plastic bag with a crystalline
substance protruded from his right back pocket. Forthwith, SPO2 Nulud subjected him to
a body search which yielded twenty (20) pieces of live .22 caliber rearm bullets from his
left back pocket. When SPO2 Nunag peeked into the contents of the Zest-O box, he saw
that it contained a crystalline substance. SPO2 Nulud instantly con scated the small
transparent plastic bag, the Zest-O juice box, the twenty (20) pieces of .22 caliber rearm
bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud and the other
police operatives who arrived at the scene brought the con scated items to the o ce of
Col. Gutierrez at the PNP Headquarters in Camp Pepito, Angeles City. 3
When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags
containing crystalline substances. The initial eld test conducted by SPO2 Danilo Cruz at
the PNP Headquarters revealed that the seized items contained shabu. 4 Thereafter, SPO2
Nulud together with accused-appellant brought these items for further laboratory
examination to the Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After due
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 testing, forensic chemist S/Insp. Daisy Babor concluded that the crystalline substances
yielded positive results for shabu. The small plastic bag weighed 13.815 grams while the
two big plastic bags weighed 1.942 kilograms of shabu. 5
Accused-appellant vehemently denied the accusation against him and narrated a
different version of the incident.
Accused-appellant alleged that on the night in question, he was driving the car of his
wife to follow her and his son to Manila. He felt sleepy, so he decided to take the old route
along McArthur Highway. He stopped in front of a small store near Thunder Inn Hotel in
Balibago, Angeles City to buy cigarettes and candies. While at the store, he noticed a man
approach and examine the inside of his car. When he called the attention of the onlooker,
the man immediately pulled out a .45 caliber gun and made him face his car with raised
hands. The man later on identi ed himself as a policeman. During the course of the arrest,
the policeman took out his wallet and instructed him to open his car. He refused, so the
policeman took his car keys and proceeded to search his car. At this time, the police
o cer's companions arrived at the scene in two cars. PO2 Nulud, who just arrived at the
scene, pulled him away from his car in a nearby bank, while the others searched his car.
Thereafter, he was brought to the Salakot Police Station and was held inside a
bathroom for about fteen minutes until Col. Gutierrez arrived, who ordered his men to call
the media. In the presence of reporters, Col. Gutierrez opened the box and accused-
appellant was made to hold the box while pictures were being taken. 6
Wilfredo Lagman corroborated the story of the accused-appellant in its material
points. He testi ed that he witnessed the incident while he was conducting a routine
security check around the premises of the Guess Building, near Thunder Inn Hotel. 7
On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59,
rendered a decisions, 8 the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgment is hereby rendered as
follows:
1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions, the
accused is hereby acquitted of the crime charged for insu ciency of
evidence.

2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815 grams of

shabu, accused Binad Sy Chua is found GUILTY beyond reasonable doubt
of the crime charge and is hereby sentenced to suffer the penalty of
reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos.
SO ORDERED. 9

Hence, the instant appeal where accused-appellant raised the following errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:

A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS LAWFUL;

B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT CONFISCATION OF
SHABU ALLEGEDLY FOUND ON HIM WERE CONDUCTED IN A LAWFUL
AND VALID MANNER;
C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED IS
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 SUFFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT
BEYOND REASONABLE DOUBT. 1 0

Accused-appellant maintains that the warrantless arrest and search made by the
police operatives was unlawful; that in the light of the testimony of SPO2 Nulud that prior
to his arrest he has been under surveillance for two years, there was therefore no
compelling reason for the haste within which the arresting o cers sought to arrest and
search him without a warrant; that the police o cers had su cient information about him
and could have easily arrested him. Accused-appellant further argues that since his arrest
was null and void, the drugs that were seized should likewise be inadmissible in evidence
since they were obtained in violation of his constitutional rights against unreasonable
search and seizures and arrest.
Accused-appellant's argument is impressed with merit.
Although 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
rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard
to the credibility of witnesses deserves the utmost respect, if not nality, for the
reason that the trial judge has the prerogative, denied to appellate judges, of
observing the demeanor of the declarants in the course of their testimonies. The
only exception is if 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. 1 1

