ALVIN COMERCIANTE y GONZALES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent

FACTS:

 On July 31, 2003, an Information was filed before the RTC charging Comerciante of violation of
Section 11, Article II of RA 9165.
 That on the 30th day of July 2003, in the City of Mandaluyong, the Comerciante not having been
lawfully authorized to possess any dangerous drugs, did then and there willfully, unlawfully and
feloniously and knowingly have in his possession, custody and control Two (2) heat-sealed
transparent plastic sachet (sic) each containing 0.15 gram (sic) and 0.28 gram (sic) of white
crystalline substance with a total of 0.43 grams which was found positive to the test for
Methamphetamine Hydrochloride commonly known as "shabu", a dangerous drug.
 According to the prosecution, at around 10 o'clock in the evening of July 30, 2003, Agent
Eduardo Radan (Agent Radan) of the NARCOTICS group and P03 Bienvy Calag II (P03 Calag) were
aboard a motorcycle, patrolling the area while on their way to visit a friend at Private Road,
Barangay Hulo, Mandaluyong City.
 Cruising at a speed of 30 kilometers per hour along Private Road, they spotted, at a distance of
about 10 meters, two (2) men - later identified as Comerciante and a certain Erick Dasilla 7
(Dasilla) - standing and showing "improper and unpleasant movements," with one of them
handing plastic sachets to the other. Thinking that the sachets may contain shabu, they
immediately stopped and approached Comerciante and Dasilla At a distance of around five (5)
meters, P03 Calag introduced himself as a police officer, arrested Comerciante and Dasilla, and
confiscated two (2) plastic sachets containing white crystalline substance from them.
 A laboratory examination confirmed that said sachets contained methamphetamine
hydrochloride or shabu.
 Dasilla filed a demurrer to evidence, which was granted by the RTC, thus his acquittal. However,
due to Comerciante's failure to file his own demurrer to evidence, the RTC considered his right
to do so waived and ordered him to present his evidence.
 In his defense, Comerciante averred that P03 Calag was looking for a certain "Barok", who was a
notorious drug pusher in the area, when suddenly, he and Dasilla, who were just standing in
front of a jeepney along Private Road, were arrested and taken to a police station. There, the
police officers claimed to have confiscated illegal drugs from them and were asked money in
exchange for their release. When they failed to accede to the demand, they were brought to
another police station to undergo inquest proceedings, and thereafter, were charged with illegal
possession of dangerous drugs.
 The RTC found Comerciante guilty beyond reasonable doubt of violation of Section 11, Article II
of RA 9165. The RTC found that P03 Calag conducted a valid warrantless arrest on Comerciante,
which yielded two (2) plastic sachets containing shabu.
 The CA affirmed Comerciante's conviction. It held that P03 Calag had probable cause to effect
the warrantless arrest of Comerciante, given that the latter was committing a crime in flagrante
delicto; and that he personally saw the latter exchanging plastic sachets with Dasilla. According
to the CA, this was enough to draw a reasonable suspicion that those sachets might be shabu,
and thus, P03 Calag had every reason to inquire on the matter right then and there.
ISSUE:

1. Whether or not the CA correctly affirmed Comerciante’s Conviction.

RULING:

1. No. The CA erred because there was no lawful arrest.

(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.

For a warrantless arrest under Section 5(a) to operate, two (2) elements must concur, namely:
(a) 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 (b) such overt act is done in the
presence or within the view of the arresting officer. On the other hand, Section 5(b) requires for
its application that at the time of the arrest, an offense had in fact just been com mitted and the
arresting officer had personal knowledge of facts indicating that the accused had committed it.
In both instances, the officer’s personal knowledge of the fact of the commission of an offense is
absolutely required. Under Section 5(a), the officer himself witnesses the crime; while in Section
5(b), he knows for a fact that a crime has just been committed.

The Court finds respondent’s assertion that there was a valid “stop and frisk” search made on
Comerciante untenable. In People v. Cogaed, 731 SCRA 427 (2014), the Court had an opportunity to
exhaustively explain “stop and frisk” searches: “Stop and frisk” searches (sometimes referred to as Terry
searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to
prevent the commission of offenses. However, this should be balanced with the need to protect the
privacy of citizens in accordance with Article III, Section 2 of the Constitution. The balance lies in the
concept of “suspiciousness” present where the police officer finds himself or herself in. This may be
undoubtedly based on the experience of the 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. x x x x 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 adopting the “stop and frisk” doctrine in Philippine
jurisprudence, this court approximated the suspicious circumstances as probable cause: The probable
cause is that when the petitioner acted suspiciously and attempted to flee with the buri bag there was a
probable cause that he was concealing something illegal in the bag and it was the right and duty of the
police officers to inspect the same. For warrantless searches, probable cause was defined as “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.”

Therefore, the CA erred because there was neither a valid warrantless arrest nor a valid "stop
and frisk" search made on Comerciante. As such, the shabu purportedly seized from him is rendered
inadmissible in evidence for being the proverbial fruit of the poisonous tree. Since the confiscated shabu
is the very corpus delicti of the crime charged, Comerciante must necessarily be acquitted and
exonerated from all criminal liability.