In the case at bar, there appears on record some facts of weight and substance that
have been overlooked, misapprehended, or misapplied by the trial court which casts doubt
on the guilt of accused-appellant. An appeal in a criminal case opens the whole case for
review and this includes the review of the penalty and indemnity imposed by the trial court.
1 2 We are clothed with ample authority to review matters, even those not raised on appeal,
if we nd that their consideration is necessary in arriving at a just disposition of the case.
Every circumstance in favor of the accused shall be considered. 1 3 This is in keeping with
the constitutional mandate that every accused shall be presumed innocent unless his guilt
is proven beyond reasonable doubt.
First, with respect to the warrantless arrest and consequent search and seizure
made upon accused-appellant, the court a quo made the following findings:
Accused was searched and arrested while in possession of regulated drugs
(shabu). A crime was actually being committed by the accused and he was
caught in agrante delicto. Thus, the search made upon his personal effects . . .
allow a warrantless search incident to a lawful arrest. . . .
While it is true that the police o cers were not armed with a search
warrant when the search was made over the personal affects (sic) of the accused,
however, under the circumstances of the case, there was su cient probable
cause for said o cers to believe that accused was then and there committing a
crime.
xxx xxx xxx
In the present case, the police received information that the accused will
distribute illegal drugs that evening at the Thunder Inn Hotel and its vicinities. The
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 police o cer had to act quickly and there was no more time to secure a search
warrant. The search is valid being akin to a "stop and frisk". 1 4

A thorough review of the evidence on record belies the ndings and conclusion of
the trial court. It confused the two different concepts of a search incidental to a lawful
arrest (in flagrante delicto) and of a "stop-and-frisk."
I n Malacat v. Court of Appeals, 1 5 we distinguished the concepts of a "stop-and-
frisk" and of a search incidental to a lawful arrest, to wit:
At the outset, we note that the trial court confused the concepts of a "stop-
and-frisk" and of a search incidental to a lawful arrest. These two types of
warrantless searches differ in terms of the requisite quantum of proof before they
may be validly effected and in their allowable Scope.
In a search incidental to a lawful arrest, as the precedent arrest determines
the validity of the incidental search, the legality of the arrest is questioned in a
large majority of these cases, e.g., whether an arrest was merely used as a pretext
for conducting a search. In this instance, the law requires that there rst be arrest
before a search can be made—the process cannot be reversed. At bottom,
assuming a valid arrest, the arresting o cer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in
the commission of the crime, or the fruit of the crime, or that which may be used
as evidence, or which might furnish the arrestee with the means of escaping or
committing violence.
xxx xxx xxx
We now proceed to the justification for and allowable scope of a "stop-and-
frisk" as a "limited protective search of outer clothing for weapons," as laid down
in Terry, thus:
We merely hold today that where a police o cer observes
unusual conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior he
identi es himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety, he is entitled
for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.
Such a search is a reasonable search under the Fourth amendment.
Other notable points of Terry are that while probable cause is not required
to conduct a "stop-and-frisk," it nevertheless holds that mere suspicion or a hunch
will not validate a "stop-and-frisk." A genuine reason must exist, in light of the
police o cer's experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. Finally, a "stop-and-frisk"
serves a two-fold interest: (1) the general interest of effective crime prevention
and detection, which underlies the recognition that a police o cer may, under
appropriate circumstances and in an appropriate manner, approach a person for
purposes of investigating possible criminal behavior even without probable
cause; and (2) the more pressing interest of safety and self-preservation which
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 permit the police o cer 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. 1 6 (Emphasis ours)

In the case at bar, neither the in flagrante delicto nor the "stop and frisk" principles is
applicable to justify the warrantless arrest and consequent search and seizure made by
the police operatives on accused-appellant.
In in agrante delicto arrests, the accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence of
the arresting o cer. Emphasis should be laid on the fact that the law requires that the
search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful arrest must
precede the search of a person and his belongings. 1 7 Accordingly, for this exception to
apply two elements 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. 1 8
We nd the two aforementioned elements lacking in the case at bar. The record
reveals that when accused-appellant arrived at the vicinity of Thunder Inn Hotel, he merely
parked his car along the McArthur Highway, alighted from it and casually proceeded
towards the entrance of the Hotel clutching a sealed Zest-O juice box. Accused-appellant
did not act in a suspicious manner. For all intents and purposes, there was no overt
manifestation that accused-appellant has just committed, is actually committing, or is
attempting to commit a crime.
However, notwithstanding the absence of any overt act strongly manifesting a
violation of the law, the group of SPO2 Nulud "hurriedly accosted" 1 9 accused-appellant
and later on "introduced themselves as police officers." 2 0 Accused-appellant was arrested
before the alleged drop-off of shabu was done. Probable cause in this case was more
imagined than real. Thus, there could have been no in flagrante delicto arrest preceding the
search, in light of the lack of an overt physical act on the part of accused-appellant that he
had committed a crime, was committing a crime or was going to commit a crime. As
applied to in agrante delicto arrests, it has been held that "reliable information" alone,
absent any overt act indicative of a felonious enterprise in the presence and within the view
of the arresting o cers, is not su cient to constitute probable cause that would justify an
in agrante delicto arrest. 2 1 Hence, in People v. Aminnudin, 2 2 we ruled that "the accused-
appellant was not, at the moment of his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication that called for his
arrest. To all appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him as the carrier
of the marijuana that he suddenly became suspect and so subject to apprehension"
(Emphasis supplied).
The reliance of the prosecution in People v. Tangliben 2 3 to justify the police's
actions is misplaced. In the said case, based on the information supplied by informers,
police o cers conducted a surveillance at the Victory Liner Terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also on those
who may be engaged in the tra c of dangerous drugs. At 9:30 in the evening, the
policemen noticed a person carrying a red travelling bag who was acting suspiciously.
They confronted him and requested him to open his bag but he refused. He acceded later
on when the policemen identi ed themselves. Inside the bag were marijuana leaves
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 wrapped in a plastic wrapper. The police o cers only knew of the activities of Tangliben
on the night of his arrest.
In the instant case, the apprehending policemen already had prior knowledge from
the very same informant of accused-appellant's activities. No less than SPO2 Mario Nulud,
the team leader of the arresting operatives, admitted that their informant has been telling
them about the activities of accused-appellant for two years prior to his actual arrest on
September 21, 1996. An excerpt of the testimony of SPO2 Mario Nulud reveals the
illegality of the arrest of accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to you the name of this chinese
drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
Q. And he had been mentioning these names to you even before September 21,
1996?
A. Yes, sir.
Q. How long did this civilian informant have been telling you about the activities
of this chinese drug pusher reckoning in relation to September 21, 1996?
A. That was about two years already.
Q. Notwithstanding his two years personal knowledge which you gained from the
civilian informant that this chinese drug pusher have been engaged
pushing drugs here in Angeles City, you did not think of applying for a
search warrant for this chinese drug pusher?
A. No, sir.
xxx xxx xxx
Q. When you accosted this Binad Chua, he was casually walking along the road
near the Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese drug pusher
that will deliver to him also.
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the accused in this
case he alighted with a Corolla car with plate number 999, I think, he just
alighted when you saw him?
A. Yes, sir.
Q. From the car when he alighted, he casually walked towards near the entrance
of the Thunder Inn Hotel?
A. He was about to proceed towards Thunder Inn Hotel but he was pinpointed
already by the civilian informer.
Q. But he was just walking towards the entrance of the Thunder Inn Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
xxx xxx xxx

Q. While he was walking, then you and PO2 Nunag pounced on him as you used
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 pounced on him in your affidavit?
A. Yes, sir.
xxx xxx xxx
Q. And you pounced on Jojo Chua before you saw that alleged small plastic bag,
is that correct?
A. Yes, sir.

Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
xxx xxx xxx
Q. But would you agree with me that not all crystalline substance is shabu?
A. No, that is shabu and it is been a long time that we have been tailing the
accused that he is really a drug pusher.
Q. So you have been tailing this accused for quite a long time that you are very
sure that what was brought by him was shabu?
A. Yes, sir. 2 4

The police operatives cannot feign ignorance of the alleged illegal activities of
accused-appellant. Considering that the identity, address and activities of the suspected
culprit was already ascertained two years previous to the actual arrest, there was indeed
no reason why the police o cers could not have obtained a judicial warrant before
arresting accused-appellant and searching his person. Whatever information their civilian
asset relayed to them hours before accused-appellant's arrest was not a product of an "on
the-spot" tip which may excuse them from obtaining a warrant of arrest. Accordingly, the
arresting team's contention that their arrest of accused-appellant was a product of an "on-
the-spot" tip is untenable.
In the same vein, there could be no valid "stop-and-frisk" in this case. A stop-and-
frisk was de ned as the act of a police o cer to stop a citizen on the street, interrogate
him, and pat him for weapon(s) 2 5 or contraband. The police o cer should properly
introduce himself and make initial inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the latter's outer clothing for possibly
concealed weapons. 2 6 The apprehending police o cer must have a genuine reason, in
accordance with the police o cer's experience and the surrounding conditions, to warrant
the belief that the person to be held has weapons (or contraband) concealed about him. 2 7
It should therefore be emphasized that a search and seizure should precede the arrest for
this principle to apply. 2 8
This principle of "stop-and-frisk" search was invoked by the Court in Manalili v. Court
of Appeals. 2 9 In said case, the policemen chanced upon the accused who had reddish
eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, we upheld
the validity of the search as akin to a "stop-and-frisk." In People v. Solayao, 3 0 we also
found justi able reason to "stop-and-frisk" the accused after considering the following
circumstances: the drunken actuations of the accused and his companions, the fact that
his companions ed when they saw the policemen, and the fact that the peace o cers
were precisely on an intelligence mission to verify reports that armed persons where
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 roaming the vicinity.
The foregoing circumstances do not obtain in the case at bar. There was no valid
"stop-and-frisk" in the case of accused-appellant. To reiterate, accused-appellant was rst
arrested before the search and seizure of the alleged illegal items found in his possession.
The apprehending police operative failed to make any initial inquiry into accused-
appellant's business in the vicinity or the contents of the Zest-O juice box he was carrying.
The apprehending police o cers only introduced themselves when they already had
custody of accused-appellant. Besides, at the time of his arrest, accused-appellant did not
exhibit manifest unusual and suspicious conduct reasonable enough to dispense with the
procedure outlined by jurisprudence and the law. There was, therefore, no genuine
reasonable ground for the immediacy of accused-appellant's arrest.
Obviously, the acts of the police operatives wholly depended on the information
given to them by their con dential informant. Accordingly, before and during that time of
the arrest, the arresting o cers had no personal knowledge that accused-appellant had
just committed, was committing, or was about to commit a crime.
At any rate, even if the fact of delivery of the illegal drugs actually occurred, accused-
appellant's warrantless arrest and consequent search would still not be deemed a valid
"stop-and frisk". For a valid "stop-and frisk" the search and seizure must precede the arrest,
which is not so in this case. Besides, as we have earlier emphasized, the information about
the illegal activities of accused-appellant was not unknown to the apprehending o cers.
Hence, the search and seizure of the prohibited drugs cannot be deemed as a valid "stop-
and-frisk".
Neither can there be valid seizure in plain view on the basis of the seized items found
in accused-appellant's possession. First, there was no valid intrusion. Second, the
evidence, i.e., the plastic bags found in the Zest-O juice box which contained crystalline
substances later on identi ed as methamphetamine hydrochloride ( shabu) and the 20
rounds of .22 caliber ammunition, were not inadvertently discovered. The police o cers
rst arrested accused-appellant and intentionally searched his person and peeked into the
sealed Zest-O juice box before they were able to see and later on ascertain that the
crystalline substance was shabu. There was no clear showing that the sealed Zest-O juice
box accused-appellant carried contained prohibited drugs. Neither were the small plastic
bags which allegedly contained crystalline substance and the 20 rounds of .22 caliber
ammunition visible. These prohibited substances were not in plain view of the arresting
officers; hence, inadmissible for being the fruits of the poisonous tree.
In like manner, the search cannot be categorized as a search of a moving vehicle, a
consented warrantless search, or a customs search. It cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of any such showing.
All told, the absence of ill-motive on the part of the arresting team cannot simply
validate, much more cure, the illegality of the arrest and consequent warrantless search of
accused-appellant. Neither can the presumption of regularity of performance of function
be invoked by an o cer in aid of the process when he undertakes to justify an
encroachment of rights secured by the Constitution. 3 1 In People v. Nubla, 3 2 we clearly
stated that:
The presumption of regularity in the performance of official duty cannot be
used as basis for a rming accused-appellant's conviction because, rst, the
presumption is precisely just that — a mere presumption. Once challenged by
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 evidence, as in this case, . . . [it] cannot be regarded as binding truth. Second, the
presumption of regularity in the performance of o cial functions cannot
preponderate over the presumption of innocence that prevails if not overthrown
by proof beyond reasonable doubt.

Furthermore, we entertain doubts whether the items allegedly seized from accused-
appellant were the very same items presented at the trial of this case. The record shows
that the initial eld test where the items seized were identi ed as shabu, was only
conducted at the PNP headquarters of Angeles City. 3 3 The items were therefore not
marked at the place where they were taken. In People v. Casimiro, 3 4 we struck down with
disbelief the reliability of the identity of the con scated items since they were not marked
at the place where they were seized, thus:
The narcotics eld test, which initially identi ed the seized item as
marijuana, was likewise not conducted at the scene of the crime, but only at the
narcotics o ce. There is thus reasonable doubt as to whether the item allegedly
seized from accused-appellant is the same brick of marijuana marked by the
policemen in their headquarters and given by them to the crime laboratory.

The government's drive against illegal drugs needs the support of every citizen. But
it should not undermine the fundamental rights of every citizen as enshrined in the
Constitution. The constitutional guarantee against warrantless arrests and unreasonable
searches and seizures cannot be so carelessly disregarded as overzealous police o cers
are sometimes wont to do. Fealty to the constitution and the rights it guarantees should
be paramount in their minds, otherwise their good intentions will remain as such simply
because they have blundered. The criminal goes free, if he must, but it is the law that sets
him free. Nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter of its own existence. 3 5
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of
Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-513, convicting accused-
appellant Binad Sy Chua of violation of Section 16, Article III, Republic Act No. 6425 and
sentencing him to suffer the penalty of reclusion perpetua and to pay a ne of
P1,000,000.00, is REVERSED and SET ASIDE. Accused-appellant Binad Sy Chua is
ACQUITTED on the ground of reasonable doubt. Consequently, he is ordered forthwith
released from custody, unless he is being lawfully held for another crime.
SO ORDERED.
Davide, Jr., C.J., Vitug, Carpio and Azcuna, JJ., concur.

Footnotes
1. Records, Volume 1, p. 1.

2. Ibid., p. 12.
3. TSN, January 7, 1998, pp. 4-10; TSN, April 21, 1998, pp. 5-9.

4. TSN, April 21, 1998, pp. 9-10.

5. Records, Vol. 2, p. 306.

6. TSN, July 2, 1998, pp. 3-8.

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 7. TSN, August 5, 1998, pp. 5-19.
8. Penned by Judge Eliezer R. De Los Santos now Associate Justice of the Court of Appeals.

9. Rollo, p. 26.
10. Ibid., pp. 40-41.

11. People v. Alvarado, G.R. No. 145730, March 19, 2002, citing People v. De Los Santos, 355
SCRA 301 (2001); People v. Osing, 349 SCRA 310 (2001).
12. People v. Leones, G.R. Nos. 128514 & 143856-61, October 3, 2001.

13. People v. Manambit, 271 SCRA 344, 385-386 (1997), citing Heirs of Crisanta Y. Gabriel-
Almoradie v. CA, 229 SCRA 15 (1994) and People v. Villagracia, 226 SCRA 374,
381(1993).
14. Rollo, pp. 470, 473-474; RTC Decision, pp. 7, 10-11.

15. 283 SCRA 159 (1997).

16. Ibid., pp. 175-177.

17. People v. Aruta, 288 SCRA 626, 643 (1998).

18. Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria, 301 SCRA 668,
720(1999).
19. TSN, January 7, 1998, p. 8.

20. Ibid.

21. People v. Molina, 352 SCRA 174, 183 (2001).

22. 163 SCRA 402, 409-410 (1988).

23. 184 SCRA 220, 221-222 (1990).

24. TSN, January 27, 1998, pp. 8-13.

25. Manalili v. CA, 280 SCRA 400, 411 (1997).

26. Concurring Opinion of Justice Artemio Panganiban in People v. Doria, 301 SCRA 668, 729
(1999).

27. Malacat v. CA, supra, p. 177.

28. Posadas v. CA, 188 SCRA 288, 292 (1990).

29. 280 SCRA 400 (1997).

30. 262 SCRA 255 (1996).

31. People v. Salanguit, 356 SCRA 683, 702 (2001), citing Nolasco v. Paño, 139 SCRA 152
(1985).

32. G.R. No. 129376, May 29, 2002, citing People v. Ruiz, G.R. Nos. 135679 and 137375,
October 10, 2001.
33. TSN, January 7, 1998, pp. 10-12.

34. G.R. No. 146277, June 20, 2002.

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 35. People v. Sagaysay, 308 SCRA 432, 454 (1999).

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